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Editor’s note: The lede of this story has been updated to clarify that the emails in question were not deleted by West Virginia Department of Health and Human Resources attorneys.
CHARLESTON -- Attorneys for the West Virginia Department of Health and Human Resources admitted that a state agency deleted the emails of several prominent former department officials being sought in a class action lawsuit over the state's foster care system.
In a court filing, attorneys for DHHR filed their opposition to a motion filed Oct. 25 by attorneys representing children in the state's foster care system seeking sanctions against DHHR over the deletion of emails.
The attorneys were seeking 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 emails being sought were either sent or received after September 2020, but DHHR confirmed that three years-worth of emails were deleted.
"(DHRR) and other defendants deeply regret - and apologize to plaintiffs and the court - that certain electronically stored information (ESI) potentially relevant to this litigation was not preserved despite Defendants' reasonable efforts to do so," wrote attorney Philip Peisch with the Brown and Peisch law firm in Washington, D.C., and Steven Compton with the West Virginia Attorney General's Office.
The class action lawsuit, filed in 2019 in the U.S. District Court for the Southern District of West Virginia, 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.
The motion for sanctions 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.
After several discovery requests over the last three years, attorneys for DHHR sent a letter Oct. 6 to the class action attorneys informing them that the emails they seek no longer exist.
Once a department or agency notifies the state Office of Technology that a state employee has left the department or agency, that starts a 30-day countdown for that department/agency to download that employee's emails or digital files.
After 30 days, the Office of Technology deletes those files unless the department and agency notifies the Office of Technology to hold those files due to pending litigation. According to the foster care attorneys, emails for Crouch, Watts and three other former DHHR officials were subject to a litigation hold.
They 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.
In their filing, attorneys for DHHR said the request for sanctions from U.S. District Judge Joseph Goodwin against them was excessive.
According to the attorneys, more than 900,000 pages of documents have been provided in the case and will provide all available emails for DHHR employees still currently employed.