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Two West Virginia Officials Ousted for Destroying Evidence

A federal judge excoriated two high-ranking officials within the state’s Department of Homeland Security for their roles in the state’s efforts to intentionally destroy evidence in a class-action lawsuit.

Two high-ranking West Virginia state officials are no longer employed by the Department of Homeland Security after a federal judge excoriated them for their roles in what he concluded was the state intentionally destroying evidence in a class-action lawsuit alleging inhumane conditions at a state-run jail.

Brad Douglas and Phil Sword are no longer employed by the DHS, which oversees the state's correctional system, DHS spokesperson Andy Malinoski said Wednesday night. Douglas had served as executive officer of the Division of Corrections and Rehabilitation, a DHS subagency. Sword had been DHS general counsel.

Southern District of West Virginia District Court Magistrate Judge Omar Aboulhosn cited testimony from Douglas and Sword in a Monday order finding state corrections officials' handling of evidence constituted a "dereliction of duty" in the case alleging inhumane conditions at Southern Regional Jail and Correctional Facility in Raleigh County.

Douglas is a defendant in the class-action lawsuit pressed by eight plaintiffs who have been Southern Regional Jail inmates.

Malinoski confirmed the terminations hours after Gov. Jim Justice said in an administration briefing that anyone who knowingly destroyed evidence should be fired and jailed.

"If people have done a purposeful, purposeful job to where they've done something, knowing that they've done something that is wrong, such as destroy evidence or whatever like that, when they know that it's dead wrong, then they need to go to jail," Justice said.

But DHS Secretary Mark Sorsaia, appointed to that role by Justice effective Aug. 1 after the retirement of predecessor Jeff Sandy, insisted during Wednesday's briefing that no state officials intentionally destroyed evidence.

"I respectfully disagree with the magistrate that we intentionally failed to disclose evidence," Sorsaia said.

The judge noted testimony that paper documents predating 2022 haven't been preserved, including inmate grievances that should have been maintained in the Southern Regional superintendent's office. Not a single witness could explain to the court why anything predating 2022 is no longer there, Aboulhosn lamented.

The judge cited an affidavit from Southern Regional inmate Charles Mann reporting the jail's management directed inmates, including him, to move files in the gym that were subpoenaed in a federal investigation multiple times so they could not be found during the investigation. The files showed incident reports, correctional officer excessive force reports and procedure files, according to the March 2023 affidavit.

The files were being moved, burned and shredded and had been for months, Mann said in the affidavit.

Sorsaia said personnel responsible for preserving evidence were unaware that state information technology officials had a policy that emails were to be deleted after five months.

Aboulhosn noted testimony from West Virginia Office of Technology Chief Security Officer Danielle Cox that emails from an email account to be deprovisioned are deleted and unretrievable after 30 days if a preservation option or button isn't clicked.

Cox testified her office didn't receive notice to preserve an email address until August 2023 — over a year after the plaintiffs' request that agency officials preserve evidence, Aboulhosn observed in his order.

Aboulhosn asked that a copy of his order be distributed to the U.S. Attorney to consider whether an investigation of the Division of Corrections and Rehabilitation is warranted. The judge recommended a district judge grant the plaintiffs' request for default judgment and prohibit the defendants from introducing evidence that disputes the plaintiffs' testimony regarding the conditions of confinement and the length of time the conditions existed.

In his order, Aboulhosn noted testimony from Douglas at an Oct. 2 evidentiary hearing admitting there was no excuse for him and DCR Information Technology Director Molly Mullins having failed to meet with the West Virginia Office of Technology to discuss preserving evidence requested by the plaintiffs.

Douglas confirmed he was familiar with a memorandum of understanding signed in 2021 by Sandy, then head of the Department of Homeland Security overseeing the DCR, providing that either he or Mullins were responsible to work with the Office of Technology to preserve evidence consisting of electronically stored information.

A Sept. 8 report from the defendants noted the email accounts of six corrections officials who departed in 2022 were purged, despite evidence preservation letters sent by plaintiffs' counsel. All but one of the departures came after plaintiffs' counsel put the DCR on notice in June 2022 to preserve all evidence pertaining to conditions at Southern Regional Jail.

A June 15, 2022, letter from attorney Russell Williams of Beckley-based New, Taylor & Associates to then-Commissioner Betsy Jividen requested the agency preserve all documents, communications and recordings regarding incarceration and treatment of 22 individuals at Southern Regional.

Aboulhosn noted an admission from Douglas at the Oct. 2 hearing that nobody, including himself, followed the process regarding litigation holds for discovery or information in the summer of 2022 because they "[d]idn't think of it."

Aboulhosn highlighted testimony from Douglas confirming that he allowed Jividen's email account to be deprovisioned on Aug. 10, 2022, without consulting the DHS' legal department or the Office of Technology.

Douglas confirmed that any emails between Jividen and former Southern Regional Jail Superintendent and defendant Michael Francis no longer exist, just as no emails from any former correctional officers or other former employees just between each other no longer exist, Aboulhosn observed.

Aboulhosn's order included a footnote finding Sword's testimony "[p]erhaps the most infuriating."

Aboulhosn found "incredibl[e]" Sword's insistence that failure to preserve electronic evidence was the plaintiffs' counsel's fault because they hadn't provided hard drives to store the information despite stating they would pay for them.

Sword held that the state's reliance on plaintiffs' counsel's pledge to buy hard drives "essentially allowed them to wash their hands of any responsibility for preserving this evidence, though the State could have purchased the hard drives itself," Aboulhosn wrote.

Aboulhosn's order recounted testimony from Sword that other than providing the DCR and DHS with letters from the plaintiffs seeking preservation of information, he didn't have meetings with any DCR defendants or the Office of Technology regarding evidence preservation.

Sword also was an assistant attorney general in the state Attorney General's Office. Aboulhosn's order notes Sword confirmed a DHS website indication there is one embedded assistant attorney general aware of DHS issues, including those affecting legislation.

This is a developing story.

(c)2023 The Charleston Gazette (Charleston, W.Va.) Distributed by Tribune Content Agency, LLC.

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