CHARLESTON — Lawyers in a federal class action lawsuit over how West Virginia manages its overflowing foster care system are pushing for sanctions, saying three or more years of requested emails of officials in the Department of Health and Human Resources were purged and cannot be retrieved.
The emails included ones that were sent or received after September, 2020, by former DHHR Secretary Bill Crouch and by Linda Watts, former commissioner of the agency’s Bureau for Children and Families. For several agency employees, the trail of records no longer appears to exist at all.
“Defendants would be hard-pressed to argue that the destruction of all emails sent to and from seven high-level DHHR employees, including named Defendants, over the course of more than three years has not caused nearly insurmountable prejudice to Plaintiffs’ case,” the lawyers wrote in Thursday’s filing.
A similar issue has arisen this month in a separate federal lawsuit over the conditions in West Virginia’s corrections system. In that case, the state is being taken to task because the email accounts of six corrections officials who departed in 2022 were purged.
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.
The case has been moving along in the courtroom of U.S. District Judge Joseph R. Goodwin, where the plaintiffs made standard discovery requests for electronically stored information.
On Oct. 6, according to the filing by the plaintiffs, lawyers for the state sent a letter stating:
“Unfortunately, in retrieving emails for the custodians requested by Plaintiffs, Defendants’ counsel discovered that the West Virginia Office of Technology (“OT”) did not preserve PST files for several custodians formerly employed by DHHR. Instead, they were automatically deleted 30 days after the termination of employment, which is OT’s standard and automated practice for individuals leaving state employment. Some of these custodians were subject to a litigation hold, and Defendants are still attempting to determine why these files were not preserved.”
The plaintiffs called that a “shocking revelation.”
The lawyers said that all emails tied to the accounts of 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 Crouch, 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 note that their case would typically require proof that the state officials acted with deliberate indifference.
“The primary way for Plaintiffs to prove this element of their substantive due process claims is through the emails of high-ranking DHHR officials, which were destroyed. The destruction of named Defendants’ emails severely hampers Plaintiffs ability to prove that those individuals were deliberately indifferent.”
The plaintiffs in the case are asking the judge for sanctions that include declaring they have established the deliberate indifference standard, 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 defendants did not act with deliberate indifference.
“Plaintiffs will still have to present evidence at trial sufficient to establish each and every element of their claims, with the exception a single element that is present with respect to only some claims — specifically, the deliberate indifference element of Plaintiffs’ substantive due process claims against the DHHR Defendants,” the plaintiffs wrote.
