Deleted emails in foster care lawsuit could cost state $172K in sanctions

The West Virginia Department of Health and Human Resources, located at One Davis Square in Charleston, W.Va. (Lexi Browning | West Virginia Watch)

Attorneys suing the state over its troubled foster care system have requested around $172,000 from the state in sanctions following the destruction of emails related to the case.

A federal judge last month ordered sanctions in the ongoing class-action lawsuit after finding that the West Virginia Department of Health and Human Resources failed to preserve foster care leaders’ emails and other electronic communications related to the case.

Attorneys suing the state argued that the emails could have better shown how the state did or did not respond to crises in the child welfare system. 

“Plaintiffs seek systemwide reform of a broken child welfare system that routinely harms thousands of innocent children,” they wrote in a court filing April 16. “Defendants are not only derelict in their duty to keep plaintiffs safe from harm, but also in their duty to preserve thousands of emails of their former employees at issue in this case. 

The 2019 suit alleged that the state failed to protect more than 6,000 children in foster care. Children were sent to unsafe homes and institutions, attorneys said, and left them to languish in the system without any plans for permanency. Additionally, attorneys said that Child Protective Services workers were unprepared and overburdened.

The amount requested in sanctions — $172,281.15 — encompasses plaintiffs’ work in requesting the sanctions, investigating the scope of document destruction and more.

Legal nonprofit A Better Childhood, Shafer and Shafer and Disability Rights West Virginia jointly filed the suit on behalf of children in foster care. In the filing, their attorneys said digging into the evidence spoliation “required significant time and labor.”

“Class Counsel devoted a total of 346 hours litigating this motion over the course of six months and through several rounds of briefing, related discovery and oral arguments,” they wrote.

Attorneys felt that the state intentionally deleted the evidence, but  U.S. Magistrate Judge Cheryl Eifert disagreed. 

“Certainly, their communication failures were negligent, perhaps even grossly negligent, but they do not support a finding by clear and convincing evidence that defendants intended to deprive plaintiffs of information,” she wrote March 28.

Eifert added that the state had made a significant effort to recover as many of the lost emails as possible.

A former top DHHR attorney resigned in the wake of the deleted email scandal. 

The Department of Human Services now oversees foster care after the state health department split into three departments at the start of the year. Attorneys for DoHS have not filed a response to plaintiffs’ proposed amount in sanctions. 

A federal judge will have to approve the proposed attorneys’ fees award.

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