State officials are under fire in two separate federal lawsuits over their inability to produce electronic evidence.
The governor’s chief of staff says the purging of emails that might have been used in cases surrounding conditions in the corrections system and the foster care system was a mistake, not a purposeful action.
Lawyers in a federal class action lawsuit over how West Virginia manages its overflowing foster care system filed a motion for sanctions this week, saying three or more years of requested emails of officials in the Department of Health and Human Resources were purged and cannot be retrieved.
Insights from those emails could represent vital evidence into how the state views its overflowing foster care system, those lawyers said.
A very 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.
“Plaintiffs respectfully submit that Defendants should be sanctioned for destroying critical evidence in the case,” wrote the attorneys in the corrections lawsuit.
In a four-hour hearing earlier this month about lost electronic evidence in the corrections case, coverage by WCHS television described U.S. Magistrate Omar Aboulhosn saying his head was about to explode because over the situation.
“This is serious stuff here. I’m trying to wrap my head around how we are sitting here with all of these policies and procedures to preserve records,” Aboulhosn said. “It comes down to, ‘have they been destroyed?'”
Prior to the request for emails in federal court, said chief of staff Brian Abraham, “this administration was unaware that there was a policy in place at the Office of Technology to delete the emails of employees who left employment with the State of West Virginia.
“So there’s no basis whatsoever for any allegation that emails were intentionally deleted from any agency. As it turns out, across the board, this was a policy — not put in place by this administration, but long before this administration — down within the Office of Technology. We were unaware of it; it had never come up. As they asked for these emails in this lawsuit, we became aware.”
Abraham’s remarks in response to a MetroNews question mostly focused on the corrections lawsuit.
Lawyers in the foster care lawsuit have not alleged the emails were deleted specifically because of the court case.
Nevertheless, they say the electronic evidence is necessary to help shed light on what state officials have been thinking about handling of the foster care system. They said the state should have been aware for years that the emails needed to be preserved.
“The defendants and the lawyers in this lawsuit have known that these emails were relevant and that we would want them since the lawsuit was filed four years ago. We requested emails from several of these individuals, who were officials responsible for the child welfare system several years ago,” said Marcia Robinson Lowry, executive director of A Better Childhood, on of the plaintiffs in the case.
“We do not know what efforts defendants and their lawyers made to retain their emails. The only fact we know is that the lawyer for the state advised us two weeks ago that the emails had been destroyed.”
The lawsuit filed in 2019 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.
On Oct. 6, according to the filing by the plaintiffs, lawyers for the state sent a letter stating emails for a dozen former DHHR employees had been purged after a standard of 30 days past their employment dates.
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.
Of the purging, Abraham said, “We’re not sure when the policy started or by who. We continue to investigate that. But let me be very, very clear. No one in this administration sought to have any emails deleted in any agency.”
Senate Finance Chairman Eric Tarr, R-Putnam, said the administration should work on being more careful.
“With regards to the emails being deleted, it is quite believable that emails will be deleted as a matter of internal policy across agencies as employees leave. That does not excuse that emails that may be pertinent to the corrections crisis were included in those emails. It is though rather too convenient. It seems to me that some communication around any given crisis situation is worth keeping and referencing until the crisis is contained,” Tarr said.
“It’s one thing after another with this Governor. At some point the people of West Virginia are going to say ‘Enough is enough.’