Attorneys for Foster Children Continue Push for Sanctions Against West Virginia DHHR Over Deleted Emails
Photo courtesy of WV Legislative Photography Trending
CHARLESTON -- Attorneys representing 12 children in foster care in a federal class action lawsuit against the West Virginia Department of Health and Human Resources once again called for sanctions against the department over accusations over deleted emails from key former officials.
In a court filing Monday in the U.S. District Court for the Southern District of West Virginia, attorneys for several foster children issued a memorandum of law backing up an Oct. 25 motion for sanctions against DHHR after the agency's attorneys filed a response Nov. 16.
The motion for sanctions accuses DHHR of "deliberate indifference" after it was discovered that three years of emails for seven named defendants were deleted by the state Office of Technology.
Those defendants include former DHHR Secretary Bill Crouch and former Commissioner of DHHR's Bureau for Children and Families Linda Watts.
In an Oct. 6 letter to the foster care attorneys and in their court filing last week, attorneys representing DHHR admitted the emails were deleted. The DHHR attorneys apologized to both opposing counsel and the court for not preserving the electronically stored information (ESI) despite what they called "reasonable efforts" to preserve it.
DHHR attorneys argued sanctions should not be granted because of their efforts to preserve the deleted information. But Marcia Lowry, one of the attorneys representing the foster children, said DHHR "did not even attempt" to preserve the emails in question.
"Defendants concede that the destroyed ESI contained 'potentially relevant information' and should have been preserved but argue, quite incredibly, that sanctions are not necessary because they took reasonable steps to preserve it," Lowry wrote. "Defendants' 'reasonable steps' were limited to sending a single email that included a form litigation hold letter that failed to specify whose accounts were to be preserved, was never followed up on and was ultimately ignored."
Lowry cited an email issued Dec. 4, 2019, by DHHR General Counsel April Robertson to the Office of Technology, which provides IT services to other state agencies and departments. A litigation hold requires that state agencies preserve all documents during pending court cases in case those documents are subpoenaed during the discovery process.
According to a Nov. 23 transcript of a deposition with Robertson, despite emailing the litigation hold to the DHHR officials and OT, she did not follow up with OT when she did not receive an acknowledgement or confirmation that OT received the litigation hold.
"Is it your testimony today that prior to September of this year, you did not know whether or not these litigation holds were put in place by the Office of Technology?" an attorney asked.
"That is correct. I assumed they were in place," Robertson said. "I've been sending them since 2017. And whoever was heading up OT in each of those years never reached back to say, 'Hey, these memos are deficient in any way.'"
According to the Department of Administration, which oversees OT, agencies are required to notify OT of departing state employees by submitting a deprovision form. This form starts a 30-day countdown for agencies to download and preserve any emails or other electronically stored information before OT deletes the former employee's account and data.
Litigation holds are exempt from this policy, which has been in place for at least 10 years. Agencies with litigation holds are required to file those holds with OT's security team. Emails for Crouch, Watts and three other former DHHR officials were subject to a litigation hold. Attorneys for the foster children also argue that DHHR should have maintained emails for former interim cabinet secretary Jeffrey Coben and Laura Sperry-Barno, a former office director for DHHR's Office of Children and Adult Services.
According to Robertson's deposition, the litigation hold email to OT did not include a list of DHHR employees whose emails were to be preserved. And no follow-up was made either by OT or Roberston or other DHHR employees under the litigation hold. OT officials later testified that Robertson's litigation hold email was "insufficient to preserve email accounts."
"Robertson's failure to seek confirmation from the people who did not acknowledge receipt of the memorandum is so baffling that it can only be understood as deliberate," Lowry wrote. "It was DHHR's responsibility, not WVOT's, to take whatever measures were necessary to ensure that relevant ESI was preserved. DHHR and its officials failed to take any reasonable steps to ensure that WVOT had the information that it needed to preserve the lost ESI; liability for the spoliation, therefore, rests squarely with DHHR."
Robertson has served as either an assistant general counsel or general counsel since 2017, but testified that she had never followed up on any litigation hold, assuming the litigation hold requests were carried out. She also testified that she was unaware of OT's policies regarding deprovisioning or deletion of ESI.
"As this is far from the only lawsuit that DHHR has faced in the last six years, it strains credulity that DHHR's General Counsel was, until September 2023, unaware of these long-standing policies and of how to place an effective litigation hold," Lowry wrote.
"DHHR's dereliction of duty in this matter is egregious and tantamount to intentionally destroying the data," Lowry continued. "With the exception of Robertson's insufficient litigation hold memorandum, Defendants have not pointed to any steps that they took over the last four years to ensure that WVOT preserved the ESI of relevant DHHR employees aside from those steps taken after WVOT had already destroyed the ESI at issue."
The class action lawsuit, filed in 2019, alleges foster children in the state are often housed either in hotels, shelters, institutions or out of state and are subject to abuse and neglect. Attorneys representing the foster children include Shaffer and Shaffer law firm, A Better Childhood and Disability Rights West Virginia.