Fahrvergnügen: It’s what makes a car a Volkswagen. Now, spoliation may be what makes an already appalling scandal a slam dunk for plaintiffs in hundreds of federal class actions pending against the auto manufacturer as well as a new case filed earlier this month in Michigan state court.
In this wrongful termination and whistleblower lawsuit, Daniel Donovan, a former Volkswagen employee, claimed that the company’s American subsidiary, Volkswagen Group of America, Inc. (VWG), fired him because he was about to notify the government that VWG was destroying evidence covered by a preservation order and obstructing justice.
VW spokeswoman Jeannine Ginivan said in a statement to the Associated Press, the “circumstances of Mr. Donovan’s departure were unrelated to the diesel emissions issue. We believe his claim of wrongful termination is without merit.”
Donovan was responsible for electronic discovery and information management in the Product Liaison Office, part of the VWG’s Office of General Counsel. The complaint alleges that Donovan’s boss, Robert Arturi, told him to contact VWG’s Executive Vice President and Chief Information Officer, Abdallah Shanti, and “instruct him to ‘stop deleting data effective immediately pursuant to a Department of Justice [legal] hold.’” The hold was issued in the Clean Air Act litigation over Volkswagen’s software that helped cars circumvent the Environmental Protection Agency (EPA) emissions standards for nitrogen oxides.
On September 18, 2015, when Donovan conveyed Arturi’s message, Shanti allegedly cursed at Donovan and failed to heed the directive for another three days. Over that three-day period, the IT department failed to preserve backup disks in violation of the hold, a fact that Donovan reported to Arturi on September 21 given his concern about “significant legal sanctions” that could result from spoliation. Arturi met with IT personnel to “emphasize the seriousness of the Department of Justice investigation and legal hold.”
Despite this meeting, the spoliation allegedly continued. In October and November 2015, Donovan was responsible for coordinating the provision of data to an independent accounting firm for its investigation of the fraud. The accounting firm’s personnel complained that they were “not getting access to the data that they needed.” During that time, an IT manager informed Donovan of “deletion mishaps that he described as ‘accidental,’ one of which involved the deletion of data on ‘home drives.’” In addition, a contractor in the IT department notified Donovan in late September that the department was going to continue deleting backup disks because the company “‘did not have the storage.’”
Donovan relayed his concerns again to Arturi, who told him to inform the general counsel’s office. Once he did, his employment was terminated, allegedly in “retaliation for his actions of reporting and objecting to” the spoliation and out of fear he was “about to report the spoliation of evidence and obstruction of justice to the EPA and/or the United States Department of Justice, the Federal Bureau of Investigation, or some other public body.”
Taking the evidence in the complaint as true, VWG knew of its duty to preserve data and failed to comply; moreover, its personnel—including those at the highest levels of the company—continued to ignore their responsibility to preserve data despite clear directives from management. With the hundreds of pending emissions lawsuits and billions of dollars in fines at stake, this is the last scandal the embattled carmaker needs.