I can’t tell you how many times I’ve had a client ask me, “I thought perjury is illegal. How can she lie during her deposition like that?” Well, perjury is illegal, but unless your name is Barry Bonds, it’s a crime that is usually not worth the scarce governmental resources it takes to prosecute it. Negrete v. Nat’l Railroad Pass (7th Cir. 10/27/08), decided last week by the 7th Circuit, illustrates that dishonest conduct in litigation has real implications.
In Negrete, the 7th Circuit affirmed the trial court’s dismissal of an employee’s workplace injury claim because he had missed repeated discovery deadlines, hidden and tampered with evidence, and lied in his deposition. Negrete was a former track repair worker for Amtrak. After the hurt his back at work, he claimed that the injury had left him permanently disabled and unable to work. The two key issues in the case were how badly Negrete was injured, and whether he was still able to work.
Negrete’s missteps included:
- Producing only 12 pages out of a 236-page medical report, which omitted a key medical opinion that he was able to work.
- Turning over documents that appeared to have been tampered with.
- Lying about his current sources of income.
- Lying about the extent of physical labor he performed on owned rental property.
Based on this misconduct, the Court concluded as follows:
True, Negrete often produced documents 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 misconduct, 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 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.
This case should serve as a warning to all litigants, plaintiffs and defendants, that judges’ tolerance for shenanigans and dishonesty in discovery is getting lower and lower. Hiding evidence and lying will never help a case. Credibility is everything with judges and juries. One of our jobs as lawyers is to spin bad facts in the best light for our clients. We cannot do that, however, unless all of the facts are out on the table.