Fax confirmation creates issue of fact

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The 7th Circuit Court of Appeals addressed for the first time in a ruling today the evidentiary significance of a fax confirmation generated by the sender's machine. The Circuit Court determined the fax confirmation is strong evidence of receipt, so the District Court erred in granting summary judgment in favor of a company in an employment-discrimination case.

In Moncef Laouini v. CLM Freight Lines Inc., No. 08-3721, Moncef Laouini appealed the grant of summary judgment in favor of his former employer CLM Freight Lines. Laouini worked as a truck driver for the company and believed they fired him in June 2006 based on his race and national origin. He filed suit against CLM in August 2007 and said he filed his charge of discrimination with the EEOC on April 12, 2007, which would have been the last day he could file the charge based on the 300-day deadline.

His counsel said he or his assistant faxed the three-page document to the EEOC in Indianapolis and has a printout from the attorney's fax machine showing the document had been successfully transmitted to the number. The EEOC claimed it didn't receive the fax and didn't timestamp the document until April 16 because that's when it received it in the mail.

The District Court granted summary judgment in favor of CLM because although evidence shows something had been faxed to the office on April 12, there's no evidence the fax was actually received or the document was the same one mailed to the EEOC. The District Court also declared that even though this EEOC office allowed faxed filings, any lawyer who did so acted at his or her peril.

Several courts have either explicitly or implicitly drawn on the presumption that evidence of a proper mailing raises a rebuttable presumption of delivery to decide that a fax confirmation generated by the sender's machine similarly creates a rebuttable presumption that the fax was received by the intended recipient, wrote Judge Joel Flaum. Other courts have concluded a fax confirmation at least creates an issue of fact about whether the fax was received.

"Although fax confirmations may not always be conclusive proof of receipt, we believe that in this case - where it was not the plaintiff who had to prove receipt, but the defendant who had to prove the absence of receipt - the fax confirmation creates a factual dispute sufficient to preclude summary judgment," wrote Judge Flaum.

Even though Laouini didn't present evidence at summary judgment establishing that confirmation of a successful transmission necessarily means that the document printed out on the other end, a reasonable factfinder could infer as much. The fax confirmation is strong evidence of receipt and CLM offered no evidence to meet its burden of proving non-receipt, wrote the judge. It's possible the EEOC lost, misplaced, or otherwise failed to timely process the complaint, so summary judgment was inappropriate.

The Circuit Court also noted a potentially problematic issue with this case. The attorney for Laouini swore in an affidavit that the fax consisted of a cover sheet and Laouini's two-page charge. Indiana Rules of Professional Conduct prohibit a lawyer from serving as an advocate at a trial in which he is likely to be a necessary witness, with a few exceptions. Judge Flaum wrote the District Court will need to address whether counsel would be a "necessary" witness at trial and whether any of the exceptions apply.


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  1. Great observation Smith. By my lights, speaking personally, they already have. They counted my religious perspective in a pro-life context as a symptom of mental illness and then violated all semblance of due process to banish me for life from the Indiana bar. The headline reveals the truth of the Hoosier elite's animus. Details here: Denied 2016 petition for cert (this time around): (“2016Pet”) Amicus brief 2016: (“2016Amici”) As many may recall, I was banned for five years for failing to "repent" of my religious views on life and the law when a bar examiner demanded it of me, resulting in a time out to reconsider my "clinging." The time out did not work, so now I am banned for life. Here is the five year time out order: Denied 2010 petition for cert (from the 2009 denial and five year banishment): (“2010Pet”) Read this quickly if you are going to read it, the elites will likely demand it be pulled down or pile comments on to bury it. (As they have buried me.)

  2. if the proabortion zealots and intolerant secularist anti-religious bigots keep on shutting down every hint of religious observance in american society, or attacking every ounce of respect that the state may have left for it, they may just break off their teeth.

  3. "drug dealers and traffickers need to be locked up". "we cannot afford just to continue to build prisons". "drug abuse is strangling many families and communities". "establishing more treatment and prevention programs will also be priorities". Seems to be what politicians have been saying for at least three decades now. If these are the most original thoughts these two have on the issues of drug trafficking and drug abuse, then we're no closer to solving the problem than we were back in the 90s when crack cocaine was the epidemic. We really need to begin demanding more original thought from those we elect to office. We also need to begin to accept that each of us is part of the solution to a problem that government cannot solve.

  4. What is with the bias exclusion of the only candidate that made sense, Rex Bell? The Democrat and Republican Party have created this problem, why on earth would anyone believe they are able to fix it without pushing government into matters it doesn't belong?

  5. This is what happens when daddy hands over a business to his moron son and thinks that everything will be ok. this bankruptcy is nothing more than Gary pulling the strings to never pay the creditors that he and his son have ripped off. they are scum and they know it.