July 25 Hearing

Page 2, Evidentiary Hearing Transcript, July 25, 2016

PLAINTIFF’S COUNSEL: Good morning, Your Honor. Kyle Smith on behalf of plaintiff
Cara Barber who is also on the phone.
THE COURT: Good morning.
DEFENSE COUNSEL: Good morning, Your Honor. Randy Whattoff for defendants.
THE COURT: Good morning.
MS. MUNGER: Lisa Munger as well for the defendants.
THE COURT: Good morning. And, Ms. Barber, you're on the telephone?
MS. BARBER: Yes, Your Honor.
THE COURT: Okay. Let's hear from the defendants on their motion.
DEFENSE COUNSEL: Good morning, Your Honor.
After nearly two years of contentious litigation, the parties entered into a settlement
agreement to finally resolve this matter. During the settlement process, plaintiffs
made clear that they wanted to retain the ability to have discussions with the
Department of Health or other residents if plaintiffs believed there were
continuing issues impacting the base[CB1]. But defendants would only agree to a
settlement if there was some limit on plaintiffs' conduct.
May 2006 news article in which
Dr. Walter Chun reports
contamination levels in MCBH family
housing are approximately 20 times
The limits the parties ultimately agreed to were undoubtedly reasonable. Plaintiffs higher than EPA safety
could not disclose the terms of the settlement agreement, plaintiffs could not recommendations. Dr. Chun informed
make false or defamatory statements, and plaintiffs could not participate in the public years before Ms. Barber
future lawsuits against defendants. These are not onerous or restrictive terms. shared this information.

Nevertheless, Ms. Barber's conduct has trampled on that. In our reply brief, we tried to focus on some of the most egregious
breaches of the settlement agreement. And I'll try to do the same here, Your Honor.
First, in Ms. Barber's blog entries websites and Facebook page, she repeatedly claims that it is an established
fact that current pesticide levels at Marine Corps Base Hawaii
remain at least 20 times higher[CB2] than the EPA's
recommendations. That is an utterly false statement.
In the neighborhoods redeveloped by defendants, the soil from around
all of the homes was removed and replaced regardless of whether it
tested positive for any pesticides. There are detailed documents that
catalogue this process. The soil closure reports[CB3] that we
submitted specifically catalogue how much soil was removed
from every single building on a building by building basis and
where the soil was placed afterwards. Excerpt from letter the Hawaii Department of Health
(HDOH) sent to Dr. Chun on October 1, 2014 advising
HDOH states they cannot approve or disapprove
Defendants’ alleged soil remediation actions.
Page 4, Evidentiary Hearing Transcript, July 25, 2016
In their opposition, Ms. Barber argues that despite this evidence it is still theoretically possible that pesticides
exist around some of the homes at MCBH because no one has come back and performed confirmation
samplings[CB4].
There are two fundamental problems with that argument, Your Honor. First, there is no reasonable basis for it. The sole
substantive document submitted by plaintiff in their opposition is a letter from the Department of
Health[CB5]. And that letter states, quote, no evidence that OMC's actions were not effective or that pesticides are present
in surface soils at unacceptable levels in OMC house neighborhoods.

Page 1 of 16
But for purposes of this motion, the even bigger problem with Ms. Barber's
current position it is simply not what Ms. Barber stated on her blogs or
website. Ms. Barber does not state on her blog that despite the
closure reports documenting the removal of the soil, it might be
possible that the soils could still be 20 times higher than EPA
safety recommendations, if those closure reports were not
correct[CB6].
Ms. Barber states it is presently known that there is such
contamination levels at Marine Corps Base Hawaii. That is false, and
that is a very damaging statement, because Ms. Barber is telling her
hundreds of followers that there are current health issues on base.
The next breach I want to mention is Ms. Barber's claim that
Comparison of Tier 2 EALs Defendants proposed in
defendants refused to undertake the, quote, incredibly costly 2006 & 2014. HDOH approved original Tier 2 EALs
proposition of having to remove 18 inches of highly contaminated proposed in March 2007, meaning contamination
top soil and subsequently replacing it with clean soil. In their levels should have been reduced to at or below their
opposition, plaintiffs appear to admit that defendants did in fact remove original Tier 2 EALs. However, iIn February 2014,
after completing all planned remediation,
18 inches of soil from around and underneath the homes[CB7]. However, Defendants asked HDOH to approve much higher
Ms. Barber contends that what she really meant by her statement Tier 2 EALs. HDOH did NOT approve Defendants’
was that pesticide impacted soils were not removed from Marine 2014 Tier 2 EALs or PLAN!
Corps Base Hawaii. Instead, they were buried in pits below the
existing homes.
This attempt to reinterpret her earlier blog post does not hold
up to even the most superficial scrutiny, Your Honor. For instance, in
Exhibit S, page 21, which is just one of the numerous posts where she
makes these statements, Ms. Barber states, quote, to insure new
housing in neighborhoods developed were safe for military families,
18 inches of highly contaminated top soil needed to be removed from
these neighborhoods spanning hundreds of acres. And all the soil
removed had to be replaced with clean fill before thousands of new
homes could be built. Apparently FCOMC deemed this means of
resolution to the contamination problem too costly and time-
consuming as it would have cost tens of millions of dollars and likely
cause significant project delays.
It is clear from this statement that what Ms. Barber is claiming is
the defendants did not want to undergo the, quote, incredibly Facebook post sharing +/-40 undisclosed, toxic soil burial
costly approach of removing 18 inches of soil from around the pits throughout one (1) MCBH neighborhood
homes and instead petitioned the Department of Health for
higher levels[CB8].

Page 6, Evidentiary Hearing Transcript, July 25, 2016

There is no mention of onsite versus offsite burials[CB9]. That's not
mentioned in connection with these statements, it's not mentioned
anywhere in her blog posts. So this attempt to rewrite the blog post does not hold
up, Your Honor. Again, these are highly damaging claims because Ms. Barber is
claiming that there are present ongoing issues at the base.
The final breach I want to mention this morning, Your Honor, is Ms. Barber's claim
that defendants refused to conduct confirmation sampling[CB10] at Marine
Corps Base Hawaii. And this issue touches on some of the settlement
discussions that were -- took place between the parties. And that's one of
the things that's been sealed in this matter. I think the only individual in the
court right now is a member of the court; is that right?
THE COURT: Correct.
From Defendants' Exhibit 6, Plaintiff
DEFENSE COUNSEL: We will continue then, Your Honor, with that request that Barber's Military Families Deserve Safe
these portions of the record be sealed. Housing site

Page 2 of 16
THE COURT: Okay. So going forward, you want to seal the portions that we are
talking about right now; that's what you're saying?
DEFENSE COUNSEL: That's correct, Your Honor.
THE COURT: Mr. Smith?
PLAINTIFF’S COUNSEL: Your Honor, for the record, we do object to
sealing[CB11] any portion of the transcript from today's proceedings as
well as the actual brief filed today. And there is really a --
THE COURT: Wait. Wait. You mean the actual brief filed today?

PLAINTIFF’S COUNSEL: Pardon me, the reply that was filed under the new
ex parte request to seal defendants' reply pleading as well. Certainly, for
the purpose of the transcript today and the hearing today, we object to it being
sealed. And the reason is because the justification for this motion changes
between the motion to the reply. It's now clear that the defendants seek
to use this hearing to bar us from representing hundreds of additional
military families[CB12]. And so it's important for us to be able to talk to our other
clients to explain what this challenge is and where it's coming from and whether or
not it's justified or unjustified and how to respond. So the content-
THE COURT: Well, until this Court makes a decision, I don't believe this is
something you need to be discussing with other clients.
PLAINTIFF’S COUNSEL: I recognize that, Your Honor. But obviously our
clients would be and are interested, if there is a challenge being made,
where they are going to disqualify us on the basis of this hearing.
THE COURT: Well, we aren't reaching that, and I don't think that that really is what
the sealing is about. You may have an interest in terms of representing other clients,
but the sealing has to do with what was discussed in the settlement and which
you've already agreed to keep confidential. So why would I now not allow it to
remain confidential?

Page 8, Evidentiary Hearing Transcript, July 25, 2016

PLAINTIFF’S COUNSEL: Your Honor, for the content of the specific
settlement agreement we don't have an objection to sealing that, specific
portions. It's the larger context of how this impacts other military families
on base. And so a whole --
THE COURT: We aren't clear how this is going to come out, Mr. Smith.
PLAINTIFF’S COUNSEL: I understand.
THE COURT: And your wanting to have it public predetermines that it will be
something that is able to be discussed. And that's putting the cart before the horse.
While we are discussing what this settlement agreement that was supposed to be
confidential is doing, it would be inappropriate for us to allow you to discuss it with
other people.
PLAINTIFF’S COUNSEL: Your Honor, I don't disagree. Likewise, deciding exactly
whether and what portions to seal would be, until Your Honor makes the decision
so we can see how it impacts it, that's -- I think that's the point. It shouldn't just
be a blanket sealing of the transcript[CB13] -- Letter the Hawaii Department of Health
(HDOH) sent Dr. Chun on October 1, 2014
THE COURT: Well, we haven't sealed it up until now. And he's talking about sealing discussing the status of hazardous soils &
a portion; correct, Mr. Whattoff? Defendants’ UNSUPPORTED claims of
remediation in MCBH family housing.

Page 3 of 16
DEFENSE COUNSEL: Yes, Your Honor, a short
portion. I just want to address the third breach.
THE COURT: Okay. Mr. Smith, maybe it's best that
you understand that this case is about whether or not
the confidentiality has been breached as well as
whether there has been disparagement and
defamation. And while we are discussing this, you
agreed to the confidentiality. So you're not in a
position at this point to say, Gee, I need to tell my
other clients about this. So we are going to seal this
for these portions, and your objection is overruled.
Go ahead Mr. Whattoff.
(Sealed proceedings transcribed under
separate cover.)
Chart representing the number of MCBH & Pearl Harbor Housing Issues
***
Facebook posts Ms. Barber posted each month, proving Defendants’ allegation
DEFENSE COUNSEL: Thank you, Your Honor. The that Ms. Barber started a “new campaign” is absolutely FALSE.
final issue I want to address this morning is the remedy that is being sought in this motion. Defendants have sought
to address Ms. Barber's breaches via a two-step process.
First, defendants moved for a preliminary injunction requiring Ms. Barber to remove her posts from May and
June 2016[CB14]. This is not a mandatory injunction, as Ms. Barber alleges, because it does not require any
continuing monitoring from the court. It is also not a prior restraint on speech.
The posts that are the subject of this injunction have already been made, and the Court is able to concretely
analyze whether or not they violate the settlement agreement.
The second step of the process proposed by defendants is for the Court to issue
an order to show cause regarding sanctions. The sanctions issue would be
decided at a second hearing where defendants have requested the opportunity
to examine Ms. Barber on these issues. Ms. Barber's attorneys have strongly
objected when we have suggested that such sanctions should include their
disqualification from representing the new clients[CB15] that they have
obtained as a result of Ms. Barber's web postings and their coordinated solicitation
attempts.
Let me quickly summarize the facts that we now know. Ms. Barber began her new
campaign[CB16] on May 3rd, 2016. Just six days later, the Smith and Revere
law firms sent a mass mail solicitation letter to former and current Marine
Corps Base Hawaii residents. As far as we can tell, the mass mailing did not
indicate that it was advertising material in any way.
Instead, the letter told residents, quote, we believe that military families living at
MCBH from 2006 to at least 2014 have a valid legal claims for return of their basic
allowance for housing because of Forest City's failure to adequately disclose pesticide
contamination at MCBH, which is why we filed this case as a class action . The letter
further tells individuals that they must act quickly.
In support of the solicitation letter[CB17], Ms. Barber stepped up from this
information campaign, immediately after the letter was sent, making
numerous, lengthy posts that are the subject of this preliminary injunction
motion. Ms. Barber's posts told the individuals that received the
solicitation letters that defendants had committed egregious bad acts. Ms.
Barber also posted the solicitation letter to her followers and implored
them to contact the Smith and Revere law firms[CB18]. She repeatedly
posted the contact information for the Smith and Revere law firms. She
posted the attorneys' travel schedules and who to contact at what times.
And she insinuated that any former -- that all or any former resident had to do
was sign up with the Smith and Revere law firms and they could obtain
Notification letter Ms. Barber’s
significant compensation from defendants[CB19]. attorneys sent to MCBH families per
their requests to be kept informed.

Page 4 of 16
In tandem, the attorney solicitation letters and Ms. Barber's social media
campaign worked to drive 101 current and former lessees[CB20] to sign up
with the Smith and Revere law firms and submit cookie-cutter claims
against defendants. At the earlier conference, the Court asked us whether we were
seeking damages against Ms. Barber's attorneys at that time. And we responded
that we did not believe we had sufficient evidence to support damages
against the attorneys at the time we initially submitted the preliminary
injunction motion, but that we would likely be seeking disqualification.

Page 12, Evidentiary Hearing Transcript, July 25, 2016

Now, we think the case for disqualification is clear. And we think what cements
that conclusion is the number of new claimants who have a direct link to Ms.
Barber's social media accounts. So far we have found that 22 of the 101
claimants are individuals who directly interacted with Ms. Barber on
Facebook. We believe this is just a small fraction of the claimants who were influenced
by Ms. Barber's misleading postings because it does not count the hundreds of
individuals who passively follow Ms. Barber or those who view her Facebook and blog
without actively following it or commenting on it.
With these new facts, we believe the causal link between Ms. Barber's misconduct and
the new claims is established. And the only remedy that could possibly address
this misconduct is disqualification[CB21]. We of course defer to the Court on
whether it believes further hearing on these issues should take place.
I did have one more point to make, Your Honor, and that's with regard to the new
authorities that were submitted to the Court this morning. There was an e-
mail that was sent by plaintiffs' counsel containing new arguments in it. That
e-mail was a clear violation of local rule 7.8 which requires that any additional
authorities be submitted at least four days before the hearing. It also requires that the
only comment that can be provided with any additional authorities are a short
parenthetical.
We can respond to some of those additional authorities this morning if Your Honor A February 2014 Facebook post by Ms.
would like. We have not had a chance to read them all, but I think that we can address Barber, proving families have been
requesting her attorneys’ contact info
the substance of them; but I'd defer to Your Honor on whether you think that's & she has been providing the same for
necessary. years. In fact, her attorneys hosted this
Community Meeting for MCBH families
THE COURT: Not at this time. in March 2014.

DEFENSE COUNSEL: Thank you, Your Honor.

THE COURT: Thank you. Let's handle some of the preliminary matters. One thing that I want to be clear about, and maybe
there's no confusion, but I did get a sense that there might be some confusion. The six months of retained jurisdiction
means that, during that period of time, issues with respect to the settlement could be brought to the Court's attention and
the case would be reopened. There is no limit on the amount of time the Court would keep the case open. The six months
was only a window in which either party could point out something they were concerned about. So there isn't any limit in
terms of dealing with questions about this. The case is now back before the Court[CB22].
Now, the second thing is, Mr. Smith, you have not complied with local rule 7.8. You sent an e-mail, I don't know if you have
filed it yet, but you also didn't follow the rule in terms of filing something and highlighting the relevant portions. And so
when I came in this morning there they are, e-mails. Have you filed them now?
PLAINTIFF’S COUNSEL: They are not, Your Honor.
Page 14, Evidentiary Hearing Transcript, July 25, 2016
THE COURT: Okay. Well, you understand that you are in violation of the rules?
PLAINTIFF’S COUNSEL: Your Honor, I did the best we could to get it to you.
THE COURT: No, what you can do, if you want to do something like that, putting aside the four days, you are able to
electronically file. There is no reason why you would e-mail anything. You are able to electronically file, and you are able
to read the rules and see that you have to highlight the relevant portions. I have not read that, I'm not going to read

Page 5 of 16
everything that you've put in in an e-mail. We are not e-mailing[CB23] each other with comments, we are filing a case. And
if you want to file something, do it electronically.
Now, I will allow you to file, if you go back and -- I'm going to disregard what you've done, because it's just e-mail -- and
when you file it, read rule 7.8 and highlight the relevant portions, so that the Court will then have an opportunity to know
what you are interested in. And then I will give four days to the -- you have two days to do that, today and tomorrow, and
I'll give four days to the defendants to respond.
PLAINTIFF’S COUNSEL: Your Honor, I understand. Thank you.
THE COURT: Okay. Go ahead, Mr. Smith.

PLAINTIFF’S COUNSEL: Your Honor, obviously this is a consequential motion with far reaching ramifications for a
variety of reasons. I want to try to be as brief as possible. There's really three areas that I would like to direct my comments.
THE COURT: There is no need to be brief. This is a very serious matter.
PLAINTIFF’S COUNSEL: In that case, Your Honor, okay. Your Honor, first, as far as -- it's the three issues -- first really
the improper procedural approach that we believe defendants have taken; second, I will address the
substance of the motion; and finally the underlying improper purpose.
As far as the procedure, it's clear under Rule 65 with respect to a request for preliminary injunction they are
never granted as a matter of right. And they are submitted, as far as preliminary to a trial, to an actual
evidentiary or some other kind of hearing to resolve the issues.
And the point of preliminary injunctions, as Your Honor well knows, is to preserve the status quo. This goes beyond that.
There's been no new claims filed, there's been no request to reopen this case and allege claims of breach of
contract or defamation. And Cara Barber, the plaintiff Cara Barber, the underlying factual issues to support
defamation are obviously questions of fact. She'd be entitled to a jury, which we've never waived[CB24], and
that would take -- and deserves to take the full amount of time for discovery and everything else that
defendants would be entitled to. There is no showing on this motion of irreparable harm . So as far as a
procedural point-

Page 16, Evidentiary Hearing Transcript, July 25, 2016

THE COURT: Let's go back. Did you say it's to preserve the status
quo?
PLAINTIFF’S COUNSEL: Typically a preliminary injunction, yes, is
to preserve the status quo to freeze the situation so no harm
results until that trial can take place.
THE COURT: No, that's one possibility, but the other possibility is to
prevent further harm from some actions prohibiting some actions. That
happens, I assure you, more often than what you're proposing. In 22
years I'm here to tell you that, no, most often somebody comes in to
stop somebody from doing something. So if you could adjust your
thinking on that that would help.
PLAINTIFF’S COUNSEL: Thank you, Your Honor. With respect to Defense Exhibit 7: One of Ms. Barber’s many Facebook
this, nevertheless, Your Honor, there's been no actual complaint posts advising MCBH families they have the right to know
filed. No ethical complaint has been filed against either of the critical information that affects the health & safety of their
plaintiffs' attorneys as far as for defamation or for breach of children & families.
the settlement agreement, for breach of the contract.
THE COURT: Well, hang on, Mr. Smith. I really do want to understand what you're saying. What I have before me, prior
to Mr. Whattoff saying today that he is now concerned with respect to the attorneys behavior[CB25], what I have is a
motion with respect to the agreement entered into by the parties here and Ms. Barber. So I don't understand what you're
saying. I mean, I just don't understand it.

PLAINTIFF’S COUNSEL: I understand, Your Honor. And again maybe we will just jump into the substance.

Page 6 of 16
THE COURT: No, let's go back. What you're saying is there's no complaint. I have a motion for a preliminary injunction.
PLAINTIFF’S COUNSEL: Yes.
THE COURT: And it starts with Ms. Barber and the allegation that she has violated the terms of the settlement both in
speaking about the terms of the settlement, and we have a non-disparagement provision, and in the non-disparagement
provision there is also an agreement for lack of defamation, libel, or slander, or reckless or intentionally untrue
communication, remarks, or comments. That's what we are doing here. There is no need for a new complaint[CB26]. We
are having an action where a portion of this case -- the allegation is that the settlement has been violated. So what is it
you think in addition do you think needs to be done?
PLAINTIFF’S COUNSEL: Well, I understand, Your Honor. But even if the preliminary injunction were granted,
Ms. Barber would still be entitled to a jury on the issue of defamation for example; correct?
THE COURT: Not for preliminary injunction.

Page 18, Evidentiary Hearing Transcript, July 25, 2016

PLAINTIFF’S COUNSEL: Not for the purpose of preliminary injunction. I understand that, Your Honor. I
think maybe that's where my points were mistaken. What I was trying to say is that if the Court grants the
preliminary injunction, there is still this entire process afterwards[CB27] that has to take place which would
include discovery, which would include a jury, which would include the claims for defamation --
THE COURT: We're not there, are we?
PLAINTIFF’S COUNSEL: We're not. We're not. And so many
of the remedies, as far as an order to show cause or otherwise,
would be obtained during that course of the proceedings if
they proceeded.
THE COURT: No, not necessarily.
PLAINTIFF’S COUNSEL: Your Honor, as far as --
THE COURT: Right now, the place that we are, Mr. Smith, is we have
allegations with respect to your client's behavior. And they are very
strong. And what your client needs to understand there are liquidated
damages here, $25,000 an instance. And if there is any mystery about
whether that would be enforced, I want everybody to understand that
it would be enforced. That's what was agreed to. And if there are
violations, even though this may be beyond the reach of Ms. Barber's
purse[CB28] at this point, if there is a judgment it would happen. And
so she needs to understand the seriousness of what is going on here.

Now, in terms of a preliminary injunction, Mr. Smith, usually, even for

a preliminary injunction, we have testimony. But we have it before the
Court. We have proceedings and evidence[CB29] taken in order to see Another of Ms. Barber’s Facebook posts encouraging
whether or not I should issue a preliminary injunction. We don't go affected military families to pursue accountability relative
to the undisclosed, hazardous soil contamination
running to the hearing on a permanent injunction. So you need to throughout their MCBH family housing community
move back and be where we are. (Defense Exhibit 4)
PLAINTIFF’S COUNSEL: Yes, Your Honor.
THE COURT: So now having been enlightened with respect to where we are, what is your position?
PLAINTIFF’S COUNSEL: Your Honor, I'll move on as far as the actual lack of substance on the claims.
First, as far as the overarching standard, there is a heightened review for a preliminary injunction that challenges
speech. Even in the cases cited by defendants, where they came back and said, Well, US v. Stevens claims that there are
exceptions under -- for preliminary injunction for certain categories of speech. If you track those cases down, the one on
defamation it's a 1953 speech where it was upholding the statute concerning essentially race baiting in Chicago. And even
under those cases it's still clear that there's a heightened scrutiny for any kind of restriction on speech.

Page 7 of 16
The Overstreet standard that we provided is good law. And what it basically looks at is how broad the injunction
should be. In fact, if you look at the cases cited by the defendants in particular, the San Antonio Community Hospital versus
the District Council of Carpenters, it's a Ninth Circuit case, and this is one of the ones they were citing that said there's a
lower standard.
Page 20, Evidentiary Hearing Transcript, July 25, 2016
THE COURT: You know, I think this is really not that productive.
Because what we need to be talking about is how we are going to
schedule an evidentiary hearing on the preliminary injunction. And I
think right now you're talking about the standard I should apply. But I
don't have sufficient evidence at this point, and we need to move to
scheduling a hearing on the motion for preliminary injunction, and it's
my understanding that the defendants want to have the opportunity
to question Ms. Barber. And that would be presumably part of having
the hearing on the preliminary injunction. So let's deal with what we
have before us.
I'm not going to make some ruling right now based on the standard
that you're proposing. First I need to get some evidence that -- in
addition to what I have, and I do want to point out one other thing
though. You're talking about defamation, but non-disparagement is Some comments in response to one of Ms. Barber’s
the title of the clause. Facebook posts, from Defendants’ numerous exhibits.

And there is a difference between defamation and disparagement[CB30]. Disparagement is a broader category, and while
there are -- there is a prohibition for defamatory and reckless or intellectually untrue, which is being alleged here, we are
also talking about disparagement. And that is a lesser standard, and you need to think about that, Mr. Smith.

PLAINTIFF’S COUNSEL: Yes, Your Honor.

THE COURT: Go ahead. What else did you want to say?
PLAINTIFF’S COUNSEL: Well, moving past the standard, if we wanted to address the specific content or the
specific communications that were discussed by defendants during the hearing, none of these actually -- in
large part, none of them actually involve the settlement agreement[CB31] in any way. Aside from this argument
of disparagement, each of the --
THE COURT: That's a pretty big aside, isn't it?
PLAINTIFF’S COUNSEL: Well, granted, Your Honor, but as far as,
for example, if you look at any of the actual evidence attached to the
motion, nothing within any of those hundreds of pages
contradicts any of Ms. Barber's comments. Dennis Poma is the
sole declaration attached to the motion. Nowhere within any of the
specific declarations of Mr. Poma does he say anywhere that
Ms. Barber's comments are untrue, are not accurate. All of the
allegations are actually found within the motion itself, but from
defendants' counsel is basically taking that. This 20 times levels is
based upon experts[CB32] --
THE COURT: What expert?
PLAINTIFF’S COUNSEL: Pardon me?
THE COURT: What expert?

Page 22, Evidentiary Hearing Transcript, July 25, 2016

PLAINTIFF’S COUNSEL: Sure. Dr. Chun[CB33], in
conversations between Ms. Barber and Dr. Chun, and the
underlying litigation. That's one of the unusual aspects of this
is that the underlying factual findings for this preliminary
injunction or the actual substantive factual allegations of the Comments on one of Ms. Barber’s many Facebook posts
(from Defense Exhibit 9)
Page 8 of 16
underlying case that was -- it essentially would require the Court to find that our underlying case in chief
was[CB34] not based on fact, which it is. In fact, that's why -- obviously, we believe that's the reason why
this case was settled is because of those allegations. So they essentially want the Court, after they've settled,
to come back and say, You know what, it is safe there on base. That's certainly not true.
Looking at the specific breaches of the settlement agreement, the 20 times
higher[CB35] level has nothing to do with the settlement agreement.
So there is no disclosure of any confidential term, no disclosure of any
amount. It's simply they disagree with the factual underpinning of that
statement.
And I would again mention that aside from the assertions in the pleading, there
is no evidence attached to the brief that says that that's not accurate.
In fact, what the reply comes back and says, Well, what she should have said is
it might be 20 times higher. It's no different than the defendants
claiming to all the world that the base is safe.
THE COURT: What if she said a hundred times higher?
PLAINTIFF’S COUNSEL: Well, presumably that would not be -- well,
actually that might be accurate under the actual ultimate findings. I
don't know what those test results would be, but the purpose --

THE COURT: Which test results are we talking about?

PLAINTIFF’S COUNSEL: Just so we back up in the history. There were
hundreds and hundreds of soil tests at Marine Corps Base Hawaii that
confirmed contamination at levels hundreds – I think even sometimes
thousands of percent higher than it should have been. There was then
an alleged remediation effort that we challenged. They then come back
after that and say --
THE COURT: Yeah, but the tests that I would assume that you would be talking
about is a test now after the remediation. Because, as I recall in this case, the
Department of Health said there's no reason that we have not to believe that
the remediation was proper. Isn't that what they said?
PLAINTIFF’S COUNSEL: No, the Department of Health[CB36] also says From Ms. Barber’s "How to Pursue
Accountability" post that discusses multiple
they have no reason to believe that it was effective either. They ways affected families can pursue accountability
basically say, We don't know either way because there's no test & adequate protection of their families’ health &
results. safety. (Defense Exhibit 6)

THE COURT: Okay. And you know how?

Page 9 of 16
PLAINTIFF’S COUNSEL: Pardon me?
THE COURT: How do you know.
PLAINTIFF’S COUNSEL: My comment is towards
the 20 times level which is the purpose of the
remediation was to bring it back down to Tier 2
levels.
THE COURT: I'm talking about what proof you have?

Page 24, Evidentiary Hearing Transcript, July 25,

2016
PLAINTIFF’S COUNSEL: For the 20 times? I don't
specifically, Your Honor, aside from that is the goal
of remediation. Chart Dr. Chun created to explain how Defendants’ original Tier 2 EALs for
THE COURT: Well, see, that might be the problem, Mr. organochlorine pesticides permitted by HDOH caused contamination levels
to be at least 20 times higher than EPA safety recommendations
Smith. Reckless. Go ahead.
PLAINTIFF’S COUNSEL: With respect to the removal of 18 inches of top soil it is the same issue. It was never
removed from the base, it's buried in huge landfills, which we did not discover until we brought our
complaints, underneath housing.
So this idea that it had all been carted off and moved
away and burned or whatever else totally was never
disclosed. It was never disclosed to the Department of
Health for that matter, is my understanding, until we
brought complaints[CB37]. And the Department of
Health said, Well, what are you guys actually doing out
there?
Likewise, the assertion that clean fill was brought in to
cover the base, it was soil from other parts of the base.
The entire base was adjudged to be essentially
contaminated above levels and needed remediation.
So there is no evidence that I've ever seen, and I'm
sure I would be corrected if I'm wrong, that actual
clean fill was actually used. And that's why there is so
much uncertainty that any of this remediation was
successful at all. One of Ms. Barber’s numerous Facebook posts about Defendants’
undisclosed, hazardous soil burial pits throughout their MCBH family
Essentially, what we do have is we have test results
housing
confirming contamination –

THE COURT: But you see, Mr. Smith, you took the settlement, and you agreed to certain things. Even assuming that it
is possible that you are right, without -- you're basically disparaging if you are saying something that you were just assuming
without proof[CB38].
PLAINTIFF’S COUNSEL: It's no different than defendants saying that it's safe to the entire military
community. Based upon soil tests, which do not exist, the base is safe. It's the exact --
THE COURT: That could be a problem in terms of --
MS. BARBER: Tier 2 --
THE COURT: Did you want to say something, Ms. Barber?
MS. BARBER: I'm sorry, Your Honor, may I speak to the Court for one second?

Page 10 of 16
THE COURT: Mr. Smith --
PLAINTIFF’S COUNSEL: Cara -- My
recommendation, Cara -- Ms. Barber, is to allow me to
finish the argument. And if there's a time to do an
evidentiary hearing the Court will definitely allow you
to speak at that time.
MS. BARBER: Yes, sir. Tier 2 EALs. Thank you.
THE COURT: Pardon me? What did she say?
PLAINTIFF’S COUNSEL: Your Honor --
THE COURT: What did she just say?
PLAINTIFF’S COUNSEL: Tier 2 EALs.
THE COURT: I mean, we've got to have a record.
Charts from Defendants' 2008 & 2014 Pesticide Soils Management Plans
PLAINTIFF’S COUNSEL: It's the point I made a reflecting the much higher Tier 2 EALs for extremely hazardous & banned
second ago, and I'm not sure if Your Honor pesticides in MCBH family housing soils, which they asked HDOH to permit
caught it or not, is that Tier 1 EALs is what --

Page 26, Evidentiary Hearing Transcript, July 25, 2016

THE COURT: I remember all of this.
PLAINTIFF’S COUNSEL: So the purpose of the remediation is to bring it down to Tier 2 levels. That's the 20
times higher.
So that is what is the goal is to bring it to the Tier 2 EAL level, the 20 times higher. So if it's untouched that's
the assumption. So it's not a hundred times --
THE COURT: You know, speaking about all of this is getting us off track because the question is statements have been
made that the defendants believe are in violation of the two portions of the settlement agreement. And so we are going to
have a hearing on that. We are going to have an evidentiary hearing[CB39], and your arguing for the case that you agreed
to settle is not really going to be dispositive with respect to the very narrow issue that we have, whether or not she has
said something that is either a violation of the portion of the agreement with respect to the terms of the settlement
agreement or whether she said something that is disparaging or the long laundry list of defamation, liable, slander, reckless
or intentionally untrue.
So we are going to find out, with respect to an evidentiary hearing, to see whether we need a preliminary injunction, and
then we can deal with the permanent injunction. So let's deal with where we are
procedurally.

PLAINTIFF’S COUNSEL: Fair enough.

THE COURT: Basically you're arguing your case and we are going to have an
evidentiary hearing. And you're arguing without the evidence, so it's sort of a
waste of time.
PLAINTIFF’S COUNSEL: Fair enough, Your Honor. In that case, as far as
the procedure moving with the evidentiary hearing, we obviously
would request the right to take witnesses and present evidence on our
own, not simply Ms. Barber, in order to support her comments.
I'm curious is Your Honor would like to see a proposal for the evidentiary hearing or how -- what is the Court's normal
process if that's the topic you wish to discuss?
THE COURT: Well, first we're going to hear from the plaintiffs because they're the moving party. So, if you have nothing
else to say we will talk about the next step. Is there something else you want to talk about?
PLAINTIFF’S COUNSEL: Just a question on clarification. Are you issuing an injunction pending that evidentiary
hearing?
Page 11 of 16
THE COURT: No. We're talking about doing something in the next week or so to see whether or not I should issue a
preliminary injunction.
PLAINTIFF’S COUNSEL: Your Honor, I understand the Court's inclination. Thank you.
THE COURT: The normal turnaround time for a preliminary injunction is 28 days from the date of file. Mr. Whattoff.

Page 28, Evidentiary Hearing Transcript, July 25, 2016

DEFENSE COUNSEL: Thank you, Your Honor. On the issue of procedure, I think to the extent that the Court has any
standard procedures for conducting this hearing, I think those would probably be sufficient.
THE COURT: Basically what we usually do is I have you folks come in and give me some idea of where you are, and it
seems to me that you are pretty far apart. Realistically, I would say half of the preliminary injunctions get settled immediately
after having the hearing, because once the parties get together and they realize that actually there are teeth in this
agreement or that the -- in many situations it's a copyright infringement or it's a trademark infringement or it's some kind
of -- the same nature of saying something, publishing something, putting it forward.
People recognize that there is something to be gained from recognizing the strength of somebody's allegation, and so half
of them settle before we set the evidentiary hearing, and then it's a matter of you telling me how many people you want
to put forward or what you want to put forward, and you can say how many you want to put forward, Mr. Smith, and we
have the hearing, and then I rule.

DEFENSE COUNSEL: Thank you, Your Honor. I think we can put on a very brief case. I think that it would be
necessary to examine Ms. Barber given that she is the individual that made these statements; I think we
would put on one of our environmental consultants to explain what happened on base It might be necessary
to put on maybe one additional witness just to confirm any facts related to what happened with the remediation. But, I
think really it can be a matter of Ms. Barber and then establishing what did happen on the base via a consultant
because I don’t really think there is any dispute that can contradict the evidence that we’ve submitted about what happened
on base.

THE COURT: Okay. Thank you. Mr. Smith.

PLAINTIFF’S COUNSEL: Your Honor, in addition to Ms. Barber, I think there would be a handful of witnesses
that we would like to --
THE COURT: I'm listening.
PLAINTIFF’S COUNSEL: Excuse me, Your Honor?
THE COURT: I'm listening.
PLAINTIFF’S COUNSEL: Dennis Poma for sure, there are also --
THE COURT: For what purpose?
PLAINTIFF’S COUNSEL: He is the key declaration being provided in support of defendants' motion for preliminary
injunction. And so it's his declaration that they are stacking up against Ms. Barber's speech.
THE COURT: Okay.
PLAINTIFF’S COUNSEL: Additionally, I believe Dr. Walter Chun would be appropriate. He is the underlying expert
in the litigation as far as the danger.

Page 30, Evidentiary Hearing Transcript, July 25, 2016

THE COURT: Now, has Mr. Chun -- Dr. Chun prepared a report of some kind?
PLAINTIFF’S COUNSEL: He did. In the underlying litigation he prepared a report.
THE COURT: And would that be relevant?

Page 12 of 16
PLAINTIFF’S COUNSEL: It likely would be. Although --
THE COURT: I'm assuming that the report is the document that puts forward the basis of his conclusions.
PLAINTIFF’S COUNSEL: Sure. For the purpose of trial. But this is obviously a different tact. And so, for example, I
don't know his report specifically addresses the 20 times level that Your Honor mentioned. That would be
important.
THE COURT: Well, you see what I think you need to think about, Mr. Smith, is the idea
of whether remarks are reckless or intentionally untrue. You know, his opinion as an
expert needs to have some substantiation in order for it to be something that, given this
clause, your client should be acting on. So I'm pointing that out to you now as a -- to
save myself the trouble of being disappointed when you don't have sufficient
evidence[CB40]. Do you understand what I'm saying?
So you want Ms. Barber, Dennis Poma, Dr. Chun anyone else?

PLAINTIFF’S COUNSEL: Your Honor, the name escapes me, but I believe there is another individual who is in
charge of the remediation at Marine Corps Base who is also an expert presented by the defendants.
THE COURT: Okay. Mr. Whattoff, do you know who he might be talking about?
DEFENSE COUNSEL: He might be referring to Bill Cutler that's the other --
THE COURT: Bill Cutler?
DEFENSE COUNSEL: -- expert that we identified on the issue of soil remediation in the underlying litigation.
THE COURT: Okay. Well, you can make him available.
DEFENSE COUNSEL: Mr. Cutler is not local, but I presume that we could. We'll let the Court know.
PLAINTIFF’S COUNSEL: And Mr. Poma as well?
DEFENSE COUNSEL: I believe we can -- Mr. Poma is local, and I believe he would be available. I don't know his schedule
off the top of my head, but I'm sure we can figure something out.
THE COURT: Okay. Looking at the calendar we could do it August 3rd. How does that for everyone?
PLAINTIFF’S COUNSEL: Your Honor, is the -- do you contemplate that Ms. Barber could provide testimony by
teleconference?
THE COURT: No.
PLAINTIFF’S COUNSEL: Travel from Florida is -- I think it's going to take –

Page 32, Evidentiary Hearing Transcript, July 25, 2016

THE COURT: There are two flights and they are connected. It's part of the United States. It won't be a problem. I suggest
Florida to Chicago and Chicago to Honolulu, it's the easiest.
PLAINTIFF’S COUNSEL: Your Honor, I would still ask for more time in order to prepare for this hearing than
August 3rd.

Page 13 of 16
THE COURT: This is the point, Mr. Smith, usually when people start talking about what they will do in order to buy more
time with the defendants.
PLAINTIFF’S COUNSEL: As far as negotiating with defendants?
THE COURT: Well, this was filed.
PLAINTIFF’S COUNSEL: Your Honor, I don't want to get into --
THE COURT: When did you file your motion?
PLAINTIFF’S COUNSEL: June 25th was when it was formally
filed, although it was presented perhaps a month before or
three weeks before.
DEFENSE COUNSEL: Your Honor, we submitted it on June 6th.
There was an issue with why it should be appropriately sealed. And I
think we submitted it again about -- I think about a week and a half
after June 6th. I think the date Mr. Smith might be referring to is when
the motion was ultimately ruled on. But it's been out there since June
6th.
THE COURT: Yeah, June 15th. Okay. So you're passed the 28 days Another of Ms. Barber's many Facebook posts. However,
already, Mr. Smith. So if you want to make some arrangement with Defendants did not include this post among their many
exhibits.
respect to Ms. Barber's postings, etcetera.
PLAINTIFF’S COUNSEL: Your Honor, we tried on that point. And to be frankly -- yes, Your Honor.
THE COURT: What about it, Mr. Whattoff?
PLAINTIFF’S COUNSEL: Just to finish my thought, Your Honor. Absolutely. We took your comments during the
status conference absolutely to heart and have reached out in an effort to engage in that kind of discussion
and negotiation. And that was specifically when the response that we attached to our opposition was
provided, which there would be no discussion until we withdrew as counsel[CB41] for these hundreds of other
families, which again clear violation of the underlying rule.
There is a desire to sit down and talk and figure out a way through it. And I think that would be possible, but it takes two
to do that. And so I understand that I'm in this hearing being on the receiving end, but the suggestion that
we have not attempted and worked on that is I don't want the Court to labor on that assumption. It's untrue.
THE COURT: Any comment, Mr. Whattoff?
DEFENSE COUNSEL: Your Honor, the August 3rd date is fine with
us. I do think that we have had some problems coming up with
a resolution to this case because of the issue that Mr. Smith
identifies. What he proposes -- well, I don't know that it makes sense
to go back and forth.

Page 34, Evidentiary Hearing Transcript, July 25, 2016

THE COURT: I don't need to get into your -- but my point is, if you want
more time, Mr. Smith, usually you stop[CB42] doing whatever it is you're
doing so that the preliminary injunction isn't necessary to go forward,
and then we can talk about the result. Do you understand what I'm
saying?
PLAINTIFF’S COUNSEL: I do, Your Honor.
THE COURT: That's a fairly common result. Up to you folks. It's already
going to be a month and a half in August 3rd. So if you want more time,
that's what I'm suggesting you make it unnecessary for us to do it that soon. Because the point of a preliminary injunction
is to stop particular behavior that the moving party finds objectionable, and so that's why they get a fast hearing.
PLAINTIFF’S COUNSEL: I recognize that, Your Honor.
THE COURT: So is there anything you want to say, Mr. Smith?

Page 14 of 16
PLAINTIFF’S COUNSEL: Your Honor, the Court on the record at this point to say that we'll retract or
withdraw those specific comments. We have proposed that, and --
THE COURT: What are you proposing today in order to get passed August 3rd?
PLAINTIFF’S COUNSEL: I think the suggestion would be there should be a retraction of those specific
comments, the 20 times, the three that were identified here, that there was a refusal, and the 18 inches
removed. Those are the key three that have been cited today. I think frankly what make sense would be to
clarify those comments.

THE COURT: Actually, normally what people are worried about in a situation like this, Mr. Smith, is going forward in terms
of future postings and interactions.
PLAINTIFF’S COUNSEL: There's been no future postings, Your Honor. At the point in time this motion was
filed, nothing has occurred by Ms. Barber. No more comments along this line. This motion is very much to
retract those past postings.
THE COURT: So at this point she's not filing anything? She's not posting anything?
PLAINTIFF’S COUNSEL: That's correct, Your Honor.
THE COURT: That's what you're representing[CB43]?
PLAINTIFF’S COUNSEL: Yes, I am. That's absolutely my understanding.
THE COURT: Is that your understanding, Mr. Whattoff?
DEFENSE COUNSEL: It's true that there have been no new blog posts since the mid-June, I think. There has
been activity on her Facebook page. Part of the problem with social media is that it's not something that can be necessarily
controlled, because she has made these posts on Facebook and now people respond to them and bring them back to the
front and things like that. And the bigger issue for us is all of this information remains online. It's easily available
from a simple Google search. So we appreciate that there has not been further posts, but leaving the current
post up is not an option for us, Your Honor.

Page 36, Evidentiary Hearing Transcript, July 25, 2016

THE COURT: Okay. Well, you know, Mr. Smith, we were working with
time that had to do with your vacations and your partner's vacation
when we first started this and that delayed this as well. So I am thinking
August 3rd probably is where we should be; so 9:00 August 3rd. And if
there is any change in who you intend to call as witnesses, please let
the courtroom manager know.
And when you're dealing with what you want to file, Mr. Smith, I would
like you to pay attention to the difference between
disparagement and defamation[CB44], because I think
that is an important issue in this case, and there are
cases that distinguish these from each other. And the
title of the clause is non-disparagement. Comparison of the Tier 2 EALs Defendants proposed to
HDOH in 2006 and in 2014. They proposed much higher
And, Mr. Whattoff, I would appreciate if you would do Tier 2 EALs after completing all alleged remediation, but
the same in responding to what Mr. Smith is going to HDOH did NOT approve their 2014 Tier 2 EALs!
file. Okay. Anything further?
DEFENSE COUNSEL: Thank you, Your Honor.
THE COURT: Anything else we need to handle?
PLAINTIFF’S COUNSEL: No, Your Honor.
DEFENSE COUNSEL: Just one point of clarification,
Your Honor. The witness issue if there is any changes, Ms. Barber stopped advocating for military families & stopped posting on
are you instructing us to share with the courtroom Facebook in June 2016, as this chart & her Facebook page clearly reflect.

Page 15 of 16
manager? I assume we would share with each other as well.

Page 16 of 16