                             In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-3287

JORGE N EGRETE,
                                                 Plaintiff-Appellant,
                                 v.

N ATIONAL R AILROAD P ASSENGER
C ORPORATION (Amtrak),
                                                Defendant-Appellee.


            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
              No. 08 C 873—Joan B. Gottschall, Judge.



     A RGUED A PRIL 10, 2008—D ECIDED O CTOBER 27, 2008


   Before E ASTERBROOK, Chief Judge, and R OVNER and
S YKES, Circuit Judges.
  S YKES, Circuit Judge. Jorge Negrete, a former track-
repair worker for Amtrak, hurt his back when he fell off
a welding truck. He sued Amtrak, alleging that the
injury had left him permanently disabled and unable to
work. The district court, however, dismissed his case
after determining that Negrete had intentionally flouted
discovery deadlines, hidden and tampered with evidence,
and lied in his deposition. We affirm, and because it
2                                               No. 07-3287

appears that Negrete may have committed perjury, we
refer this opinion to the United States Attorney.
   Negrete’s litigation conduct in this case can only be
described as appalling. The problems began when
Amtrak tried to investigate the allegations in Negrete’s
lawsuit. Understandably, it sought to answer two ques-
tions: how badly Negrete was injured, and whether he
was still able to work. To shed light on the first question,
it asked Negrete for the name of each doctor who had
seen him for his injury. Negrete provided only the
names of the doctors whose findings helped his case,
withholding the names of two who had concluded that
he was not permanently injured and was able to work.
He also neglected to mention the name of a third doctor,
who had performed an MRI on him.
  With the exception of the MRI, which Amtrak was
unable to locate for almost a year, Amtrak wasn’t preju-
diced by Negrete’s deceit; it already knew about all but
one of the undisclosed doctors. But because Negrete’s
incomplete answers left the impression that it wasn’t
getting the whole story, Amtrak tried to obtain copies
of the medical records kept by the Railroad Retirement
Board (“RRB”). Once again the investigation was
thwarted. Amtrak requested a copy of the file from
Negrete (the RRB will only disclose medical records to a
patient), who responded by delivering 12 pages. Amtrak
couldn’t believe that the 12 pages were a complete
record, so it moved to compel production, after which
Negrete eventually turned over 236 pages. These
included a never-before-disclosed report by an RRB
No. 07-3287                                              3

physician, who disagreed with a prior doctor’s conclusion
that Negrete couldn’t work. Strangely, however, the
supposedly complete 236-page file did not contain the
12 pages Negrete had originally produced. Tired of these
shenanigans, the court ordered Negrete to obtain a
sealed copy of his RRB file and to submit that file, un-
opened, for inspection. He eventually turned over an
envelope purporting to be the file, but the envelope
had been opened—twice—leaving the court to speculate
that he had once again tampered with the file.
  In addition to investigating the seriousness of Negrete’s
injury, Amtrak also tried to assess whether Negrete was
still able to work, inquiring about all the sources of
Negrete’s postaccident income. Once again it was
thwarted. At a deposition Negrete initially testified that
he had no income apart from the money he received
from Amtrak. When asked specifically whether he
owned any property, however, he admitted owning
one apartment building with two tenants, each of whom
paid him $450 per month, but stated that he did not
own any other buildings. Both of these responses turned
out to be false. Negrete’s 2002 through 2005 tax returns
revealed that he had at least $160,000 in income from three
apartment buildings. And his rental receipt book-
lets—whose existence he initially denied—indicated that
he received not $450 per month but $650 per month from
his rentals. (Adding to the impression that Negrete was
hiding income were a number of loan applications on
which Negrete claimed to receive not $450 per month
but $800 or even $1,000 per month from each tenant!)
Worse still, Amtrak later discovered that Negrete had not
4                                              No. 07-3287

two tenants, as he originally testified, not six tenants as
he later claimed, but fifteen tenants.
  So the district court found that Negrete was trying to
hide his rental income, which was relevant to his case
because he claimed to be unable to earn a living because
of his injury. But it also appears that Negrete may have
been trying to hide the rental income for a second rea-
son. Although Negrete testified at his deposition that
he was unable to do even minor housework, his tenants
told an Amtrak investigator that since the accident
Negrete had personally painted, changed windows,
repaired a floor, laid tile, and installed a new toilet. We
may never know for sure whether that was true: Negrete
seeks to explain the discrepancy by claiming that the
tenants confused him with his sons, whom he claims to
have paid to work on the apartments, and the district
court did not make a specific finding on the issue. What
is clear, however, is that Negrete was less than forth-
coming about who actually performed the maintenance
on his apartments. At his deposition he first indicated
that his brother maintained the apartments in exchange
for beer. And in response to a later interrogatory request-
ing a list of each person who had been paid to do mainte-
nance on his apartments, Negrete disclosed only his
sons. When his sons were deposed, however, they denied
ever having been paid to do maintenance (they claimed
to have helped their father for free) and testified that
their father had hired contractors to do the large mainte-
nance projects on the apartment. Negrete then admitted
to hiring a dry-wall contractor and promised to provide
his contact information but later claimed not to have it.
No. 07-3287                                                   5

  Relying on these prevarications and others (the
district court noted, for example, that Negrete missed
21 discovery deadlines—in one case, verifying his interrog-
atory responses more than one year late), the district
court dismissed the lawsuit under Rule 37(b)(2)(A)(v) of
the Federal Rules of Civil Procedure, which authorizes
dismissal as sanction for discovery violations. Dismissal
is a drastic penalty, but it was no abuse of discretion to
dismiss this case given Negrete’s repeated, willful efforts
to hide evidence. See Wade v. Soo Line R.R. Corp., 500
F.3d 559, 564 (7th Cir. 2007); Maynard v. Nygren, 332
F.3d 462, 467 (7th Cir. 2003).1 Negrete argues that his
mistakes were innocent, but we will overturn factual
determinations only if they are clearly erroneous, a stan-
dard not met here. True, Negrete often produced docu-
ments directly contradicting his deposition testimony,
but that does not prove, as his lawyer claims, that his
false testimony was inadvertent; it shows only that
Negrete is a poor liar. Given Negrete’s repeated miscon-
duct, it would have been hard to reach any conclusion
other than that he was acting in bad faith.
  Negrete also argues that the sanction of dismissal was
too harsh because he is uneducated and lied only about
collateral issues. But Negrete’s misconduct related to the


1
  In Maynard, we held that dismissal was appropriate only if
there is clear and convincing evidence of willfulness, bad faith
or fault, but we have subsequently suggested that the
preponderance-of-the-evidence standard is more appropriate.
See Wade, 500 F.3d at 564. There is no need to resolve the
standard here because the evidence was clear and convincing.
6                                              No. 07-3287

most important issues of the case—how badly he was
injured and whether he was able to work. And although
Negrete may not be well educated, it does not take a
graduate degree to understand that it is unacceptable to
hide evidence and lie in a deposition. The district court’s
analysis was thorough; dismissal was an appropriate
sanction.
                                                A FFIRMED.




                          10-27-08
