The allegation comes in a wrongful termination lawsuit against Volkswagen filed earlier this month by Daniel Donovan, a former Electronic Discovery Manager in Volkswagen's Office of General Counsel. Donovan says he refused to take part in actions by the company's IT department to limit access to Volkswagen files following the EPA lawsuit, which required a legal hold on documents.
Donovan says in a filing in Oakland County (Michigan) Circuit Court that he was worried about "significant legal sanctions" for spoliation obstruction of justice and reported his concerns to a supervisor. Donovan says he was fired because Volkswagen believed he was preparing to report the company's behavior to the Department of Justice or the EPA.
The lawsuit alleges wrongful discharge and violation of a Michigan whistleblower protection law. In a statement, a Volkswagen spokesperson said "the circumstances of Mr. Donovan’s departure were unrelated to the diesel emissions issue. We believe his claim of wrongful termination is without merit."
According to Donovan's initial filing, he was told by his boss to contact the Chief Information Officer of Volkswagen Group of America and instruct him to "stop deleting data effective immediately pursuant to a Department of Justice hold." The CIO, Abdallah Shanti, is personally named as a defendant in the suit.
Allegedly, when Donovan called Shanti to convey the hold message, Shanti responded "Why the fuck are you calling me?", and was upset that the message was not coming from a more senior person. Donovan's boss, the Senior Manager of Research and Information Systems, and his boss, were both on an airplane at the time. Donovan is said to have responded: "Why the hell does it matter that it's me calling, the deletion jobs have got to stop."
Despite the legal "hold" directive, says the filing, Shanti's IT department did not stop deleting backups for three more days, despite numerous meetings stressing the importance of preserving documents. A VW contractor quoted in the filing says that a Volkswagen executive said the deletion of backup files "would continue notwithstanding the litigation hold, because VWGoA 'did not have the storage.'"
"This seems to leave the door open for a more technical non compliance with the legal hold directive as opposed to an ill intentioned one," said a lawyer who read the filing but asked to remain anonymous. "But it also paints the conduct as intentional and nefarious to the extent they knew not preserving back up disks was" a violation. However, the filing certainly suggests the conduct was intentional and nefarious, and directly accuses Volkswagen of failing to comply with the Department of Justice directive regarding preservation of data, including that the failure was known and intended by management personnel.
If the allegations turn out to be true, it would be a major escalation in the diesel emissions scandal, moving firmly into "cover-up" territory.
Updated 3:40PM ET: This article was updated to include information from the court filing and more context.