Coleman v. Newsom

          ORDER

         As set by court order, the court held a focused evidentiary hearing on October 15 and 16, 2019, to address unresolved issues the court identified after reviewing Dr. Golding's whistleblower report and the court's neutral expert's investigation into Dr. Golding's allegations. See ECF Nos. 6242, 6288. The court heard closing arguments from the parties on October 22, 2019. In addition, as authorized by the court, Dr. Golding filed a written closing argument. ECF No. 6362. On October 23, 2019, the court provided an oral pronouncement of its findings and conclusions in open court. Reporter's Transcript of Proceedings (10/23/19 RT), ECF No. 6380. Those findings and conclusions, with record support, are memorialized in this order.

         I. INTRODUCTION

         In 1995, the court found “the California Department of Corrections . . . significantly and chronically understaffed in the area of mental health care services. . . . [It] does not have sufficient staff to treat large numbers of mentally ill inmates in its custody.” Coleman v. Wilson, 912 F.Supp. 1282, 1307 (E.D. Cal. 1995). In 2011, the United States Supreme Court observed that the record before that Court supported the conclusion “that the prison system remained chronically understaffed through trial [before a three-judge court] ¶ 2008.” Brown v. Plata, 563 U.S. 493, 528 (2011).^[1] In October 2017, after more than two decades of remedial effort, this court issued an order requiring defendants to come into complete compliance with the staffing ratios in their 2009 Staffing Plan, ECF No. 3693, and the maximum ten percent staffing vacancy rate required by the court's June 13, 2002 order, ECF No. 1383, with compliance to be achieved by October 2018. ECF No. 5711 at 30.^[2]

         In its October 2017 order, the court included a lengthy discussion of defendants' request, made in a March 30, 2017 filing, see ECF No. 5591 at 4, for the court “to revisit the existing staffing ratios for psychiatrists.” Id. at 12-20.^[3] The court made clear defendants faced a “heavy burden” in attempting to persuade the court those ratios should be revisited. Id. at 14, 18-19. The court noted defendants' request could “only be construed as a request to increase the existing caseload of prison psychiatrists” and that there was “scant evidence in the record to suggest this change would advance remediation of the Eighth Amendment violation in this case; rather there is strong evidence that such a change would slow progress toward the end of federal court oversight.” Id. at 19. Nonetheless, the court granted defendants limited leave to explore its request, deciding “not to preclude defendants from raising with the Special Master the issue of whether full implementation of the PMA [psychiatric medical assistant] program supports a change in the staffing ratios for psychiatrists.” Id. The court limited its permission because the record did not support a more extensive revisiting of the 2009 Staffing Plan and the time for defendants' compliance with the Plan was past due. As of this writing, the record still does not support a more extensive review, and the time for compliance is even more seriously past due.

         For the year following the court's October 2017 order, the parties, supervised by the Special Master, engaged in extensive negotiations over issues related to staffing compliance. Ultimately, defendants presented to plaintiffs and the Special Master a staffing proposal that would have cut by approximately twenty percent the total number of line psychiatry staff positions allocated throughout the prison system. See Reporter's Transcript of Proceedings, October 15, 2019 (10/15/19 RT), ECF No. 6377, at 52:9-18.^[4] Plaintiffs were poised to accept the proposal. Before they did, however, on October 3, 2018, Dr. Michael Golding, Chief Psychiatrist for the California Department of Corrections and Rehabilitation (CDCR), sent a whistleblower report to the Plata^[5] Receiver. Id. at 54:23-55:6. The parties brought the report to this court's attention on October 5, 2018, and it is that report that has led to the proceedings culminating in this order. As the findings in this order make clear, and contrary to defendants' initial position --maintained through the evidentiary hearing -- that no independent investigation of Dr. Golding's allegations was necessary, those allegations in significant part justified the independent investigation and factfinding the court has undertaken.

         At this critical juncture, several key legal principles, articulated by the previously-assigned judge in this action, bear repeating:

‘Whatever rights one may lose at the prison gates, cf. Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) (prisoners have no right to unionize), . . . Eighth amendment protections are not forfeited by one's prior acts. Mechanical deference to the findings of state prison officials in the context of the eighth amendment would reduce that provision to a nullity in precisely the context where it is most necessary. The ultimate duty of the federal court to order that conditions of state confinement be altered where necessary to eliminate cruel and unusual punishments is well established.' Spain v. Procunier, 600 F.2d [189] at 193-94 [(9th Cir. 1979)] (emphasis added).

Coleman v. Brown, 28 F.Supp.3d 1068, 1077-78 (E.D.Cal. 2014) (emphasis included in 2014 order). The same judge said not so very long ago, in his 2013 order denying defendants' motion to terminate this action, “[t]he Eighth Amendment violation in this action is defendants' ‘severe and unlawful mistreatment' of prisoners with ‘serious mental disorders,' through ‘grossly inadequate provision of ... mental health care.'” Coleman v. Brown, 938 F.Supp.2d 955, 969 (E.D.Cal. 2013) (quoting Brown v. Plata, 563 U.S. at 500, 502)). Just two years before that denial of termination, in its 2011 decision, the United States Supreme Court had observed that “[f]or years the ... mental health care provided by California's prisons has fallen short of minimum constitutional requirements and has failed to meet prisoners' basic health needs. Needless suffering and death have been the well-documented result.” Brown v. Plata, 563 U.S. at 501.

         As the prior presiding judge also noted,

once an Eighth Amendment violation is found and injunctive relief ordered, the focus shifts to remediation of the serious deprivations that formed the objective component of the identified Eighth Amendment violation. See Coleman v. Brown, 938 F.Supp.2d at 988. Remediation can be accomplished by compliance with targeted orders for relief or by establishing that the ‘violation has been remedied in another way.' Id.

Coleman v. Brown, 28 F.Supp.3d at 1077. Under no circumstances may remediation be accomplished by end runs and hiding the ball to create a false picture for the court, as has happened here.

         Given the constitutional deprivations underlying this case, and the court's monitoring by way of a Special Master, defendants' expenditure of so much time and effort to create records designed to advance litigation as the primary way to achieve a complete remedy or termination by other means is confounding. This court's predecessor carefully constructed a process supervised by a Special Master that was intended to moderate court intrusion into defendants' own remedial efforts. Such a process is arguably more respectful of defendants' knowledge of their operations and their management prerogatives than a process whereby oversight is transferred to a receivership; it also is more hopeful that defendants can best determine how to meet their constitutional obligations to the seriously mentally ill inmates in their custody. At the same time, given the authority that here remains vested in defendants themselves, the importance of defendants' transparent and accurate reporting is paramount: the court and the Special Master must be able to rely fully on defendants' representations. As explained in this order, the court has concluded the reliability of those representations at multiple levels of the Coleman case structure is in serious doubt. If the approach of monitoring by a Special Master has contributed to play in the joints allowing for those misrepresentations, the court may need to revisit that structure in future proceedings. For now, that is a question for another day.

         Before detailing its findings and conclusions, the court sets forth in greater detail the background leading up to the evidentiary proceedings, which are now concluded.

         II. BACKGROUND

         A. Matters Leading Up to Evidentiary Hearing

         As noted, on October 10, 2017, this court issued its order requiring defendants, within one year, to come into complete compliance with the staffing ratios in their 2009 Staffing Plan, ECF No. 3693, and also with the maximum ten percent staffing vacancy rate required by the court's June 13, 2002 order, ECF No. 1383. ECF No. 5711 at 30. The court set a further status conference for October 11, 2018 and directed the parties to file a joint status report thirty days prior to the status conference; the status report was to address, as necessary, issues pertaining to enforcement of the order and the durability of the staffing remedy. Id. at 31. The court later continued the hearing to October 15, 2018, and expanded it to include an evidentiary hearing on the use of telepsychiatry to give defendants an opportunity to “prove that the changes they have effected, moving from limited use of telepsychiatry as a supplement to on-site psychiatry in the face of short-term staffing shortages, to the further expansion they appear to be implementing is consistent with the requirements of the Eighth Amendment.” ECF No. 5928 at 12; see also ECF No. 5933.

         On October 5, 2018, ten days before the scheduled hearing, the court received requests from both parties; plaintiffs requested a status conference, ECF No. 5936, and defendants requested a stay of proceedings, ECF No. 5938. The requests were based on the whistleblower report from Dr. Golding (hereafter Golding Report). Following a special status conference on October 10, 2018, the court vacated the original status conference set to consider enforcement of the October 10, 2017 order and the evidentiary hearing on the use of telepsychiatry. ECF No. 5949 at 5; ECF No. 5980. After hearing from the parties and Dr. Golding's counsel both orally and in writing, ECF Nos. 5967, 5969, 5976-5978, on October 25, 2018, the court ordered the Golding Report filed on the public docket in redacted form.^[6] ECF Nos. 5986-5988. A complete unredacted copy of the Golding Report is filed under seal. ECF No. 5990.

         B. Appointment of Neutral Expert

         The court held a series of hearings, ECF Nos. 5964, 5980, 5995, issued an order to show cause why the court could not appoint its own neutral expert, ECF No. 6002, and considered the parties' responses, ECF Nos. 6009-6012, 6015. On December 14, 2018, the court appointed Charles J. Stevens, Esq. of Gibson Dunn & Crutcher LLP as the court's neutral expert under Federal Rule of Evidence 706, “to assist the court in investigating allegations raised in [the verified Golding Report) to determine whether defendants have committed any fraud on the court or the Special Master, or have intentionally provided false or misleading information to the court or the Special Master.” ECF No. 6033 at 1-2. The court filed an amended appointment order on January 8, 2019. ECF No. 6064. The amended order modified paragraphs A(2) and B(4) of the original appointment order, as requested by the neutral expert, and modified the first paragraph of that order to reflect events since the December 14, 2018 order was filed. Id. at 1 n.1.

         The court tasked the neutral expert with conducting an independent investigation to identify facts, if any, that raised a question whether defendants committed fraud on the court or intentionally misled the court or Special Master regarding seven issues the court specifically identified in its appointment order, as follows:

a. Lengthening the intervals between psychiatric appointments beyond court-mandated timelines for inmate-patients at the Correctional Clinical Case Management System (CCCMS) and Enhanced Outpatient Program (EOP) levels of care who are transferred to new institutions by resetting the clock for such appointments from the time of transfer rather than from the last completed appointment, rescheduling such appointments at the maximum time allowed in the Program Guide, and reporting compliance with Program Guide requirements using the reset timelines. See Golding Report, ECF No. 5988-1 at 1, 14-23.

b. Lengthening the interval between psychiatrist appointments for EOP inmate-patients and reporting compliance based on the extended intervals. See id. at 2, 23-26.

c. Combining CCCMS and EOP appointment compliance numbers into one reporting category. See id. at 26-27.

d. Inflating compliance numbers by counting every encounter between a psychiatrist and an inmate-patient as an appointment for purposes of measuring Program Guide timeline compliance, without regard to whether the encounter was a psychiatry appointment or, e.g., a wellness check or a cell-front attempt to communicate with an inmate patient. See id. at 5-6, 54-57.

e. The manner of reporting of scheduled appointments and missed appointments. See id. at 7-8, 35-47, 62-63.

f. Failing to report that psychiatric supervisors were also performing some or all the functions of staff psychiatrists. See id. at 5, 56-57.

g. The way in which medication non-compliance is measured. See id. at 8, 58-62.

Id. at 2-3. The court did not delegate any ultimate fact-finding authority to the neutral expert, but reserved that critical role to itself. See ECF No. 6187 at 2.

         C. The Neutral Expert Report

         The neutral expert conducted a four-month investigation, and on April 22, 2019, submitted a report to the court. See ECF No. 6135 at 1. Without objection, on May 3, 2019, the court filed the unredacted Neutral Expert Report on the public docket. ECF Nos. 6146, 6147.

         The Neutral Expert Report points to substantial indications of defendants' presenting misleading information to the court and/or the Special Master, including:

1. Defendants' making the December 2016 business rule change to redefine “monthly” to lengthen the intervals between Enhanced Outpatient (EOP) appointments from 30 days to up to 45 days. While in effect, this business rule generated misleading data about defendants' compliance with Program Guide requirements for routine EOP evaluations. ECF No. 6147 at 42, 48.

2. Defendants' reporting of “Timely Psychiatry Contacts, ” overstating compliance with Program Guide timeline requirements. Id. at 67. Specifically, California Department of Corrections and Rehabilitation (CDCR) data presented to the court and Special Master was inconsistent with Program Guide requirements and made defendants' reports in this area appear more compliant with Program Guide timeline requirements than defendants actually were. Id.

3. Defendants' reporting of psychiatric evaluations, erroneously skewed toward confidential evaluations. Id. at 68. “EHRS [Electronic Health Records System] data on compliance with Program Guide timelines for compliance with psychiatric evaluations is potentially misleading because it includes non-confidential encounters. . . .” Id.

4. Between 2016 and October 2018, defendants' use of an incorrect and potentially misleading definition of the Appointments Seen as Scheduled performance indicator, resulting in data being provided to the court in June 2018 and to the Special Master as part of the Continuous Quality Improvement (CQI) evaluations in a “misleading manner.” Id. at 75-76.

5. Defendants' submitting misleading data on “Timely Psychiatric Contacts” in support of their 2018 Staffing Proposal in that the data did not accurately reflect the extent to which appointments were seen by supervisors rather than line psychiatrists. Id. at 82.

6. Defendants' submitting misleading data on the timeliness of mental health referrals, “because for medication noncompliant patients it only counted those patients for whom a psychiatrist ordered a medication noncompliance counseling appointment as a matter of discretion, ” not all patients who require medication noncompliance appointments. Id. at 84. As a result, the performance indicator overstated compliance. Id. at 91.

7. Due to a bug in software, defendants counting cancelled noncompliance appointments as completed; however, “this inaccurate data was less favorable to CDCR than the corrected data.” Id.

         The court provided the parties an opportunity to file substantive responses to the Neutral Expert Report and then set the matter for a special status conference on June 10, 2019 to discuss issues raised in the briefing. ECF No. 6135 at 2.

         D. Review of Materials Defendants Claimed as Privileged

         During the course of the neutral expert's investigation, defendants filed a motion for protective order, seeking to avoid producing to the neutral expert documents he requested but for which defendants asserted claims of attorney-client privilege and/or work product protection. ECF No. 6086. The court denied the motion for protective order, specifically noting the court had already provided those claims would not be waived by disclosure of “potentially privileged material . . . to the court's neutral expert during the investigation and then to the court subject to the claims of privilege.” ECF No. 6096 at 6. Despite the court's order, defendants still did not produce the documents to the neutral expert. See ECF No. 6147 at 14. The neutral expert declined to litigate the issues, concluding he “could make the findings requested by the Court without” doing so. Id. His findings were, therefore, “subject to the qualification that [he] did not review information claimed by Defendants to be protected by attorney-client or work product privileges.” Id.

         At the June 10, 2019 status conference, the court signaled it would require defendants to produce the privileged documents to the court for in camera review, and the court confirmed its tentative ruling by minute order the same day. ECF No. 6180. On June 14, 2019, defendants filed both a motion for reconsideration by this court, ECF No. 6188, and an emergency petition for writ of mandamus in the United States Court of Appeals for the Ninth Circuit. See Newsom v. USDC-SAC, CAD # 19-71493 (9th Cir. filed Jun. 14, 2019). On June 18, 2019, this court denied the request for reconsideration, ECF No. 6200, and the appellate court denied the mandamus request the next day. ECF No. 6202. Thereafter, defendants produced the documents, which the court itself reviewed in camera; during its review, the court discussed certain documents in camera on a few occasions with defendants. See, e.g., ECF Nos. 6270, 6323.^[7]

         As the procedural history reflects, defendants have resisted at every turn any reliance by the court on any portion of any document for which they have asserted a claim of privilege. The court's general impression from its review of these documents is that defendants have overreached in a number of their privilege claims, although some claims of privilege would be sustained if not waived by reason of defense positions taken previously in these proceedings. Nonetheless, the court has determined that to venture further into the thicket of these privilege claims would waste valuable court time and resources and distract from the important, indeed imperative, tasks that remain to achieve delivery of constitutionally adequate mental health care to the plaintiff class. The court therefore has not prolonged these proceedings by issuing further orders defendants are likely to appeal. Ultimately on the merits, after careful consideration, the court has determined it need not rely on any of the privileged documents.^[8]

         For purposes of these proceedings, it is enough to say that nothing in the privileged documents reviewed by the court supports a different conclusion than reached below. That is to say, nothing before the court indicates, directly or by way of inference, that anyone involved in presenting misleading information to the court committed intentional fraud. Rather, the picture that emerges from the documents reviewed in camera is consistent with the picture that emerges from the public record created over the course of the proceedings prompted by the Golding Report. It is this public record on which the court relies in making its findings and conclusions.

         III. EVIDENTIARY HEARING

         A. Orders Narrowing Issues for Hearing

         In its June 14, 2019 order following the June 10, 2019 status conference, the court found that in five of the seven areas referred to the neutral expert for investigation, he had identified evidence that, “if confirmed through further proceedings and accepted by the court, could establish that misleading data has been presented to the court and/or the Special Master.” ECF No. 6187 at 2. These areas included Issues B, D, E, F and G as described in the court's appointment orders. Id. The court set an evidentiary hearing to probe those five issues, “to take evidence, as necessary, to determine (a) whether misleading data was presented to the court and/or the Special Master; (b) if misleading data was presented, how and why that happened; and (c) what action is required to correct the record and avoid future submission of misleading data.” Id. The court also directed the parties to meet and confer in an effort to determine whether they could “stipulate to one or more of the underlying facts suggested by the results of the neutral expert's investigation.” Id.

         On August 8, 2019, the court held a telephonic prehearing conference. ECF No. 6236. The court then filed an order on August 14, 2019, confirming and clarifying several matters covered at that conference. ECF No. 6242. In particular, the court found the parties had stipulated to several key facts suggested by the Neutral Expert Report and defendants had admitted that misleading information was provided to the court. See id. at 5-11; see also 10/23/19 RT at 444:67. As a result, the court narrowed the scope of the evidentiary hearing, identifying the issues remaining for hearing as follows:

• Why neither Dr. Leidner nor Dr. Ceballos consulted with Dr. Golding in connection with the decision to change the definition of “monthly” in the relevant business rule, and why no one from CDCR informed the Special Master or any member of his team about this change;

• How the Appointments Seen as Scheduled indicator was developed incorrectly and in the absence of consultation with Dr. Golding or other quality control measures, and what steps defendants plan to take to ensure indicators and definitions are developed with appropriate consultation and quality control in the future; and

• Why defendants did not disclose in their 2018 Staffing Proposal whether, and to what extent, the reporting of data related to average frequency of patient contacts did not disclose the use of supervisory psychiatrists to complete caseload contacts with patients; and to what extent defendants knowingly relied on active participation of supervisory psychiatrists in performing the duties of line psychiatrists both in defendants' 2018 Staffing Proposal and in supporting their representation that, if adopted, the 2018 Staffing Proposal would bring defendants into compliance with the October 2017 staffing order.^[9]

ECF No. 6242 at 5, 9-10; see also ECF No. 6288 at 2.

         B. Evidentiary Hearing Schedule

         The court convened the evidentiary hearing commencing on October 15, 2019. ECF No. 6345. The court heard testimony from eight witnesses over two days, asking its questions first and then allowing the parties to ask questions; the court admitted several exhibits into evidence as moved by the parties. ECF Nos. 6345, 6350. In addition, the court received deposition testimony from Dr. Kevin Kuich, a psychiatrist, in lieu of his live testimony. See Annotated Deposition Transcript of Kevin Kuich, dated 9/19/2019 (Kuich Dep.), ECF No. 6406; see also ECF No. 6357 (resolving objections to parts of Kuich Testimony).^[10] Additionally, in accordance with the parties' stipulation, the court accepted declarations from defendants' attorneys Rae Onishi, Esq., Nicholas Weber, Esq. and Melissa Bentz, Esq. in lieu of their live testimony. See ECF No. 6337; see also 10/23/19 RT at 444:2-7.

         Following hearing, on October 22, 2019, the court heard closing argument from plaintiffs and defendants. ECF No. 6364; see also Reporter's Transcript of Proceedings (10/22/19 RT), ECF No. 6379. The court also received a written statement regarding the evidence presented at hearing from Dr. Golding's counsel. ECF No. 6362. On October 23, 2019, the court pronounced oral findings and conclusions in open court. ECF No. 6365. It is those findings and conclusions that are memorialized in this order.

         C. Witnesses

         As discussed above, the court heard live testimony from eight witnesses and received the deposition testimony of a ninth witness. The record memorializes the testimony of all the witnesses and ultimately their testimony speaks for itself. The court has considered all of the testimony and exhibits. The court's assessment of certain witnesses in particular, including their credibility and the substance of their testimony, is central to the court's findings and conclusions, and to the clarification, cleansing and purging necessary to move this case forward. The court therefore reviews its assessments of these selected witnesses below.

         1. Dr. Michael Golding

         The court first heard from Dr. Golding. Based on the substance of his testimony and his demeanor on the witness stand, the court finds Dr. Golding credible. His observations and conclusions overall are well-founded. When he learned that the psychiatrist compliance indicator for timeliness of EOP appointments on the Mental Health Dashboard^[11] “had turned green, ” he asked a Senior Psychiatrist Specialist member of his headquarters team, Dr. Melanie Gonzalez, ^[12] to “look at the data to see what was going on.” 10/15/19 RT at 45:2-7; 76:6-11. Working with Dr. Kuich, ^[13] see Kuich Dep. at 89:25-94:11, Dr. Gonzalez performed the requested analysis, and that analysis informs the conclusions in Dr. Golding's Report as well as in her report. The defendants' contentions articulated in their closing, that Dr. Golding “just about disagrees with everyone, ” 10/22/09 RT at 426:4, and that he has a pro-psychiatry bias, are not well-founded and even if they contain a grain of truth do not undermine the doctor's credibility. Whether or not Dr. Golding has a disagreeable side, which was not evident during his testimony, is irrelevant to whether he testified credibly and knowledgeably. And it would be understandable if he has a pro-psychiatry bias. He is, after all, a chief psychiatrist with CDCR, and it is hard to see how advocating for his professional counterparts and the integrity of the mental health care delivery system in CDCR displays a bias that undermines his credibility.

         Finally, contrary to defendants' attempt to paint Dr. Golding as a solo outlier, his testimony and his report on the serious matters at issue here do not stand alone. Both Dr. Gonzalez's report and Dr. Kuich's deposition testimony corroborate Dr. Golding's position in substantial and significant ways. Dr. Kuich's deposition, in particular, provides a very helpful narrative, placing essential pieces of evidence into context in a way that brings the considerable bureaucratic dysfunction within defendants' operations into clearer focus.

         Dr. Golding's explanation for why he was not able to satisfactorily resolve the issues he raised internally and for why he provided his report to the Plata Receiver rather than the Coleman Special Master also are both credible and evidence of the dysfunction illuminated by these proceedings.

         In one respect, the court does not find other evidence in the record to support Dr. Golding's strong belief that the Governor's Office expressly directed the provision of misleading data to the court. Additionally, the court cannot on the present record and does not resolve whether then-Deputy Director Tebrock told Dr. Golding that by telling her about fraud he had “unburdened [him]self, ” 10/15/19 RT at 26:19-27:1, because she is an officer of the court, a statement Ms. Tebrock denies making, see id. at 98:8-18.

         2. Katherine Tebrock

         At times relevant to the events that gave rise to the Golding Report, Ms. Tebrock was Deputy Director of CDCR's Statewide Mental Health Program. 10/15/19 RT at 82:13-20. She left that position voluntarily on July 12, 2019. Id. at 82:18-22. She is still employed by the State of California, though she does not work for CDCR and is not a gubernatorial appointee. Id. at 105:1-9. Ms. Tebrock is a person of obvious intelligence and significant abilities. While the court found her testimony credible, that testimony was also disappointing given the overall message it sent. Ms. Tebrock failed to fully accept responsibility for her own failures, including failures in the leadership she was required to exercise given her role as Deputy Director. Perhaps she too was a victim of the bureaucratic dysfunction so plainly evidenced by the record here, and not provided adequate leadership training and support to manage the demands of the complex environment in which she was working. That said, Ms. Tebrock signed at least one key declaration in this case during the relevant time frame and that declaration, which contained misleading information, was filed with the court. See 10/15/19 RT at 103:19-104:6 (discussing ECF No. 5591-2, March 30, 2017 declaration of Ms. Tebrock containing data based on changed business rule that extended timelines between EOP appointments from 30 to 45 days). And she did not ask anyone to correct the data in that declaration even after she became aware of Dr. Golding's report. 10/15/19 RT at 103:19-104:26.^[14] She also signed at least five EOP Administrative Segregation Unit (ASU) Hub certification letters^[15] tendered to the Special Master between January 2017 and May 2017, which contained data created with the changed business rule. See 10/15/19 RT at 105:20-25 (Tebrock testimony that she signed EOP ASU Hub certification letters monthly); see also ECF No. 6330 at 4 (correcting EOP ASU Hub certification letters submitted to the Special Master between January 2017 and May 2017). Although defendants initially took the position they did not have to correct these letters, see ECF No. 6257 at 26-27, on October 10, 2019, defendants did send a letter to the Special Master containing corrected data for these letters.^[16] See ECF No. 6330. Although Ms. Tebrock testified at hearing that she would, if given the chance, correct any pleadings containing erroneous data, 10/15/19 RT at 123:22-124:2, this offer comes too late and rings hollow. Defendants have been given many months since Dr. Golding filed his report to correct the record, including during the time Ms. Tebrock remained at CDCR. For reasons that are unclear to the court, Ms. Tebrock never availed herself of those opportunities.

         Ms. Tebrock's handling of the defendants' misguided 2018 staffing proposal was also inexplicably constrained, as if carefully curated to preclude meaningful input from psychiatry. Her explanation for her failure to give Dr. Golding a written draft of the staffing proposal before it was finalized - that the proposal was a court document to be wordsmithed by lawyers and therefore its substantive content tightly controlled by lawyers - is wholly unsatisfactory, given lawyers' unbending obligation to ensure information submitted to the court is, among other requirements, “not being presented for any improper purpose” and “factual contentions have evidentiary support.” See 10/15/19 RT at 99:25-100:22; Fed.R.Civ.P. 11(b). When Dr. Toche later was asked ...