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Privacy and Confidentiality Issues PRIVACY AND CONFIDENTIALITY ISSUES REGINALD A. HIRSCH 1980 Post Oak Boulevard Suite 2210 Houston, Texas 77056 (713) 961-7800 State Bar of Texas eDISCOVERY IN YOUR CASE February 7, 2014 Austin CHAPTER 9 REGINALD A. HIRSCH Law Office of Reginald A. Hirsch 1980 Post Oak Boulevard, Suite 2210, Houston, Texas 77056 (713) 961-7800 FAX: (713) 961-3453 E-Mail:[email protected] BIOGRAPHICAL INFORMATION DATE OF BIRTH: February 24, 1947, Houston, Texas MARRIED: Patricia Wicoff, Attorney at Law Child: Sarah Lauren Hirsch, Age 26, Law Student STCL EDUCATION: Lamar High School, Houston, Texas, 1965 B.S., University of Houston, 1970 J.D., University of Houston, 1973 Chief Justice Student Court, University of Houston Student Court, 1972-1973 Student Regent to the University of Houston Board of Regents, 1972-1973 PROFESSIONAL EMPLOYMENT: Assistant Attorney General for State Bar of Texas, Environmental Division, 1973-1974 Balasco, Clark, Hirsch and Stern, 1974 - 1979 Lipstet & Hirsch, 1979 - 2008 Law Office of Reginald A. Hirsch, 2008 to present PROFESSIONAL LICENSES: State Bar of Texas, 1973; U.S. District Court, Southern District of Texas, 1974; U.S. Court of Appeals, Fifth Circuit, 1974 PROFESSIONAL ACTIVITIES: Board Certified in Family Law, 1979-2014 President, Harris County Young Family Lawyers Association, 1977 President, Family Law Section, Houston Bar Association, 1980-1981 Member, State Bar of Texas, Family Law Counsel, 1985-1989 Chairman, Houston Volunteer Lawyers Association, 1983-1984 Director, The Association of Trial Lawyers of America, 1985 President, Family Law Forum, 1983-1985 Director, Association of Gulf Coast Family Law Specialists, 1989-1990 President, Gulf Coast Legal Foundation, 1986 Texas Association of Family Law Specialists International Society of Family Law National Association of Counsel for Children American Academy of Matrimonial Lawyers Adjunct Professor, South Texas College of Law, Environmental Law, 1975-1977 Guest Lecturer at Baylor College of Medicine Guest Lecturer at University of Houston Law School, South Texas College of Law, TSU Marshall School of Law Master, American Inns of Court Chairperson, Family Law Task Force 2000 Treasurer, American Inns of Court, Burta Raborn Chapter 2005-2009 President, American Inns of Court, Burta Raborn Chapter, 2010-2011 Council Member, State Bar of Texas, Computer and Technology Section, 2013-2016 Recent Article and Speeches Recipient, David Gibson Award, Gulf Coast Family Law Specialist, Houston, Tx, May 11, 2006 http://www.youtube.com/watch?v=Y1TjcxaAZ3U&feature=relmfu Recipient, Texas Super Lawyer, 2007-2013, Family Law, Texas Monthly Magazine Author, Speaker, University of Texas, The Definitive Short Course on Parent Child Relationships, “The World of Court Appointees: Amicus Attorneys, Attorney Ad Litems, Guardian Ad Litems and Social Studies,” Austin, Tx, November 8, 2007 Author, Speaker, State of Texas Judicial College, "Electronic Evidence Issues,” Richardson, Tx, April 17, 2008 Author, Speaker, Co-Panelist, 8th Annual Family Law on the Front Line, “Electronic Evidence –Fighting the War of the Roses in the Electronic Age,” Galveston, Tx, June 20, 2008 Recipient, Judge Judy Warne’s Weekly Acknowledgment of Contribution to the Bench and Bar, June 9, 2008 Author, Speaker, Advanced Family Law Course, “When Technology and Family Law Collide”, San Antonio, August 11, 2008 Speaker, HAL-PC Legal Sig, Electronic Evidence, January 21, 2009 Houston, Tx Author, Speaker, The Impact of Technology on the Parent-Child Relationships: Critical Thinking For Critical Issues, University of Texas, Austin, Tx January 29, 2009 Author, Speaker, Using Electronic Evidence, 23rd Annual Family Law Conference, South Texas College of Law, March 5, 2009 Author, Speaker, What every CPA should know about Electronic Evidence, Houston CPA Society, April 24, 2009 Author, Co-Speaker, Using the Latest Technology in the Courtroom and Electronic Evidence Workshop, Advanced Family Law, Dallas, Tx, August 3-6, 2009 Speaker, Judges and Social Media, Bar to Bench: So You Want to Be a Judge?, Web Cast, State Bar of Texas, Austin, Tx, November 4, 2009 Author, Speaker, Electronic Evidence-How to Avoid Getting Shocked, Ultimate Trial Notebook, San Antonio, Tx, December 3-4, 2009 Speaker, Windows 7 and Office 2010, HAL-PC, Houston, Tx, January 20, 2010 Co-Speaker, Author, Electronic Evidence and Discovery, South Texas School of Law, 24th Annual Family Law Conference, Houston, Tx, March 10, 2010 Presiding, Parent Child Relationships: Advanced ,UT, Houston, TX, January 27, 2011 Author, Co-Speaker, 30 Hot Tips in 30 Minutes, Advanced Family Law Conference, San Antonio, Tx, August 1, 2011 Author, Co-Speaker, Cutting Edge Apps and High Tech Tools for Family Lawyers, Advanced Family Law Conference, San Antonio, Tx, August 4, 2011 Author, Speaker, Electronic Evidence, Texas College of Judicial Studies, Austin, Tx, April 10, 2012 Author, Co-Speaker, Inventories and Internet Resources, Advanced Family Law Conference, August 8, 2012, Houston, Tx Author, Speaker, Family Law Technology Course, Latest Tech Tools for Your Office, Austin, Tx, December 13-14, 2012 http://www.youtube.com/watch?v=k9vukNBfM80 Author, Co-Speaker, Family Law Technology Course, Looking Beyond the Horizon, Austin, Tx, December 13-14, 2012 Author, Co-Speaker, Enhancing Your Case Through Technology ,Innovations-Breaking Boundaries in Custody Litigation, UTCLE/AMML, .January 24-25, 2013. Author, Co-Speaker, Discovery and Electronic Evidence, 27th Annual Family Law Conference, South Texas College of Law, March 8,2013 Houston, Tx Speaker,12th Annual Biennial Sampson and Tindall, Family Law Update, June 2013 Houston and Dallas, Tx Speaker, Author, Forensic Examination of Cell Phones, American Academy of Matrimonial Lawyers, Video, June 2013, http://www.aaml.org/member-resources/launch-learn Speaker, Author, iPads for Lawyers, A Marriage Made in Heaven, Advanced Family Law Conference, San Antonio, Tx, August 6, 2013 Speaker, Author, Gulf Coast Family Law Specialist, Interesting Apps for Family Lawyers, September 12, 2013, Houston, Tx Speaker, Author, AAML, Top Ten Tech Tools for Family Lawyers, Chicago, Illinois, November 7, 2013 Receipent,Houstonia Magazine,List of Best Houston Family Lawyer,Dec.,2013 Co-Author, Texas Perspective on E-discovery, Chapter 23, Practical E-Discovery Advice in Family Law Cases, TexasBarCle. Author, Speaker,E-Discovery In Your Case, Chapter 9, Confidentiality and Privacy Issues, February 7,2014, Austin,Tx , TexasBarCLE Privacy and Confidentiality Issues Chapter 9 TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................................................. 1 II. PRIVACY .......................................................................................................................................................... 1 A. A Short History of Privacy ......................................................................................................................... 1 B. Privacy and the Constitutions ..................................................................................................................... 2 C. Right to Privacy in Common Law.............................................................................................................. 2 D. Causes of Action in Tort ............................................................................................................................ 2 1. Statutory ............................................................................................................................................. 2 2. Texas Case Law.................................................................................................................................. 3 E. Practical Analysis of an Invasion of Privacy Claim ................................................................................... 3 III. INTERCEPTION OF COMMUNICATION ..................................................................................................... 4 A. Communications Act (“Stored Communications Act”) ............................................................................. 4 1. Conflicting Definitions of “Electronic Storage” ................................................................................ 4 2. Social Media and the Stored Communications Act ............................................................................ 5 B. The Electronic Communications Privacy Act (ECPA) .............................................................................. 5 1. Criticisms of ECPA ............................................................................................................................ 5 2. Digital Due Process – the Movement ................................................................................................. 6 C. The Federal Wiretap Act ............................................................................................................................. 6 1. Exceptions to the Federal Wiretap Act ............................................................................................... 6 D. Texas Wiretap Statutes – the Federal Counterpart ..................................................................................... 7 1. Texas Civil Practice and Remedies Code ........................................................................................... 7 2. Texas Penal Code ..............................................................................................................................
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