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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. Such things are no more elections than those in the late, unlamented Soviet Union.

  2. It appears the police and prosecutors are allowed to change the rules halfway through the game to suit themselves. I am surprised that the congress has not yet eliminated the right to a trial in cases involving any type of forensic evidence. That would suit their foolish law and order police state views. I say we eliminate the statute of limitations for crimes committed by members of congress and other government employees. Of course they would never do that. They are all corrupt cowards!!!

  3. Poor Judge Brown probably thought that by slavishly serving the godz of the age her violations of 18th century concepts like due process and the rule of law would be overlooked. Mayhaps she was merely a Judge ahead of her time?

  4. in a lawyer discipline case Judge Brown, now removed, was presiding over a hearing about a lawyer accused of the supposedly heinous ethical violation of saying the words "Illegal immigrant." (IN re Barker) http://www.in.gov/judiciary/files/order-discipline-2013-55S00-1008-DI-429.pdf .... I wonder if when we compare the egregious violations of due process by Judge Brown, to her chiding of another lawyer for politically incorrectness, if there are any conclusions to be drawn about what kind of person, what kind of judge, what kind of apparatchik, is busy implementing the agenda of political correctness and making off-limits legit advocacy about an adverse party in a suit whose illegal alien status is relevant? I am just asking the question, the reader can make own conclsuion. Oh wait-- did I use the wrong adjective-- let me rephrase that, um undocumented alien?

  5. of course the bigger questions of whether or not the people want to pay for ANY bussing is off limits, due to the Supreme Court protecting the people from DEMOCRACY. Several decades hence from desegregation and bussing plans and we STILL need to be taking all this taxpayer money to combat mostly-imagined "discrimination" in the most obviously failed social program of the postwar period.

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