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Editor's Note: An earlier story about sanctions being issued against the West Virginia Department of Health and Human Resources over emails and other items not being properly stored was factually incorrect due to a reporter's error. No sanctions were issued against the agency.
By STEVEN ALLEN ADAMS
For The Intelligencer
CHARLESTON -- Attorneys in a class-action lawsuit against the West Virginia Department of Health and Human Resources filed motions Wednesday seeking sanctions against the department after it was discovered that it did not keep emails and other electronically stored documents being sought in a class action lawsuit for the state's foster care system.
Attorneys with the Shaffer and Shaffer law firm, A Better Childhood and Disability Rights West Virginia filed a motion Wednesday morning asking U.S. District Judge Joseph Goodwin to grant the motion for sanctions.
The motion accuses DHHR of "deliberate indifference" to due process claims brought by the attorneys representing 12 foster children against DHHR and prohibits the department from moving for summary judgment regarding those specific due process claims. It would also prohibit attorneys for DHHR from arguing that now-deleted emails would show that DHHR did not act with deliberate indifference.
According to a memorandum of law filed by the plaintiffs in support of the motion for sanctions, DHHR confirmed in prior filings and hearings that emails and other electronically stored documents being sought through discovery in the class action lawsuit no longer exist.
These include emails for seven named defendants, including former DHHR Cabinet Secretary Bill Crouch and former Commissioner of DHHR's Bureau for Children and Families Linda Watts. The foster children attorneys were seeking emails sent or received after September 2020, but DHHR confirmed that it had deleted three years-worth of emails being sought.
"Defendants' destruction of crucial evidence has severely prejudiced Plaintiffs' ability to prove the deliberate indifference element of their substantive due process claims," the attorneys wrote.
The class action lawsuit, filed in 2019, alleges that foster children in the state are often housed either in hotels, shelters, institutions, or out-of-state and are subject to abuse and neglect. But after several discovery requests over the last three years, DHHR sent a letter to the class action attorneys informing them that the emails they seek no longer exist.
"Unfortunately, in retrieving emails for the custodians requested by Plaintiffs, (DHHR's) counsel discovered that the West Virginia Office of Technology ("OT") did not preserve PST files for several custodians formerly employed by DHHR," wrote DHHR attorney Philip Peisch of the Washington, D.C. law firm Brown and Peisch in an Oct. 6 letter.
"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," Peisch continued. "Some of these custodians were subject to a litigation hold, and Defendants are still attempting to determine why these files were not preserved."
According to an attorney for the foster children, emails for Crouch, Watts, and three other former DHHR officials were subject to a litigation hold, requiring the state to keep those emails while the lawsuit was ongoing. The attorneys 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.
"Defendants had a duty to preserve these individuals' emails beginning, at a minimum, on September 30, 2019," the attorneys wrote in their filing. "These emails are one of the only ways for Plaintiffs to establish that DHHR and its employees were aware of and deliberately indifferent to the substantial risks of harm that DHHR's policies and practices created."