The Grand Jury, the Email and the Work Product Privilege

This post examines a recent opinion from the U.S. Court of Appeals for the Third Circuit:  In re Grand Jury Matter #3, 2017 WL 383361 (2017) (per curiam). The court begins by explaining that

[t]his appeal presents an unusual question of appellate jurisdiction: May we continue to exercise jurisdiction over an appeal of an evidentiary ruling in a grand jury proceeding even after the grand jury has returned both an indictment and a superseding indictment? We conclude that, so long as the grand jury investigation continues, we retain jurisdiction and thus can resolve the controversy.

With jurisdiction, we turn to an important question involving the limits of the exception to the confidentiality normally afforded to attorney work product. It loses protection from disclosure when it is used to further a fraud (hence the carve-out is called the crime-fraud exception). The District Court stripped an attorney's work product of confidentiality based on evidence suggesting only that the client had thought about using that product to facilitate a fraud, not that the client had actually done so. Because an actual act to further the fraud is required before attorney work product loses its confidentiality and we know of none here, we reverse.

In re Grand Jury Matter #3, supra. The court goes on to explain how, and why, the issue arose:

Company A, John Doe, his lawyer, and Doe's business associate are the subjects of an ongoing grand jury investigation into an allegedly fraudulent business scheme. After the Government obtained access to an email Doe claims was privileged, it asked the District Court for permission to present it to the grand jury. The Court granted permission, finding that, although the email was protected by the work-product privilege, the crime-fraud exception to that privilege applied. Doe then filed an interlocutory appeal, requesting that our Court reverse the District Court's order.

While the appeal was pending, the grand jury viewed the email in question. It then indicted Doe, his lawyer, and Doe's business associate for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act (`RICO’), conspiracy to commit fraud, mail fraud, wire fraud, and money laundering. Thereafter the grand jury was discharged and a new grand jury was empaneled. It too saw the disputed email, and in December 2016 returned a superseding indictment that did not contain new charges but revisions to the previous ones. The grand jury investigation, however, continues still. What follows fleshes out this factual and procedural backdrop.

In re Grand Jury Matter #3, supra.

The opinion then explains that

Doe was the sole owner of Company A and its president. Nonetheless a November 2008 document purports to memorialize Doe's sale of 100% of the shares of Company A to Company B for $10,000. Doe's business associate is the sole owner of Company B.

Following this purchase agreement, Doe claims that the business associate engaged Doe to be responsible for Company A's day-to-day operations. However, numerous filings and tax documents suggested that Doe maintained control and ownership of Company A even after Doe's stock in it was purportedly transferred.

Over the last decade and a half multiple individuals have sued Doe and his businesses in state courts around the country based on Doe's business practices. One such lawsuit was a class action filed against Company A in Indiana state court. In it the plaintiffs alleged that Company A's business practices violated various Indiana state laws. They sought to hold Doe accountable for these violations. However, during this litigation Doe stated in a deposition in 2014 that he had transferred ownership of Company A to Company B. Doe's business associate then represented that Company A was no longer in business and had limited assets. Shortly after Doe's deposition, the Indiana plaintiffs settled their claims for approximately $260,000, about 10% of the value attorneys for the plaintiffs had put on them.

In re Grand Jury Matter #3, supra.

The opinion goes on to explain that

[t]hereafter the Government empaneled a grand jury to investigate Doe and his business associate. Its theory is that Doe owned Company A but tricked the plaintiffs into thinking that he had sold it to his business associate to encourage the plaintiffs to settle for a lower value. This relies on the premise that Doe has deep pockets but his business associate does not.

In the course of its investigation, the grand jury subpoenaed Doe's accountant requesting that he provide the Government with Doe's personal and corporate tax returns. Among other things, these tax documents revealed that Doe had claimed 100% ownership of Company A every tax year from 2008 through 2012. The accountant also told an IRS agent that, at some time in 2013, Doe's lawyer informed him that Doe had sold Company A in 2008. He also informed investigators that he might have taken notes on this conversation. The Government requested them, and the accountant's attorney sent the Government three documents.

One of the documents was an email Doe had sent to the accountant on July 16, 2013, forwarding an email that Doe's lawyer had sent to Doe four days earlier that referenced an ongoing litigation. The attorney email advises Doe of the steps he needed to take to correct his records so that they reflect that the business associate, not Doe, owned Company A since 2008. When Doe forwarded this email to his accountant, he simply wrote: `Please see the seventh paragraph down re; my tax returns. Then we can discuss this.’ There is no evidence that Doe ever amended his returns or did anything else, apart from forwarding the email, to follow up on his attorney's advice. Indeed, the accountant's recollection is that Doe's attorney later said not to go through with the amendments by telling the accountant to `stand by’ for further guidance. It never came.

In re Grand Jury Matter #3, supra.

The court goes on to explain that the

day after the accountant provided this email to the Government, the accountant's attorney sought to recall it on the ground that it was privileged and had been inadvertently included in his client's production. The accountant's counsel, however, also told the Government that his client believed the email was asking the accountant to perform an accounting service, not a legal service. The Government argued that under these circumstances Doe waived any privilege that might have otherwise attached to his lawyer's email. It did, however, temporarily refrain from presenting it to the grand jury and asked the District Court in January 2015 for permission to do so, which Doe opposed.

The Court ruled in the Government's favor. Its rationale was that Doe did not forward the email to his accountant to seek legal advice. Lacking that precondition, no attorney-client privilege attached to the document. However, the Court did find that the attorney work-product privilege attached to the email because the accountant could not be considered an adversary. It then concluded that the crime-fraud exception to the work-product privilege applied. On this basis, the Government could present the email to the grand jury.

Immediately after the District Court made its decision, Doe filed an interlocutory appeal requesting that we reverse its order. As noted above, while the appeal to our Court was pending the grand jury saw the email and later returned a 17–count indictment charging Doe, his lawyer, and Doe's business associate with RICO conspiracy, conspiracy to commit fraud, mail fraud, wire fraud, and money laundering.

In re Grand Jury Matter #3, supra.

The Court of Appeals went on to point out that

[w]e requested supplemental briefing from the parties on whether Doe's appeal was moot in light of the indictment. We also asked the Government to inform us whether the grand jury had been discharged. In response, it explained that the grand jury had been discharged shortly after it returned the indictment. The Government also informed us that a new grand jury had been empaneled, was investigating new charges against Doe and others, and it was considering a superseding indictment. Accordingly, both Doe and the Government asserted that the appeal was not moot due to the continuing investigation (though the Government still challenged our jurisdiction). We issued an opinion holding that we lacked jurisdiction, and Doe sought rehearing.

Following the rehearing petition, the Government changed its mind and contends that Doe's appeal is now moot. It has informed us that it showed the disputed email to the new grand jury in September 2016 (before the initial opinion of our panel issued), and the grand jury returned a superseding indictment in December 2016 (after our initial opinion). However, that grand jury is still investigating other charges relating to ownership of Company A, though the Government represents that it currently has no plans to seek additional charges based on the email.

In re Grand Jury Matter #3, supra.

The Court of Appeals then returned to the issue as to whether it could properly review the issue involved in this case, noting that

[t]he grand jury investigation continues, even after the new grand jury saw the email and issued a superseding indictment. . . . The purpose of this appeal thus remains the same as when it was first filed: deciding whether an email that was inadvertently disclosed may be used as part of an ongoing grand jury investigation when that disclosure plausibly violates the attorney work-product privilege.

As long as we had jurisdiction at the outset, Doe's case is guided by our analysis of the Government's appeal in In re Grand Jury Proceedings (Johanson), 632 F.2d 1033, 1040 (3d Cir. 1980) and by our decision in In re Search of Elec. Commc'ns in the Account of chakafattah@gmail.com at Internet Serv. Provider Google, Inc., 802 F.3d 516, 521 n.2 (3d Cir. 2015) (`Fattah). As in those cases, the indictment and superseding indictment did not destroy jurisdiction that properly existed beforehand. If the controversy is live enough that the case is not moot, we should decide it.

In re Grand Jury Matter #3, supra.

The opinion goes on to explain that

[h]aving concluded that our appellate jurisdiction continues, we now address the merits and hold that the crime-fraud exception to the attorney work-product doctrine does not apply to the email at issue. One of the exception's two requirements—the use of the communication in furtherance of a fraud—is lacking. The use-in-furtherance requirement provides a key safeguard against intrusion into the attorney-client relationship, and we are concerned that contrary reasoning erodes that protection.

Without the crime-fraud exception allowing the Government to show it to the grand jury, the email from Doe's lawyer is protected by the attorney work-product doctrine. That doctrine (often referred to as a privilege from or exception to disclosure), which is a complement to the attorney-client privilege, preserves the confidentiality of legal communications prepared in anticipation of litigation. Shielding work product from disclosure `promotes the adversary system by enabling attorneys to prepare cases without fear that their work product will be used against their clients.’ Westinghouse Elec. Corp. v. Republic of Phil., 951 F.2d 1414, 1428 (3d Cir. 1991). Though Doe waived the attorney-client privilege by forwarding the email to his accountant, the document still retained its work-product status because it was used to prepare for Doe's case against those suing him. See id.

In re Grand Jury Matter #3, supra.

The court goes on to analyze the work-product issues, explaining, initially, that

work-product protection, though fundamental to the proper functioning of the legal system, is not absolute. As relevant here, the crime-fraud exception operates to prevent the perversion of the attorney-client relationship. It does so by allowing disclosure of certain communications that would otherwise be confidential. `[A] party seeking to apply the crime-fraud exception must demonstrate that there is a reasonable basis to suspect (1) that the [lawyer or client] was committing or intending to commit a crime or fraud, and (2) that the ... attorney work product was used in furtherance of that alleged crime or fraud.’ ABC Corp., 705 F.3d at 155.

The Government can readily satisfy the first requirement. Though ultimately it will be up to a jury to determine whether Doe committed fraud, there is at least a reasonable basis to believe he did. Even setting aside the email, the Government has a recording where Doe allegedly brags about defrauding the class action plaintiffs in the Indiana suit. He purportedly admits in that recording to telling his associate—the same one who was supposed to have already purchased Company A—`I'll pay you ten grand a month if you will step up to the plate and say that you [own the company] and upon the successful completion of the lawsuit [I'll] give you fifty grand.’

This evidence is strong, but it is not sufficient by itself to pierce the work-product protection. We have been clear that `evidence of a crime or fraud, no matter how compelling, does not by itself satisfy both elements of the crime-fraud exception.’ In re Chevron Corp., 633 F.3d 153, 166 (3d Cir. 2011). Rather, the second requirement—use in furtherance—exists for the same reason that certain conspiracy statutes require proof that a defendant engaged in an overt act to further the crime. In both settings we want to make sure that we are not punishing someone for merely thinking about committing a bad act. Instead, as Justice Holmes noted in the conspiracy context, we ask for evidence that the plan `has passed beyond words and is [actually] on foot.’ Hyde v. United States, 225 U.S. 347, 388 (1912) (Holmes, J., dissenting).

To illustrate, if a client approaches a lawyer with a fraudulent plan that the latter convinces the former to abandon, the relationship has worked precisely as intended. We reward this forbearance by keeping the work-product protection intact. If, by contrast, the client uses work product to further a fraud, the relationship has broken down, and the lawyer's services have been “misused.” In re Grand Jury Investigation, 445 F.3d 266, 279 (3d Cir. 2006). Only in that limited circumstance—misuse of work product in furtherance of a fraud—does the scale tip in favor of breaking confidentiality.       

In re Grand Jury Matter #3, supra.

The court continues with its analysis of the issues in the case, explaining that

[h]ere the only purported act in furtherance identified by the District Court was Doe forwarding the email to his accountant. If he had followed through and retroactively amended his tax returns, we would have no trouble finding an act in furtherance. Even if Doe had told the accountant to amend the returns and later gotten cold feet and called off the plan before it could be effected, there might still be a case to be made. That is because the Government `does not have to show that the intended crime or fraud was accomplished, only that the lawyer's advice or other services were misused.’ Id. (quoting In re Public Defender Serv., 831 A.2d 890, 910 (D.C. 2003)).

But none of that happened. Doe merely forwarded the email to the accountant and said he wanted to `discuss’ it. There is no indication he had ever decided to amend the returns, and before the plan could proceed further the lawyer told the accountant to hold off. Thus Doe at most thought about using his lawyer's work product in furtherance of a fraud, but he never actually did so. What happened is not so different than if Doe merely wrote a private note, not sent to anyone, reminding himself to think about his lawyer's suggestion. The absence of a meaningful distinction between these scenarios shows why finding an act in furtherance here lacks a limiting principle and risks overcoming confidentiality based on mere thought.

In re Grand Jury Matter #3, supra.

The court ended its analysis of this issue by explaining that the trial court, the District Court,

gave two reasons for its conclusion that Doe used his lawyer's work product in furtherance of a fraud. First, it suggested that Doe, in forwarding the email to his accountant, “took [his lawyer's] advice” about amending the tax returns. J.A. 16. It is not clear what the Court meant by this because, as it acknowledged, Doe `never followed through with amending’ the returns. Id. Second, the Court said that the failure to follow through `is of no consequence’ as long as Doe intended, as of the time he forwarded the email, to amend the returns. Id. This is no doubt an accurate statement of the law. See ABC Corp., 705 F.3d at 155. The problem is that there is simply no record evidence suggesting that Doe had ever made up his mind.

None of this should suggest that, in the event Doe is convicted (based on the superseding indictment) and appeals, he should automatically get a new trial because the Government used the protected work product. That is because the Government could avoid a retrial by showing the error was harmless. Bankof Nova Scotia v. United States, 487 U.S. 250, 255–56 (1988). We express no opinion on that question.

In re Grand Jury Matter #3, supra.

The court concluded its opinion with these observations:

Many appeals involving grand jury proceedings will become moot after the return of an indictment. But the presence of a new grand jury that is continuing to investigate even after issuing a superseding indictment makes this case out-of-lane. As a live controversy remains, an indictment does not automatically preclude us from deciding it. When we do so, we conclude that the crime-fraud exception to the attorney work-product privilege does not apply to the email at issue. We therefore reverse the decision allowing the breach of that privilege.

In re Grand Jury Matter #3, supra.

“Simple Assault,” Authentication and the Tweet

This post examines an opinion from the Superior Court of New Jersey – Appellate Division: State v. Hannah, 2016 WL 7368984 (2016). The court begins by explaining that

[d]efendant Terri Hannah appeals her July 10, 2015 conviction for simple assault after a trial de novo in the Law Division, following her conviction in municipal court. She argues that a Twitter posting was improperly admitted into evidence, citing a Maryland case requiring that social media postings must be subjected to a greater level of authentication. 

State v. Hannah, supra.

The court begins by explaining how the case arose, noting that the Law Division

found the following facts based on the testimony in the Vineland Municipal Court. On September 22, 2012, Arnett Blake and his girlfriend, Cindy Edwards, attended a party at a community center. Defendant, Blake's ex-girlfriend, also attended the party.

While in the bathroom, Edwards encountered defendant `making rude comments about her.’ While Edwards was still in the bathroom, defendant exited the bathroom, approached Blake, and said `I should F your girlfriend up.’ Later that night, defendant purposefully bumped into Blake.

As Edwards and Blake were in the lobby trying to leave the party, defendant quickly approached Blake with her closed fist in the air. Blake reacted by pushing defendant away, prompting security to grab him. When Edwards turned to say something, she saw defendant holding a high-heeled shoe, with which defendant struck Edwards in the face. Blake also saw defendant hit Edwards with a shoe as he was being escorted outside. When defendant was brought outside, Edwards saw defendant did not have her shoes on.

Edwards and Blake went to the police station to report the incident and then went to the hospital, where Edwards received nine stitches. After the assault, defendant and Edwards had communications `back and forth’ on Twitter. On December 28, 2012, Edwards saw defendant posted a tweet saying `shoe to ya face bitch.’

State v. Hannah, supra.

The opinion then explains that

[i]n municipal court, defendant offered a different version of events. Defendant testified she approached Blake and told him that she heard `hearsay . . . saying that [she] was going to . . . beat his girlfriend up.’ Defendant told Blake she `wanted to clear the air and let him know that [she was] not going to do anything to [his girlfriend].’ Later during the party he `push[ed] [defendant] to the side.’ Defendant later saw Blake in the lobby and decided to ask him why he pushed her. She became aggressive and started yelling, and a security guard took her `straight out . . . of the party.’ Defendant testified she never saw Edwards that night and never punched anyone or hit anyone with a shoe.

Defendant called as a witness a security guard at the party, who testified he saw defendant approaching a man `in an aggressive manner’ and heard her make hostile remarks. `[B]efore she could do anything,’ the guard `snatched her up and . . . took her out of the building.’ He told her she was not permitted to reenter the party. He did not see Blake or Edwards or see defendant hit anyone with a shoe.

State v. Hannah, supra.

The Appellate Division concluded its initial outline of what happened to bring this case, and the issue it presented, before the court:

Defendant was charged with aggravated assault, but the charge was downgraded to simple assault, a disorderly persons offense New Jersey Statutes Annotated 2C: 12-1(a)(1) offense. On January 12, 2015, the municipal court found defendant guilty and imposed a $307 fine plus costs and assessments. Defendant appealed. On June 5, 2015, the Law Division conducted a trial de novo, hearing oral argument. After reserving decision, the Law Division found defendant guilty of simple assault and imposed the same monetary penalties. The Law Division credited Edwards and Blake, found defendant not credible, and found the passage of two years compromised the security guard's recollection of the event.

State v. Hannah, supra.

Hannah made a number of arguments on appeal, but this post only examines one of them:

Defendant argues a message sent on Twitter should not have been admitted as it was not properly authenticated. `[C]onsiderable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion.’ State v. Kuropchak, 221 N.J. 368, 385–86, 113 A.3d 1174 (2015) (citation omitted). `Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless “the trial court's ruling `was so wide of the mark that a manifest denial of justice resulted.’”’ Ibid. (citation omitted). We must hew to our standard of review.

The municipal court and the Law Division each admitted as Exhibit S–4 the following tweet allegedly posted by defendant on December 28, 2012: `No need for me to keep responding to ya stupid unhappy fake mole having ass.. how u cring in a corner with a shoe to ya face bitch.’ The tweet displayed defendant's profile photo and defendant's Twitter handle, `@cirocgirl25.’

State v. Hannah, supra.

The opinion then went on to explain that

Edwards testified she recognized the tweet as being written by defendant because it displayed defendant's picture. She also was familiar with defendant's Twitter handle, `@cirocgirl25.’ Moreover, Edwards testified the tweet was posted `in response to things that [Edwards] was saying’ and they were communicating `back and forth.’ 

On December 28, 2012, Edwards went onto defendant's Twitter page, saw the posted tweet, and captured it as a screenshot.

Defendant testified the Twitter page displayed a picture of her and her Twitter handle. However, she testified she did not author the tweet.

When the State sought to admit the tweet, defense counsel objected, arguing `[t]here's no way anybody besides Twitter can say that this came from [defendant].’

`In admitting the tweet, the municipal court ruled nothing “requires somebody to be here from Twitter. I think somebody can testify as to it as Ms. Edwards [did] and we go from there.’

State v. Hannah, supra.

The court then took up the methods that could be used to authenticate a social media post:

At the trial de novo, the Law Division classified the methods of authenticating a social media post into two camps: the Maryland approach and the Texas approach, respectively citing Griffin v. State, 419 Md. 343, 19 A.3d 415 (2011), and Tienda v. State, 358 S.W.3d 633 (Tex. Crim. App. 2012).

In Griffin, the Maryland Court of Appeals considered what the test should be for the authentication of printed pages of a MySpace profile. Griffin, supra, 19 A.3d at 416–17. Citing `[t]he potential for abuse and manipulation of a social networking site by someone other than its purported creator and/or user,’ Griffin ruled that images from such a site require `greater scrutiny’ than `letters and other paper records.’ Id. at 423–24 (concluding that `a printout of an image from such a site requires a greater degree of authentication’). The court suggested three possible methods of authentication. Id. at 427.

The first method was `to ask the purported creator if she indeed created the profile and also if she added the posting in question, i.e. “[t]estimony of a witness with knowledge that the offered evidence is what it is claimed to be.’” Ibid. (citation omitted). The second method was `to search the computer of the person who allegedly created the profile and posting and examine the computer's internet history and hard drive to determine whether that computer was used to originate the social networking profile and posting in question.’ Ibid. The third method was `to obtain information directly from the social networking website that links the establishment of the profile to the person who allegedly created it and also links the posting sought to be introduced to the person who initiated it.’ Id. at 428.

State v. Hannah, supra.

The opinion then outlines the other method, explaining that in

Tienda, the Texas Court of Criminal Appeals did not employ any of the three Griffin methods but concluded `there are far more circumstantial indicia of authenticity in this case than in Griffin—enough, we think, to support a prima facie case that would justify admitting the evidence and submitting the ultimate question of authenticity to the jury.’ Tienda, supra, 358 S.W.3d at 647. The Texas court found `the internal content of . . .  [the] MySpace postings—photographs, comments, and music—was sufficient circumstantial evidence to establish a prima facie case such that a reasonable juror could have found that they were created and maintained by’ a particular individual. Id. at 642.

State v. Hannah, supra.

The opinion then explains that

[h]ere, the Law Division found `[t]he Maryland approach is too strict in its authentication requirements,’ stating that its three methods `are unrealistic for a party to fulfill’ and `create a higher bar than originally intended by the Rules.’ Accordingly, the Law Division `chose[ ] to adopt a rule of admissibility more similar to the Texas approach.’

Defendant argues that Texas follows the Maryland approach and that we should adopt the Maryland approach with its `three non-exclusive methods’ of authentication. Id. at 647. We reject any suggestion that the three methods of authentication suggested in Griffin are the only methods of authenticating social media posts. We also reject Griffin's suggestion that courts should apply greater scrutiny when authenticating information from social networks. See Parker v. State, 85 A.3d 682, 686–87 (Del. 2014) (rejecting the Griffin `greater scrutiny’ approach and `conclud[ing] that social media evidence should be subject to the same authentication requirements under the Delaware Rules of Evidence Rule 901(b) as any other evidence’); see also United States v. Vayner, 769 F.3d 125, 131 n.5 (2d Cir. 2014) (noting that Griffin requires `greater scrutiny’ and stating `we are skeptical that such scrutiny is required’).

Rather, we agree with Tienda's observation that

[c]ourts and legal commentators have reached a virtual consensus that, although rapidly developing electronic communications technology often presents new and protean issues with respect to the admissibility of electronically generated, transmitted and/or stored information, including information found on social networking web sites, the rules of evidence already in place for determining authenticity are at least generally `adequate to the task.’

[Tienda, supra, 358 S.W.3d at 638–39 (citation omitted).]

Indeed, `jurisdictions across the country have recognized that electronic evidence may be authenticated in a number of different ways consistent with Federal Rule 901 and its various state analogs.” Id. at 639.

`Despite the seeming novelty of social network-generated documents, courts have applied the existing concepts of authentication under Federal Rule 901 to them,’ including `the reply letter doctrine [and] content known only to the participants.’ 2 McCormick on Evidence § 227, at 108 (Broun ed., 2013), New Jersey Rule of Evidence 901 `generally follows Fed. R. Evid. 901’ and incorporates both of those methods for authentication. Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence [Biunno], 1991 Supreme Court Committee Comment & comment 3 on N.J.R.E. 901 (2016).

State v. Hannah, supra.

The court then explained that

[w]e need not create a new test for social media postings. Defendant argues a tweet can be easily forged, but so can a letter or any other kind of writing. The simple fact that a tweet is created on the Internet does not set it apart from other writings. Accordingly, we apply our traditional rules of authentication under N.J.R.E. 901.

Though in `electronic’ form, a tweet is a `writing.’ See N.J.R.E. 801(e). `The requirement of authentication of writings . . . and the recognized modes of proving genuineness have been developed by case law over two centuries.’ Biunno, supra, comment 1 on N.J.R.E. 901 (2016). `Over the years authentication requirements have become more flexible, perhaps because the technology has become more commonplace.’ Suanez v. Egeland, 330 N.J..Super. 190, 195, 749 A.2d 372 (App. Div. 2000).

State v. Hannah, supra.

The court then began the process of formulating and announcing its ruling on the authentication issue:

N.J.R.E. 901 provides: `The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.’ Authentication “`does not require absolute certainty or conclusive proof’—only ‘a prima facie showing of authenticity’ is required.’ State v. Tormasi, Super. 146, 155, 128 A.3d 182 (App. Div. 2015) (quoting State v. Mays, 321 N.J.Super. 619, 628, 729 A.2d 1074 (App. Div.), certif. denied, 162 N.J. 132, 741 A.2d 99 (1999)). `This burden was not designed to be onerous.’ State v. Hockett, 443 N.J.Super. 605, 613, 129 A.3d 1116 (App. Div. 2016).

‘Courts are inclined to assess their role in authentication as that of a screening process[,]’ and ‘will admit as genuine writings which have been proved prima facie genuine . . . . leaving to the jury more intense review of the documents.’ Konop v. Rosen, 425 N.J.Super. 391, 411, 41 A.3d 773 (App. Div. 2012) quoting Biunno, supra, comment 1 on N.J.R.E. 901 (2011)). In a bench trial, as here, `considering the judge's dual role with regard to its admission and weight, the better practice in such a circumstance will often warrant the admission of the document and then a consideration by the judge, as factfinder.’ Tormasi, supra, 443 N.J. N.J.Super. at 156–57, 128 A.3d 182.

State v. Hannah, supra.

The opinion goes on to explain that

[a]uthenticity can be established by direct proof—such as testimony by the author admitting authenticity—but direct proof is not required. Biunno, supra, comment 2 on N.J.R.E. 901 (2016); on N.J.R.E. 903. `A prima facie showing may be made circumstantially.’Konop, supra, 425 N.J.Super. at 411, 41 A.3d 773. `Such circumstantial proof may include demonstrating that the statement “divulged intimate knowledge of information which one would expect only the person alleged to have been the writer or participant to have.”’ (Ibid., quoting Biunno, supra, comment 3(b) on N.J.R.E. 901 (2011)). Here, the tweet contained several such details, including `shoe to ya face,’ information that one would expect only a participant in the incident to have.

Additionally, under the reply doctrine, a writing `may be authenticated by circumstantial evidence establishing that it was sent in reply to a previous communication.’ Mays, supra, 321 N.J.Super. at 629, 729 A.2d 1074; see Biunno, supra, comment 3(c) on N.J.R.E. 901 (2016). Here, Edwards testified that the tweet was posted in response to her communications with defendant, as part of a `back and forth’ between them. Moreover, the tweet said there was `[n]o need for me to keep responding to ya,’ apparently referring to Edwards who received a `shoe to ya face.’

State v. Hannah, supra.

The court then articulated its ruling on the authentication issue, explaining that

[d]efendant's Twitter handle, her profile photo, the content of the tweet, its nature as a reply, and the testimony presented at trial was sufficient to meet the low burden imposed by our authentication rules. Those facts established a prima facie case `sufficient to support a finding that the matter is what its proponent claims.’ N.J.R.E. 901. Other courts have admitted tweets applying their similar authentication standard. See Wilson v. State, 30 N.E.3d 1264, 1267–69 (Ind. Ct. App. 2015); Sublet v. State, 442 Md. 632, 113 A.3d 695, 720–21 (2015); see also 5 Weinstein's Federal Evidence: Discovering and Admitting Computer–Based Evidence § 900.07[4A] (Joseph M. McLaughlin ed., 2016).

Defendant argues the Law Division cited not only the State's evidence but also defendant's testimony in the municipal court that the tweet bore her picture associated with her Twitter account. However, she cites no authority precluding the Law Division from considering the uncontested fact that the tweet bore defendant's photo and Twitter handle, which was established through the testimony of Edwards as well as defendant.

State v. Hannah, supra.

The court then began its ruling on the issue of authentication:

In the municipal court, defendant testified `[a]nybody can make a fake Twitter page and put your name on it and put something on there.’

She testified that because she deleted her Twitter account months before, someone could have taken the same Twitter handle and used it. After the municipal court did not credit this claim, defendant tried to bolster her testimony by submitting new evidence to the Law Division, including printouts of Twitter policies showing that Twitter `is currently unable to accommodate individual requests for inactive or suspended usernames.’ The Law Division cited that policy as one of several reasons for finding that defendant's testimony was not credible and that she `did not actually delete her Twitter account and that she did, in fact, author and publish the Tweet in question.’

Defendant now argues it was improper for the Law Division to rely on evidence that was not before the municipal court. Notably, defendant herself presented the Twitter policies to the Law Division and did not object to the court's consideration of them. Therefore, she must show at least plain error. However, she fails to show the court's consideration of the policies was `clearly capable of producing an unjust result.’ R. 2:10–2. There was ample other evidence supporting the court's decision not to credit defendant's denial that she wrote and posted the tweet.

The Law Division, like the municipal court, provided sufficient reasons for finding the tweet authentic, relevant, and admissible. Defendant's remaining arguments regarding authentication lack sufficient merit to warrant discussion. R. 2:11–3(e)(2). Accordingly, we find no abuse of discretion in admitting the tweet.

State v. Hannah, supra.