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JANUARY 2003 Vol. 70 • No. 1 • Pages 1-184 the Privacy Project JANUARY 2003 Vol. 70 • No. 1 • Pages 1-184 The Privacy Project Defending Protective Orders Privacy and the Human Genome Project Privilege for Internal E-mails Analyzing Self-critical Analyses Protecting Against Cybersmear Monitoring the Electronic Workplace Romantic Relationships at Work Privacy from the Judicial Perspective Personal Data Protection in the U.K. Personal Data Protection in Australia The HIPPA Privacy Rule Fidelity and Surety Survey President’s Page: Introducing the Privacy Project Current Decisions Reviewing the Law Reviews Issued Quarterly by International Association of Defense Counsel Just published from IADC . by IADC members . Advocacyinthe 21stCentury ESSAYSBYLEADINGDEFENSEPRACTITIONERS EditedbyRichardB.Allen,DavidBrock, JanetH.GoreandJoanFullamIrick PretrialIssues SpoliationofEvidence DirectExaminationofDefendant Cross-examinationofDaubertExperts ComputerizedExhibits JuryTrialInnovations LegalMalpractice TraumaticBrainInjuries LearnedIntermediaryDoctrine JointDefenseDoctrine DefendingPTSDClaims ForeignPartiesinU.S.Litigation Post-judgmentMotions RiskManagement Loose-leaf bound for easy supplementation and updating $85.00 To order, write, fax (312-368-1854), e-mail ([email protected]) or order online at www.iadclaw.org/scriptcontent/books.cfm International Association of Defense Counsel Suite 2400 One North Franklin Chicago, IL 60606 Allow four to six weeks for delivery January 2003 Volume 70, No. 1 Pages 1-184 International Association of Defense Counsel Suite 2400 One North Franklin Chicago, Illinois 60606-3401 Telephone (312) 368-1494 Fax (312) 368-1854 E-mail: [email protected] Website: http://www.iadclaw.org In this issue... DEPARTMENTS Officers and Executive Committee . 4 President’s Page, “Introducing The Privacy Project” . 5 By Joan Fullam Irick Calendar of Legal Organization Meetings . 6 31st Annual IADC Trial Academy . 7 Defense Counsel Journal . 8 2003 IADC Legal Writing Contest . 9 IADC Tenets of Professionalism . 10 Current Decisions . 168 Reviewing the Law Reviews . 174 FEATURE ARTICLES THE PRIVACY PROJECT INTRODUCTION . 11 THE EMPEROR HAS NO CLOTHES: HOW COURTS DENY . 12 PROTECTION FOR CONFIDENTIAL INFORMATION By Kathleen L. Blaner Legislatures, the plaintiffs bar and the media are assaulting protective orders THE BRAVE NEW WORLD IS HERE: PRIVACY ISSUES — . 22 AND THE HUMAN GENOME PROJECT By Robert A. Curley and Lisa M. Caperna Governments and courts must step in to provide protections and regulations DISCOVERY UNPLUGGED: SHOULD INTERNAL E-MAILS . 36 BE PRIVILEGED CONFIDENTIAL COMMUNICATIONS? By Ralph Streza To keep pace with technology, discovery should protect intra-company e-mails THE SELF-CRITICAL ANALYSIS PRIVILEGE . 40 IN THE PRODUCT LIABILITY CONTEXT By George S. Hodges, Karen A. Jockimo and Paul E. Svensson Self-analysis should be considered as a subsequent remedial measure Contents Page 3 CYBERSMEAR MAY BE COMING TO A WEBSITE . 51 NEAR YOU: A PRIMER FOR CORPORATE VICTIMS By Thomas G. Ciarlone Jr. and Eric W. Wiechmann How to respond presents both legal and non-legal problems BETWEEN THE DEVIL AND THE DEEP BLUE SEA: . 65 MONITORING THE ELECTRONIC WORKPLACE By William G. Porter II and Michael C. Griffaton Employers must have detailed, understandable and fair policies ROMANTIC RELATIONSHIPS AT WORK: DOES . 78 PRIVACY TRUMP THE DATING POLICE? By Rebecca J. Wilson, Christine Filosa and Alex Fennel Courts generally uphold policies that balance employees and employers’ rights PRIVACY ISSUES FROM THE JUDICIAL PERSPECTIVE: . 89 REQUIREMENTS FOR PROTECTIVE ORDERS By Mark D. Fox and Chris E, Forte Counsel must draft protective order applications with detailed statements PROTECTION OF PERSONAL DATA: . 99 THE UNITED KINGDOM PERSPECTIVE By Laurel J. Harbour, Ian D. MacDonald and Eleni Gill The U.K.’s new Data Protection Act sets up a comprehensive and detailed regime PROTECTION OF PERSONAL DATA: . 106 THE AUSTRALIAN PERSPECTIVE By Steven Klimt, Narelle Symthe, S. Stuart Clark and Jason Shailer Legislation has applied the information privacy principles of 1988 to the private sector THE HIPAA PRIVACY RULE: AN OVERVIEW . 127 OF COMPLIANCE INITIATIVES AND REQUIREMENTS By Nancy A. Lawson, Jennifer M. Orr and Doedy Sheehan Klar The U.S. Privacy Rule contains a maze and mandates and exceptions ANNUAL SURVEY OF FIDELITY AND SURETY LAW, 2002, PART I . 150 By Bettina E. Brownstein, R. Earl Welbaum, Randall I. Marmor and Roger P. Sauer. Edited by Charles W. Linder Jr. A roundup of recent cases in the field of fidelity and surety law Defense Counsel Journal (ISSN: 0895-0016) is published quarterly (January, April, July, October) by the International Association of Defense Counsel, Suite 2400, One North Franklin, Chicago, Illinois 60606, telephone (312) 368-1494, fax (312) 368-1854, e-mail: [email protected]. Periodical postage paid at Chi- cago, IL, and additional mailing offices. The subscription price of $65.00 annually is included in the dues of members of the IADC. POSTMAS- TER: Please send address changes to Defense Counsel Journal, Suite 2400, One North Franklin, Chicago, Illinois 60606. Cite as: 70 DEF. COUNS. J. — (2003). Copyright © 2003 by the International Association of Defense Counsel. All rights reserved. Defense Counsel Journal is a forum for the publication of topical and scholarly writings on the law, its development and reform, and on the practice of law, particularly from the viewpoint of the practitioner and litigator in the civil defense and insurance fields. The opinions and positions stated in signed material are those of the author and not by the fact of publication necessarily those of the International Association of Defense Counsel. Material accepted for publication becomes the property of the IADC and will be copy- righted as a work for hire. Contributing authors are requested and expected to disclose any financial, eco- nomic or professional interests or affiliations that may have influenced positions taken or advocated in the efforts. Submit manuscripts to the Managing Editor at the above address in hard copy or via e-mail. Defense Counsel Journal follows The Bluebook: A Uniform System of Citation (17th ed.), and footnotes should be placed at the end of the article’s text. Page 4 Officers and Executive Committee OFFICERS President, Joan Fullam Irick, Indianapolis, Indiana President-Elect, J. Walter Sinclair, Boise, Idaho Immediate Past President, William C. Cleveland III, Charleston, South Carolins Vice-President, Kirk G. Forrest, Tulsa, Oklahoma Vice-President, Lee L. Bennett, Baltimore, Maryland Secretary-Treasurer, John G. Maxa, New Bremen, Ohio Executive Director, Oliver P. Yandle, Chicago, Illinois EXECUTIVE COMMITTEE The President, the President-elect, the Vice-Presidents, the Secretary-Treasurer, and the following elected members: Terms ending July 2003 Terms ending July 2004 Terms ending July 2005 George S. Hodges S. Stuart Clark John S. Bradford White Plains, New York Sydney, New South Wales Lake Charles, Louisiana Christopher W. Tompkins Cathy Havener Greer Patrick Lysaught Seattle, Washington Denver, Colorado Kansas City, Missouri Walter E. Zink II Gregory M. Lederer Bruce R. Parker Lincoln Nebraksa Cedar Rapids, Iowa Baltimore, Maryland PAST PRESIDENTS *MYRON W. VAN AUKEN . 1920-1923 *EGBERT L. HAYWOOD . 1967-1968 *MARTIN P. CORNELIUS . 1923-1926 *GORDON R. CLOSE . 1968-1969 *EDWIN A. JONES . 1926-1932 *W. FORD REESE . 1969-1970 *GEORGE W. YANCEY . 1932-1934 *SAMUEL J. POWERS JR. 1970-1971 *WALTER R. MAYNE . 1934-1935 *EDWARD J. KELLY . 1971-1972 *J. ROY DICKIE . 1935-1936 ALSTON JENNINGS . 1972-1973 *MARION N. CHRESTMAN . 1936-1937 WALTER A. STEELE . 1973-1974 *P. E. REEDER . 1937-1938 THEODORE P. SHIELD . 1974-1975 *MILO H. CRAWFORD . 1938-1939 JERRY V. WALKER . 1975-1976 *GERALD P. HAYES . 1939-1940 HENRY BURNETT . 1976-1977 *OSCAR J. BROWN . 1940-1941 *DARRELL L. HAVENER . 1977-1978 *WILLIS SMITH . 1941-1943 ROBERT E. LEAKE JR. 1978-1979 *PAT H. EAGER JR. 1943-1944 JOHN R. HOEHL . 1979-1980 *F. B. BAYLOR . 1944-1946 NEIL K. QUINN . 1980-1981 *PAUL J. MCGOUGH . 1946-1947 WILLIAM K. CHRISTOVICH . 1981-1982 *LOWELL WHITE . 1947-1948 ROBERT D. NORMAN . 1982-1983 *KENNETH P. GRUBB . 1948-1949 *GRANT P. DUBOIS . 1983-1984 *L. DUNCAN LLOYD . 1949-1950 *THOMAS H. SHARP JR. 1984-1985 *WAYNE E. STICHTER . 1950-1951 *WILLIAM H. WALLACE . 1985-1986 *JOSEPH A. SPRAY . 1951-1952 HENRY B. ALSOBROOK JR. 1986-1987 *ALVIN R. CHRISTOVICH . 1952-1953 W. RICHARD DAVIS . 1987-1988 *J. A. GOOCH . 1953-1954 GEORGE B. MCGUGIN . 1988-1989 *STANLEY C. MORRIS . 1954-1955 *MORRIS R. ZUCKER . 1989-1990 *LESTER P. DODD . 1955-1956 JAY H. TRESSLER . 1990-1991 *JOHN A. KLUWIN . 1956-1957 DAVID J. BECK . 1991-1992 *FORREST A. BETTS . 1957-1958 HENRY A. HENTEMANN . 1992-1993 *G. ARTHUR BLANCHET . 1958-1959 MICHAEL A. POPE . 1993-1994 *CHARLES E. PLEDGER JR. 1959-1960 KEVIN J. DUNNE . 1994-1995 DENMAN MOODY . 1960-1961 EDWARD J. RICE, JR. 1995-1996 PAYNE KARR . 1961-1962 GEORGE GORE . 1996-1997 *WILLIAM E. KNEPPER . 1962-1963 CHARLES F. PREUSS . 1997-1998 RICHARD W. GALIHER . 1963-1964 REX K. LINDER . 1998-1999 *KRAFT W. EIDMAN . 1964-1965 GEORGE H. MITCHELL . 1999-2000 *WALLACE E. SEDGWICK . 1965-1966 GREGORY C. READ . 2000-2001 *HARLEY J. MCNEAL . 1966-1967 WILLIAM C. CLEVELAND III . 2001-2002 ________ *Deceased President’s Page Introducing The Privacy Project By Joan Fullam Irick HEN I was selected to serve as IADC President for the 2002-03 term, I Wdecided to make the issue of corporate and personal privacy a key theme for my administration. Recent articles in newspapers, magazines and
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