On February 12, 2013, the parties filed a Joint Statement Re Discovery Dispute (Joint Statement). The dispute tendered for resolution centers on the deposition of Lindsay Hayes, a non-testifying consultant for the California Department of Corrections and Rehabilitation (CDCR) and whether documents produced to plaintiffs by Mr. Hayes concerning his consultancy with CDCR must be destroyed. The deposition is noticed for February 18, 2013. Defendants seek a protective order preventing the deposition and requiring plaintiffs to "destroy any documents produced to them related to Mr. Hayes's consultancy with CDCR." Joint Statement, filed February 12, 2013, at 1.
On January 7, 2013, defendants filed a motion to terminate this action under 18 U.S.C. § 3626(b) and to vacate the court's judgment and orders under Fed. R. Civ. P. 60(b)(5) (hereafter "Termination Motion"). In relevant part, defendants contend that they have "fully implemented programs to identify, treat and supervise inmates at risk for suicide" and that they are not deliberately indifferent to the serious mental health needs of class members. Termination Motion, at 14, 21.
Lindsay Hayes is an expert in suicide prevention in jails and prisons employed by the National Center on Institutions and Alternatives in Massachusetts. Declaration of Non-Party Lindsay M. Hayes in Connection with Discovery Dispute, filed February 12, 2013 (Hayes Decl.), at ¶ 1.*fn1 In 2005, plaintiffs retained him as an expert witness and consultant on behalf of the plaintiff class. Declaration of Michael W. Bien in Support of Plaintiffs' Statement Regarding Lindsay Hayes Subpoena and Document Requests, filed February 12, 2013 (Bien Decl.), at ¶ 2. On June 8, 2006, the district court ordered defendants to "develop a plan for dealing with the escalating percentage of suicides occurring in administrative segregation units" and to "collaborate with one or more of the special master's experts, with plaintiffs' counsel, and with plaintiffs' expert, Lindsay Hayes" to develop that plan. Order filed June 8, 2006 at ¶¶ 1, 3. On October 31, 2006, plaintiffs filed a declaration from Mr. Hayes in support of their objections to the plan developed by defendants in response to the June 8, 2006 order. (Doc. No. 2011.)
In July 2009, Mr. Hayes received an email from CDCR's Suicide Prevention Coordinator, Robert Canning, PhD, inquiring on behalf of CDCR's then Mental Health Director if Mr. Hayes "would consider entering in to 'a consultation on our suicide prevention program.'". Hayes Decl. at ¶ 3. Mr. Hayes "conferred with Plaintiffs' counsel, who approved on the condition that [he] would not be employed as a litigation consultant or as an expert witness, but rather as a consultant to the clinicians in mental health working on suicide prevention and policies and procedures." Id. In August 2009, Mr. Hayes was approached by an attorney with the California Attorney General's Office "about the possibility of retaining him as a litigation expert" for this action. Bien Decl. at ¶ 6, Ex. C. Mr. Hayes informed plaintiffs' counsel that he declined the attorney's request. Id. at ¶ 6.
Mr. Hayes subsequently entered into a contract with CDCR for three years of work. Hayes Decl. at ¶ 6. The contract provides in relevant part:
The National Center on Institutions and Alternatives (NCIA) shall provide a comprehensive system-wide review of the California Department of Corrections and Rehabilitation (CDCR)'s Suicide Prevention Program. This consultation will directly respond to the Coleman court's stated concerns about the CDCR's suicide review process and other aspects of suicide prevention in the department. This consultation will directly contribute to resolution of the Coleman litigation.
Suicide crosses all professional and organizational boundaries of the CDCR. A successful suicide prevention program in the CDCR environment targets all inmates, all staff, and all levels of custody. In the last ten years the CDCR has experienced an increase in the rate of suicide. For most years in the last decade the suicide rate in the CDCR has exceeded the national rate of suicide among the state prisoners. Recently the CDCR has stumbled in the timeliness of its suicide review and the adequacy of the responses to these reviews by the institutions and the CDCR as a whole. The recognition of and response to suicide risk in the correctional environment is one of the most important and difficult tasks for mental health staff, yet it is apparent from the CDCR's own reviews of suicide and those of the Coleman court's suicide expert that assessments are often subpar and inadequate, leading to poor follow-up and trajectories that may contribute to an eventual suicide. In addition, the CDCR has struggled with how to assure that local policies, procedures, and practices reflect departmental standards and are consistent across institutions. Finally, the ability of the CDCR to adequately track, monitor, and prevent suicide attempts has eroded until at the current time the CDCR has no active database of suicide attempts and no plan to systematically collect data on attempts as a way to better understand who may and who may not attempt, and ultimately complete a suicidal act. These factors have contributed to the CDCR's inability to make progress toward an exit from the Coleman litigation. The Contractor's experience (more than 25 years) with correctional suicide prevention programs will allow the CDCR to make immediate, short-term, and long-term changes in its suicide prevention program to begin to decrease the overall rate of suicide in the long-term. This consultation will allow the CDCR to implement a more effective suicide prevention policy and demonstrate to the Coleman court its resolve to deal with a [sic] issue that impedes its ability to resolve the litigation.
Ex. A to Hayes Decl. Mr. Hayes' consultation, which began in fiscal year 2010/11, was to last for three years. The contract provided that Mr. Hayes would "apply eight critical components of a suicide prevention policy . . . to his consultation with the CDCR." Id. The tasks to be performed by Mr. Hayes included an "initial consultation" which would include document review, consultation at CDCR headquarters with "senior clinical and custodial staff", visits to "several institutions to review suicide policies and procedures in action", and a second visit to CDCR headquarters to "discuss preliminary recommendations and identified problem areas." Id. The contract provides for a "report with recommendations to be delivered to the CDCR approximately one month after the end of the on-site visit." Id. The contract further provides for one- and two-year follow-ups, and then a consultation in year three followed by a "final report and recommendations for long-term changes." Id. The anticipated time for completion of the final report was August 30, 2013 "or within 30 days of Consultation." Id. The task list does not include any consultation with defendants' counsel.
According to Mr. Hayes, "[t]he contract language was consistent with [his] understanding with Ms. Aungst and Dr. Canning that [he] was not a consultant to CDCR's attorneys or the Attorney General's Office, but was instead a consultant to CDCR's Division of Health Care Services for the purpose of reviewing and improving CDCR's suicide prevention policies and practices." Hayes Decl. at ¶ 4. Dr. Canning was the "Program Manager" for the contract, and Mr. Hayes "worked directly with him and other central office staff of CDCR's Division of Health Care Services." Id. Mr. Hayes understood that his "recommendations for improvements would be shared with the Special Master and his experts, along with Plaintiffs' counsel, as part of the process of resolving [the suicide prevention] aspect of the Coleman litigation." Id.
In August 2011, pursuant to the contract, Mr. Hayes delivered a report to CDCR, dated August 16, 2011, with his findings and recommendations. Hayes Decl. at ¶ 5. The "report was written with the explicit intent to provide CDCR with a strategy to reduce inmate suicides within the prison system." Id. CDCR has not requested additional consulting services from Mr. Hayes since he sent that report. Id. at ¶ 6. "CDCR did subsequently request that [he] prepare a redacted version of [his] August 2011 report that removed all of [his] opinions and recommendations other than those concerning CDC's use of Outpatient Housing Units ("OHUs"), so that the redacted report could be shared with the Special Master and Plaintiffs' counsel." Id. CDCR also informed Mr. Hayes in May 2012 that he could speak with plaintiffs' counsel and an expert for the Special Master about that part of his report. Id.
Mr. Hayes resigned as a CDCR consultant in January 2013. Id. at ¶ 8. In January 2013, plaintiffs' counsel contacted Mr. Hayes and asked if he would agree to be retained as a plaintiffs' expert witness in opposition to defendants' Termination Motion. Id. Plaintiffs' counsel subsequently withdrew the offer after plaintiffs' counsel was ...