[00:00:00] Speaker 02:
Good morning, your honors, and may it please the court.

[00:00:03] Speaker 02:
My name is David Casarubias Gonzalez, counsel for defendants appellants.

[00:00:08] Speaker 02:
I'll be reserving two minutes of my time for rebuttal, and I'll be mindful of the clock.

[00:00:13] Speaker 02:
The district court's order is not case management.

[00:00:16] Speaker 02:
It's control over California's prisons.

[00:00:20] Speaker 02:
It bars the state's prison administrators from doing the most basic thing any system should be able to do to improve, evaluate itself,

[00:00:31] Speaker 01:
But is that, I mean, what is the purpose of the tours?

[00:00:34] Speaker 01:
That seems to be one of the issues here.

[00:00:38] Speaker 01:
Is the tours for essentially litigation purposes or is it purely internal?

[00:00:43] Speaker 01:
I mean, maybe it's difficult to divide these things given the state of play here where the prisons are now subject to overarching court review.

[00:00:51] Speaker 02:
Precisely, Your Honor.

[00:00:53] Speaker 02:
This entire lawsuit encompasses the entirety of the state's mental health services delivery system.

[00:01:01] Speaker 02:
and therefore any consultant tours of that system will necessarily relate to the litigation.

[00:01:08] Speaker 02:
But to answer your question directly, the primary objective of the study is to gain a comprehensive understanding of the mental health services delivery system and the day-to-day delivery of those services at CDCR's institutions and compare it to nationwide standards.

[00:01:26] Speaker 03:
Council, let me just ask you this.

[00:01:28] Speaker 03:
You may be where I was involved within one of the many earlier Coleman cases.

[00:01:34] Speaker 03:
And this litigation has been going on for 30 years, at least.

[00:01:40] Speaker 03:
And in the last few years, Judge Mueller has been working with this, trying to make it work, going back and forth between you all in the state.

[00:01:50] Speaker 03:
I get your point that you think this is an injunction.

[00:01:53] Speaker 03:
You'd think it's barred by the PLRA.

[00:01:55] Speaker 03:
I'm not seeing that.

[00:01:57] Speaker 03:
I would appreciate your taking the time.

[00:01:59] Speaker 03:
We know the facts.

[00:02:00] Speaker 03:
Take the time to explain why, number one, this is an injunction, and number two, why you think this violates the PLRA.

[00:02:09] Speaker 02:
Well, that leads me to my first point, Your Honor.

[00:02:11] Speaker 02:
This is an injunction because it indefinitely enjoins defendant's consultants from stepping foot on their own prison grounds.

[00:02:20] Speaker 02:
a privilege that is now exclusively reserved for the court's special master.

[00:02:24] Speaker 02:
Now, in this case, the court enjoined defendants from these... Excuse me, let me just be sure I understand the facts.

[00:02:32] Speaker 03:
I thought that originally both the state and your folks went together, but then they started to do so many of them they couldn't keep up with it all, and then you all wanted to go alone, and the state says, well, wait a minute, you can't have that.

[00:02:47] Speaker 03:
If you're going to use it as evidence, we want to see what you're doing.

[00:02:50] Speaker 03:
Isn't that what happened?

[00:02:51] Speaker 02:
No, Your Honor.

[00:02:52] Speaker 02:
That's not what happened.

[00:02:53] Speaker 03:
OK.

[00:02:54] Speaker 03:
Tell me what happened.

[00:02:54] Speaker 02:
What happened is defendants gave notice of these consultant tours to the plaintiffs and informed them the purpose and scope of the tours was to compare CDCR's delivery of care to national standards.

[00:03:06] Speaker 02:
They invited Plaintiffs' Council and the special master to attend the tours.

[00:03:11] Speaker 02:
Both agreed without objection.

[00:03:14] Speaker 02:
The tours began.

[00:03:15] Speaker 02:
The consultants began their review of the state facilities

[00:03:19] Speaker 02:
And only then did Plaintiffs' Council begin to lob various obstacles before the consultants that essentially led the tours to grind to a halt.

[00:03:32] Speaker 03:
Again, I just want to make sure I understand the facts correctly.

[00:03:35] Speaker 03:
What I thought the record showed was that the consultant began to talk to individual inmates and trying to basically interview them about their situation.

[00:03:45] Speaker 03:
Is that mistaken?

[00:03:46] Speaker 02:
Yes, Your Honor.

[00:03:47] Speaker 03:
OK, what was happening then?

[00:03:49] Speaker 02:
The consultants wanted to observe one-on-one patient care, but plaintiffs made objections to that request.

[00:03:57] Speaker 02:
And therefore, in an effort to collaboratively resolve their dispute, they presented that issue in a joint statement to the district court.

[00:04:05] Speaker 02:
Defendant's position was that just like the special master, defendant's consultants should be able to observe one-on-one patient care.

[00:04:13] Speaker 02:
Plaintiffs did not agree.

[00:04:15] Speaker 02:
That was the only dispute, aside from the scope and pace of the tour, pending before the court, that should have been resolved as an ordinary case management order.

[00:04:25] Speaker 02:
But rather than doing that, the court overstepped.

[00:04:28] Speaker 02:
The court instead indefinitely enjoined defendants from conducting any tours, period.

[00:04:33] Speaker 02:
That is why this is an injunction.

[00:04:36] Speaker 02:
Because defendants can no longer have the consultants of their choosing step foot on their own prison ground and inform them

[00:04:45] Speaker 02:
on how to implement, modify, or improve any of the mental health care services that they provide?

[00:04:52] Speaker 01:
Well, I mean, at least not now.

[00:04:54] Speaker 01:
But I think the district court's order allows you and your clients to go back either later or upon a different showing or both and ask for these tours.

[00:05:07] Speaker 01:
So I don't know that it's right to say you're permanently blocked from ever doing something like this.

[00:05:12] Speaker 01:
You could maybe do it later.

[00:05:13] Speaker 01:
That's to be determined.

[00:05:15] Speaker 02:
No, your honor.

[00:05:16] Speaker 02:
And it's clear from the district court's order that she's already prejudged this issue.

[00:05:20] Speaker 01:
I think that's difficult to say that.

[00:05:22] Speaker 01:
I mean, we have a record that we have, and the district court's in the middle of superintending this massive piece of litigation, and you're asking for something that seems to at least have a pretty clear nexus to the litigation.

[00:05:37] Speaker 01:
It's hard to say it's unrelated to it.

[00:05:39] Speaker 01:
I understand you're probably not pleased with the litigation as a whole, but that matter has been determined long ago.

[00:05:47] Speaker 01:
So I don't see why you're blocked from coming back to the district court later and saying, here's our new basis for this.

[00:05:54] Speaker 01:
The litigation has now progressed to a certain point we think now is the time.

[00:05:57] Speaker 01:
And I don't see why you're saying she would prejudge that.

[00:06:00] Speaker 01:
I don't see a basis for that.

[00:06:03] Speaker 02:
Your Honor, because one of the two preconditions that the court set out in her order in order to go back to the court

[00:06:09] Speaker 02:
was proving first that any tours are unrelated to the litigation.

[00:06:14] Speaker 02:
And as Your Honor and Judge Smith noted, it's virtually impossible to demonstrate that any touring of the mental health services delivery system would be unrelated to the litigation.

[00:06:24] Speaker 02:
So that alone is a bar to any future tours that relate to the delivery of mental health care.

[00:06:31] Speaker 02:
And I think your question actually illuminates a larger problem with this case.

[00:06:35] Speaker 02:
The case has been going on for three decades.

[00:06:38] Speaker 02:
I think in the process of the remedial phase of this case, the court now views the California's prison systems as its own prisons.

[00:06:49] Speaker 02:
The district court views the state institutions as being the district court's institutions.

[00:06:55] Speaker 02:
The plaintiffs view the prisons as being their prisons.

[00:06:58] Speaker 02:
That's why they're calling this discovery.

[00:07:01] Speaker 02:
This is not discovery.

[00:07:02] Speaker 02:
You don't conduct discovery on your own system.

[00:07:05] Speaker 02:
But because through the litigation

[00:07:08] Speaker 02:
Because the court is now looking at these prisons as its own prisons, it's barring the tours and calling it discovery, which it cannot be discovery because one does not conduct discovery on themselves.

[00:07:21] Speaker 03:
Counsel, don't you feel a certain amount of empathy for Judge Mueller?

[00:07:24] Speaker 03:
As the state well knows, in the opinion that I issued, our panel did recently, there's going to be potentially hundreds of millions of dollars of sanctions

[00:07:38] Speaker 03:
for the state's failure to do some of the things you're talking about.

[00:07:42] Speaker 03:
This is not a one-sided deal at all.

[00:07:45] Speaker 03:
Your side has won some things.

[00:07:46] Speaker 03:
They've won some things.

[00:07:47] Speaker 03:
The poor judge is just trying to get it so you can get along, talk.

[00:07:52] Speaker 03:
She said, and I understand it correctly, that the tours are just duplicative of the special master's periodic monitoring reports, which you're allowed to follow with them.

[00:08:01] Speaker 03:
You're not barred from that.

[00:08:04] Speaker 03:
She just doesn't want it all mixed up.

[00:08:06] Speaker 03:
We've got all these people trying to say different things.

[00:08:08] Speaker 03:
She wants to have it more organized.

[00:08:10] Speaker 03:
What's the matter with that?

[00:08:11] Speaker 02:
That's an excellent point, Your Honor.

[00:08:14] Speaker 02:
The tours are not coextensive with what the special master monitors.

[00:08:18] Speaker 02:
The special master has a limited role in this case to monitor defendant's compliance with the compendium and the program guide and the court's orders.

[00:08:28] Speaker 02:
In other words, the remedial plans of the case.

[00:08:31] Speaker 02:
whereas defendant's consultants are going far beyond those limits.

[00:08:36] Speaker 02:
Their role is to evaluate CDCR's delivery of mental health care and compare it to national standards, compared to other states' mental health services delivery systems.

[00:08:46] Speaker 02:
And how is that relevant?

[00:08:49] Speaker 02:
It's relevant because that is the purpose of these tours.

[00:08:52] Speaker 02:
Defendants hired these consultants to let them know, hey, how are we doing when compared to other systems across the country?

[00:08:59] Speaker 02:
And the court is saying,

[00:09:00] Speaker 04:
You can't do that, because... But what the court actually is saying, as I read it, is that will interfere with the expeditious resolution of the case.

[00:09:10] Speaker 04:
And so, it seemed to imply you were kind of at the end of the road on that.

[00:09:15] Speaker 04:
Why isn't that case management?

[00:09:17] Speaker 02:
It's not case management, Your Honor, because we are not at the end of the case.

[00:09:21] Speaker 04:
Where are you?

[00:09:23] Speaker 02:
Defendants are still in the remedial phase, and under the Prison Litigation Reform Act, they must be

[00:09:29] Speaker 02:
the ones that bring the prisons back to constitutional compliance.

[00:09:33] Speaker 02:
The court is essentially telling them, you no longer have a role in this.

[00:09:37] Speaker 02:
That is not how the Prison Litigation Reform Act works.

[00:09:39] Speaker 02:
There are limits to court power.

[00:09:41] Speaker 02:
Congress set limits to the court's power.

[00:09:44] Speaker 02:
This case management order is not case management.

[00:09:48] Speaker 02:
It's micromanagement.

[00:09:50] Speaker 02:
And I see that I'm running out of time.

[00:09:52] Speaker 01:
We'll put two minutes on the clock for rebuttal.

[00:09:54] Speaker 01:
Thank you, Your Honor.

[00:09:54] Speaker 01:
Thank you.

[00:10:10] Speaker 00:
Good morning, Lisa Ells for the plaintiff class.

[00:10:14] Speaker 00:
The state's appeal is predicated on two manifestly false premises.

[00:10:18] Speaker 00:
This is not an injunction.

[00:10:20] Speaker 00:
This is basic case management to resolve a discovery dispute like district courts do every single day.

[00:10:27] Speaker 00:
Just weeks after the district court found the state in contempt, the state noticed months and months of day and night nonstop expert tours, which included

[00:10:38] Speaker 00:
interviews and observations of our clients.

[00:10:41] Speaker 00:
We objected.

[00:10:42] Speaker 00:
The parties submitted a joint statement regarding their discovery dispute like normal discovery.

[00:10:48] Speaker 00:
The district court looked at the record and history of this case and ruled this particular set of expert tours should not resume.

[00:10:57] Speaker 00:
Instead of taking the court's invitation to show that its request was appropriate and proportional to the needs of the case, like all discovery must be,

[00:11:06] Speaker 00:
The state ran straight to this court, but this court does not review discovery and case management orders.

[00:11:14] Speaker 00:
They are inelocatory appeals.

[00:11:16] Speaker 00:
This court should dismiss.

[00:11:18] Speaker 00:
The district court also did not prohibit the state from engaging in self-assessment.

[00:11:23] Speaker 00:
The state sent a notice of expert inspections of its prisons, including interviews of our clients.

[00:11:31] Speaker 00:
and their confidential mental health treatment sessions, expressly for the purpose of using it in litigation.

[00:11:38] Speaker 00:
That has nothing to do with self-assessment.

[00:11:41] Speaker 00:
It has everything to do with discovery.

[00:11:43] Speaker 01:
Do you think there are tours that the state could conduct on its own that wouldn't, that would be okay?

[00:11:51] Speaker 00:
Absolutely.

[00:11:52] Speaker 00:
And the court here, in multiple orders, in the October 2023 order,

[00:11:57] Speaker 00:
and the order on appeal expressly said, you can do whatever self assessment you want.

[00:12:02] Speaker 00:
And in fact, in 2021, these same experts conducted a tour conducted a series of tours, which the state

[00:12:10] Speaker 00:
hold the district court was purely for self-assessment would not be used in litigation.

[00:12:15] Speaker 01:
So are there kinds of things that that you think make this tour improper whereas another tour might be okay like for example observations of your clients do you think the state could do that or is that just not something they could do without the district court's permission in your view?

[00:12:32] Speaker 00:
I think this particular set of tours

[00:12:35] Speaker 00:
the burdensomeness, the intrusiveness, and the particular phase of the case were very important to this order.

[00:12:42] Speaker 00:
So I think any future requests that the state might make would be held to normal discovery standards.

[00:12:48] Speaker 00:
Is it proportional?

[00:12:49] Speaker 00:
Is it necessary?

[00:12:50] Speaker 00:
For instance, there is a process in this case for the state to get discovery for motions, for the contempt proceedings.

[00:13:00] Speaker 00:
uh... and for termination and so it can make it showing that it needs this discovery including potentially interviews of our clients in an appropriate context when there is actual litigation before the court but this is case management there was no related litigation it was purely to build a record and sandbag the plaintiffs in advance of a planned termination motion that they said might be coming

[00:13:28] Speaker 03:
Is there something in the record where you have the state essentially admitting that it intended to use what their experts found in the litigation?

[00:13:40] Speaker 00:
Yes, Your Honor.

[00:13:40] Speaker 00:
In the original letter noticing these tours, the state expressly said we reserve the right to use this to terminate this case.

[00:13:50] Speaker 00:
It also said in its brief before this court that the that the preclusion of these tours inhibits its ability to move to terminate Are they allowed to move to terminate?

[00:14:02] Speaker 00:
Absolutely your honor all they have to do is give six months notice and then the court has said in an order that the state did not appeal that they will that she will set a status conference to open discovery and expert tours within a week of their filing that notice and

[00:14:16] Speaker 01:
Okay, the state seems to be saying two things to me.

[00:14:19] Speaker 01:
One is this has nothing to do with the litigation and so we should be allowed to do it.

[00:14:24] Speaker 01:
The other would be it has everything to do with the litigation because we need this information to bring a motion to terminate.

[00:14:30] Speaker 00:
That's exactly right.

[00:14:31] Speaker 01:
Okay, so on the ladder, if they are allowed to bring a motion to terminate,

[00:14:38] Speaker 01:
How would they support that if they can't do a tour like this?

[00:14:42] Speaker 00:
Well, they most certainly can do tours.

[00:14:45] Speaker 00:
They just need to give six months notice, and then the court will open expert discovery.

[00:14:49] Speaker 00:
That is the basis of the court's earlier order.

[00:14:52] Speaker 00:
It understands that there has to be discovery for a termination motion, and it can make it showing at that point that whatever tours it wants to propose at that point are proportional and necessary for the inquiry before the court termination.

[00:15:07] Speaker 01:
You mentioned at the beginning the suggestion that maybe the court didn't have jurisdiction because this wasn't final.

[00:15:13] Speaker 01:
Although it does seem final in so far as it goes.

[00:15:16] Speaker 01:
This particular request has been denied.

[00:15:18] Speaker 01:
It's sort of without prejudice to some future requests.

[00:15:21] Speaker 01:
But in a post-judgment context, why wouldn't we actually have jurisdiction to just decide this on the merits?

[00:15:28] Speaker 00:
Under the final order?

[00:15:30] Speaker 00:
Yeah.

[00:15:30] Speaker 00:
Under 1291?

[00:15:31] Speaker 00:
I think, Your Honor, that it's not final, because it's anticipating further proceedings.

[00:15:36] Speaker 00:
The court invites a threshold showing that this discovery that the defendants want... But not further proceedings within the confines of this particular request, right?

[00:15:47] Speaker 01:
I mean, there may be a future request, and that's different, but why isn't this a kind of self-contained request that would then be final, just given the post-judgment context that we're in?

[00:15:56] Speaker 00:
I don't agree with that your honor because the court specifically says here's the threshold showing you would need to make for these particular tours.

[00:16:04] Speaker 00:
It says your experts have already concluded that the program guide the minimum constitutional standard in this case.

[00:16:11] Speaker 00:
exceeds national standards, but you didn't present any evidence or explain why.

[00:16:15] Speaker 00:
If you do that, I will consider it, but you didn't make any evidentiary showing to that effect.

[00:16:21] Speaker 00:
So the invitation for a threshold showing, I think, which is at ER7 in particular, and again reiterated multiple times in the order, I think invites further proceedings.

[00:16:34] Speaker 00:
The court also notes that if they want expert discovery, they just have to notice termination and it opens.

[00:16:41] Speaker 00:
So I think all of those are invitations to say, if you want these tours, make a better showing that is consistent with the proportionality and necessity rules governing discovery in general.

[00:16:53] Speaker 00:
Show me that it's appropriate, given in the past you've conducted unethical ex parte tours.

[00:16:59] Speaker 00:
And show me that it will actually benefit the litigation, that it will move the litigation further.

[00:17:05] Speaker 00:
Because in the past, the expert tours the state has used have derailed

[00:17:10] Speaker 00:
the litigation and the remediation.

[00:17:11] Speaker 00:
It's sent them spiraling into litigation for no good reason.

[00:17:15] Speaker 00:
The tours that gave rise to the original termination motion, which were secret, which included unethical ex parte contacts with our clients that were then used against them,

[00:17:26] Speaker 00:
Even with that, the court found that the evidentiary showing in support of that termination motion was woefully inadequate.

[00:17:33] Speaker 00:
So the court here has good reason to weigh whether this incredibly intensive discovery is appropriate at this phase of the case, when the state is already in contempt, when it is facing a receivership, when it is literally at the point where the court is trying to manage as carefully as possible the end of this federal oversight.

[00:17:54] Speaker 01:
Well, dare I ask, what is the prospect for ending this case?

[00:17:59] Speaker 00:
Well, the court is in the midst of considering a receivership.

[00:18:04] Speaker 00:
We are currently in the midst of working with a receiver candidate to develop a plan to

[00:18:11] Speaker 00:
cure the constitutional violations in this case.

[00:18:14] Speaker 00:
So the seventh appeal the state has filed in the last two years is of that order initiating the initial phase of considering a receivership.

[00:18:25] Speaker 01:
That's pending here?

[00:18:27] Speaker 00:
That was filed last week, yes.

[00:18:31] Speaker 00:
So in sum, there is no final jurisdiction, our final order jurisdiction, because there are further proceedings

[00:18:39] Speaker 00:
There's also no serious ramifications from this order.

[00:18:43] Speaker 00:
It is specific to one particular set of tours.

[00:18:46] Speaker 00:
It won't affect any other litigants in any other case.

[00:18:49] Speaker 00:
It is classic case management.

[00:18:51] Speaker 00:
It's just the conduct and progress of the litigation.

[00:18:54] Speaker 00:
And this court has held repeatedly in plot of 2014.

[00:18:59] Speaker 00:
The Supreme Court has held in Mohawk that those kind of orders are not appealable, even under the final order provisions.

[00:19:07] Speaker 00:
And obviously, for the same reasons that it's not an injunction, it's not appealable under 28 USC 1292A1.

[00:19:13] Speaker 00:
And unless the court has further questions for me, I will cede my remaining time.

[00:19:19] Speaker 01:
Thank you very much.

[00:19:34] Speaker 02:
Just a few points on rebuttal.

[00:19:37] Speaker 02:
Discovery is closed.

[00:19:39] Speaker 02:
There is no discovery in this case because we're in post-judgment proceedings.

[00:19:44] Speaker 02:
Now, plaintiffs' counsel relies on the six-month notice period as being defendants' opportunity to notice termination and therefore get expert discovery into their own system, which doesn't make sense.

[00:19:58] Speaker 02:
But putting that aside, in order for defendants to notice termination

[00:20:05] Speaker 02:
In compliance with their Rule 11 obligations, they have to have some evidence that termination is warranted.

[00:20:13] Speaker 02:
And if they can't get that threshold evidence by having their own consultants tour their own facilities and advise them as to whether or not moving for termination would be supportable, they can't even notice the termination that would then trigger a six-month period for plaintiffs to conduct discovery

[00:20:31] Speaker 02:
into defendant's consultants.

[00:20:34] Speaker 01:
If the court looks at the court's order

[00:20:51] Speaker 02:
She states that she does not believe that expert tours are necessary because she's prejudged the issue already.

[00:20:57] Speaker 02:
She does not believe that defendants can even proceed because she's already made up her mind that they're not necessary.

[00:21:05] Speaker 01:
I think it's not necessary now.

[00:21:08] Speaker 01:
Again, I somewhat take exception to the characterization that she's prejudged anything.

[00:21:12] Speaker 01:
I don't think that's apparent from the order.

[00:21:16] Speaker 02:
Well, Your Honor, I disagree simply because of the two preconditions the court established in order for defendants to even get their experts through the prison gate in this case.

[00:21:27] Speaker 02:
And lastly, I just want to note that nothing could be further from the prior tours that plaintiffs council just raised.

[00:21:34] Speaker 02:
Defendants gave notice, plaintiffs were invited.

[00:21:37] Speaker 02:
They started the tours together.

[00:21:38] Speaker 02:
They only had two outstanding disputes.

[00:21:41] Speaker 02:
So even under a case management analysis, the court abused its discretion because it had two issues before it to resolve, one-on-one patient observations and the scope and pace of the tours.

[00:21:52] Speaker 02:
And instead of resolving those discrete disputes, it enjoined defendants from touring their own facilities.

[00:21:58] Speaker 02:
Thank you, Your Honors.

[00:21:59] Speaker 01:
Thank you.

[00:22:00] Speaker 01:
This case is submitted, and we'll turn directly to our next case.