Updated on Wednesday, April 3, 2024 at 4:35 p.m.
A judge has ordered some sanctions and dismissed others in a class action lawsuit against the now-split Department of Health and Human Resources (DHHR) for children’s rights related to the foster care system.
Plaintiffs in the suit, A Better Childhood, a New York-based nonprofit, along with Shafer and Shafer and Disability Rights West Virginia, asked for sanctions in the case in January due to lack of evidence retention from the defendants.
U.S. Magistrate Judge Cheryl Eifert said in an order that she did not find the state had intentionally deleted evidence.
“The argument that Defendants produced many documents in discovery does not change the fact that they did not take reasonable actions to preserve the email accounts of the affected custodians,” Eifert wrote in the order.
Eifert ruled that the state department of Human Services has to pay for the plaintiff’s attorney fees and other costs related to bringing the request for sanction.
Earlier this year, attorneys with A Better Childhood presented evidence they believed showed the department purposely deleted emails related to a class action lawsuit.
In a press release, the Department of Human Services said it is pleased with the judge’s sanction decision, but does not agree with all conclusions in the magistrate judge’s decision.
Marcia Robinson Lowry, the lead plaintiff for the class and executive director of A Better Childhood (ABC) said in an email that she thought the court’s decision was reasonable and fair.
“The court found that defendants’ ‘communications failures were negligent, perhaps grossly negligent’ and that defendants cannot use the destroyed documents to suggest that defendants were not ‘deliberately indifferent.’ The court also agreed to award plaintiffs fees for the costs of bringing this motion, a highly unusual remedy at this stage of the litigation,” Lowry wrote in an email. This is yet another instance of the very serious problems that are afflicting the state’s child welfare system, and, most importantly, the children who are suffering in it.”
The Class Action Lawsuit
The lawsuit alleges the DHHR failed to properly care for thousands of foster kids, putting some in dangerous and unsafe situations.
In the original court filing, the plaintiffs allege, “Children in West Virginia’s foster care system have been abused and neglected, put in inadequate and dangerous placements, institutionalized and segregated from the outside world, left without necessary services, and forced to unnecessarily languish in foster care for years.”
The group filed a complaint in federal court in October 2019, denouncing the DHHR’s “over-reliance” on shelter care, shortages in case workers and a “failure to appropriately plan for the children in its custody.”
The following year, a motion for class action status was filed but left undecided when the case was dismissed in 2021. In 2022, that decision was reversed by the Fourth U.S. Circuit Court of Appeals and the class action motion was renewed in May 2023.
According to the DHHR Child Welfare Dashboard, on March 29, 2024, there are 6,111
children in state care.
The Missing Emails
In a January email, Whitney Wetzel, a DHHR spokesperson said the DHHR instructed the West Virginia Office of Technology (WVOT) to preserve all emails relevant to the case.
“Unfortunately, a litigation hold was not placed by WVOT on certain email accounts, resulting in some emails not being preserved,” Wetzel said in an email. “Subsequently, Gov. Jim Justice has directed WVOT to develop an updated form and process for legal hold requests.”
Wetzel also said in an email that all emails of current employees, including all emails between current employees and former employees, have been preserved.
“Therefore, the majority of relevant emails involving dozens of employees are available to be produced to plaintiffs in this case, as requested,” Wetzel said in an email. “Over the last four years, DoHS (West Virginia Department of Human Services) and its predecessor agency have preserved and produced to plaintiffs more than 1.2 million pages of documents, including hundreds of thousands of emails and attachments.”
In November, defendants in the case filed a motion in opposition to the plaintiffs’ motion for sanctions, apologizing to the court and the plaintiffs for the lost electronically stored information.
In the midst of an ongoing class action lawsuit and possible sanctions for lack of record keeping, the state health department’s top attorney retired.
DHHR General Counsel April Robertson retired effective Jan. 2, 2024, said Jessica Holstein, a spokesperson for the DHHR, in an email.
The news of Robertson’s retirement came after attorneys who brought the class action lawsuit announced in October that they were filing for sanctions because the DHHR had failed to preserve about three years of requested emails.
Robertson gave a deposition on Nov. 21, 2023, stating that she had been general counsel at the DHHR since May of 2019, the duration of the pendency of the class action litigation.
The lawyer questioning Robertson, J. Alexander Meade of Shaffer & Shaffer PLC, asked her if the general counsel’s office had followed up with the Office of Technology to ensure that the electronically stored information of the named defendants or individuals within the matter was being preserved.
She responded that she did not follow up, and when asked why, she said, “I had no reason to assume that there would be any problem.” She later testified she had never needed to follow up on a litigation hold with the Office of Technology.
Robertson testified that she submitted the litigation hold in December 2019 via email. She said she received signed acknowledgments from the individuals who were subject to the litigation hold, but not from the Office of Technology.
“I can’t speak to what they may read or not read in their inboxes,” Robertson said in her deposition.
Meade asked Robertson about the purpose of the acknowledgment form if no signed acknowledgment was received from the Office of Technology.
“The purpose in my mind is primarily to make sure our DHHR folks are seeing it and making sure that they understand,” Robertson said.
‘Incredible Careless or Willful Destruction’
Robertson also testified that, before September 2023, she was not aware of the Office of Technology’s policy regarding the deletion or purging of electronically stored information about staff who had separated from state employment.
“What we have learned is it seems that there’s a great deal of either incredible carelessness or willful destruction of documents,” said Lowry. “It’s very unclear what’s happening.”
In an affidavit, Michael Folio, legal director of Disability Rights of West Virginia (DRWV) and a previous attorney at the DHHR, testified that officials at the agency, namely Robertson and previous DHHR Secretary Bill Crouch, knew about policies surrounding preserving documents.
“Well, I had conversations with each of April Robertson and Bill Crouch, that arose as a result of an employee’s emails not having been preserved who was going to be a witness in a pending civil action,” Folio said. “And I raised the issue at that time about the spoilation of evidence. And this was wholly unrelated to the foster care lawsuits.”
Lowry said in a lawsuit similar to this one, she has to show that not only were the children’s constitutional rights violated, but that it was done with deliberate indifference to the children’s rights.
“The way you usually do it is by getting emails from the key players,” Lowry said. “And showing that there’s a pattern of saying that they knew about it, they knew about the harm being put on children, etc. Because people don’t admit it.”
However, in this case, the emails and the evidence they contained have not been turned over to the plaintiffs.
Lowry said the loss of that information brought her to ask the judge for sanctions against the DHHR.
**Editor’s note: This story has been updated with Marcia Lowry’s remarks. Additionally, this story was further updated on April 3 to clarify the term health department.
