Brandon S. Harter

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I often hear at the outset of a case that one or both parties want to “stand on principle.” When it is my client who wants to do so, I am frequently asked whether we have a “good chance of winning” and, if so, they say they want to proceed. Sometimes they want to do so despite my warnings about the potential cost. Rather than merely deciding whether to sue based upon principle, in my opinion we should stop so we do not lose the forest for this particular, thorny and annoying tree.

In some cases, the fight is inevitable. The issue is too big, the stakes are the survival of a company, or parties just need someone (i.e. the court) to separate them. That said, there are often alternatives to a lawsuit. Rather than standing on “principle,” I encourage my clients to ask themselves:

  • What exactly do I want to accomplish? Can I get that from the court?
  • What do I think the other side wants to accomplish? Are these things I am willing to give up?
  • Should I fight here? Or learn from the situation and put myself in a better position next time?
  • Am I better off simply using the same resources to beat them in the marketplace?

Continue Reading To sue or not to sue: that is NOT the question.

Last Thursday Matt Landis and I joined forces with Omega Systems to provide an update on managing cyber security to the Central PA Chapter of the Association of Legal Administrators. Here are a few of the latest cyber security threats:

  • Gmail phishing attack – A new evolution of the traditional phishing attack has recently been targeting Gmail users. Starting from a compromised Gmail account, the criminals send e-mails to their contacts, often with subject lines from real e-mails with that contact. When the user seeks to open the attachment in Gmail’s previewer, the user is prompted to confirm their credentials. DON’T DO IT. The convincing login box is actually a trap that will give the criminals access to your account. The criminals then quickly use your compromised account to continue the attack.

Continue Reading Keeping Up with New Cyber Security Threats

As the supplies of candy dwindle in our homes from the Halloween harvest, our attention turns to the day of giving thanks. After running across Affinity Consulting’s awesome annual collection of Tech for Which We Are Thankful, I was inspired to survey our blog’s authors for their tech favorites. Here is some of the tech we are grateful for (and yes, we have lots of tech here in the heart of Lancaster’s farm country): Continue Reading “Techsgiving” in Lancaster County: The Tech We Are THANKFUL for is…

Smart phones are increasingly being designed as tools to allow users to enter virtual and augmented realities. Also, dedicated virtual reality hardware is becoming widely available and increasingly more affordable. At the same time these devices are becoming available, companies like Lancaster’s own Greenfish Labs are providing virtual reality development to organizations like the Catholic Church. The combination of access and development can only lead to an explosion of virtual and augmented reality to mainstream audiences in the next few years. So how can you prepare your company for the legal risks that arise from using these technologies? Let’s examine a few existing technologies that already face the same or similar risks to get some answers.

Continue Reading Virtual Reality and Augmented Reality Are Coming – Are You Ready for New Technology with the Same Old Risks?

So you have captured tons of juicy information from the opposing party’s Facebook page that will let you destroy them during cross examination. You have images from a night on the town and several damaging comments by the opponent and his friends. So… how do you get that information into evidence?

You start with the same rules that apply to all evidence. Is it relevant to the claims and defenses (or does it merely paint them in a negative light)? Is it hearsay (an out-of-court statement you will need an exception for or it will not be admitted into evidence)? Merely because it is electronic does not remove these traditional evidentiary hurdles.

Social media, like most electronic discovery, also often comes with an additional hurdle: how do I prove it is what it looks like, e.g. how do I authenticate it? Critically, authentication “requires more than mere confirmation that the number or address belonged to a particular person.” Commonwealth v. Mosley, 114 A.3d 1072, 1081 (Pa. Super. Ct. 2015). In other words, simply having a witness testify “that is her Twitter account” is not enough. You need something extra to confirm that the user actually created the content. Continue Reading Social Media Evidence in Court: Part II – How Do You Authenticate it?

I recently had an opportunity to speak to the Lancaster Area Paralegal Association at its Second Annual Civil Conference regarding practical tips for using of social media evidence in court.

One of the issues I was asked to address was the practical question of ‘how do you capture’ social media evidence. Social media evidence can be collected in one of two ways. First, the data can be “self-collected” either by the client or by the law firm. Examples of this type of collection would include taking screen shots of the relevant social media. Screenshots, however, often omit other relevant portions of that user’s social media page, resulting in the loss of potentially valuable information or making it more difficult to authenticate (more on that in the next article, Part II – How Do You Authenticate It). A better self-collection technique is to download or archive an entire account. For example, Facebook provides an option on the user settings page to download that user’s entire account. Self-collection generally works best when attempting to capture social media from your own client or a cooperative witness. Continue Reading Social Media Evidence in Court: Part I – How Do You Capture it?

When it comes to technology risks, it is easy to be lulled into believing that risks like scamming and hacking are only targeted at the largest of business enterprises. While large technology companies like Facebook and Twitter are certainly forced to react to such threats, it is naïve to think that small businesses cannot also be the target of attacks. To paraphrase the eternal wisdom Dr. Seuss, “a company’s a company, no matter how small.”

Even “low tech” small businesses can become victims, as highlighted by the recent attack on Lancaster County’s Amish Experience at Plain & Fancy Farm. Amish Experience became the victim of a phone scam called spoofing, where an attacker uses a business’s caller ID to make robo-calls to unsuspecting users. While the attack itself did not disable the Amish Experience’s systems, a wave of calls from the aggravated recipients of the robo-calls overwhelmed all seven of the Amish Experience’s phone lines for an entire business day. More detail on this attack is available in the Central Penn Business Journal’s recent article Phone scam puts Amish Experience on hold.

Continue Reading A Company’s a Company, No Matter How Small – Being Mindful of Technology Risks As a Small Business