Spring 2013 Newsletter
Welcome to the latest issue of HGNews, Hunsucker Goodstein’s quarterly newsletter. We hope you will find the information here helpful and that you will contact us if there are any subjects you would like us to cover.
Endangered Species Act
The Endangered Species Act ("ESA") is the federal law designed to conserve and protect plants, wildlife, and ecosystems. Congress passed the ESA with the intent to halt and reverse the trend towards species extinction, whatever the cost. The ESA turned the benefit of the doubt in favor of species protection and imposed an "institutionalization of caution" to preserve endangered species. There are several key provisions to the ESA that provide the mechanism in which to achieve species conservation including the "listing" of threatened and endangered species and their habitat that qualify for the Act’s protections (ESA Section 4), a mandatory consultation process to consider effects on such listed species as a result of federal action (ESA Section 7), and an express prohibition on the taking of listed species (ESA Section 9). This summary focuses on the Section 7 mandatory consultation process for federal actions.
Section 7 imposes an affirmative duty on federal agencies to carry out their programs in a manner that conserves threatened and endangered species. Through a consultation process with the Fish and Wildlife Service (for terrestrial and fresh water species) or the National Marine Fisheries Service (for marine wildlife), federal agencies must ensure that their actions are not likely to jeopardize a listed species or result in the destruction or adverse modification of their habitats. Federal action includes any activity with a federal nexus such as federal funding, authorization, or approval. Section 7 acts as a bar to any federal action that would harm threatened or endangered species or habitats.
Federal agencies must base their determinations of potential jeopardy or modification of habitat on the best available scientific and commercial data; economic factors are not relevant to the analysis at this phase. Additionally, if new information becomes available after a determination, the Federal agency must reevaluate its decision to determine if the new information indicates potential jeopardy or modification of habitat. The ESA provides for citizen suits to enforce the requirements of Section 7 and ensure federal agencies are properly evaluating the effects of their actions. This provides private parties with the opportunity to serve as a check on federal actions and to play a role to ensure the purposes of the ESA are met.
Kate Udo practices in the Environmental Litigation and Regulatory Actions and Insurance Coverage practice areas.
Ms. Udo represents government and private clients on a variety of environmental matters concerning hazardous waste, the protection of drinking water, and endangered species.
Watch our latest video of Bob Gonser discussing investment fraud.
Electronically Stored Information (ESI)
Why This is Important to You?
Getting your electronic house in order to mitigate risk and expenses should e-discovery become an issue has become a full time job. Do you find that you are asking yourself - where do I go from here? How do I begin?
" Getting your electronic house in order to mitigate risk and expenses should e-discovery become an issue has become a full time job."
Electronically Stored Information is documents produced in electronic formats other than hardcopy. The discovery of electronic documents and data include email, web pages, word processing files, computer databases, Excel files, and virtually anything that is stored on a computer. Technically, documents and data are "electronic" if they exist in a medium that can only be read through the use of computers.
Tasked with the responsibility of keeping abreast of the electronic discovery world I started an "ESI tool box". Below are two references, that are at the top of my ESI took box, which are very helpful.
EDRM – Electronic Document Reference Model
The Electronic Discovery Reference Model has the following components which can become a great checklist of getting your electronic house in order: Information Management, Identification, Preservation, Collection, Processing, Review, Production and Presentation. This is a great reference guide when working with clients and litigation vendors in the early stages of figuring out your ESI in a case.
EDBP – Electronic Discovery Best Practices
The Electronic Discovery Best Practices Model is designed as a reference for legal best practices for attorneys and paralegals and focuses mainly on legal service components, such as: Litigation Readiness, Hold Notices, Interviews, Collection, Cooperation, Culling, CAR (computer assisted review), Protections, Productions, and Evidence. This is particular helpful to attorneys and paralegals since it is geared towards legal services and not so much related to vendor standards as is the EDRM Model. (Note – you will find this a work in progress model)
Adoption of New-E-Discovery Guidelines:
United States District Court – Northern District of California – Adopted New E-Discovery Guidelines which became effective in November of last year. New ESI-related documents that you can download are (1) Guidelines for the Discovery of Electronically Stored Information, (2) ESI checklist for use during the Rule 26(f) meet and confer process; (3) Model Stipulated Order Re: the Discovery of Electronically Stored Information and (4) Standing Order for all Judges of the Northern District of California.
In our next issue we will continue to explore the additional tools in the ESI tool box.
Barbara Sloan is Hunsucker Goodstein’s Senior Trial Paralegal and in-house e-discovery specialist. She plans and manages document preservation and collection, coordinates document productions and reviews, and consults on e-discovery issues. She assists attorneys in preparation and presentation at trial, including management of electronic databases and the electronic presentation of trial exhibits.
Look for Hunsucker Goodstein at
these Upcoming Events:
Brian Zagon will be presenting at the 2013 National Ground Water Association (NGWA) Summit – The National and International Conference on Groundwater on Monday, April 29th. Mr. Zagon’s presentation, entitled "Managing Risk Starts and Ends With Knowing Your Client" will be presented with Chris Breemer of APEX Companies.
The National and International Conference on Groundwater will be held in San Antonio, TX, April 28-May 2.
Michael Goodstein presented "Creative Strategies to Maximize Limited Resources in Environmental Remediation" on February 20, 2013, at Thompson Reuters in Baar, Switzerland and will be presenting at the 2013 Colorado Brownfield Conference on Wednesday, May 1st. Mr. Goodstein’s presentation, entitled "Cost Recovery for Project Funding" describes the experience of the law firm in acquiring funding to fund brownfield redevelopment projects.
The 2013 Colorado Brownfield Conference is the 10th Annual conference sponsored by the Colorado Brownfields Foundation. This years theme is "The Future is Now." The conference will be held in Lakewood, CO, April 30-May 1, 2013.
Anne Lynch will be presenting a poster at the NAEP Spring conference in Los Angeles, April 1-5. The poster is titled "Quantifying Benefits of Air Pollution Control."
Anne Lynch and Michael Goodstein have submitted a paper to the NAEP conference. The title of their paper is "Proving and Quantifying Public Health and Environmental Benefits of Pollution Reduction."
Brian Zagon will be presenting at the Maintenance Superintendent Association’s March 14th meeting in San Diego, CA. Brian will be presenting with Joe Westlock of APEX Companies on Cleaning Up Contaminated Properties.
Hunsucker Goodstein is proud of our 2013 Super Lawyers. Super Lawyers is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations and peer evaluations.
Rising Stars: Lawyers are asked to nominate the best attorneys who are 40 or under, or who have been practicing for 10 years or less. They are instructed to nominate lawyers they have personally observed in action — whether as opposing counsel or co-counsel, or through other firsthand courtroom observation.