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Lawyers in suit over foster care system blast state and say lost email evidence is an emerging trend

CHARLESTON — In a new filing about digital evidence that was purged in a lawsuit over West Virginia’s foster care system, plaintiffs’ attorneys acknowledge the circumstances aren’t exactly the same as in a jails case that prompted a blistering filing by a federal magistrate judge — but they say there’s plenty of room for comparison.

In the ongoing lawsuit over conditions in the foster care system, three or more years of requested emails of officials in the Department of Health and Human Resources were purged after the employees left and cannot be retrieved.

In the recent case over conditions at the Southern Regional Jail, U.S. Magistrate Judge Omar Aboulhosn recommended default judgment over lost or destroyed potential evidence — including emails, cell phone messages, security video and inmate grievances — that could have shed light on what jail conditions truly are and how seriously state officials take those conditions. The suit wound up settling for $4 million.

In both instances, wrote plaintiffs in the foster care case, “West Virginia agencies similarly failed to preserve the email accounts of employees who had left the agency. In both cases, defendants failed to effectively communicate with WVOT about preserving the emails at issue, and in both, defendants provided inadequate rationales for their failures to preserve critical evidence.”

The lawyers suing over the foster care system quoted Aboulhosn’s statements in the jails case when he wrote that the court was “perplexed that preserving government email accounts … is not the default, but that active steps must be taken to ensure its preservation.

“The fact that publicly funded agencies can lose (and in this case, has lost) critical information as to how these agencies are administered, funded, or even governed is beyond the pale. Especially when that information concerns the well-being of individuals who have been placed in WVDCR custody and control.”

The plaintiffs’ attorneys in the foster care case wrote in their most recent filing that “the same is true in this case, where DHHR is responsible for the care of all of West Virginia’s foster children.”

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 fairly standard discovery requests for electronically stored information.

But last month, lawyers for the state revealed that key email accounts were not preserved after the departures of several state employees.

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.

Last week, lawyers for the state expressed “deep regret” over the purged emails but maintained officials had made a “reasonable effort” to preserve them.

The defense attorneys called any sanctions possibilities excessive.

“While Defendants acknowledge that some emails between former officials (or between those officials and non-state employees) may have contained relevant information and should have been preserved, they are far from ‘essential’ to Plaintiffs’ claims for prospective relief, which is the standard for establishing prejudice, and there was no ‘intent to deprive’ Plaintiffs of this evidence, which is the standard for levying the type of severe sanctions the Plaintiffs seek here.”

The plaintiffs’ attorneys shot back this week by saying that’s malarkey.

“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,” wrote the plaintiffs attorneys.

The plaintiffs’ attorneys wrote that an apparent attempt to hang onto evidence because of a pending lawsuit never clarified the specific accounts and never received any follow-up for confirmation from information technology staff.

The plaintiffs’ attorneys wrote that the “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.”

Referring to electronically stored information, the lawyers concluded that it was DHHR’s responsibility, not the West Virginia Office of Technology “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.”