Randy Yohe, Eric Douglas Published

Judge Finds Corrections Records ‘Intentionally’ Destroyed; Finds Justice Doesn’t Have To Sit For Deposition

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Emails and other documents (ESI) related to a lawsuit against the West Virginia Department of Corrections and Rehabilitation (WVDCR) were “intentionally” destroyed by the state of West Virginia, and a federal magistrate has recommended that the case be resolved in favor of the plaintiffs suing the state. 

In a 39-page order, entered into the court record on Oct. 30, U.S. Magistrate Judge Omar J. Aboulhosn said: 

“There are many notable instances in the record that demonstrate the WVDCR Defendants’ utter disregard for the Federal Rules of Civil Procedure, let alone their own policies governing the preservation of discovery – to say the Court found the testimony elicited from these Defendants shocking is a gross understatement.”

The lawsuit was filed in September 2022 against Southern Regional Jail, the West Virginia Division of Corrections and every county commission that pays Southern Regional Jail to house inmates. 

The suit names former Division of Corrections and Rehabilitation leaders Betsy Jividen, Brad Douglas and former Department of Homeland Security Commissioner Jeff Sandy as defendants. The suit alleges inhumane and unsanitary conditions exist for inmates at the Southern Regional Jail (SRJ) in Raleigh County.

In a separate ruling by Aboulhosn, Gov. Jim Justice and Chief of Staff Brian Abraham will not be compelled to sit for a deposition, but Justice is still required to disclose “any and all documentation concerning: the dismissal of the defendant Jividen; the dispatch of the defendant Sandy to inspect the SRJ on March 30, 2023; and either interested party’s involvement or knowledge of ESI preservation.”

Attorneys for the plaintiffs had wanted Justice and Abraham to testify because they noted “Defendant Jeff Sandy has previously testified that for several years his department requested of the governor’s office funding to address pervasive overcrowding, pervasive understaffing, over two hundred million dollars in deferred maintenance. These issues go to the heart of the plaintiffs’ claims in this action. Additionally, defendant Sandy also testified that the Chief of Staff tasked the Secretary of Homeland Security to personally drive to Beaver, West Virginia and investigate the situation at Southern Regional Jail (SRJ), specifically, issues concerning toilet paper, water, and mattresses.”

There is significant case law that keeps high-ranking officials from being forced to testify except under “exceptional circumstance” and the judge ruled against the efforts to make Justice and Abraham do so. 

To establish “exceptional circumstances” are present, a party seeking to depose a non-party high-ranking government official must satisfy three conditions: (1) the party must “make an actual showing that the [government official] ‘possesses personal knowledge relevant to the litigation’ ”; (2) the deposition must be “essential to that party’s case”; and (3) the evidence the deposition will elicit “is not available through any alternative source or less burdensome means.”

Aboulhosn determined those conditions were not met because “…it would appear to the Court that the Governor and his Chief of Staff have made appropriate accommodations to the requests pursuant to the Plaintiffs’ subpoena without interfering with their immunities endorsed under the prevailing jurisprudence.”

Another statewide federal lawsuit filed this past August names Justice and Homeland Security Secretary Mark Sorsaia as defendants. 

Also a class-action civil suit, it demands the state spend $330 million for deferred maintenance and worker vacancies in state corrections. The suit asks Justice to call for a special session and submit bills correcting a number of issues to the West Virginia Legislature to correct these issues. 

The suit, filed by Beckley attorney Steve New, who represents the plaintiffs who are inmates of the state, asks the court to prohibit Justice and Sorsaia from housing inmates in what the suit calls “unconstitutional conditions.” 

Three key corrections bills passed in an August special legislative session provide more than $25 million to increase the starting pay and change pay scales for correctional officers and offer retention payments to non-uniformed corrections workers.  

Senate Bill 1005 earmarks $21.1 million to increase starting pay and change pay scales for correctional officers. Senate Bill 1003 and Senate Bill 1004 provide nearly $6 million for one-time bonuses for correctional support staff, divided into two payments that begin in October. The legislated fixes only cover a small percentage of the class action lawsuit demands.

In the case of the Southern Regional Jail and the missing documents, on Oct. 2, the federal magistrate judge held a hearing to compel the state to produce what is called “discovery.” That includes documents and information relevant to the case.

This hearing followed several attempts by the plaintiffs to get the documents. 

On Oct. 13, at the judge’s instruction, the plaintiffs filed a “Motion for a Finding of Spoliation and for Sanctions Against Defendants Jeff Sandy, Brad Douglas, Betsy Jividen, and William Marshall, III.”

In his summation Aboulhosn noted that: 

“Multiple witnesses took the stand and testified that the law and regulations governing the preservation of evidence were not followed. As detailed above, this the undersigned believes the failure to preserve the evidence that was destroyed in this case was intentionally done and not simply an oversight by the witnesses.”

In his ruling, Aboulhosn determined that a default judgment in the case is warranted. He said “while the Plaintiffs themselves acknowledge they have overwhelming evidence of the unconstitutional conditions of overcrowding, understaffing, and deferred maintenance, the undersigned refuses to ignore the Defendants’ willful blindness, or to put more succinctly, their intentional failure to preserve evidence they were obligated to preserve.”

Throughout the ruling, Aboulhosn expressed his frustration at the situation. 

“[T]he undersigned is outraged…this Court spent numerous valuable hours holding hearings, video conferences, researching and drafting orders to facilitate discovery in this matter, and all for nought.

“With that said, the undersigned readily acknowledges that the recommendation of default judgment to the District Judge in this case, is extraordinary, but clearly warranted considering the intentional conduct in this case and other cases that came before the undersigned.”

Aboulhosn’s judgment will now go before District Judge Frank W. Volk to be confirmed. The defendants in the case have 14 days to object to the judgment and “modify or set aside any portion of the Order found clearly to be erroneous or contrary to law.”

The judge also ordered the court clerk to send a copy of the order to the United States Attorney to consider an investigation of the WVDCR.