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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. Future generations will be amazed that we prosecuted people for possessing a harmless plant. The New York Times came out in favor of legalization in Saturday's edition of the newspaper.

  2. Well, maybe it's because they are unelected, and, they have a tendency to strike down laws by elected officials from all over the country. When you have been taught that "Democracy" is something almost sacred, then, you will have a tendency to frown on such imperious conduct. Lawyers get acculturated in law school into thinking that this is the very essence of high minded government, but to people who are more heavily than King George ever did, they may not like it. Thanks for the information.

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  4. Excellent initiative on the part of the AG. Thankfully someone takes action against predators taking advantage of people who have already been through the wringer. Well done!

  5. Conour will never turn these funds over to his defrauded clients. He tearfully told the court, and his daughters dutifully pledged in interviews, that his first priority is to repay every dime of the money he stole from his clients. Judge Young bought it, much to the chagrin of Conour’s victims. Why would Conour need the $2,262 anyway? Taxpayers are now supporting him, paying for his housing, utilities, food, healthcare, and clothing. If Conour puts the money anywhere but in the restitution fund, he’s proved, once again, what a con artist he continues to be and that he has never had any intention of repaying his clients. Judge Young will be proven wrong... again; Conour has no remorse and the Judge is one of the many conned.

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