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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. I grew up on a farm and live in the county and it's interesting that the big industrial farmers like Jeff Shoaf don't live next to their industrial operations...

  2. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  3. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  4. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  5. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

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