2016 08 03 August 3 Testimony

1
1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE DISTRICT OF HAWAII
3 )
CARA BARBER, MELISSA ) CV 14-00217 HG-KSC
4 JONES, MELISSA STREETER, )
KATIE ECKROTH, on behalf ) Honolulu, Hawaii
5 of themselves and all ) August 3, 2016
others similary situated, ) 9:00 A.M.
6 )
Plaintiffs, ) Motion for Preliminary
7 vs. ) Injunction [278]
)
8 OHANA MILITARY )
COMMUNITIES, LLC; FOREST )
9 CITY RESIDENTIAL )
MANAGEMENT, INC.; DOE )
10 DEFENDANTS 1-10, )
)
11 Defendants. )
_______________________________)
12
13 TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE HELEN GILLMOR
14 UNITED STATES DISTRICT JUDGE
15 APPEARANCES:
16 For the Plaintiffs: PATRICK KYLE SMITH

Lynch Hopper Salzano & Smith
17 970 N. Kalaheo, Ste. A301
Kailua, HI 96734
18
TERRANCE M. REVERE
19 Revere & Associates
970 N. Kalaheo, Ste. A301
20 Kailua, HI 96734
21 For the Defendants: LISA W. MUNGER

RANDALL C. WHATTOFF
22 CHRISTINE A. TERADA
Goodsill Anderson Quinn & Stifel
23 First Hawaiian Ctr.,
999 Bishop St., Ste. 1600
24 Honolulu, HI 96813
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2
1 APPEARANCES (Continued):
2 Official Court Reporter: Debra Kekuna Chun, RPR, CRR

United States District Court
3 300 Ala Moana Blvd. Ste. C285
Honolulu, HI 96850
4 (808) 541-2061
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Proceedings recorded by machine shorthand, transcript produced
25 with computer-aided transcription (CAT).
3
1 INDEX
3 EXAMINATION
4 Witness Name Page
5 Cara Barber
6 Direct By Mr. Whattoff ................................. 14
9 EXHIBITS
10 Exhibit Page
11 6 Entered into Evidence 29
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August 3 Testimony: Cara Barber
Page 4, Evidentiary Hearing Testimony, August 3, 2016

THE COURT: This matter is a preliminary motion with respect to -- it's a preliminary injunction with the idea of a possible
permanent injunction. It is not intended to morph into what I have before me. This is not how it works. This is something
where we are supposed to take a look at whether it is necessary to stop what is happening, or in other cases to make
something happen, before we have a full-blown hearing.
But what I have before me is pretty much a full-blown hearing. I've got motions in limine, I've got questions about the
jurisdiction of the court, and voluminous exhibits. I have questions about the standard of proof, I have questions about the
nature of the testimony, and I have questions about what exhibits are admissible. This is not how this is supposed to work.
This is morphing into something other than what a preliminary injunction is about.
Now, there are just a few things I want to settle right up front. The plaintiffs have raised questions about the jurisdiction[CB1]
of the court, and I thought I had put those to rest, but, apparently, in the opposition it's there. And the court, when it has
jurisdiction to reopen, has jurisdiction with respect to the settlement, and in this case we made it for six months. Once
jurisdiction is reopened there is no limit on the jurisdiction, and that is something that is very basic and I really don't think
it's necessary to spend more time on it.
There is no point at which, if the motion is made and there is a claim that the settlement is somehow not being completed
in the manner that it was supposed to be and the court reopens it, we are back to jurisdiction of the court, and it ends
when the issue is decided, not at some preconceived date.
Now, I fear that the real problem here is that you folks settled your case[CB2] and you never really settled the fight between
you. And this looks like an attempt to try the case at this point in time, and that is not what I intend to do.

Well, now I have both sides saying they're going to call as a witness an attorney[CB3] from the other side. This is a big deal.
This is something that you need to bring to the attention of the court. It has a number of disciplinary rules that are impacted
by calling a witness on the other side, and you both say you want to do that. We're not going to do that today. If you think
that is necessary, you're going to have to brief it through the disciplinary rules. This is pretty -- this is a difficult area, and
the idea that you just pop the other side's witness on the stand, which you both think you can do, is fraught with danger.
I know that there are allegations that the plaintiffs and the plaintiffs' attorneys and the plaintiff are doing things in concert,
but we first have to settle why this is an appropriate thing to do.
Now, I have the motions in limine, and the defendants are objecting to
exhibits for a number of reasons, and the plaintiffs are attempting to
establish a standard of proof and burden of proof. I'm not going to be
dealing[CB4] with these things. What I'm giving you is an opportunity to
put on some evidence that would make it appropriate for the court to
stop what Miss Barber has been doing. That's what this is about. And
whether I do that -- whether she is stopped at this point in time, I
think it's really important to recognize that it doesn't actually impact
the liquidated damages. If I don't feel that there is enough information
at this point to issue the preliminary injunction, it doesn't mean there
wouldn't be a permanent injunction and it doesn't mean there wouldn't
be damages. These are two very different things. It's just a matter of
whether a federal judge has enough information and believes the law Quote demonstrating the blatant judicial bias to which Ms.
Barber and her attorneys are subjected
requires to enter a preliminary injunction, but it is not dispositive of
whether there will be a permanent injunction and whether there will be damages.
It isn't appropriate for me to do a hearing of the magnitude that you clearly expect. This is something we do in, you know,
in a morning. It's not something that we drag out. This, if it is done in any form, is the actual preliminary -- permanent
injunction. So, you know, it's a misunderstanding of how this is supposed to work on both sides, and I am not going to do
a permanent injunction hearing at this point in time.
Page 1 of 44
So in terms of what these motions in limine are dealing with, whether this evidence is something that is admissible or not,
you folks are going to have to spend some time working these things out. And those kind of problems have to be worked
out, but they're not going to be worked out by me in the morning for a preliminary injunction.

Now, I'm not going to take testimony of -- from the attorneys. What I am going to do, though, is take testimony from
people who have been called here and it has been – they have been arranged for them to be present.
Now, it's the defendants who are the moving parties, and according to the defendants they want to call Miss Barber and
Dennis Poma, and the plaintiffs want to call her and Dr. Walter Chun and Dennis Poma. So what I suggest we do today,
are both Mr. Poma and Mr. -- and Dr. Chun present?
PLAINTIFF’S COUNSEL: Yes, Your Honor.
THE COURT: Okay. Well, I suggest that we start with the defendant calling Cara Barber, then we have, of course, cross-
examination, then Dennis Poma, and then, if there's time this morning, Dr. Chun. And you'll both have an opportunity to
examine them.
But with respect to the disputed evidence I don't know to what extent that is necessary for these witnesses. What about
it, Counsel?
PLAINTIFF’S COUNSEL: I'm not quite sure I understand your question.
THE COURT: Well, you have put in evidence that the defendant in their motion in limine has objected to, and I don't
know to what extent the three witnesses we're going to take this morning require you using that evidence.
PLAINTIFF’S COUNSEL: You know, my expectation, Your Honor, is that there won't really be very much evidence
needed by us. I think the parts that are being raised will be on a case-by-case basis for the purpose they're offered at the
time, but I certainly don't want to waste your time or anyone else's marching through every single exhibit.
THE COURT: So you don't intend to utilize the exhibits that are objected to. That's a sort of yes-or-no question there.
PLAINTIFF’S COUNSEL: That's not correct, Your Honor. There are some exhibits that have been objected to
that I think may be relevant.
THE COURT: Well, what would they be?
PLAINTIFF’S COUNSEL: Depends partly upon, Your Honor, upon the evidence that's offered by the
defendants or the testimony that they're going to solicit from Miss Barber. But, for example, as far as
impeachment or rebuttal exhibits to confirm that she may have relied upon documents, they would be relevant. For
example, the very first exhibit with respect to a newspaper article regarding other lawsuits.
THE COURT: A newspaper article?
PLAINTIFF’S COUNSEL: Yes, Your Honor. Again I know you don't want to argue through all the exhibits.
THE COURT: No, I'm not, but I'm just -- normally, we don't have newspaper articles as exhibits in federal court.

PLAINTIFF’S COUNSEL: Sure. Well, one of the challenges has been where she referenced there are other lawsuits that
– and referenced those to -- against Forest City. And so it's a newspaper article that Miss Barber provided, "Well, this is
an example of one of the other lawsuits that I was referencing."
THE COURT: Was that one of the ones you're objecting to, Mr. Whattoff?
DEFENSE COUNSEL: We did object to this. It's a 1999 lawsuit from California that has nothing to do with
organochlorine pesticides.
THE COURT: Is it still going on?

Page 2 of 44
DEFENSE COUNSEL: I have no idea, Your Honor. I don't know
how it was resolved. It just -- the article notes that a lawsuit was
filed. Forest City is a large company with projects all over the
United States; so it is involved in some lawsuits, and,
apparently, it was involved in one in 1999. It doesn't have
anything to do with Hawai'i with regard to pesticides or with anything
that's going on in this lawsuit.
THE COURT: 1999?
PLAINTIFF’S COUNSEL: Well, my understanding, Your Honor, is

that it does have to do with Forest City's failure to disclose
contamination, I believe; so it's within the records. I mean, for
example, the challenge that was made in the pleadings, Your Honor -
THE COURT: That's almost twenty years old.
PLAINTIFF’S COUNSEL: True. True. But again when she's

telling on Facebook or posting on Facebook that other
lawsuits against Forest City related to a failure to disclose,
this has happened in the past.
THE COURT: You know, in criminal court you can't even put into
court a conviction that's 10 years old because it's so out of date. I
mean, we're --
PLAINTIFF’S COUNSEL: We wouldn't be offering it for the

truth of the matter asserted. The issue is what was she relying
upon in her mind when she was writing these posts. And
they've argued that there's no basis and that she was
reckless. And, obviously, if she's looking at historical lawsuits
Excerpt from Defense Exhibit 6 in which an image of text
against Forest City, and she's saying there's other lawsuits from a 1999 press release about the prior class action
related to the failure to disclose contamination, then that lawsuit against Defendants is shown.
would be an issue to show that she's not being -- acting in malice or she's basing it upon factual research
about Forest City.
THE COURT: Okay. Just using this as an example, Mr. Whattoff, what is your objection to that? It can't be that it wasn't
disclosed because I don't think it was relevant previously. What is your objection?
DEFENSE COUNSEL: Well, we would have an hearsay objection, but if they're not offering it for the truth of the matter,
I think our strongest objection would be relevance, Your Honor. It's a 1999 lawsuit. It appears from the article
that it was brought in demolishing a building or redoing a building. It was brought against Forest City against Redline
Construction and against other entities involved in the construction.by construction workers who were involved

THE COURT: Realistically, Mr. Whattoff, it's 1999. I mean, I don't think -- I think it actually helps you rather than hurts
you.
DEFENSE COUNSEL: I take your point, Your Honor.
THE COURT: So I, you know, I don't intend to go through all of these things, but, if that's the kind of objection you're
having, obviously, hearsay objection is an appropriate one, but, you know, sometimes when you're in court and you try a
lot of cases, you know that some evidence is objectionable, and sometimes in the heat of the moment you object to
something and they deal with that objection and you object again. And then about the third time you realize you don't care
if it comes in, and that's not an unusual habit for a person that tries cases a lot. But there should be something other than
having us all spend our time on this if the objections, while they may be valid objections on some level, are really not worth
the time of doing it. And I would put this in that category.
Page 3 of 44
So let's go forward, and to the extent that you're objecting to anything,
either side, let's have a little common sense about whether it's worth
objecting to. Okay. Let's proceed with your case, Mr. Whattoff.
DEFENSE COUNSEL: Thank you, Your Honor.
Your Honor, I recognize this is a less formal hearing than perhaps we

planned for. We had assumed the witness exclusion rule would be in
place, and I was going to ask our witness Mr. Poma to step out of the
courtroom, but I defer to the court on how you'd like to proceed in that
regard.
THE COURT: No, the rules of evidence and those types of rules are
in place. It's just not intended to morph into something other than a
fairly short hearing. So if Mr. Poma is present, we would ask him -- and
anyone else who may be a witness -- to step outside.
Image of Ms. Barber's "Military Families Deserve Safe

Page 14, Evidentiary Hearing Testimony, August 3, 2016 Housing" site
Defense Counsel: Good morning, Miss Barber. Miss Barber, are you familiar with the website Military Families Deserve
Safe Housing.WordPress.com?
Ms. Barber: Yes.
Defense Counsel: What is that website?
Ms. Barber: A warehouse of big files[CB5].
Defense Counsel: Is that a website that you created?
Ms. Barber: It is.
Defense Counsel: Are all the posts on that website made by you?
Ms. Barber: Yes.
Defense Counsel: Anyone can access that website on the internet;
correct?
Ms. Barber: They can. Very few do, if any[CB6].
Defense Counsel: Is it a fair characterization if I refer to that website
as a blog?
Ms. Barber: It could be.
Defense Counsel: Can that blog be found using Google?
Ms. Barber: If you search very specific terms[CB7].
Defense Counsel: Well, if you search "Marine Corps Base Hawaii"
and "pesticide," it's the first result that's returned; correct?
Ms. Barber: It may be.
Defense Counsel: Have you ever done that? Have you ever tried to
Google common terms and see where the website is returned in the
results?
Ms. Barber: I remember seeing it in Google searches when I have
been searching about this issue; so yes.
Defense Counsel: And it's usually on the first page of those results; Google search conducted in July 2016 proving the
correct? MFDSH site is not among 1st sites recommended.
Page 4 of 44
Ms. Barber: No, not always.
Defense Counsel: Okay. When you search for common terms like "Marine Corps Base Hawaii" and
"pesticides," it's on the first page of those results; correct, Miss Barber?
Ms. Barber: I cannot tell you that. I have seen it. I've seen it on the first -- you know, you have multiple links that show
up via a Google search, and in my research I've seen it on the first page, I've seen it on the third page. I mean, it just
depends on what you're searching for. And I can't recall the last time that I specifically searched for "Marine
Corps Base Hawaii" and "pesticides"; so I can't say.

Defense Counsel: So does this appear to be a printout of your blog from March 23, 2014, to June 1, 2016?
Ms. Barber: Right. These are just writings. These weren't shared on Facebook or with anyone.

Defense Counsel: Miss Barber, could you clarify your
answer about this entry on page 76 "Poisoning Our Patriots."
Ms. Barber: Uh-huh.
Defense Counsel: Is that the first entry that you posted
on this blog website?
Ms. Barber: I don't remember, but, if you say so, I will
say yes. I mean, it looks as if it could be. And this was not
something that was shared -- anything I put into this
blog is for the purpose of sharing on Facebook, and
I'm very selective about what I share on Facebook
[CB8]because that's what the military families see.
And this is -- these things I did not share on
Facebook.
Defense Counsel: Miss Barber, you testified a few
minutes ago, you said very few people read this blog.
Is that your testimony?
Ms. Barber: Right. My blog stats reflect that.
Defense Counsel: Do you see where it says "Follow Dashboard of Ms. Barber’s Military Families Deserve Safe Housing site
Military Families Deserve Safe Housing" on that page 76? showing only one (1) follower, a friend of Ms. Barber’s named Lou.
Ms. Barber: Yes.
Defense Counsel: And that's a function of your blog; right? It allows individuals to follow your blog; is that correct?
Ms. Barber: I guess so. I don't know where 1583 comes from because I have one -- there's like one
follower to this actual blog. One.
Defense Counsel: Well, according to the website it's 1,583 followers; correct?
Ms. Barber: I've never seen this before. And my blog stats do not reflect [CB9][CB10]this.
PLAINTIFF’S COUNSEL: Objection. Counsel's testifying. There's no foundation for that, Your Honor.
THE COURT: Okay. Let's get some ground rules here. Do not interrupt the attorney [CB11][CB12]when he is speaking.
Wait for the question, and then answer the question that he is asking you.
Now, at this point will you rephrase your question so that we can find out what is actually going on here.
Page 5 of 44
Defense Counsel: And -- now, I was asking you about this follow function on your website a few minutes ago. Do you
recall that?
Ms. Barber: Yes.
Defense Counsel: And you told me you are aware that there's a follow function on your blog; is that correct?
Ms. Barber: Yes.
Defense Counsel: And the purpose of the follow function is so that, when you post a new blog, it's sent to your
followers; is that correct?
Ms. Barber: A new post?
Defense Counsel: I'm sorry?
Ms. Barber: A new post, is that what you mean?
Defense Counsel: Yes.
Ms. Barber: I would -- yes.
Defense Counsel: And how does that work? Does it e-mail the post to your followers once you post it to the blog?
Ms. Barber: My one follower[CB13][CB14]?
THE COURT: I just cautioned you to answer the question.
Ms. Barber: Yes.
Defense Counsel: Yes, it e-mails it to your followers once you make a post.
Ms. Barber: My assumption is that they see it. I'm not sure exactly how they would get it, but it could be an e-mail -
- I really don't know. I haven't been on that end of it.
Defense Counsel: Okay. Now, you said you only have one follower; is that correct?
Ms. Barber: That's absolutely correct.
Defense Counsel: Now, this printout of your blog says that you have 1,583 followers; is that correct?
Ms. Barber: Yes, that's what it says.
Defense Counsel: And are you claiming that that's inaccurate?
Ms. Barber: As of June 26, 2016 that is absolutely inaccurate.
Defense Counsel: Okay. This is -- this was printed out on July 29, 2016. Did you get new followers in between that
time period?
Ms. Barber: I haven't gotten any new followers in years; so I can't imagine there would be that many
new followers in a couple of weeks.
Defense Counsel: I'm sorry, is it your testimony that you checked your blog on, I'm sorry, in June, and you only had
one follower at that time?
Ms. Barber: Correct.
Defense Counsel: And how did you do that? How did you check your blog?

Ms. Barber: The blog provides stats. This was after learning about the injunction. And when I was checking the stats,
I had one follower. Again it's just a warehouse. This -- you can refer to it as a blog. I do not use it as a blog. I
use it as a place to create -- to store documents, especially big documents, and to, when needed, share more
information on Facebook with the many followers I have on Facebook[CB15]. So as of June 26, 2016, one
follower.
Page 6 of 44
Defense Counsel: I'm sorry, how did you check that to come to the conclusion that there was only one follower?
Ms. Barber: You go to your blog dashboard[CB16], and you check your stats. And the WordPress has a
dashboard page. It provides the stats. It even tells you how many viewers viewed each post.
Defense Counsel: And does it identify the name of your one follower?
Ms. Barber: I was able to determine who that follower was, yes.
Defense Counsel: Who was that follower?
Ms. Barber: I can't remember exactly how it's listed on the blog, but to my recollection it was Lou
Freshwater, who is a friend.
Defense Counsel: Now, Miss Barber, you testified that you don't use this as a blog, but would you agree that
anyone coming to this website from the internet would view it as a blog?
PLAINTIFF’S COUNSEL: Objection. Calls for speculation.
THE COURT: No, I'll allow that.
Ms. Barber: I believe they could, sure.
Defense Counsel: And, Miss Barber, I know I've asked this already, but just to be clear you're saying that you don't
have any explanation for this statement on your blog that you have 1,583 other followers?
Ms. Barber: I have absolutely no explanation for that. I've never seen it.
Defense Counsel: Your claim is that that is
inaccurate.
Ms. Barber: As far as June 26, 2016, the last time
I checked, that is absolutely inaccurate.
Defense Counsel: Had you checked it previously? The
number of followers?
Ms. Barber: I don't think I had. You can see they
provide a little image of the amount of viewers that
come, and it was always a flat line, meaning
nothing; so I didn't have reason to check before.
THE COURT: I want to be sure that we're talking in
language that is clear. It is possible to follow a blog – to
register to follow a blog, but it is also possible just to look
at a blog. And the difference between looking at a blog and
how many -- and that would be how many hits it gets as
opposed to a follower, who has signed on and said every
time they post it, please send it to me. So this distinction,
I think, needs to be followed up on.
Defense Counsel: Thank you, Your Honor. Dashboard of the MFDSH site reflecting one (1) follower named Lou.
Defense Counsel: Well, so you disagree with the fact that there is 1,583[CB17] followers; correct, Miss
Barber?

Ms. Barber: Absolutely. As of June 26, 2016. I haven't checked it since then.
Defense Counsel: Individual -- I'm sorry.
Ms. Barber: I'm sorry.
Defense Counsel: Individuals can still visit your blog and view it; correct?
Page 7 of 44
Ms. Barber: As far as I'm aware.
Defense Counsel: And that wouldn't be reflected in this follower count; correct?
Ms. Barber: I wouldn't think so. I don't know.
Defense Counsel: Okay. And do you know how many individuals have viewed your blog, let's say, in the last two
months?
Ms. Barber: You can look on the dashboard to make those determinations, you can.
Defense Counsel: Okay. And have you done that determination?
Ms. Barber: On June 26, 2016, I did.
Defense Counsel: And what was -- what information was provided on June 26, 2016?
Ms. Barber: I could -- I assessed how many followers, how many views each of the posts that you included
in the motion, how many views each of those posts got and other posts.
Defense Counsel: And what did that -- what was -- let's take, for instance, the May 3d post. I think that's the first post
of -- we'll call it the renewed activity after the settlement agreement; is that fair to stay, Miss Barber?
Ms. Barber: It -- sure. If I understand correctly, you're talking about the one with a letter in it; is that the one you're
talking about?
Defense Counsel: No. Let me direct you to page 49.
Ms. Barber: Okay. Oh, yeah, okay.
Defense Counsel: And this is a blog post that you made on May 3d, 2016; correct?
Defense Counsel: And there was a period after the
settlement occurred where you didn't make any blog posts for
several months; is that correct?
Ms. Barber: Right. I use Facebook as the way to
communicate with families, not the blog. I use the blog
when I need to share a lot of information at one
time[CB18].
Defense Counsel: Miss Barber, was the answer to my
question yes?
Ms. Barber: Can you repeat the question.
Defense Counsel: There was a period of time after the
settlement agreement where for several months you didn't Dashboard of Ms. Barber’s Military Families Deserve Safe Housing site
make any blog posts; correct? showing the amount of “views” each post has received, clearly
demonstrating the vast difference in exposure or views between posts
Ms. Barber: That is correct. And that's happened Ms. Barber shares on Facebook & those she does not.
numerous times [CB19]throughout the years.
Defense Counsel: Okay. Now, on May 3d, 2016, you resumed posting things on your blog; correct?
Ms. Barber: I created this but did not share this.[CB20]
Defense Counsel: Well, you posted it on your publicly available blog; correct?

Ms. Barber: On the warehouse; right. But it wasn't shared. There were six views[CB21].
Defense Counsel: You called this a warehouse. Miss Barber, substantial time went into creating this post, didn't it?
Page 8 of 44
Ms. Barber: I'm sorry, can you repeat the question.
Defense Counsel: A substantial amount of time went into preparing this May 3d post, did it not?
Ms. Barber: I have a lot of things written already. I mean, yeah, you know, maybe a couple hours.
Page 9 of 44
Defense Counsel: It's a six-page long blog post; correct?
Ms. Barber: Sure.
Defense Counsel: And it has pictures and images; correct?
Ms. Barber: Yes.
Defense Counsel: It's got diagrams that you created?
Ms. Barber: Oh, you're talking about the first, yes.
Defense Counsel: And it's got letters that you've posted as well?
Ms. Barber: Letters I've shared. Let's see, have I shared that? Is
that the Air Force? Yes.
Defense Counsel: And then it conclude -- well, on page 53 then is
a list of what you claim are undisputed facts, and there's numerous
bullet points.
Ms. Barber: Right.
Defense Counsel: And is it your testimony today that you posted
this with the intent that no one would read it?
Ms. Barber: I posted it to get information organized with

the prospect that I may share it[CB22], but again I've been
very careful and I just wasn't ready to post it; so I didn't.
THE COURT: I just want to be clear that, when you say "post it,"
you're talking about taking it from the blog and putting it on Facebook.
Ms. Barber: Yes, ma'am.

Defense Counsel: It was publicly available on the blog; correct?
Defense Counsel: And anybody in the world could view it on
the blog; correct?
Ms. Barber: Correct. And it had six views [CB23]as of June
26, 2016.
Defense Counsel: And they could find it through a Google search;
correct?
Ms. Barber: Depending on their search terms[CB24].
Defense Counsel: And did you link this to your Facebook page?
Ms. Barber: No.
Defense Counsel: You didn't link this particular blog post to
your Facebook page?
Ms. Barber: No.
Defense Counsel: Your Honor, I would -- we move to put exhibit 6
into evidence.
THE COURT: Very well.
Excerpt of May 3, 2016 draft on Ms. Barber's site
Plaintiff’s Counsel: Objection, Your Honor. I think you already
granted, but it was objected to foundation as well.
Page 10 of 44
Defense Counsel: Miss Barber, you testified a few moments ago that you
resumed posting[CB25] [CB26]to your blog on May 3d, 2016; correct?
Ms. Barber: Yes.
Defense Counsel: And that resumption was timed to coincide with
a solicitation letter that your attorneys sent out; correct?
Ms. Barber: No.
Plaintiff’s Counsel: Objection. It's argumentative.
THE COURT: No, it's just -- overruled. Miss Barber, if your attorney stands
up, don't talk[CB27]. Okay. Because we're getting people. So you've asked
the question. I've overruled the objection. Ask it again and let her answer; so
we don't have a mess on the record.
Defense Counsel: Thank you, Your Honor.
Defense Counsel: The May 3d, 2016 blog entry was timed to coincide with
a solicitation letter that your attorney sent out a few days later; correct?
Plaintiff’s Counsel: Same objection, Your Honor. Argumentative with
respect to "solicitation letter."
THE COURT: What part are you objecting to? You're the one calling this --
well, are you objecting to it being called a solicitation letter?
Plaintiff’s Counsel: Yes. The May letter. It's not named a solicitation
letter[CB28][CB29]. This is the characterization of defendants' counsel.
THE COURT: Okay. Well, that's all it is --
Plaintiff’s Counsel: Thank you.
THE COURT: -- so he can ask the question.
Defense Counsel: Did you understand the question, Miss Barber?
Ms. Barber: I believe that you asked if this post coincided with a
solicitation letter. There was no correlation [CB30]whatsoever.
Nothing to do with.
Notification letter sent to MCBH Families who
asked to be kept informed. This is the version Ms.
Barber shared on Facebook.
Defense Counsel: The letter's dated May 9, 2016. Do you have any understanding whether this letter was sent out on
or about that time?
Ms. Barber: I believe so.
Defense Counsel: Okay. And did you know at that time around May 9, 2016, that this letter would be sent out?
Ms. Barber: I didn't know it was going to be sent out until after. I mean, I knew there was, you know,
they needed to be notified, but I didn't see the letter until after it had been e-mailed or sent.
Defense Counsel: Is it fair to say you knew there was a planned letter before this letter was sent out?
Ms. Barber: I just knew that families needed to be notified[CB31][CB32].
Defense Counsel: Well, did you know that your attorneys were planning to send this letter before it was sent?
Ms. Barber: Not any specific date or -- I just knew, when the settlement occurred, that families needed
to be notified.
Page 11 of 44
Defense Counsel: Well, is it your testimony today that you didn't know in the days before May 9, 2016, that there was
a plan to send out this letter?
Plaintiff’s Counsel: Objection. Asked and answered.
THE COURT: No, it's certainly not answered.

Ms. Barber: I knew they needed to be -- can you repeat the question.
Defense Counsel: Miss Barber, I know you've testified that you haven't seen this letter before May 9; correct?
Defense Counsel: But you nevertheless knew that a letter like this was being planned to be sent out in early May;
correct?
Ms. Barber: I can't recall. What I can recall is after they – I recall asking, if there was going to be a letter
[CB33]sent out, when was it going to be sent out because I wanted the families to know, and it, you know,
several months had already passed. So I was asking the attorneys can you please, you know, let them know
because of their statutes of limitation and everything. I cannot specifically say when I knew that it was -- I
knew that it went out when I received it.
Defense Counsel: Okay. Those conversations that you were just describing where you discussed with your
attorney sending out this letter, those were in early May, late April; is that fair to say?
Plaintiff’s Counsel: Objection, Your Honor. And many of these
questions appear to seek invasion of the attorney-client
privilege[CB34] regarding conversations between Miss Barber and her
counsel. I've let the questioning go on in trying to understand. I just want
to raise the objection and ask for Mr. Whattoff to please be careful
regarding the privilege.
THE COURT: A good point.
Defense Counsel: Your Honor, I think that we will – I will be careful.
I do think to the extent there's communications about soliciting
clients, that's not attorney-client communications. That's Miss
Barber assisting her attorneys in soliciting new clients; so that would not
be privileged communications, Your Honor, I would argue.
THE COURT: Okay. I will allow [CB35]that.
Defense Counsel: Miss Barber, do you need me to repeat the question?

Ms. Barber: Please.
Defense Counsel: You had just discussed some conversations you had
with your attorneys where you discussed sending out a letter like the May
9th letter; correct?
Excerpt from Defense Exhibit 6, one of Ms. Barber’s
Plaintiff’s Counsel: Objection. Misstates her testimony. posts shared on Facebook encouraging families to
pursue multiple means of accountability
Ms. Barber: I --
Defense Counsel: I can rephrase the question. Miss Barber, you just discussed conversations that you had with your
attorneys where you discussed sending a letter to individuals related to filing lawsuits against Ohana; correct?
Plaintiff’s Counsel: Same objection, Your Honor.
THE COURT: Overruled. Answer the question.
Ms. Barber: No. There was no discussion about filing lawsuits or anything like that[CB36].
Page 12 of 44
Defense Counsel: Well, you discussed -- you just mentioned conversations you had with your attorneys; correct?
Ms. Barber: Those began back in February. That's when I said, "Okay. We need to inform the families."
Defense Counsel: Okay. And the purpose of informing the families, as you put it now, is so that they would
file lawsuits against Ohana; correct?
Ms. Barber: We just -- I personally just wanted them to know – keep in mind there are more than, you
know, 1500 families following the Facebook page who have reached out to us, hundreds, who have reached
out to us throughout the last years very concerned about this issue and asking to be kept informed. And
they, as a result, needed to know of the important developments in the case, one being a settlement. And I
wanted them to know about the settlement. I wanted them to understand that their statutes of limitation
were now ticking again[CB37] because my understanding was they were frozen during the litigation. That's
where my interest stopped.
Defense Counsel: Miss Barber, is it your testimony today that you
did not encourage people on your blog and on your Facebook page
to file lawsuits against Ohana?
Ms. Barber: I encourage families to pursue accountability.
Absolutely, I did. Many forms. Sorry. [CB38]
Defense Counsel: And did those forms include filing lawsuits against
Ohana, Miss Barber?
Ms. Barber: It included discussing their rights with an attorney.
Defense Counsel: Did you understand my question?
Ms. Barber: Maybe you need to repeat it, please.
Defense Counsel: You encouraged individuals on your blog and
on your Facebook page to file lawsuits against Ohana; correct?
Ms. Barber: No.[CB39]
Defense Counsel: Miss Barber, did you -- when did you learn about
this May 9, 2016 letter?
Ms. Barber: After it was sent out. When I saw it.
Another excerpt from Defense Exhibit 6 showing Ms.
Defense Counsel: How did you come to learn about it? Barber repeatedly shared the names & contact
information of numerous authorities MCBH families
Ms. Barber: I'm sorry, can you repeat that. could contact to seek accountability & adequate
protection of their families’ health & safety in
Defendants’ MCBH family housing community
Defense Counsel: How did you come to learn about the existence
of the letter?
Ms. Barber: I can't -- I think families started asking me about it first, but I'm not sure. Either -- but I
received a copy of it via e-mail, and I posted it.
Defense Counsel: Did you receive a copy of the letter from your attorneys?
Ms. Barber: Yes.
Defense Counsel: Who sent you the copy of the letter via e-mail?
Ms. Barber: My attorney.
Defense Counsel: Is that Mr. Smith?
Ms. Barber: Yes.
Defense Counsel: And Mr. Smith was providing that copy of the letter to you to post on your blog [CB40]and
Facebook page; correct?
Page 13 of 44
Plaintiff’s Counsel: Objection. Attorney-client privilege.
THE COURT: I can't see how that's attorney-client privilege.
Ms. Barber: No.
Defense Counsel: He was not providing it to you to post on your Facebook page?
Ms. Barber: No.
Defense Counsel: What was he providing it to you for?
Plaintiff’s Counsel: Again it calls for -- objection. Calls for speculation and breach of attorney-client privilege.
THE COURT: Okay. The lawsuit was over, been settled. What were you representing her in, Mr. Smith?
Plaintiff’s Counsel: Your Honor, the settlement agreement was still in effect for six months and is still in
effect. I'm an attorney with her today. As far as communications following the settlement agreement, I think
those are still privileged.
THE COURT: Mr. Whattoff.
Defense Counsel: These aren't communications regarding the settlement agreement, Your Honor. These
are communications regarding an attempt to solicit new clients to file lawsuits against Ohana.
Plaintiff’s Counsel: Objection, Your Honor. Again Miss Barber just denied that that even happened; so his
characterization is incorrect.

THE COURT: What we're talking about now is whether or not you sent her a letter to post soliciting business[CB41].
That's what we're talking about. So I'm going to overrule your objection, and you may ask your question again.
Defense Counsel: Miss Barber, the letter was provided to you so that you could post it on your Facebook
page; correct?
Ms. Barber: No.
Defense Counsel: What do you contend was the purpose of providing you the letter?
Ms. Barber: Again I think I was already receiving questions from families. They were confused by the
letter. They didn't really understand what was going on. And I couldn't really speak to it or answer those
questions, unless I had a copy of it myself and understood it; so I asked for a copy.
Defense Counsel: Okay. Did you talk to Mr. Smith about posting it on your Facebook page?
Ms. Barber: No[CB42].
Defense Counsel: Your testimony is that you've never had any conversation with Mr. Smith about posting
the May 9th, 2016 solicitation letter on your Facebook page; is that correct?
Plaintiff’s Counsel: Objection. Asked and answered.
Page 14 of 44
THE COURT: Overruled. Answer the question.
Ms. Barber: I had previously discussed other – a video
that I created, and it was regarding the settlement, and I
just wanted to make sure I could -- certain things were okay
to share on my Facebook page that discussed the
settlement. And because those were okay to share I felt this
was okay to share, and I shared it.

Defense Counsel: Okay. So you had previously discussed was
that some things that went into the May 3d blog post or Facebook
post?
Ms. Barber: A video.
Defense Counsel: Is that the YouTube video that you recently
created?
Image of video from YouTube showing Ms. Barber posted
Ms. Barber: Correct. the video on April 1, 2016
Defense Counsel: Do you know the date of that video?

Ms. Barber: I do not. Not off the top of my head.
Defense Counsel: And in that video you include contact information for the Smith and Revere law firms; correct?
Defense Counsel: And in that YouTube video you encourage individuals to contact the Smith and Revere law firm;
correct?
Ms. Barber: To contact an attorney[CB43].
Defense Counsel: And the only attorneys that you mention in that video are the Smith and Revere law firms; correct?
Ms. Barber: And I also include, you know, I recommend they should also contact the HDOH, ATSDR, EPA,
and I provide their contact information as well.
Defense Counsel: Miss Barber, the only attorneys that you encourage them to contact are the Smith and Revere law
firms; correct?
Ms. Barber: I believe there was an image where it showed them as attorneys they could contact.
Defense Counsel: Those are the only attorneys that you included; correct, Miss Barber?
Ms. Barber: That I can recall (nodding).
Defense Counsel: And you mentioned that you discussed that YouTube video with your attorneys before
you posted it; correct?
Ms. Barber: Yeah, there are certain slides that discuss the settlement that I wanted to get approval for,
yes.
Defense Counsel: And your attorneys knew that you were going to make that YouTube video publicly available; correct?
Plaintiff’s Counsel: Objection. Calls for speculation. Again attorney-client privilege. He's just established that the
discussion of the video was related to the settlement agreement and whether or not -- was related to the settlement
agreement, which is a scope of representations.
Defense Counsel: Your Honor, Miss Barber's testified that she included in this video a request for her attorneys contact
information and she encouraged folks to contact her attorneys. We think this plainly falls into the solicitation category.
THE COURT: Answer the question.
Page 15 of 44
Ms. Barber: Can you repeat the question, please.
Defense Counsel: Your attorneys knew you were going to post that
YouTube video publicly; correct?

Plaintiff’s Counsel: Objection. Foundation or no foundation --
THE COURT: I've already ruled, Mr. Smith. Answer the question.
Ms. Barber: I don't know if they knew or not to be honest. I was
asking them if these would be okay to publish.
Defense Counsel: Okay. You asked them --
Ms. Barber: There are certain slides in the video, and there
were the slides about settlement. The legal issues I wanted to
make sure were okay to share.
Defense Counsel: And you did, in fact, post this YouTube video;
correct?
Ms. Barber: Eventually, I did.
Defense Counsel: When did you post that video?
Ms. Barber: I can't recall specifically.
Defense Counsel: Was it in or around May 2016?
Ms. Barber: It may have been. I'm not sure specifically.
Defense Counsel: Is that YouTube video publicly available?
Ms. Barber: Yes, it's on YouTube and on Facebook, yeah.
Defense Counsel: You link to it on your Facebook page as well?
Ms. Barber: I think I did.
Defense Counsel: How long is that YouTube video?
Ms. Barber: It's long. I don't think anybody's ever watched it.
It's close to an hour.

Defense Counsel: And you spent a significant amount of time putting
that video together, didn't you, Miss Barber?
Ms. Barber: I did, yes.
Defense Counsel: Approximately, how long?
Ms. Barber: A long time. It's a history of the whole thing. It
starts from when these pesticides were applied in the '40s. So
couple weeks, you know, off and on. Slides from Ms. Barber's Video that she checked with
her attorneys to make sure they were okay to post,
if she ever chose to do share the video publicly
Defense Counsel: So you testified that your attorneys e-mailed
you the May 9th solicitation letter; correct?
Ms. Barber: Yes.
Defense Counsel: What did they tell you then in connection with the May 9th, 2016 solicitation letter?
Ms. Barber: What did they tell me in connection with this letter?
Page 16 of 44
Defense Counsel: Correct.
Ms. Barber: I don't think they're -- I think it was this is what, you know, we sent the families. Here per
your request.
Defense Counsel: Miss Barber, we've already talked about your blog and about your YouTube video. Did you also
launch an entirely new website at about this same time?
Ms. Barber: You're talking -- can you tell me what you're referring to?
Defense Counsel: I can. It's the My MCBH Housing.Weebly.com?
Ms. Barber: I did start working on that, yes.
Defense Counsel: Okay. And you made that website publicly available; correct?

Ms. Barber: I eventually did. And that's what I would refer to as a blog, I guess, as more a blog. The other
one's just a warehouse, yeah.
Defense Counsel: My MCBH Housing.com website, that's -- it has, like, tabs at the top of different categories of
information; correct?
Ms. Barber: Right. Or a website, yeah, either way.
Defense Counsel: And the timing of this new website
was timed to coincide with the activity that was going on
around this May 9, 2016 solicitation letter; correct?
Ms. Barber: No.
Defense Counsel: It was just coincidence that they were
done at about the same time?
THE COURT: Okay. Okay.
Ms. Barber: Sorry.
THE COURT: Miss Barber, this woman is writing down
everything you say. And when you speak over the attorney, Transcript of on-line chat Ms. Barber had with Weebly confirming the
website in question was created on October 29, 2015 – NOT in April or
two things happen: you cut off his question, and you make it May 2016, as Defendants falsely allege.
very difficult for her to make a record.
So if you would ask your question again, and would you wait -- just take a breath after he finishes before you start talking.
Please ask your question again.
Defense Counsel: Miss Barber, my question is is it your testimony that it's just a coincidence that this new
MCBH Housing website was launched at about the same time that the solicitation letter was sent?
Ms. Barber: Absolutely.
PLAINTIFF’S COUNSEL: I apologize, Your Honor. I was -- I just didn't hear it. I suppose the objection is relevance to
the extent that this whole course of questioning -- the purpose of the hearing is to talk about violations or
defamatory statements. We've yet to get that how this letter or for that matter any of his question is relevant
to the purpose of this hearing. But on that objection.
Defense Counsel: Well, Your Honor, there's a couple reasons for this questioning. One is to establish Miss Barber's --
the extent of Miss Barber's activity. The other is to show how Ohana and Forest City have been damaged by this
activity because it's been connected with this solicitation. I do recognize that this is just a preliminary injunction
hearing, and I should be wrapping up with this questioning relatively quickly. But the fact, for instance, that Miss Barber
testified that these activities when -- or the number of Facebook followers that they went out to, for instance, are highly
relevant to what's happening in connection with this activity, Your Honor.
Page 17 of 44
THE COURT: Okay. Anything else, Mr. Smith?
PLAINTIFF’S COUNSEL: Again, Your Honor, the issue -- just in response.
The issue with the settlement agreement is if --whether or not it's
defamation. If it's not defamation, then it's not a breach. There's no
discussion or even proffer or proof of how anything that's been
discussed is any breach of the settlement agreement that we're
supposed to be discussing today.
THE COURT: Well, we'll leave it to Mr. Whattoff [CB44]to tie them together.
PLAINTIFF’S COUNSEL: Thank you.
Defense Counsel: Thank you, Your Honor.
Defense Counsel: All right. Miss Barber, if I could ask you to look back to
exhibit 6 again. Let me -- I'm sorry, Your Honor. Let me retract that question.
Let me just see if I can shorten this a little bit.
THE COURT: I'm assuming you do want to get your other witnesses on
today.
Defense Counsel: Thank you, Your Honor. Miss Barber, you testified
that you posted exhibit Q on your Facebook page; correct?
Defense Counsel: And the way that you posted that, you pinned it
to the top of your Facebook page; correct?
Ms. Barber: For a short while.
Defense Counsel: And that's so it would be the first post that anyone saw
on Facebook whenever they went to Facebook; correct?

Defense Counsel: and I believe you testified that you have approximately
1500 Facebook followers; correct?
Ms. Barber: Right. Correct. There's more than that now but, yeah. Notification letter sent to MCBH Families who
asked to be kept informed. This is the version Ms.
Defense Counsel: And those Facebook followers frequently interact with Barber shared on Facebook.
you on Facebook; correct?
Ms. Barber: Yes.

Defense Counsel: And you're claiming here that Forest City and Ohana Military Communities failed to use remove 18
inches of soil around the homes before beginning construction of new homes; correct?
Ms. Barber: Yes.
Defense Counsel: Did you think this was a serious allegation you were making against Forest City and
Ohana?
Ms. Barber: I thought it was the truth. Is the truth.
Defense Counsel: It's -- if it wasn't true, you understood that it would have a substantially adverse effect on Forest City
and Ohana; correct?
Page 18 of 44
Plaintiff Counsel: Objection. It calls for speculation, Your Honor, as far as the impact on Forest City and Ohana.
THE COURT: She can answer it.
Ms. Barber: I don't know how to say this, and this may not be good, but I was -- I was not thinking about
the impact on Forest City or Ohana [CB45]or whoever; I was only focused on the impact on military families,
having been one myself.
Defense Counsel: Okay. Did you understand this was a serious allegation you were making, though, Miss Barber?
Ms. Barber: I knew there were serious impacts to the military families. I didn't think Forest City or Ohana
took this that seriously; so I didn't think -- I mean, I didn't think of the impact on them to -- I'm sorry, I
didn't.
Defense Counsel: Miss Barber, during the litigation, the lawsuit, that led to the settlement agreement you learned that
Ohana claimed it had removed the required soils and replaced them with clean soils; correct?
Defense Counsel: Yes. During the litigation that led to the settlement agreement you learned that Ohana claimed it
had removed the required soils and replaced them with clean soils; correct?
Ms. Barber: I learned they claimed that.

Defense Counsel: And, Miss Barber, the Hawai'i Department of Health has told you that there's no evidence
of elevated levels of pesticides at Marine Corps Base Hawaii; correct?
Plaintiff’s Counsel: Objection. Misstates the evidence. Also assumes facts not in evidence.
THE COURT: Okay. When you say it misstates the evidence, what are you basing it on, Mr. Whattoff, your question?
What are you looking at, Mr. Whattoff? Exhibit what?
Defense Counsel: I'm looking at plaintiffs' exhibit 22.
THE COURT: What part of plaintiffs' exhibit 22?
Defense Counsel: I'm looking at the bottom under number 3, the last paragraph. Miss Barber, do you have
that in front of you?
THE COURT: So you're on page 2 of the letter from -- to Dr. Walter Chun from the Department of Health in the State of
Hawai'i, dated October 1st, 2014, and what part of it are you --
Defense Counsel: I am looking at number 3 on page 2, the second paragraph under that number 3, the last sentence
of that after the semicolon.
Plaintiff’s Counsel: Object as far as the rule of
completion.
Defense Counsel: We can read the whole sentence.
Page 51, Evidentiary Hearing Testimony, August 3,

2016
Defense Counsel: And I'm going to direct you to the last
two sentences, Miss Barber. They say "Post-construction
sampling of subsurface soils in completed neighborhoods was
not included in the plan or required by HDOH. As a result,
no sampling data is available to support the effectiveness of
OMC's actions. On the other hand, we have no evidence that
OMC's actions were not effective or that pesticides are
present in surface soils at unacceptable levels in OMC housing
neighborhoods."
Paragraph 3 of October 2014 letter from HDOH to Dr. Chun
Page 19 of 44
My question is were you aware in May 2016 when you made this post that we're discussing that the Hawai'I
Department of Health claimed that there was no evidence that OMC's actions were not effective or that
pesticides were present in surface soils at unacceptable levels?
Plaintiff’s Counsel: Same objections, Your Honor. Rule of completion. Misstates the evidence. That's not all that
the letter states.
THE COURT: Is there some other part of the letter that you think is relevant, Mr. Smith?
Plaintiff’s Counsel: All of paragraph 3 in the response where it refers to the lack of monitoring to be able
to establish effectiveness in either direction. Specifically, the second paragraph -- well, both paragraphs, but
the second paragraph in response to the third question.
Defense Counsel: Your Honor, we have no objection to reading all of the response of number 3 in the record. I'm just
trying to establish that Miss Barber had knowledge that Ohana, Forest City, the Department of Health's
position before she made these postings on her blog and her Facebook page.
THE COURT: Why don't you ask her. Have you had an opportunity to review it?
THE COURT: Okay. Mr. Smith, what's your --
Plaintiff’s Counsel: Again, if there's no objection to reading all three, we would request that and again object
to the extent he's offering this to establish the Department of Health's position -- official position regarding
approval of their practices or the safety of soil levels at Marine Corps Base Hawaii.
THE COURT: Okay. I understood the first part, but I don't understand the second part that you just said.
Plaintiff’s Counsel: Sure. I think what he just said is he's wanting her to testify to the Department of Health's position
regarding soil analysis. My point is that the letter speaks for itself. The whole letter should be referenced.
THE COURT: Well, do you have any objection to the letter coming into evidence? It's your exhibit.
Plaintiff’s Counsel: I don't have an objection.
THE COURT: Okay. So you have any objection to the
letter coming in?
Defense Counsel: I do not, Your Honor.
THE COURT: Okay. Now, Miss Barber, you've read this
letter before; correct?
THE COURT: You're aware of what's in the letter?
THE COURT: Now, I think you want to rephrase your
question, Mr. Whattoff, and have an answer from Miss Paragraph 5 of October 2014 HDOH letter to Dr. Chun
Barber.
Defense Counsel: Thank you, Your Honor. Miss Barber, you had read this letter at or about the time it was
written in October 2014?
Ms. Barber: Around that time, yes.
Defense Counsel: And you were aware then that the HDOH had stated that there was no evidence of
pesticides present in surface soils at unacceptable levels in OMC housing neighborhoods?

Ms. Barber: I'm aware they don't have evidence either way.
Page 20 of 44
Defense Counsel: Miss Barber, you were provided numerous reports in connection with the underlying litigation; correct?
Ms. Barber: Voluminous, yes.

Defense Counsel: Are you looking at page 189, Miss Barber?
Defense Counsel: And what is this chart called?
PLAINTIFF’S COUNSEL: Objection. Foundation. Refers to a
document that's not in evidence.
THE COURT: Mr. Whattoff, you want to have her review it and
see if she understands what it is.
Defense Counsel: Sure.
Defense Counsel: Well, Miss Barber, do you have an
understanding of what exhibit T is?
Ms. Barber: I believe -- if I'm not mistaken, this looks
like a bigger chart of what was included on the burial pit
map.
Defense Counsel: I'm sorry.
Image of Exhibit T, Mololani Pesticide Soils Management Plan
Ms. Barber: I think it's where they're trying to show
where they put soils in burial pits in the neighborhoods. Is that right?
Defense Counsel: You reviewed exhibit T in connection with the underlying litigation; correct?
Ms. Barber: T. Which one was that?
Defense Counsel: That's what we're looking at
right now.
Ms. Barber: Okay. Yes. The closure report,
uh-huh.
Defense Counsel: Your Honor, if I could make a
proffer of why this line of questioning is relevant.
THE COURT: Mr. Smith.

Plaintiff’s Counsel: Yes. Before the relevance it's
just the underlying foundation of the document. The
fact that it was received or produced in the
underlying litigation doesn't mean she can
authenticate it or testify to what it is to get it
now to come into evidence, much less the
underlying relevance. Copy of same report as it actually appears in the Pesticide Soils Closure Report
for Mololani (2012)
Defense Counsel: Your Honor, plaintiffs' position is that in order for Miss Barber to be held responsible for
any of these postings she must have been negligent or reckless or have some other state of mind. The fact
that she reviewed these documents, those soil closure reports, before she made these postings or if she
didn't review these before she made these postings are absolutely relevant to her state of mind when she
made the postings.
THE COURT: Okay. Mr. Smith.
Page 21 of 44
PLAINTIFF’S COUNSEL: Again that's a question that he can ask her if she reviewed what she thought were closure
reports, but that doesn't establish foundation of this exhibit. Also I would just correct arguing that negligence is the
standard for defamation for Miss Barber[CB46].
THE COURT: I'm not going into the standard. It's not before me at this point. That will become relevant at a later time.

PLAINTIFF’S COUNSEL: Thank you, Your Honor.
THE COURT: With respect to this I think it would be helpful if, Mr. Whattoff, if you put into evidence what this document
actually is. And it doesn't have to be in evidence yet for her to be questioned about it; so just establish what it is.
Defense Counsel: Thank you, Your Honor. Miss Barber, what is exhibit T[CB47]? What is your
understanding of what is exhibit T?
Ms. Barber: Pesticide soil activity closure report for the Mololani neighborhood.
Defense Counsel: And did you have an understanding that the purpose of this report was to track what
happened with the soil in the Mololani neighborhood?
PLAINTIFF’S COUNSEL: Same objection. It's foundation. Testifying to --
THE COURT: No, it's her understanding. She is setting herself up to be knowledgeable about this and posting about
it[CB48]; so it is appropriate for him to ask her about the foundation for that. It isn't a matter of whether it's true. I'm not
worried about that right now. He is researching what she did to prepare herself to take the role that she took. I'm overruling
your objection once he has established what it is that she's reviewing.
Defense Counsel: Miss Barber, is it your understanding that this is a document that tracks exactly what
happened with the soils in the Mololani neighborhood during construction activities in Mololani?
Ms. Barber: My understanding is this is what they claim that happened. I also lived there, and so I
witnessed what actually happened.
Defense Counsel: Do you still have page 189 in front of you?
Ms. Barber: Yes.
Defense Counsel: Miss Barber, did you review these pages 189 to 196 when you reviewed exhibit T?
Ms. Barber: They look like information I have reviewed before, yes, is the basis of the -- where they
didn't remove the contaminated soil from the neighborhoods; they left it, buried it under homes and
community playgrounds. That's what this says.
Defense Counsel: Miss Barber, this document purports to track every one of the buildings that was
demolished in the Mololani neighborhood; correct?
Ms. Barber: I'm sorry, can you repeat that.
Defense Counsel: This document that begins on page 189, it purports to be a tracking of each of the
buildings that existed in the Mololani neighborhood prior to redevelopment; correct?
Ms. Barber: My understanding --
PLAINTIFF’S COUNSEL: Same objection, Your Honor, again. If it's her understanding he's asking –

THE COURT: He's asking. She's answering. Overruled.
Ms. Barber: My understanding is it's about the contaminated soils at these neighborhoods. I wouldn't
refer to it as demolition maybe.
Page 22 of 44
Defense Counsel: Okay. You didn't understand that this document -- I'm sorry, could you repeat that. What
was your understanding of what this document is?
Ms. Barber: That it's about what they say they did with contaminated soils at these locations. At these
addresses.
Defense Counsel: And do these addresses appear to be all of the buildings in the Mololani neighborhood?
Ms. Barber: I can't speak to that. There's hundreds.

Defense Counsel: And for each building it lists an amount of soil that was removed and where it was removed to;
correct?
Ms. Barber: That's what they claim.
Defense Counsel: And, Miss Barber, do these exist -- do similar soil closure reports exist for each of the
neighborhoods that Ohana constructed?
Ms. Barber: I've seen one for Mololani, Waikulu, and Ulupau.
Defense Counsel: And are those the three neighborhoods that Ohana constructed at Marine Corps Base
Hawaii?[CB49]
Ms. Barber: They're three of them.
Defense Counsel: What are the other neighborhoods that you contend Ohana constructed at Marine Corps
Base Hawaii?
Map of the MCBH Family Housing Community, including all MCBH neighborhoods Defendants have been responsible for & managed since
2006, including the neighborhoods they redeveloped. Importantly, Defendants leased homes in ALL MCBH neighborhoods that were
either confirmed or presumed contaminated without disclosing the same to residents.
Page 23 of 44
Ms. Barber: They renovated Kapoho, I believe, and they're working -- well, now it's Hunt Companies. But working on
Hana Like now, Hunt Company -- Ohana is.
Defense Counsel: Okay. You're also -- so the other neighborhood that Ohana has redeveloped is Kapoho; is that
correct?
Ms. Barber: They renovated, yeah -- or, no, they redeveloped that one, yeah.
Defense Counsel: There's just 10 homes in Kapoho; correct?
Ms. Barber: I'm not sure of the number. There aren't as many for sure.
Defense Counsel: Approximately, 10 homes in Kapoho?
Ms. Barber: It could be.
Defense Counsel: And, approximately, how many homes are in Waikulu, Mololani, and Ulupau?
Ms. Barber: You're talking all together?
Defense Counsel: All together.
Ms. Barber: Let's see. It depends on which report you look at for -- because Pesticide Soils Management
Plan, I think, says there's anywhere from 600 or 400 in Mololani. Relative to Waikulu, I didn't live in that
neighborhood; so I'm not as familiar with how many. But there are hundreds; is that sufficient?
Defense Counsel: There's more than a thousand homes in the Mololani, Waikulu, and Ulupau neighborhoods
together; correct?
Ms. Barber: If you say so, yeah, I believe 1300 were redeveloped.

Defense Counsel: When we broke for the recess, we had been discussing your claim that Ohana and Forest City failed
to remove 18 inches of soil from around the homes they built; do you recall that?
Ms. Barber: Yes.
Defense Counsel: What evidence, if any, do you have to support that, Miss Barber?
Ms. Barber: The Pesticide Soils Management Plan.
Defense Counsel: The Pesticide Soils Management Plan states that. Is there anything else, Miss Barber?
THE COURT: Well, perhaps you could tell us where and what it states what you say it states.
Ms. Barber: The Tier 2 EALs propose and evidently permit higher contaminated soil to remain in the
neighborhood; so some may have -- they claim to have removed some but left some as well. So not all.
Defense Counsel: I'm sorry. Are you saying that the Pesticide Soils Management Plan states that some soils around
the-
Ms. Barber: Based upon -- I'm sorry.
THE COURT: Please do not interrupt the attorney.
THE COURT: Go ahead, Mr. Whattoff.
Defense Counsel: Where was soil left around the homes in Mololani, Ulupau, and Waikulu?
Ms. Barber: My understanding is that the Tier 2 EALs establish higher contamination [CB50]levels to allow
the contaminated soil to remain in the neighborhoods up to the Tier 2 EALs, and it is only the soils that were
above the Tier 2 EALs they propose to have removed.
Defense Counsel: Okay.
Ms. Barber: And --
Page 24 of 44
THE COURT: Was there something else you wanted to say?
Ms. Barber: No, ma'am.
Defense Counsel: Miss Barber, exhibit --
THE COURT: Do you have Kleenex.
Ms. Barber: I do. Thank you.
THE COURT: Your question, Mr. Whattoff.
Defense Counsel: Miss Barber, if you could take a look at exhibit B,
that's the Pesticide Soils Management Plan.
Ms. Barber: Defendants' exhibits; right?
Ms. Barber: All right.
Defense Counsel: Miss Barber, the Pesticide Soils Management Plan
was drafted prior to the construction activities taking place; correct?
Ms. Barber: Correct. As far as I'm aware.
Defense Counsel: And the Pesticide Soils Management Plan proposed
different ways for addressing soil at Marine Corps Base Hawaii; correct?

Defense Counsel: Okay. And is the Pesticide Soils Management
Plan the only document you're relying on to make your
allegation that 18 inches of soil from around the homes was not
removed?
Ms. Barber: Again I'm referring to the need for the
hazardous contaminants in the soil [CB51]to have been removed
from the neighborhoods, and it was not.
Defense Counsel: Is there any other evidence that supports that
other than your claim that the Pesticide Soils Management Plan supports
that?
Ms. Barber: Closure reports?
Defense Counsel: You're saying the closure reports support that the
Photos Ms. Barber took of Defendants' project sites from
removal didn't take place? her MCBH home
Ms. Barber: That the removal from the neighborhoods did not take place.
Defense Counsel: How do the closure reports support that removal from around the homes did not take place?

Ms. Barber: Because the closure report --
THE COURT: Okay. Hang on. We're talking at cross purposes here[CB52]. She is saying from the neighborhoods; you're
saying around the homes. I understand what you're saying is talking about two feet from the slab?
Defense Counsel: That's correct, Your Honor.
THE COURT: So I think we need to get on the same page in terms of your question and her answer because it doesn't
do me any good in trying to decide if you are talking at cross purposes.
Page 25 of 44
Defense Counsel: Thank you, Your Honor. Your statement on your blog -- the statement you made on your blog and
on YouTube and on your Facebook page is that to insure new housing in neighborhoods developed are safe for military
families 18 inches of highly contaminated top soil needs to be removed from these neighborhoods spanning a hundred
acres.
Okay. What is your evidence that that did not take place? You mentioned the Pesticide Soils Management Plan and the
closure reports; correct? How do the closure reports support that that did not take place?
THE COURT: I'm going to interrupt you --
THE COURT: -- Mr. Whattoff. I think that we have something of a disconnect [CB53]in terms of what the defendants are
saying happened and what Miss Barber is saying what happened.
And the disconnect that I see has to do with -- I understand 18 inches under the slabs of the homes and two feet out. I
don't know what your position is with respect to any other places. And she is talking in broad general terms; so you need
to close that gap so I can understand what your position is and her position is.
Map of the MCBH Family Housing Community, including all MCBH neighborhoods Defendants have owned & managed since 2006 per
their 50-year MHPI contract. This includes the Pa Honua MCBH neighborhood that Dr. Walter Chun helped redevelop.
Defense Counsel: Okay. Miss Barber, your statement on the website and in these various other areas is that
Ohana failed to remove these 18 inches from around and underneath the slabs from around the homes; is
that correct?
Ms. Barber: That's not my statement.
Defense Counsel: Okay. Do you -- do you believe that Ohana did remove the 18 inches of soil or 24 inches
of soil from around and underneath the homes in these neighborhoods?
Ms. Barber: No.
Page 26 of 44
Defense Counsel: So you contend that Ohana -- in these statements on your blog and on Facebook you contend that
Ohana failed to remove that soil from underneath and around the homes; correct?
THE COURT: And the two feet out we're talking.
Defense Counsel: Two feet out as well.
Ms. Barber: Based upon my observations, yes.
Defense Counsel: Okay. Now you're saying that's based on your observations; is that correct?
Ms. Barber: Right.

Defense Counsel: Okay. Do you also -- you've mentioned the closure reports, you've mentioned your
observations, and you've mentioned Pesticide Soils Management Plan. Let's talk a little bit about the closure
reports. Are you still saying the closure reports support that that did not take place?
Ms. Barber: The closure reports absolutely support that soil -- contaminated soils were not removed
from the neighborhoods[CB54]. I think it says that soils were removed from around the homes, but --
Defense Counsel: You're talking about the practice of burying soils in the neighborhoods and covering them with clean
soils; is that correct?
Ms. Barber: The burial pits; is that what you're referring to?
Defense Counsel: Yes. When you say the closure reports don't support this for the neighborhoods, what you're referring
to is that after the soil was removed from around the homes it was buried on base and covered with clean soil; correct?
Ms. Barber: Correct. It was buried in the neighborhoods; correct.
Defense Counsel: But the closure reports don't support the statement that18 inches of clean soil -- or, I'm sorry, 18
inches of soil was not removed from around and underneath the homes on base; correct?
Ms. Barber: I did not say that.

Defense Counsel: Okay. But you did say that -- are you relying on your personal observation, then; is that what you're
saying?
Ms. Barber: Yes.
Defense Counsel: For support of that statement.
Ms. Barber: Yeah, there were three -- at least three project sites that we lived right beside from beginning
to end.[CB55]
Defense Counsel: Okay. Do you recall having your deposition taken on July 2d, 2015, Miss Barber?
Ms. Barber: I do, yes.
Defense Counsel: And during that deposition I asked you at length about the observations you made while living on
base; correct?
Ms. Barber: Can you read that, please.
Defense Counsel: Miss Barber, at your deposition you were asked at length about the observations that you allegedly
made while you were living on base; correct?
Ms. Barber: Yes.
Defense Counsel: And you testified that you had not made any specific attempts [CB56]to observe whether
soil was being removed while you lived on base; correct?
Ms. Barber: That misstates my statement.
Defense Counsel: Okay. Your Honor, may I approach the witness with her deposition?
Page 27 of 44
THE COURT: If you have a copy for me.
Defense Counsel: I have a copy of excerpts for everyone. Is that sufficient?

THE COURT: Yes, if that's what you're going to have her look at.
PLAINTIFF’S COUNSEL: Is this the exhibit that you designated?
Defense Counsel: This is not. This is the excerpt. Some of it is, but,
no, it's not.
PLAINTIFF’S COUNSEL: Do you have a copy for Terry?
THE COURT: What page are we looking to, Mr. Whattoff?
Defense Counsel: I'm going to direct your attention to page 104, beginning
on line 17. Miss Barber, at your deposition you testified, "Well --
THE COURT: I think what you need to do, Mr. Whattoff, is have her read for
herself what she testified to and see if that refreshes her recollection.
Defense Counsel: Thank you, Your Honor. Miss Barber, if I could direct your
attention to page 104, beginning at line 17, and continuing on to line 10 on page
105.
Ms. Barber: Uh-huh.
Defense Counsel: Miss Barber, does this refresh your recollection [CB57]about whether you made -- you
testified that you made any specific attempts to observe whether soil was being removed while you lived on
base?
Ms. Barber: Specific attempts, all right.
THE COURT: What is your answer?

Ms. Barber: I don't understand what he means by "specific." You
mean like that was my intent?
Defense Counsel: That's exactly what I mean. Your intent was to
observe whether soils were being removed from around foundations.
Ms. Barber: Okay. That --
PLAINTIFF’S COUNSEL: Objection. Vague as to time frame that he's asking
for intent.
THE COURT: You mean at the time of observation.
Defense Counsel: Thank you, Your Honor, yes.
Ms. Barber: My intent at the time was to -- to look outside. That's
all I saw. And when we started having serious health effects and so
many other families did, too, I started taking pictures when I noticed
things that did not appear safe.
It was only in retrospect after reading the Pesticide Soils Management Plan that I compared it to the
photographs, what was in the photographs.
Page 28 of 44
Defense Counsel: So your testimony is that you didn't make any specific intent to observe it while you lived on base,
but that you observed photographs after the lawsuit was filed or about the time the lawsuit was filed; what's the time you're
testifying to here?
Ms. Barber: Are you asking me -- can you -- I don't understand the question.
THE COURT: I think it's a compound question, Mr. Whattoff, and if you could
simplify it, it would be helpful.
Defense Counsel: That's fair, Your Honor. Let me just break this up into
pieces, Miss Barber. At your deposition you testified that you didn't do anything
like going out to a construction site, observing a foundation was present, and
then observing after the foundation was removed to see whether soil was
removed; is that correct?
Ms. Barber: I didn't with that --
PLAINTIFF’S COUNSEL: Just objection again. It misstates the deposition.
I mean, it's in front of her. He knows how to use the deposition.
THE COURT: Well, he's already gone through that. Now he's asking her because
she --
PLAINTIFF’S COUNSEL: Right.
THE COURT: She can testify, but the answer -- View of hazardous demolition outside Ms.
Barber’s asthmatic child’s bedroom
PLAINTIFF’S COUNSEL: Yes. window
THE COURT: I don't think we have an answer; so ask your question again.
Page 74, Evidentiary Hearing, August 3, 2016

Defense Counsel: Would you like me to repeat the question?
Ms. Barber Is it about what my intent was?
Defense Counsel: The question was while you were living on base
you didn't do anything like go to a building site where a foundation
was, observe the foundation, and then go back to that same building
site post-removal or during removal and observe whether the soil was
actually removed or not; correct?
Ms. Barber: I did observe that, but it wasn't my intent. I mean, it was
just all around, and I have pictures.
Defense Counsel: Could you -- that's not what you testified to at your
deposition[CB58]; correct?
Ms. Barber: It can't be. If you want to --
Defense Counsel: Let me have you look at page 105. And I'll direct your
attention to line 11. Okay. And did you read that, Miss Barber?
Ms. Barber Yeah.
Defense Counsel: Does that refresh your recollection about what you
testified to at your deposition?
Ms. Barber: Yes. I'm saying the same thing.
Defense Counsel: Okay. Well, let -- Your Honor, if I may read the deposition
into the record.
Page 29 of 44
THE COURT: Okay.
Defense Counsel: Miss Barber, at your deposition you were asked: "Okay. And with sites away from your home
you never did a systematic observation. And that sounds a little technical but really all I mean is, okay, you
went out and observed when the foundation was there, you went and observed when the foundation was
being removed, and then you went to the same place afterwards and observed the new foundation. Did you
do anything like that? "Answer. Not intentionally, no. "Now, for the homes near your home did you go through
that process? "Not intentionally, no." Does that refresh your recollection[CB59] about whether you did the type of
observation I had asked you about?
Ms. Barber: It says the same thing I was saying. It wasn't intentional. It was all around me, and I saw it all
the time.
Defense Counsel: Okay. But you never went to a specific home and
looked at the foundation before and the foundation after removal;
correct?
Ms. Barber: I would see them because they were right outside
every window; so every day I saw what was going on on the
project site.
Defense Counsel: Miss Barber, do you understand the question?
Ms. Barber: I don't know.
Defense Counsel: Okay. I'm just asking you whether you went
to project sites and observed a site where there was a
foundation and then went afterwards to see whether soil had
been removed from that specific site.
Ms. Barber: Maybe it would help if -- to share that at the time
when we lived there I did not know anything about
contaminated soil; so I was not interested in slabs or those
things. I was trying to figure out why we were getting sick. So
I took pictures -- I noticed all these things that were going on.
I watched it. I took pictures. And after reading the Pesticide
Soils Management Plan compared it to my recollections and my
photographs.
Defense Counsel: When did you read the Pesticide Soils Management
Plan for the first time?
Ms. Barber Late 2013.

Defense Counsel: You're saying, though, when you read the Pesticide
Soils Management Plan approximately two years later then you
concluded that Ohana had failed to remove these soils based on your
recollections of what happened two years earlier? View of demolition right outside Ms. Barber’s MCBH home
Ms. Barber: Based on my recollections, my photographs[CB60], hundreds of them, and what I saw.
Defense Counsel: Okay. What are these photographs you're referring to? There's no photographs as exhibits to
plaintiffs have submitted here. Can you describe these photographs.
Ms. Barber: Many. They were exhibits to the lawsuit. They were submitted for that -- or discovery,
whatever. But they're of all the demolition, construction, and everything, the dust, pervasive dust
everywhere.
Defense Counsel: Do you have -- are you testifying that you have photographs of the process of actually
removing soil from around the foundations?
Ms. Barber: No.
Page 30 of 44
Defense Counsel: Okay. Miss Barber, is it your testimony that what you
observed was that Ohana and Forest City failed to remove -- well, strike
that. Miss Barber, is that your current contention that Forest City and
Ohana failed to remove any soil from around the homes on Marine Corps
Base Hawaii?
Ms. Barber: My contention is that they did not remove the contaminated
soils from the neighborhoods and -- yeah.
Defense Counsel: Miss Barber, you've been testifying about your observations;
correct?
Ms. Barber: And documents, reports.
Defense Counsel: Is it -- I'm trying to understand your observation. Is your
testimony that you observed that Ohana failed to remove any soil from around the
foundations, or is it your testimony that they didn't go 18 inches or that they didn't
go 24 inches? What are you claiming that you observed?
Ms. Barber: What I saw happen was that they removed the slabs and
crunched them up through some sort of machine and then used that after
they flattened out the soil -- this is what I recall, and photographs
support that. They would spread out the concrete and stuff they
crunched up and put it on top, and they'd have cars and stuff driving
around it to flatten it out. That's what I saw.

Defense Counsel: Specific to the removal of pesticide-impacted soil or
potential pesticide-impacted soil from around homes, are you testifying
that you observed that Ohana failed to remove the soil from around and
underneath the foundations, or are you testifying that they didn't
remove enough? What are you testifying that you observed in that
regard?
Ms. Barber: I didn't see soils being removed that I recall at all.
Defense Counsel: Okay. Now, that's not what you testified to at your
deposition; correct, Miss Barber?
Ms. Barber: I think I said something about the six inches; is that what
you're referring to?
Defense Counsel: That's absolutely what I'm referring to.
Ms. Barber: Right.
Defense Counsel: You testified at your deposition that you had observed Ohana
removing soils from around the foundations; correct, Miss Barber?
Okay. You testified that you observed six inches of soil being removed from around the homes; correct?
Ms. Barber: I'm referring to the slab and the immediate whatever is right underneath the slab.
Defense Counsel: Okay. So you're saying --
THE COURT: I want to be sure that we're talking about the same thing. We're talking about the amount of soil placed on
the location where the new home slab would be built; is that right?
Ms. Barber: I'm referring to my observations of the removal of the slabs and whatever -- I assume there
would have been soil with that and -- because there were these piles of soil and crushed concrete that were
the slabs. That's what they did. So it was just the immediate -- that's the six inches is the slab and the soils
right around it.
Page 31 of 44
Ms. Barber: It's hard to gauge, but that's what we saw was the slabs
being removed, and there was some soil removed with it. The slaps are
pretty thick; so, you know, however many inches that is. I'm scared to
say a specific because I didn't take a measuring stick and measure
anything. I just saw what I saw, and I saw the piles -- the crushed
concrete and the soils all mixed together, the mounds, all over the
project sites.
Defense Counsel: Miss Barber, you might also want to look at page 101 of
your deposition as well. I don't want to -- this is where you further testified
about the six inches. Here it does sound like you're testifying about covering flat
surfaces.
THE COURT: You know, this has to get straightened out. I'm not going to sit
here and have you two cross each other; it's not helpful to me. So it would be
helpful if you just -- I'm unsure now from what you answered whether – you said
things were removed -- the slab was removed and some soil was removed. These
piles you were talking about, is that what they're saying they were put into piles?
Ms. Barber: Right.
THE COURT: And what happened to the piles?
Ms. Barber: They would -- I don't know what kind of machine it was,
but the slabs would be crushed up, and I saw them go into separate piles, and then later they would be used
and spread out on top of the soils and then a new slab would be placed and more homes built.
Page 32 of 44
THE COURT: You may ask your question.
Defense Counsel: Thank you, Your Honor. And just so we're clear for the record, because I'm not clear now either, is
your current position, Miss Barber, that soil was removed from around the foundations or that it wasn't
removed from around the foundations?
THE COURT: You know, that question doesn't help. It truly does not
help.
Defense Counsel: I'm sorry, Your Honor.
THE COURT: Deal with what she's testified to just now, and ask her a
question about that.
Defense Counsel: Miss Barber, other than these observations that
you're alleging is there anything else that you relied on for your
conclusion that soil from around and underneath the homes
was not removed?
PLAINTIFF’S COUNSEL: Your Honor, objection. I think it
misstates her testimony again for the same reason you stated. He's
characterizing it as soil from under and around the home was not
removed when we've just had this whole discussion on -- I don't want
to testify, but it's what happens: the soil wasn't removed from the
neighborhoods. And that's the actual statement that I thought we
were here to be talking about.

THE COURT: I think Mr. Smith is making a good point. It isn't enough
to have a statement that is encapsulated for the two feet around the
slab.[CB61] She's testified to a particular observation. I don't know
whether it was a continuous observation. I don't know whether she was
able to see the particular pile that she saw removed go back in or
whether it is just another pile. There's a huge number of questions that
could be asked about this that would, basically, find out how accurate
and continuous and reliable what she saw was, but I'm not hearing
them asked.
Defense Counsel: Thank you, Your Honor. I appreciate that. Miss
Barber, these observations that you're testifying about are
these -- when did you make these observations?
Ms. Barber: When we lived there.
Defense Counsel: Okay. Now, are these just casual observations
that you made when you were, for instance, driving to your home and
coming back from your place of business or coming back from the
store?
Ms. Barber: They were almost constant. It was outside every
window of our home and driving around, too.
Defense Counsel: So now are you testifying that you would look out
your window at the construction and try to figure out what was
happening on particular job sites?
Photos of Defendants' project sites & activities that Ms.

Barber took from her MCBH home.
Page 33 of 44
Ms. Barber: I was interested in what was going on. I mean,
so I would watch, you know, and, you know, you'd take note
from day to day as to what had changed, "Oh, yeah they did
that, and this is going on now." I mean, you know, it's what
surrounds you. And so, yes, I noted many things going on on
the sites. And then when I -- then I took photos, and so when
I became aware of this issue, I had my recollections and the
photos.
Defense Counsel: Are you saying that you -- you're not
saying you took notes of this process; correct?
Ms. Barber: No.
Defense Counsel: And are you talking about how much time
would you spend on these observations?
Ms. Barber: That's the hard part. It wasn't intentional. I
mean, I did see -- I would be on the phone with somebody
and I'm watching as they're doing this and watching the dust
escape. Yeah, I'm cooking dinner, I'm eating dinner.[CB62]
You're just seeing it all the time. So it wasn't –
Defense Counsel: That's the sort of observation you're referring
to when you refer to your observations; is that correct?
Ms. Barber: Right. I am not an expert. I was not there
analyzing everything they were doing; that's for sure.
Defense Counsel: Thank you, Miss Barber. And were these
construction activities taking place behind a fence?
Ms. Barber: Yeah, that had -- sometimes.
Defense Counsel: And was there a dust screen up on that fence?

Ms. Barber: There was pervasive dust.
Defense Counsel: Was there a dust screen on the fence between
your home and the construction activities that took place?
Ms. Barber: There were for periods of time. Other times
they had big holes cut in them so the wind wouldn't blow
them down.
Defense Counsel: The holes you're referring to are the type of
holes that are necessary so that the dust screens don't blow over on
the Windward side of O'ahu?
Ms. Barber: I'm not an expert, but I presume.
Defense Counsel: Those dust screens they're opaque; is that
correct?
Ms. Barber: Recalling from my photos and observations
I remember them being black.
Defense Counsel: Miss Barber, in these statements that you make about the failure to remove 18 inches of
soil [CB63]you never mention burial pits; correct?
PLAINTIFF’S COUNSEL: Objection. Vague. What statements are you referring to?
Page 34 of 44
THE COURT: The question is she doesn't talk about burial pits. That's what you're asking; right?
Defense Counsel: Correct, Your Honor.
THE COURT: Okay.
Defense Counsel: We can go through the individual statements, but --
THE COURT: No, I haven't heard her talk about burial pits either.

Defense Counsel: Miss Barber, is that fair to say?
Ms. Barber: Sometimes I refer to them as hazardous waste
sites.
Defense Counsel: Okay. Well, let's start with burial pits. When you
discuss the failure to move 18 inches of soil on your blog and on your
Facebook page, you don't do that in connection with any burial
pits[CB64]; correct?
PLAINTIFF’S COUNSEL: Objection. Vague. Again which --
THE COURT: I understand it, Mr. Smith, so she can answer the
question. It's a broad, general question. She can answer.
PLAINTIFF’S COUNSEL: Vague because he's referring to
statements on your blog, and I'm trying to understand through some
direction as the statement he's referring to so that we can --
THE COURT: He's asking her if she has discussed burial pits on her
blog.
PLAINTIFF’S COUNSEL: Thank you, Your Honor. If that's the
question, no objection.
THE COURT: That's what I think is the question. Is that the question,
Mr. Whattoff?
Defense Counsel: What I'm trying to get to, Your Honor, is something a little more specific, and that is in connection
with these claims about the 18-inch -- failure to remove 18 inches. And I thought what I heard Miss Barber saying
is that one of the things she is relying on to support this statement is that the soils were then buried elsewhere on the
base. And the point I'm trying to get to is that, when she makes these statements about failure to remove 18 inches of soil,
she doesn't mention burial pits in connection with any of those statements. So --
PLAINTIFF’S COUNSEL: Your Honor --
Defense Counsel: That's why I'm asking her whether she mentions burial pits in connection with the "18 inch"
statements.
THE COURT: Mr. Smith.
PLAINTIFF’S COUNSEL: I'm not trying to slow this down. I'm trying to stay away from questions. But the reason we're
here is because he's arguing specific statements presumably are incorrect, and I just want to know what statements
he's referring to. If it's a general question --
THE COURT: It is a general question, and I believe, Mr. Smith, what he is trying to find out is what in the world is the
basis of her opinions? And I'm really interested, too.
PLAINTIFF’S COUNSEL: Myself as well.
THE COURT: And I think this is a basic question because the opinions are broad, but when we get down to the narrow
points, they're not very clear, are they. So let's proceed. Ask your question again.
Page 35 of 44
Defense Counsel: Miss Barber, in connection with your statements about
the failure to remove 18 inches of soil you do not mention burial pits; correct?
Ms. Barber: I do. I do. In various posts I do mention them,
sometimes referred [CB65]to as hazardous waste sites. I mention the
soil being buried underneath where Ohana and Forest City built
homes right on top -- they built community playgrounds and homes
right on top of these burial pits.
Defense Counsel: Those are in different posts; correct, Miss Barber?
Ms. Barber: Throughout. I'm not sure which one you're referring
to; so I --
Defense Counsel: Okay. When you make your claim -- you've made this
claim about the failure to remove 18 inches of soil numerous times; correct?
Ms. Barber: Yeah.
Defense Counsel: And when you made that claim about the failure to
remove 18 inches of soil, you don't mention the burial pits in connection
with that failure to remove the 18 inches of soil; correct?
THE COURT: Better be good, Mr. Smith.
PLAINTIFF’S COUNSEL: Your Honor, I'm doing my best to protect my client.

The statement in exhibit 6 that he's directed our attention to, the point you
made earlier, was removal of 18 inches from the neighborhoods. And so again
he's mischaracterizing the testimony or that there is testimony, Your
Honor, that it's removal of 18 inches from specific homes or removal of 18
inches generally. I know that she's offered testimony today here, too. I'm just
trying to get back to -- my understanding we're supposed to be
referencing the actual statement at issue, which was the exhibit 6
refers to removal from the neighborhoods, as Your Honor pointed out
earlier.
THE COURT: I'm going to let Mr. Whattoff continue so that we can attempt
to clarify the basis of her opinions because I am certainly unclear about the
basis of her opinions at this point in time. Mr. Whattoff.
Defense Counsel: Miss Barber, do you understand the question?
THE COURT: Please ask it again.
Defense Counsel: Miss Barber, we started off this process by looking at
exhibit 6, page 31, and there were these paragraphs that we read. Do you
recall that?
Ms. Barber: Exhibit 6? That's back here. Yes, I do.
THE COURT: Please speak into the microphone.
Ms. Barber: Yes, I do.
Defense Counsel: And this is one of the instances where you mention
this 18-inch allegation[CB66]; correct?
Page 90, Evidentiary Hearing, August 3, 2016 One of Ms. Barber's numerous Facebook posts
about the alleged burial pits of hazardous soils
Ms. Barber: The failure to remove soil -- contaminated soil, yes. Defendants created throughout the MCBH family
housing community. This post was pinned to the
Defense Counsel: Okay. And you don't discuss burial pits in connection top of Ms. Barber’s Facebook page for months
with these statements, do you.
Page 36 of 44
Ms. Barber: Can you tell me specifically which post you're referring to?
Defense Counsel: Referring to page 31, and it goes over on to page 32.
Ms. Barber: I think all I'm discussing is the failure to remove from the neighborhoods.
Defense Counsel: Okay. And in the other statements or the other instances where you make claims about a
failure to remove 18 inches of soil, you don't mention anything about burial pits in connection with those statements;
correct?
Ms. Barber: Maybe not in this particular post.
Defense Counsel: Okay. I'm asking you more broadly do you recall any post -- are there any posts where you
stated that the failure to remove 18 inches of soil was somehow connected to burial pits?
Ms. Barber: I do talk about the -- in various posts talk about the -- in fact, I shared the maps of
the -- what are they burial pits in the neighborhoods from Mololani and Ulupau.
Defense Counsel: Those are in different posts; correct, Miss Barber?
Ms. Barber: Correct, yes.
Defense Counsel: Miss Barber, I'm going to direct your attention to page 55 of exhibit 6. If you look five bullets
down here, 1, 2, 3, 4, 5, there's a mention of these maps you're talking about. It says, quote, links to maps Forest
City created showing the locations of approximately 40 underground toxic landfills they established within MCBH
neighborhoods but never disclosed to residents. Do you see that?
Ms. Barber: Yes.
Defense Counsel: Okay. This is the only mention of toxic landfills or burial pits in your blog; correct?
Ms. Barber: I'm sure I've written about it more than that absolutely. I can't cite a specific one,
but I know I've shared it many times on my Facebook page.
Defense Counsel: But this is the only instance on your blog; correct?
Ms. Barber: Maybe in this post. I don't know. I mean, it's a lot of pages.
Defense Counsel: Do you remember any posts that discuss this in your blog?
Ms. Barber: It's funny, it's hard for me to -- because my main focus has been the Facebook page. Again
the blog is like -- this blog is like a warehouse storage and
sometimes used to post more information; so -- on
Facebook. So I know that these burial pits are referenced
numerous times on the Facebook page.
I am not sure how many times they are referenced in the blog,
but I --
Ms. Barber: Okay.
Defense Counsel: Just to clarify for the record, Miss Barber,
the posts that you've made on Facebook where you've made the
claim about 18 inches -- failure to remove 18 inches of soil, those
posts do not mention burial pits or hazardous landfills; correct?
Ms. Barber: The failure to remove the soil and the
creation and failure to disclose the burial pits is -- they're
common themes throughou[CB67]t.
The settlement notification post Ms. Barber shared on

Facebook, which prompted Defendants' Motion, includes
comments by Ms. Barber in which she discusses
Defendants' pesticide soil burial pits at length. In fact, Ms.
Barber even shares Defendants' map of the same.
Page 37 of 44
Defense Counsel: I know you have some posts on your Facebook page that discuss the existence of these
burial pits; correct?
Defense Counsel: But when you discuss the claim about 18 inches on your Facebook website, you don't discuss the
burial pits in connection with that 18-inch claim; correct?
Ms. Barber: I may or may not have.
THE COURT: Okay. I have a question. Are they connected in your mind?
Ms. Barber: Yes.
THE COURT: How?
Ms. Barber: There is a connection.
THE COURT: How?
Ms. Barber: How are they connected?
THE COURT: Yes.
Ms. Barber: That some soils -- I presume the soils above the Tier 2 EALs [CB68]may have been removed
in some places that I didn't see, that could have happened, you know, but certainly weren't all of them. And
there were burial pits that they made and buried soil in, buried contaminated hazardous waste in, and then
built homes and playgrounds right on top of it. So there's a correlation between the two.
Defense Counsel: Miss Barber, let's move on to the next statement I'd like to discuss. If I could direct your attention
to exhibit 6, pages 49 and 50. Here you state Forest City, the Navy, Marine Corps, Hawai'i Department of Health, and Hunt
Companies, no contamination levels, and MCBH and Pearl Harbor neighborhoods remain at least 20 times higher than
EPA safety recommendations, exposing residents, their children and pets, to much higher lifetime rates of cancer and
other diseases. They continue to expose tens of thousands of unsuspecting service members, their children and spouses,
to unsafe and unacceptable health risks without their knowledge or consent; so their statement is dishonest.
Miss Barber, this statement about the, quote, contamination levels in MCBH and Pearl Harbor neighborhoods
remaining at least 20 times higher than EPA safety recommendations, that's something that you repeat
throughout your blog and your Facebook; correct?
Defense Counsel: You've made that statement numerous times; correct?
Page 38 of 44
Defense Counsel: And did you understand that, if you were wrong about
that allegation, you'd be subjecting Forest City and Ohana to substantial
damages?
Ms. Barber: My understanding is it's the truth and wholeheartedly
believe it. And my focus was on the impact it was having on the
military families that were living in these contaminated
neighborhoods.
Defense Counsel: Okay. Miss Barber, but if you were wrong that Ohana
and Forest City were, quote, exposing residents, their children and pets, to
much higher lifetime rates of cancer and other diseases, that would cause
substantial harm to Forest City and Ohana; correct?
Ms. Barber: If I were wrong and numerous other experts were
wrong and their own documentation was wrong, then okay.
Defense Counsel: You agree with my statement, Miss Barber?
Ms. Barber: I guess it could, but it would be because they were
wrong.
Defense Counsel: Mololani is one of the neighborhoods built by Ohana;
correct?
Ms. Barber Correct.

Defense Counsel: And there's hundreds of homes in Mololani; correct?
Excerpt from archived news article originally
Ms. Barber: Correct. published in May 2006 that Ms. Barber found online
in September 2013. In this article, Dr. Chun
Defense Counsel: What do you contend is the current level of chlordane, discusses pesticide contamination levels in MCBH
if any, around the homes in Mololani? housing as "20 times higher" than EPA trigger levels.
Ms. Barber: There's been no post-construction testing that I'm aware of; so current levels are questionable.
But if they did their Pesticide Soils Management Plan as they contend, then levels should be, at worst, Tier
2, which are approximately 20 times higher than they should be.
Defense Counsel: You're saying that -- okay. You're saying you don't know what the current levels of
pesticides around the Mololani neighborhood are; correct?
Ms. Barber I don't think anyone does.
Defense Counsel: And you don't know what the current levels in any of the neighborhoods built by Ohana are; correct?
Ms. Barber: I know what their goal was, but because they did not do the testing there is no confirmation;
so we only know what their goal is.
Defense Counsel: Well, you're aware -- we already discussed it – that Ohana claims that in the Mololani
neighborhood it removed or covered all of the soils; correct?
Ms. Barber: That's what they claim.
Defense Counsel: And if that took place, then the level of these pesticides around the homes would be zero; correct?
Page 39 of 44
Ms. Barber: No.
Defense Counsel: Why not?
Ms. Barber: Because based on the Pesticide Soils
Management Plan they sought approval to allow
soils that were contaminated up to 20 times
higher, and they only intend to remove those that
were above the Tier 2 EALs.
Defense Counsel: Miss Barber, if Ohana simply
removed all of the soils to the 24 inches around and
underneath the homes in Mololani or covered it with clean
soils 24 inches, then the pesticide levels around the
homes would be zero; correct?
Ms. Barber: If they did.
Defense Counsel: Thank you.
THE COURT: We're talking about two feet; right? From Defendants' Exhibit 6, one of Ms. Barber’s drafts describing
Defendants' stated goal for pesticides in MCBH family housing soils.
Defense Counsel: Correct, Your Honor. And, I'm sorry,
Miss Barber, your testimony is that you get to this 20 times number because that's what the Tier 2
environmental action level is?
Ms. Barber: Based upon the Tier 2 EAL for each contaminant present.

Defense Counsel: That's the Pesticide Soils
Management Plan; correct, Miss Barber?
Ms. Barber: Oh, gosh.
THE COURT: Exhibit 2?
Defense Counsel: Oh, I'm sorry, exhibit B. I apologize.
I'm sorry. I'm sorry.
THE COURT: Exhibit B.
Defense Counsel: Exhibit B, yes, Your Honor. I'm going
to direct your attention to page 14, Miss Barber.
Ms. Barber: Of the Pesticide Soils Management Plan. Chart created by Dr. Chun to explain how & why pesticide contamination
Okay. levels in Defendants’ MCBH & Pearl Harbor family housing soils are at
least 20 times higher than EPA safety recommendations.
Defense Counsel: Correct.
Ms. Barber: Okay.
Defense Counsel: And this has the Tier 1 environmental actions levels on the left and the Tier 2 environmental action
levels on the right; correct?
Defense Counsel: And is DDD one of the pesticides -- one of the organochlorine pesticides?
Ms. Barber: Yes.
Page 40 of 44
Defense Counsel: And, Miss Barber, that Tier 2 level is approximately
three to four times greater -- well, let me ask you this, Miss Barber: Which,
if any of these, are 20 times greater than the Tier 1 level?
Ms. Barber: All of them together, the cumulative effect. Not just
one.
Defense Counsel: Oh, can you explain that to me, Miss Barber.
Ms. Barber: So if you presume, based on what defendants are
telling us, each contaminant, I believe you said in your injunction,
was somewhere between 3.4, 3.7, and 4 times greater than the Tier
1 levels, the Tier 2 are that high. So when you add up the increase
for each contaminant, then you have 20 times or higher.
Defense Counsel: Okay. So let me just make sure I understand that, Miss
Barber. Each of the Tier 2 environmental action – no Tier 2 environmental
action level is more than four times greater than its Tier 1 component;
correct?
Ms. Barber: Based on what your injunction said and my understanding.
Defense Counsel: Okay. But you're saying, if you add up the fact that
some of the levels are greater, that somehow gets to 20 times? I guess I'm
just confused about your statement. I'm sorry. Just to be clear, then, no Tier
2 environmental action level is 20 times its Tier 1 counterpart; correct? From Defendants' Pesticide Soils Management Plan

Ms. Barber: No single one.
Defense Counsel: Are you aware of any -- are you -- you're not a toxicologist, are you, Miss Barber?
Ms. Barber: No, I'm not.
Defense Counsel: Are you aware of any document that supports this sort of addition of environmental action levels
where you just add them up in this way?
Ms. Barber: I'm aware of numerous -- like a book that an expert wrote that refers to this specific chart and
it being approximately 20 times higher.
Defense Counsel: And it says that the way that you get to that 20 times is through adding each one of the environmental
action levels to each other?
Ms. Barber: In fact, I think they may multiply it.
THE COURT: Hold on. Testimony that a book that somebody may have written
somewhere is not helping me. We need a little more clarity, Mr. Whattoff. I don't want
to go down this road too far.
Defense Counsel: Thank you, Your Honor. Miss Barber, can you identify the book
that you're referring to.
Ms. Barber: Yes, it's called the Contract From Hell.

Defense Counsel: And who wrote that book?
Ms. Barber: Dr. Chun.
Dr. Walter Chun's book,
The Contract from Hell
Page 41 of 44
Defense Counsel: In that book you're saying that Dr. Chun discusses the environmental action levels -- I'm sorry, Mr.
Chun discusses the environmental action levels for the Ohana neighborhoods?
Ms. Barber: He refers to the 20 times higher for the Ohana neighborhoods; correct.
Defense Counsel: Where does he do that in his Contract From Hell book?
Ms. Barber: Chapter 8.
Defense Counsel: Chapter 8. All right. Miss Barber, let me have
you take a look at one of plaintiffs' exhibits. It's exhibit 33. I'm going
to direct you to the first few sentences of this. It says "The Navy
decided to conduct a human health risk assessment to justify the
contamination of a 212 residential housing project for our military
families." Miss Barber, do you know what the 212 residential housing
project is?
Ms. Barber: I do.
Defense Counsel: What's the 212 residential housing
project?
Ms. Barber: I don't know exactly how to pronounce it, but it's P-a
H-o-n-u-a, I believe, Pa Honua.
Defense Counsel: Pa Honua? From Defendants' Pesticide Soils Management Plan
reflecting numerous "investigated" MCBH neighborhoods
Ms. Barber: Okay. included in their PLAN
Defense Counsel: There are several Pa Honua neighbors. It's -- the 212 housing, isn't it Pa Honua III?
Defense Counsel: That's not a neighborhood that was built by Ohana; correct?[CB69]
Ms. Barber: Correct. They managed.
Defense Counsel: They didn't do the construction of Pa Honua III; correct?
Ms. Barber: They did not.
Defense Counsel: And Pa Honua III is the only neighborhood that Mr. Chun worked on; correct?
Defense Counsel: And Pa Honua III is the only neighborhood that's discussed in chapter 8; correct?
Defense Counsel: So there's nothing in chapter 8 about any neighborhood built by Ohana; correct?
Defense Counsel: Is there anything else you're relying on for this contention that you can add environmental action
level multipliers from different pesticides?
Ms. Barber: The fact that contaminant -- the same pesticide contamination confirmed in Pa Honua was
confirmed in all the MCBH -- the MCBH neighborhoods tested at very similar levels, and this 20 times is
referenced numerous places where experts have discussed it and news articles and a book.

THE COURT: Is it Mr. or is it Dr.?[CB70]
Defense Counsel: We would -- he has a doctorate from an unaccredited on-line university; so --
THE COURT: As you wish.
Defense Counsel: Did you understand the question, Miss Barber?
Page 42 of 44
Ms. Barber: Were you asking me about other experts?
Defense Counsel: I'm asking you if anyone else has made these statements about pesticide levels being 20 times Tier 1
environmental action levels?
Ms. Barber: My understanding is that one of the Navy experts who wrote the human health risk assessment
is the one who established that.
Defense Counsel: Is that also for the Pa Honua III neighborhood?
Ms. Barber: Relative to, yes, the human health risk assessment, yes.
Defense Counsel: Any other individuals who have made that statement?
Ms. Barber: I can't say for sure. I've seen it numerous times.
Defense Counsel: Okay. The only individuals that you can identify made
that statement in connection with the Pa Honua III neighborhood; correct,
Miss Barber?
Ms. Barber: Did you say only one?
Defense Counsel: The individuals who made that statement, it's only
been made in connection with the Pa Honua III neighborhood; correct?
Ms. Barber: I thought we established that, yes.
Defense Counsel: And no one's ever made that statement in connection
to any Ohana neighborhood; correct? Any neighborhood built by Ohana.

PLAINTIFF’S COUNSEL: Calls for speculation.
THE COURT: That she knows of. Excerpt of news article published October 2015
discussing Hawaii Department of Health's concerns &
requests for post-construction soil testing in MCBH
Defense Counsel: That she knows. Thank you, Your Honor. family housing
Ms. Barber: I believe I have.
Defense Counsel: Other than yourself, Miss Barber.
Ms. Barber: I'm not sure. I've seen it numerous times, and it's hard to -- yes, the news articles reference it:
dangerous ground, tainted soil on Navy site. Those may be specific to Pa Honua. I'm not sure specifically. I
just know that the same contamination levels in Pa Honua were in all the other neighborhoods; so –
Defense Counsel: Just for clarity the news articles that you're referring to, are they -- they're quotes from you and Mr.
Chun; is that correct?
Ms. Barber: Not me.
Defense Counsel: Okay. Who are they quoting, then?
Ms. Barber: I believe in the tainted soil on Navy site there is Dr. Chun, there are HDOH experts. There are
a few.
Defense Counsel: No Hawai'i Department of Health employee or individual has ever stated that the pesticide levels on
any neighborhood built by Ohana is 20 times Tier 1 environmental action levels, have they, Miss Barber.

PLAINTIFF’S COUNSEL: Well, the issue, I think, more is can Cara be here?
THE COURT: She's -- have you subpoenaed her?
Defense Counsel: We have not subpoenaed her, Your Honor.
Page 43 of 44
THE COURT: Okay. But she is in the middle of her testimony, and it is crucial to the preliminary injunction; so my
expectation is that she will be here on Friday. You were the one moving it to Tuesday; so Friday it is.
MR. REVERE: Understood.
THE COURT: Okay. Unless there is some immutable reason why the attorneys can't be here on Friday.
PLAINTIFF’S COUNSEL: No, I'll be here on Friday, Your Honor.
THE COURT: Okay. Then we will continue this at 9:00 on Friday. And is there anything else to come before the court at
this point?
MR. REVERE: No, Your Honor. I assume that we'd get to the other witnesses, hopefully, Friday as well.
Page 44 of 44

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1

1 IN THE UNITED STATES DISTRICT COURT

2 FOR THE DISTRICT OF HAWAII

16 For the Plaintiffs: PATRICK KYLE SMITH

21 For the Defendants: LISA W. MUNGER

2 Official Court Reporter: Debra Kekuna Chun, RPR, CRR

4 Witness Name Page

6 Direct By Mr. Whattoff ................................. 14

11 6 Entered into Evidence 29

Page 4, Evidentiary Hearing Testimony, August 3, 2016

Page 6, Evidentiary Hearing Testimony, August 3, 2016

Page 8, Evidentiary Hearing Testimony, August 3, 2016

PLAINTIFF’S COUNSEL: Yes, Your Honor.

PLAINTIFF’S COUNSEL: I'm not quite sure I understand your question.

THE COURT: Well, what would they be?

THE COURT: A newspaper article?

Page 10, Evidentiary Hearing Testimony, August 3, 2016

THE COURT: Is it still going on?

THE COURT: 1999?

PLAINTIFF’S COUNSEL: Well, my understanding, Your Honor, is

THE COURT: That's almost twenty years old.

PLAINTIFF’S COUNSEL: True. True. But again when she's

PLAINTIFF’S COUNSEL: We wouldn't be offering it for the

Page 12, Evidentiary Hearing Testimony, August 3, 2016

DEFENSE COUNSEL: I take your point, Your Honor.

DEFENSE COUNSEL: Thank you, Your Honor.

Your Honor, I recognize this is a less formal hearing than perhaps we

Image of Ms. Barber's "Military Families Deserve Safe

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Ms. Barber: I posted it to get information organized with

Ms. Barber: Yes, ma'am.

THE COURT: No, it's certainly not answered.

Defense Counsel: Miss Barber, do you need me to repeat the question?

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Defense Counsel: Do you know the date of that video?

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THE COURT: Mr. Smith.

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Ms. Barber: I can't speak to that. There's hundreds.

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Ms. Barber: Right.

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