Ex-Employee Sues Volkswagen Claiming He Was Fired for Refusing to Spoliate Documents: eDiscovery Trends

The troubles for Volkswagen continue into the electronic discovery arena.  According to the Courthouse News Service, an ex-employee of the company has filed suit, claiming that he was fired for refusing to take part in an alleged three-day purge of documents related to the automaker’s emissions-cheating scandal known as “Dieselgate”.

According to the article, Daniel Donovan (who worked in the Volkswagen Group of America’s Office of General Counsel as its Electronic Discovery Manager) says he had seven years under his belt at VW in Sept. 18, 2015, when the Environmental Protection Agency forced a recall of cars it found had been outfitted with “defeat-device” software that had been hoodwinking emissions inspectors for years.

Though the EPA’s case necessitated a legal hold on Volkswagen’s data, Donovan claimed in his March 8 lawsuit that VW’s “information technology department did not stop all deletion jobs until Sept. 21” (which was three days after they should have stopped).  Donovan also alleged that the company’s IT department was adamant about limiting access to Volkswagen data for the accounting firm conducting the independent investigation and knew it was violating the Justice Department hold by not preserving back-up disks.

Worried about “significant legal sanctions” Volkswagen could see for evidence spoliation and obstruction of justice, Donovan refused to take part in such actions and reported his concerns to a supervisor, according to the complaint.  “Donovan also asserts that he was fired because VWGoA [short for Volkswagen Group of America] believed that Donovan 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,” the complaint states.

Volkswagen told the Associated Press that Donovan’s claim of wrongful termination is without merit, claiming that his departure from the company was unrelated to the emissions scandal.

Facing penalties of up to $37,500 per day for Clean Air Act violations, Volkswagen is expected to face billions of dollars in fines.  The scandal, now widely known as “Dieselgate”, also led to the resignation of CEO Martin Winterkorn, hundreds of federal class actions consolidated in San Francisco, plus multiple investigations and congressional hearings.

So, what do you think?  Could Volkswagen have fired its Electronic Discovery Manager because he was “far from purgin”? (sorry, I couldn’t resist)  Please share any comments you might have or if you’d like to know more about a particular topic.

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