A federal magistrate judge plans to hear more about a request for sanctions over the state’s handling of digital evidence in a class action lawsuit over conditions in the foster care system.
U.S. Magistrate Judge Cheryl Eifert set a hearing for 1:30 p.m. Jan. 11 at the federal courthouse in Huntington.
The foster care lawsuit was filed in 2019 on behalf of thousands of children. The suit was filed by A Better Childhood, a national child advocacy organization, Disability Rights West Virginia and Shaffer and Shaffer, a West Virginia law firm.
The lawsuit alleged rampant issues with institutionalization for children, moves outside of West Virginia, available community-based mental health services and overextended caseworkers.
Earlier this fall, lawyers for the state revealed that key email accounts were not preserved after the departures of several state employees.
Plaintiffs moved for sanctions because three or more years of requested emails of officials in the Department of Health and Human Resources were purged after the employees left and, so, cannot be retrieved.
The lawyers said that all emails tied to the accounts of the former interim DHHR Secretary Jeff Coben, Jane McCallister, Bea Bailey, Jolynn Marra, Mischelle Williams, Pam Holt and Warren Keefer had been deleted. Two of those, Coben and McCallister, were supposed to have been tied to a litigation hold, with special care to preserve their electronic records.
Additionally, DHHR failed to preserve emails tied to the accounts of former DHHR Secretary Bill Crouch, Linda Watts, Kevin Henson, Laura Barno and Tanny O’Connell that post-dated September 2020. The plaintiffs already had some emails from those DHHR employees from prior to that date.
The plaintiffs’ attorneys have called the failure to preserve that evidence “shocking.”
They are asking for sanctions that include declaring that they have established deliberate indifference by the state, blocking the defendants from having the case declared in their favor over the deliberate indifference issue, and blocking the defendants from arguing that the deleted emails would have shown that the DHHR did not act with deliberate indifference.
A few weeks ago, lawyers for the state expressed “deep regret” over the purged emails but maintained officials had made a “reasonable effort” to preserve them.
Last week, the plaintiffs submitted an affidavit by former DHHR attorney Mike Folio saying agency officials were aware of a practice of allowing emails that could be courtroom evidence to be purged. Folio is now legal director for Disability Rights of West Virginia and is not an active participant in the foster care lawsuit.
“It is common knowledge that 30 days after state employees separate from an agency the employees’ emails and other electronic information are routinely destroyed and not preserved unless appropriate action is taken otherwise,” Folio stated in his affidavit.
Marcia Robinson Lowery, attorney for A Better Childhood, wrote in a filing that Folio’s account and other evidence shows that state officials were not only aware of the Office of Technology’s policies on purging data 30 days after an employee departure but that DHHR had been specifically requested to preserve the electronic information “and failed to do so.”
