Case 2:90-cv-00520-KJM-DB Document 5959 Filed 10/16/18 Page 1 of 14

1 XAVIER BECERRA, State Bar No. 118517

Attorney General of California
2 JAY C. RUSSELL, State Bar No. 122626
ADRIANO HRVATIN, State Bar No. 220909
3 Supervising Deputy Attorneys General
ELISE OWENS THORN, State Bar No. 145931
4 ANDREW M. GIBSON, State Bar No. 244330
TYLER V. HEATH, State Bar No. 271478
5 IAN MICHAEL ELLIS, State Bar No. 280254
TOBIAS G. SNYDER, State Bar No. 289095
6 Deputy Attorneys General
455 Golden Gate Avenue, Suite 11000
7 San Francisco, CA 94102-7004
Telephone: (415) 510-4426
8 Fax: (415) 703-5843
E-mail: Tobias.Snyder@doj.ca.gov
9 Attorneys for Defendants

10 IN THE UNITED STATES DISTRICT COURT

11 FOR THE EASTERN DISTRICT OF CALIFORNIA

12 SACRAMENTO DIVISION

13

14
RALPH COLEMAN, et al., 2:90-cv-00520 KJM-DB (PC)
15
Plaintiffs, DEFENDANTS’ EX PARTE
16 APPLICATION FOR
v. RECONSIDERATION OF THE
17 COURT’S OCTOBER 12, 2018
ORDER
18 EDMUND G. BROWN JR., et al.,
Judge: The Honorable Kimberly J.
19 Defendants. Mueller

20 REQUEST FOR EXPEDITED RULING BY

OCTOBER 19, 2018
21

22

23 TO THE COURT AND TO PLAINTIFFS, BY AND THROUGH THEIR COUNSEL:

24 PLEASE TAKE NOTICE that Defendants apply ex parte to this Court for reconsideration

25 of the Court’s October 12, 2018 Order. Defendants make this application under Federal Rules of

26 Civil Procedure 7 and 54(b) and Civil Local Rule 230(j). Specifically, Defendants move the

27 Court to reconsider Paragraph 7 of the Order, which establishes an initial evidentiary hearing at

28 which the Court will take the testimony of Dr. Michael Golding, on the ground that beginning the
1
Defs.’ Mot. Reconsideration (2:90-cv-00520 KJM-DB (PC))
 Case 2:90-cv-00520-KJM-DB Document 5959 Filed 10/16/18 Page 2 of 14

1 investigation into Dr. Golding’s allegations with the unopposed, public testimony of Dr. Golding

2 will irreparably harm Defendants by negating rules of procedure and evidence, slandering state

3 employees in no position to defend themselves, and influence the outcome of any subsequent

4 investigation. Defendants also move for reconsideration of Paragraphs 3, 4, and 5 of the Order,

5 which prohibit Defendants from investigating the allegations made by Dr. Golding; prohibit

6 Defendants from interviewing employees of the California Department of Corrections and

7 Rehabilitation, Attorney General’s Office, and Governor’s Office; and require Defendants to meet

8 and confer with Plaintiffs and seek leave of this Court before working in good faith towards an

9 adequate and durable remedy in this action or completing assigned tasks, if such work might

10 implicate the prior two restrictions. Defendants seek reconsideration on the grounds that these

11 restrictions are manifestly unjust to Defendants, in that they improperly preclude Defendants from

12 preparing for the Court’s scheduled October 22, 2018 hearing, and intrude into the attorney-client

13 relationship between Defendants and their counsel. Defendants also request that, if the Court

14 does not take the October 22, 2018 hearing off calendar, that the hearing be continued by at least

15 a week to relieve the prejudice to Defendants created by their inability to prepare for the October

16 22, 2018 hearing.

17 Defendants are concurrently filing an emergency petition for writ of mandamus in the Ninth

18 Circuit Court of Appeals also seeking relief from the Court’s October 12, 2018 Order.

19 This application is based on this notice, the supporting memorandum of points and

20 authorities, the Declaration of Tobias G. Snyder, the pleadings, records and files in this action,

21 and such other matters as may properly come before the Court.

22
Dated: October 16, 2018 Respectfully submitted,
23
XAVIER BECERRA
24 Attorney General of California
25 /s/ Tobias G. Snyder
TOBIAS G. SNYDER
26 Deputy Attorney General
Attorneys for Defendants
27

28
2
Defs.’ Mot. Reconsideration (2:90-cv-00520 KJM-DB (PC))
 Case 2:90-cv-00520-KJM-DB Document 5959 Filed 10/16/18 Page 3 of 14

1 MEMORANDUM OF POINTS AND AUTHORITIES

2 INTRODUCTION

3 The process established by the Court at the October 10, 2018 status conference and in its

4 October 12, 2018 Order concerning the allegations made by Dr. Michael Golding, Chief

5 Psychiatrist for the California Department of Corrections and Rehabilitation (CDCR), is

6 fundamentally unfair to Defendants. Defendants received a copy of the document authored by

7 Dr. Golding late in the evening of October 3, 2018. Defendants were fully transparent and shared

8 the document and its attachments with the Special Master and Plaintiffs’ counsel the next

9 morning. Rather than allow an independent investigation into the allegations and permit the

10 parties to conduct their own inquiry, the Court ordered a hearing at which Dr. Golding will be

11 examined. However, the Court’s order stripped Defendants (and only Defendants) of any

12 meaningful ability to prepare for the October 22, 2018 hearing by prohibiting them from

13 investigating or receiving information about Dr. Golding’s allegations. (ECF No. 5949.)

14 Defendants move for reconsideration of the Court’s October 12, 2018 Order because it

15 reverses the standard process for addressing government employee complaints, prohibits defense

16 counsel from adequately representing and communicating with their clients, even on a voluntary

17 basis, and unreasonably constrains attorney-client communications. It also potentially forces the

18 disclosure of protected attorney-work product by requiring defense counsel to meet and confer

19 with Plaintiffs’ counsel and Dr. Golding’s counsel—effectively seeking their permission—before

20 Defendants can confidentially communicate with their own counsel on matters that touch on Dr.

21 Golding’s allegations. The Court did not place similar conditions on Plaintiffs’ counsel, creating

22 a severe imbalance in the parties’ ability to prepare for the Court’s October 22, 2018 hearing to

23 assess Dr. Golding’s knowledge and credibility. The unilateral constraints imposed on

24 Defendants prejudice their fundamental due-process rights, as they cannot adequately understand,

25 prepare for or defend against Dr. Golding’s allegations or, following Dr. Golding’s October 22

26 testimony, be in a position to advise the Court “concerning next steps, including resumption of

27 the evidentiary hearing on defendants’ planned use of telepsychiatry.” (Id. at 4.) Moreover, an

28 initial hearing at which only Dr. Golding will be heard, and for which only Plaintiffs will have the
3
Defs.’ Mot. Reconsideration (2:90-cv-00520 KJM-DB (PC))
 Case 2:90-cv-00520-KJM-DB Document 5959 Filed 10/16/18 Page 4 of 14

1 full opportunity to prepare, will hinder the Court’s stated goal of conducting an objective

2 examination of Dr. Golding’s credibility and avoid improperly biasing or influencing a

3 subsequent investigation.

4 Defendants respectfully request that the Court reconsider its Order and submit Dr.

5 Golding’s allegations to an investigation without calling Dr. Golding to testify. If the hearing is

6 kept on calendar, the Court should continue the October 22, 2018 proceedings for at least another

7 week to allow Defendants sufficient time to prepare for Dr. Golding’s testimony. Further,

8 Defendants must be allowed sufficient time to discuss the contents of Dr. Golding’s allegations

9 with their clients to meaningfully examine Dr. Golding. Many of Dr. Golding’s allegations

10 involve technical matters regarding data collection and analyses that can only be adequately

11 understood by defense counsel through attorney-client privileged communications with

12 Defendants’ employees. Removing the restrictions placed on Defendants would lead to a process

13 that is more consistent with the Court’s stated objective—to protect the fairness and integrity of

14 any prospective independent investigation into Dr. Golding’s allegations and how those

15 allegations may impact further proceedings in this matter. 1

16 ARGUMENT
17 I. LEGAL STANDARD GOVERNING THIS RECONSIDERATION MOTION.
18 “A district court has the inherent power to reconsider or modify its interlocutory orders

19 prior to the entry of judgment.” Smith v. Massachusetts, 543 U.S. 462, 475 (2005).

20 “Reconsideration is appropriate if the district court (1) is presented with newly discovered

21 evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is

22 an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS,

23 Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see also Civil Local Rule 230(j). “There may also be

24 other, highly unusual, circumstances warranting reconsideration.” Id. Defendants meet this

25 standard—the Court’s October 12, 2018 Order imposes several unjust constraints on Defendants’

26 ability to assess and address Dr. Golding’s knowledge and credibility, and whatever impact the

27 allegations may have on CDCR’s telepsychiatry policy, staffing plan, and other issues.

28 1
Defendants submitted a request that the Court file Dr. Golding’s allegations under seal.
4
Defs.’ Mot. Reconsideration (2:90-cv-00520 KJM-DB (PC))
 Case 2:90-cv-00520-KJM-DB Document 5959 Filed 10/16/18 Page 5 of 14

1 II. THE ORDER IS MANIFESTLY UNJUST BECAUSE IT IMPROPERLY PROHIBITS

DEFENDANTS’ COUNSEL FROM COMPETENTLY REPRESENTING THEIR CLIENTS.
2
On the evening of October 3, 2018, Defendants’ counsel received a document authored by
3
Dr. Golding, and the following morning provided it to Plaintiffs’ counsel and the Special Master.
4
On October 5, 2018, Plaintiffs requested a status conference. (ECF No. 5936.) They also
5
requested that the Court enter an order that Defendants, among other things, “halt any plans to
6
conduct [their] own investigations into the charges” and “not compel any employee of the CDCR,
7
the AG’s Office or the Governor’s Office to submit to an interview as a condition of their
8
employment.” (ECF No. 5936-1.) That same night, Defendants also requested a status
9
conference. (ECF No. 5938.)
10
The Court held a status conference on October 10, 2018. (ECF No. 5948 (Oct. 10 Hearing
11
Tr.).) During that conference, Defendants’ counsel objected to Plaintiffs’ request that the Court
12
prohibit an internal investigation by CDCR’s Office of Internal Affairs, but offered to suspend
13
any such formal investigation until an investigation by the Special Master or other independent
14
investigator was completed. (Id. at 17:1-18:4.) Defendants were amenable to Plaintiffs’ request
15
that Defendants “not compel any employee of the CDCR, the AG’s Office or the Governor’s
16
Office to submit to an interview as a condition of their employment,” but Defendants objected to
17
having this prohibition extend to voluntary, informal communications with CDCR employees
18
regarding Dr. Golding’s allegations. (Id. at 18:11-9:20.) The Court’s October 12, 2018 Order
19
incorrectly asserts that Defendants “had no substantive opposition to entry of the orders
20
requested” by Plaintiffs in their October 5, 2018 filing. (ECF No. 5949 at 3:10-12.) To the
21
contrary—the Court overruled Defendants’ objections and adopted Plaintiffs’ requests, imposing
22
a prohibition on Defendants against investigating the allegations or communicating with counsel,
23
and adding that Defendants must also meet and confer with Plaintiffs’ counsel and obtain Court
24
approval before discussing other issues in case they may be impacted by the Court’s bar on
25
discussing Dr. Golding’s allegations. (ECF No. 5949 at 9:14-24.)
26

27

28
5
Defs.’ Mot. Reconsideration (2:90-cv-00520 KJM-DB (PC))
 Case 2:90-cv-00520-KJM-DB Document 5959 Filed 10/16/18 Page 6 of 14

1 A. The Court’s Proposed Process to Investigate Dr. Golding’s Allegations

Contravenes Defendants’ Due-Process Rights and Will Frustrate Objective
2 Inquiry Into the Allegations.

3 At the October 10, 2018 hearing, Defendants’ counsel suggested that Dr. Golding’s

4 allegations be referred to the Special Master or Defendants’ own specialized investigative

5 agencies for independent inquiry, objecting to the Court’s suggestion that Dr. Golding’s

6 testimony initially be taken in open court before an investigation might begin. (ECF No. 5948

7 (Oct. 10 Hearing Tr.) at 7:22-8:14.) Having received the Court’s final Order, Defendants’

8 objection to the Court’s plan has only been strengthened.

9 Both state and federal agencies have long experience with allegations of wrongdoing

10 brought by employees, including well-established procedures to address “whistleblower”

11 allegations independently, judiciously, and with respect to the rights of the individual bringing

12 these allegations. For instance, the Whistleblower Protection Act of 1989 established a procedure

13 by which federal employees may report wrongdoing to the Office of Special Counsel, which

14 would refer the matter to the appropriate agency head to conduct an investigation and return a

15 written report to the Special Counsel. See 5 U.S.C. § 1213, et seq. The California Whistleblower

16 Protection Act provides an potential avenue for state employees to file confidential complaints

17 with an independent body that can evaluate the complaint and, if necessary, launch an

18 independent, confidential investigation into the alleged wrongdoing to be transmitted to the

19 relevant agency head for response. See Cal. Gov. Code § 8547, et seq. CDCR’s Office of

20 Internal Affairs is empowered to perform a similar function as these independent bodies, as are

21 similar departments across California state agencies. The common denominator of these

22 processes is a focus on initial, independent evaluation by a dedicated agency into the credibility

23 of the allegations; an independent and confidential inquiry into the veracity of the allegations,

24 which may include salacious charges against government employees; and a mandate that

25 corrective action be taken if wrongdoing is found after evidence and/or testimony are collected.

26 The Court’s proposed process turns these statutory procedures on their head, beginning

27 with a public airing of the unverified allegations under oath, without any meaningful opportunity

28 for the allegations to be tested against contrary evidence or opposing testimony. In the normal
6
Defs.’ Mot. Reconsideration (2:90-cv-00520 KJM-DB (PC))
 Case 2:90-cv-00520-KJM-DB Document 5959 Filed 10/16/18 Page 7 of 14

1 course, allegations of agency wrongdoing brought by an employee may reach the courtroom

2 down the line, once an investigation is complete, if the employee is entitled to compensation or

3 the agency’s response is challenged or inadequate. Here, the court has ordered live testimony in

4 open court first, before any facts have been gathered or counsel provided time to prepare. This

5 process risks causing irreparable harm to Defendants.

6 Testimony by Dr. Golding—untested, unchallenged, and yet drawing credibility from the

7 Court’s authority—will likely influence the shape, scope and potentially outcome of any

8 subsequent investigation. The setting is highly likely to give a false impression to observers that

9 Dr. Golding’s allegations have already been vetted and investigated. The reputation of third

10 parties may be irrevocably damaged by allegations that ultimately prove false, without these

11 parties having any opportunity to defend themselves. Moreover, beginning the inquiry with Dr.

12 Golding’s testimony will make his personal demeanor, and not the content of his allegations and

13 supporting evidence, the central determinant of how and whether an investigation proceeds.

14 None of this is necessary. The ostensible purpose of the October 22, 2018 hearing is to

15 determine whether an investigation is warranted, but Plaintiffs and Defendants have already

16 acknowledged that fact. By ordering the initial testimony of Dr. Golding, and depriving

17 Defendants of the rules, protections, and procedures that typically attach to employee complaints,

18 the Court’s Order works a manifest injustice against Defendants.

19 B. The October 12, 2018 Order Prohibits Counsel from Preparing for the
October 22, 2018 Hearing, and Thus Contravenes Defendants’ Due-
20 Process Rights.
21 Even if the Court is determined to move forward with the October 22 hearing, the Court’s

22 Order goes far beyond any relief necessary to ensure that Defendants do not “create problems for

23 any independent investigation.” (ECF No. 5948 (Oct. 10 Hearing Tr.) at 21:5-6.) Instead, the

24 Order prevents Defendants and their counsel from discussing the allegations among themselves or

25 communicating with their clients about Dr. Golding’s allegations, while leaving Plaintiffs entirely

26 unrestrained. In fact, the Order appears to prohibit Defendants’ counsel from preparing in any

27 way for the October 22, 2018 hearing to assess the credibility of Dr. Golding and his allegations.

28 Blocking Defendants’ counsel from communicating with their clients and prohibiting Defendants
7
Defs.’ Mot. Reconsideration (2:90-cv-00520 KJM-DB (PC))
 Case 2:90-cv-00520-KJM-DB Document 5959 Filed 10/16/18 Page 8 of 14

1 from preparing for the October 22, 2018 hearing is unnecessary to protect an independent

2 investigation into Dr. Golding’s allegations, and is manifestly unjust to Defendants.

3 The Order appears to contemplate that the parties will question Dr. Golding at the October

4 22, 2018 hearing after the Court provides the parties’ counsel with suggested “areas of inquiry.”

5 (See ECF No. 5949 at 4:23-25 (“The court anticipates issuing a brief order prior to hearing to

6 guide the parties in preparation of discrete areas of inquiry.”).) In the interim, “Defendants shall

7 not conduct any investigation of their own into the allegations contained in Dr. Golding’s report.”

8 (Id. at 5:14-15.) The term “investigation” is not defined, but under its plain meaning, Defendants’

9 counsel is prohibited from undertaking any action to prepare for the hearing. 2 Specifically,

10 Defendants’ counsel cannot speak with the individuals maligned by Dr. Golding. Yet many of

11 these same people are the only sources of information necessary to make a full assessment of the

12 credibility of the allegations. At present, counsel for Defendants are required to parse Dr.

13 Golding’s report and its supporting attachments without being able to ask their clients even basic

14 questions, such as the meaning of acronyms or terms of art in the attachments or how CDCR’s

15 data tracking systems operate in the abstract.

16 Probing the bases for and accuracy of Dr. Golding’s allegations is the ostensible purpose of

17 the October 22, 2018 hearing, yet Defendants and their counsel are materially hindered in their

18 ability to prepare for that undertaking. At the same time, the order places no constraints on

19 Plaintiffs’ counsel. Defendants do not believe that the Court intended its Order to block

20 Defendants’ ability to prepare for the hearing in this manner, but the Order requires

21 modification—or, at the least, clarification—to prevent a manifest injustice against Defendants.

22 Defendants understand that the Court does not want to compromise any formal inquiry into

23 Dr. Golding’s allegations. But that goal would be accomplished by ordering Defendants to

24 preserve evidence and hold in abeyance any internal investigation by the Office of Internal

25 Affairs—two steps that Defendants assured the Court would be done. Indeed, it is quite possible

26 that Dr. Golding’s testimony, and any public attention it receives, will itself compromise a

27 2
At the October 10, 2018 status conference, the Court stated the “order will be a blanket
order, and it will preclude gathering of information, even if persons are prepared to provide that
28 information voluntarily.” (Oct. 10 Hearing Tr. at 20:23-25.)
8
Defs.’ Mot. Reconsideration (2:90-cv-00520 KJM-DB (PC))
 Case 2:90-cv-00520-KJM-DB Document 5959 Filed 10/16/18 Page 9 of 14

1 subsequent investigation, especially if the examination of Dr. Golding becomes one-sided given

2 the restrictions placed on Defendants. It is manifestly unjust to prohibit Defendants’ counsel

3 from conducting any voluntary inquiry into serious allegations against their clients, an injustice

4 compounded by the fact that no restrictions whatsoever have been placed on Plaintiffs’ counsel. 3

5 The fundamental unfairness of the Court’s Order infringes on Defendants’ due-process

6 rights. See, e.g., Fed. Sav. & Loan Ins. Corp. v. Ferm, 909 F.2d 372, 375 (9th Cir. 1990) (in

7 analyzing whether an order is fundamentally unfair, the court balances the intrusion on

8 parties’ interests against the public interest). Here, the order is fundamentally unfair because it

9 significantly intrudes on the Defendants’ rights, with no similar restraint on Plaintiffs, which

10 serves no public interest. To be clear, Defendants’ rights to due process and fundamental fairness

11 would be infringed even if the same limitations were imposed on Plaintiffs’ counsel, because such

12 order would still interfere with or bar certain attorney-client certain communications. Defendants

13 have a significant right to confidential discussions with their attorneys and for their attorneys to

14 confidentially develop litigation strategies without interference from the Court or Plaintiffs’

15 counsel. This is particularly true given that individuals named in the report and others may have

16 valid explanations, responses, or defenses to its allegations—all of which speak to Dr. Golding’s

17 knowledge and credibility, which the Court intends to examine on October 22, 2018. Further,

18 given the upcoming testimony from Dr. Golding, without any inquiry or investigation into the

19 validity of the allegations, defense counsel must defend the Department on the record without

20 being able to speak with clients regarding the validity of these allegations. The Court and the

21 parties all have an interest in a fully-informed examination of Dr. Golding’s allegations. That

22 interest is significantly impaired by the Court’s order preventing Defendants from discussing the

23 allegations among themselves and with their counsel.

24 In short, the Court’s Order precludes Defendants and their counsel from meaningfully

25 analyzing the allegations and presenting information that is vital to assessing Dr. Golding’s

26
3
Because the Order does not address Plaintiffs at all, they could conceivably submit a list
27 of informal questions to Dr. Golding’s independent counsel, their own clients, their stable of
retained expert witnesses, or potentially CDCR’s former and current employees, all without
28 violating the Court’s order.
9
Defs.’ Mot. Reconsideration (2:90-cv-00520 KJM-DB (PC))
 Case 2:90-cv-00520-KJM-DB Document 5959 Filed 10/16/18 Page 10 of 14

1 credibility and whether his allegations bear upon the status of the durable remedy in this case.

2 The Court should reconsider the October 12, 2018 order so that Defendants’ counsel may meet

3 their fundamental duty to protect their clients’ interests and to have sufficient time to prepare for

4 a hearing. To the extent that the Court is concerned that an informal investigation might interfere

5 with an independent inquiry, this concern is addressed by the Court’s orders to preserve evidence.

6 C. The Court’s Order Invades Defendants’ Attorney-Client Relationship.

7 The attorney-client privilege is considered by the Ninth Circuit to be “perhaps, the most

8 sacred of all legally recognized privileges, and its preservation . . . essential to the just and orderly

9 operation of our legal system.” U.S. v. Bauer, 132 F.3d 504, 510 (9th Cir. 1997). The October

10 12, 2018 Order’s failure to define “investigation” intrudes into the attorney-client relationship

11 between Defendants and their counsel. Under the Order, Defendants’ counsel is prohibited from

12 speaking with their clients, or even with each other, to the extent those communications are

13 deemed an “interview.” For example, Deputy Attorney General Andrew Gibson, lead defense

14 counsel, is prohibited from “interviewing” named Defendant Katherine Tebrock, CDCR’s Deputy

15 Director for Statewide Mental Health, to discuss the allegations. In fact, named Defendant

16 Governor Brown and his staff are prohibited from asking Mr. Gibson for information concerning

17 the Dr. Golding’s allegations, as again this would constitute a voluntary “interview” by a

18 Defendant of an employee of the Attorney General’s Office.

19 The October 12, 2018 Order thus improperly intrudes into Defendants’ counsel’s ability to

20 conduct privileged attorney-client communications with their clients. By doing so, the Order

21 deprives Defendants the right to counsel on all issues relating Dr. Golding’s allegations. Indeed,

22 the Order explicitly mandates the elimination of that which the attorney-client privilege exists to

23 protect: “full and frank communication between attorneys and their clients.” Upjohn Co. v.

24 United States, 449 U.S. 383, 389-90 (1981) (“The privilege recognizes that sound legal advice or

25 advocacy serves public ends and that such advice or advocacy depends upon the lawyer's being

26 fully informed by the client.”), quoting Hunt v. Blackburn, 128 U.S. 464, 470 (1888) (privilege

27 “is founded upon the necessity, in the interest and administration of justice, of the aid of persons

28 having knowledge of the law and skilled in its practice, which assistance can only be safely and
10
Defs.’ Mot. Reconsideration (2:90-cv-00520 KJM-DB (PC))
 Case 2:90-cv-00520-KJM-DB Document 5959 Filed 10/16/18 Page 11 of 14

1 readily availed of when free from the consequences or the apprehension of disclosure.”). The

2 privilege, and the rationale behind it, extends to governments and their employees. United States

3 v. Jicarilla Apache Nation, 564 U.S. 162, 169-70 (2011) (“The [attorney-client] privilege aids

4 government entities and employees in obtaining legal advice founded on a complete and accurate

5 factual picture.”).

6 The prejudice to Defendants goes beyond simply preparing for Dr. Golding’s testimony at

7 the October 22, 2018 hearing. The Court has also ordered that, “[f]ollowing Dr. Golding’s

8 testimony, the court will hear from counsel concerning next steps, including resumption of the

9 evidentiary hearing on defendants’ planned use of telepsychiatry.” (ECF No. 5949 at 4:25-27.)

10 Defendants cannot properly and fully prepare to address these issues if they cannot discuss Dr.

11 Golding’s allegations and its implications with each other. Without the ability to confer with

12 each other and with their attorneys concerning Dr. Golding’s allegations, Defendants are

13 precluded from presenting fact-based information concerning Dr. Golding’s allegations and their

14 impact, if any, on further proceedings in this matter.

15 Because the October 12, 2018 Order effectively prohibits Defendants’ counsel from

16 competently representing their clients and prepare for Dr. Golding’s examination, the Order

17 imposes a manifest injustice on Defendants and should be reconsidered.

18 D. The Court’s Order For Defendants to Meet and Confer With Plaintiffs
Before Speaking with Their Counsel is Likely to Result in the Disclosure of
19 Attorney Work Product.
20 The law protecting an attorney’s work product is well-settled. “In performing his [or her]

21 various duties . . . it is essential that a lawyer work with a certain degree of privacy, free from

22 unnecessary intrusion by opposing parties and their counsel. That is the historical and the

23 necessary way in which lawyers act within the framework of our system of jurisprudence to

24 promote justice and to protect their clients’ interests.” Hickman v. Taylor, 329 U.S. 495, 510-11

25 (1947). Were an attorney’s work product left open to opposing counsel, “much of what is now

26 put down in writing would remain unwritten [and] [a]n attorney’s thoughts, heretofore inviolate,

27 would not be his [or her] own. The effect on the legal profession would be demoralizing. And

28 the interests of the clients and the cause of justice would be poorly served.” Id.
11
Defs.’ Mot. Reconsideration (2:90-cv-00520 KJM-DB (PC))
 Case 2:90-cv-00520-KJM-DB Document 5959 Filed 10/16/18 Page 12 of 14

1 The October 12, 2018 Order requires that Defendants make Plaintiffs’ counsel privy to

2 confidential attorney work product for defense counsel to continue “working in good faith toward

3 an adequate and durable remedy in this action.” The Order states that “[t]o the extent any

4 provision of this order might preclude defendants from working in good faith toward an adequate

5 and durable remedy in this action, or from doing any other work with which they are tasked, they

6 may request specific relief from the court,” and that before any such request, Defendants must

7 meet and confer with Plaintiffs’ counsel and alert Dr. Golding’s counsel.” (ECF No. 5949 at

8 5:19-24.) Accordingly, Defendants must first engage Plaintiffs’ counsel any time they wish to

9 communicate with their clients on any matter involving this case if that communication might in

10 some way touch on Dr. Golding’s allegations. Neither law nor facts support this prior restraint on

11 Defendants, their employees, or their attorneys.

12 The October 12, 2018 Order’s prior-restraint language will necessarily require breaching

13 the attorney-client privilege and work-product protection. For example, if an attorney at CDCR’s

14 Office of Legal Affairs wishes to speak with a clinician about appointment scheduling—a subject

15 that might touch on issues raised by Dr. Golding—that attorney is now required to inform

16 Plaintiffs’ counsel and request permission for the conversation, a process that will invariably

17 require disclosing at least some contents of the communications and/or the attorney’s motivation

18 to hold the conversation. The Order’s prior-restraint language also requires Defendants to

19 provide Plaintiffs’ counsel with the names of individuals who may potentially fall within the

20 preclusion of issues relating to Dr. Golding’s allegations, a roadmap that Plaintiffs can use to

21 immediately solicit these individuals for information—because, as mentioned above, the Order

22 does not in any way prohibit Plaintiffs’ counsel from investigating Dr. Golding’s allegations.

23 CONCLUSION

24 Defendants respectfully request that the Court reconsider its October 12, 2018 Order. The

25 Court should take the October 22 hearing off calendar and refer this matter for investigation by

26 the Special Master or CDCR’s Office of Internal Affairs. The Court should also rescind the

27 restrictions that prohibit Defendants from discussing Dr. Golding’s allegations with their clients

28 and investigating these allegations in a manner that would not risk compromising any subsequent
12
Defs.’ Mot. Reconsideration (2:90-cv-00520 KJM-DB (PC))
 Case 2:90-cv-00520-KJM-DB Document 5959 Filed 10/16/18 Page 13 of 14

1 independent investigation. Defendants should also be relieved of any requirement to meet and

2 confer with Plaintiffs and seek Court permission before communicating with their own clients and

3 their employees. If the hearing is not taken off-calendar, given that the Court’s Order has

4 hamstrung Defendants’ ability to prepare for Dr. Golding’s testimony, the hearing should be

5 continued to October 29, 2018, at the earliest. 4

7 Dated: October 16, 2018 Respectfully submitted,

8 XAVIER BECERRA
Attorney General of California
9
/s/ Tobias G. Snyder
10 TOBIAS G. SNYDER
Deputy Attorney General
11 Attorneys for Defendants
CF1997CS0003
12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27 4
Defendant further request that, if the Court is not inclined to grant this motion on an ex
parte basis, the Court set a hearing on shortened time, for a date at least one court day prior to the
28 scheduled October 22, 2018 hearing, to hear Defendants’ request as a noticed motion.
13
Defs.’ Mot. Reconsideration (2:90-cv-00520 KJM-DB (PC))
 Case 2:90-cv-00520-KJM-DB Document 5959 Filed 10/16/18 Page 14 of 14

CERTIFICATE OF SERVICE

Case Name: Coleman v. Brown, et al., No. 2:90-cv-00520 KJM-DB (PC)

I hereby certify that on October 16, 2018, I electronically filed the following documents with the
Clerk of the Court by using the CM/ECF system:
DEFENDANTS’ EX PARTE APPLICATION FOR RECONSIDERATION OF THE
COURT’S OCTOBER 12, 2018
ORDER

DECLARATION OF TOBIAS SNYDER IN SUPPORT OF EX PARTE

APPLICATION FOR RECONSIDERATION OF THE COURT’S OCTOBER 12, 2018
ORDER

[PROPOSED] ORDER GRANTING DEFENDANTS’ EX PARTE APPLICATION

FOR RECONSIDERATION OF THE COURT’S OCTOBER 12, 2018
ORDER

I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on October 16, 2018, at San Francisco,
California.

G. Garcia /s/ G. Garcia

Declarant Signature

CF1997CS0003
42064623.docx
 Case 2:90-cv-00520-KJM-DB Document 5959-1 Filed 10/16/18 Page 1 of 3

1 XAVIER BECERRA, State Bar No. 118517

Attorney General of California
2 ADRIANO HRVATIN, State Bar No. 220909
Supervising Deputy Attorney General
3 ELISE OWENS THORN, State Bar No. 145931
ANDREW M. GIBSON, State Bar No. 244330
4 TYLER V. HEATH, State Bar No. 271478
IAN MICHAEL ELLIS, State Bar No. 280254
5 TOBIAS G. SNYDER, State Bar No. 289095
Deputy Attorneys General
6 600 West Broadway, Suite 1800
San Diego, CA 92101
7 Telephone: (619) 738-9549
Fax: (619) 645-2581
8 E-mail: Andrew.Gibson@doj.ca.gov
Attorneys for Defendants
9
IN THE UNITED STATES DISTRICT COURT
10
FOR THE EASTERN DISTRICT OF CALIFORNIA
11
SACRAMENTO DIVISION
12

13

14 RALPH COLEMAN, et al., Case No. 2:90-cv-00520 KJM-DB (PC)

15 Plaintiffs, DECLARATION OF TOBIAS SNYDER

IN SUPPORT OF EX PARTE
16 v. APPLICATION FOR
RECONSIDERATION OF THE
17 COURT’S OCTOBER 12, 2018
EDMUND G. BROWN JR., et al., ORDER
18
Defendants.
19
Judge: The Honorable Kimberly J.
20 Mueller

21

22
I, Tobias G. Snyder, declare as follows:
23
1. I am an attorney admitted to practice before the courts of the State of California and
24
this Court. I am employed by the California Attorney General’s Office as a Deputy Attorney
25
General in the Correctional Law Section. I am co-counsel for Defendants in this action. I am
26
competent to testify to the matters set forth in this declaration and, if called upon by this Court, I
27

28
1
Snyder Decl. Supp. Defs.’ Ex Parte Appl. For Reconsideration (2:90-cv-00520 KJM-DB (PC))
 Case 2:90-cv-00520-KJM-DB Document 5959-1 Filed 10/16/18 Page 2 of 3

1 would do so. I submit this declaration in support of Defendants’ Ex Parte Application for

2 Reconsideration of the Court’s October 12, 2018 Order.

3 2. On October 10, 2018 the Court held a status conference concerning materials

4 authored by Dr. Michael Golding, Chief Psychiatrist for the California Department of Corrections

5 and Rehabilitation (CDCR) (Golding Materials).On October 12, 2018, the Court issued an order

6 that, among other things, set a hearing for October 22, 2018 at which the testimony of Dr.

7 Golding will be heard; prohibits Defendants or their counsel from investigating the allegations

8 contained in the Golding Materials; prevents Defendants or their counsel from discussing the

9 Golding Materials with employees of CDCR, the Governor’s Office, or the Attorney General’s

10 Office; and requires Defendants to contact Plaintiffs’ counsel and counsel for Dr. Golding before

11 discussing case-related matters with their clients.. No restrictions were placed on Plaintiffs or

12 their counsel.

13 3. As of October 15, 2018, the earliest available date for a hearing on a motion for

14 reconsideration on the Court’s law and motion calendar is November 16, 2018. Defendants

15 cannot have their motion heard under Eastern District Local Court Rule 230(b) before the

16 October 22, 2018 hearing.

17 4. The restrictions the Order places on Defendants and their counsel have already

18 harmed Defendants’ ability to prepare for the October 22, 2018 hearing, and have even hindered

19 Defendant’ ability to draft its ex parte application for relief. Defendants have already suffered

20 substantial prejudice due to the October 12, 2018 Order’s impact on Defendants’ ability to receive

21 representation from their clients in preparation for the hearing. This harm compounds daily.

22 5. Defendants request that the Court reconsider the restrictions contained in the October

23 12, 2018 Order. Defendants also request that the October 22, 2018 Order be continued for at least

24 a week to allow Defendants to prepare for that hearing.

25 6. Defendants contacted Plaintiffs regarding Defendants’ concerns with the restrictions

26 in the Court’s October 12, 2018 Order. Plaintiffs initially responded that they would not stipulate

27 to a request for reconsideration, but would consider the request and get back to counsel for

28 Defendants. However, no further response was provided. Both the Court’s staff and Plaintiffs’
2
Snyder Decl. Supp. Defs.’ Ex Parte Appl. For Reconsideration (2:90-cv-00520 KJM-DB (PC))
 Case 2:90-cv-00520-KJM-DB Document 5959-1 Filed 10/16/18 Page 3 of 3

1 counsel were informed on October 15, 2018 that Defendants planned to file this ex parte

2 application; Plaintiffs’ counsel has informed Defendants that they intend to oppose the

3 application.

4 I declare under penalty of perjury that the foregoing is true and correct to the best of my

5 knowledge and that this declaration was executed on October 16, 2018 in San Francisco,

6 California.

7 /s/ Tobias G. Snyder

TOBIAS G. SNYDER
8 Deputy Attorney General
9 CF1997CS0003

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
3
Snyder Decl. Supp. Defs.’ Ex Parte Appl. For Reconsideration (2:90-cv-00520 KJM-DB (PC))
 Case 2:90-cv-00520-KJM-DB Document 5959-2 Filed 10/16/18 Page 1 of 2

8 IN THE UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA
10

11
RALPH COLEMAN, et al., Case No. 2:90-cv-00520 KJM-DB (PC)
12
Plaintiffs, [PROPOSED] ORDER GRANTING
13 DEFENDANTS’ EX PARTE
v. APPLICATION FOR
14 RECONSIDERATION OF THE
COURT’S OCTOBER 12, 2018
15 EDMUND G. BROWN JR., et al., ORDER
16 Defendants.
17

18

19

20

21

22

23

24

25

26

27

28
1
[Proposed] Order Granting Defs.’ Ex Parte App. For Reconsideration (2:90-cv-00520 KJM-DB (PC))
 Case 2:90-cv-00520-KJM-DB Document 5959-2 Filed 10/16/18 Page 2 of 2

1 On October 5, 2018, Defendants filed an ex parte application requesting that the Court

2 reconsider its October 12, 2018 Order on shortened time and on an ex parte basis. Good cause

3 appearing, Defendants’ ex parte application is GRANTED.

4 The Court vacates Paragraphs 4, 5, 6 and 7 of its October 12, 2018 Order.

5 IT IS SO ORDERED.

6
Dated: ___________________________ __________________________________
7 The Honorable Kimberly J. Mueller
8

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
2
[Proposed] Order Granting Defs.’ Ex Parte App. For Reconsideration (2:90-cv-00520 KJM-DB (PC))