Attendees: 

Sub-group Members:   Amy Stathos, Avri Doria, Becky Burr, David McAuley, David Post, Ed McNicholas, Holly Gregory, Kate Wallace, Keith Drazek, Robin Gross, Samantha Eisner, Tijani Ben Jemaa

Staff:  Brenda Brewer, Karen Mulberry

Apologies:  

**Please let Brenda know if your name has been left off the list (attendees or apologies).**

Transcript

Recording

Notes

Discussion today to focus on:

- Conduct of hearing

- Issues related to discovery

Action Items:

  • Need to consider drafting Call for Expressions of interest to serve on Standing Panel
  • Need to revise documents to address the ability to ask for documents by subject and or  topic.
  • Amy, Sam, Holly to draft and circulate alternative language regarding the high hurdle  and extraordinary circumstances necessary for a fair resolution that take into account     community consideration for efficiency and cost savings
  • Becky, David, Robin to form drafting group - call for EoI

Documents Presented

Chat Transcript

  Brenda Brewer:Good day all and welcome to the IRP-IOT Meeting #6 on 27 July 2016 @ 13:00 UTC!

  Becky Burr:Good morning Brenda - could we have the heavily redlined document that I sent around yesterday put up? 

  Brenda Brewer:yes

  David McAuley:Hi Brenda, 4154 is me

  Karen Mulberry:Just wanted to let eveyone know that Bernie is on holiday this week and I will be attempting to take the actions items in his place

  David McAuley:loads of work by lawyers - thank you for this great effort

  Holly J. Gregory (Sidley):I have joined and am also on the phone.  my number is 212xxx5853

  Brenda Brewer:Thank you Holly

  David McAuley:if it was to list I did not see it

  David McAuley:That's what I thought also, Sam

  David McAuley:Good point Becky - we can amend and IRP will be subject to periodic review

  Holly J. Gregory (Sidley):Amy, How do parties know what docs to ask for without any other type of discovery. 

  Avri Doria:This right on inspection is critical , especially in the face of an unknown set of documents

  Becky Burr:How would a right of inspection work?  Request under DIDP and some means to challenge non-production?

  David McAuley:I think so Becky

  David McAuley:depends on how DIDP coms out also

  David McAuley:comes out

  Avri Doria:At this point it is a hit and miss methodology where the DIDP requestors often miss.

  David McAuley:Asking for docs that relate to a subject seems right

  Holly J. Gregory (Sidley):Yes, we hear you Avri, loud and clear!

  David McAuley:Agree that hit or miss is bad - and that is why the word "relate" is a good - it is a wider review term

  David McAuley:I don't hear much support for depositions Sam

  David McAuley:agree with Sam - fair, objective, reaonable costs

  David Post:I agree that the burden shouldn't be on the claimant to explain why the documents are relevant

  David McAuley:i have a comment

  David Post:Agree with David re "materiality" - good point.

  Holly J. Gregory (Sidley):I have drafted language capturing David's points and can circulate.

  Robin Gross:indeed one can't effectively ask for documents if one doesn't know the document even exists

  David McAuley:that sounded fair Becky

  David Post:"necessary for a fair resolution of the claim" ?

  David McAuley:depositions, interrogs - extraordinary is right - maybe take all seven panel to ok these

  Samantha Eisner:Considerations of material and relevance would be key for fairness as well

  Holly J. Gregory (Sidley):except in extraordinary circumstances where such discovery is determined by the Panel to be necessary for a fair resolution of the claim

  David McAuley:sounds good Holly

  Holly J. Gregory (Sidley):We my be able to use the same language with respect to the hearing issue

  David McAuley:These are not jury trials - hard to imagine a case where a F2F meeting is needed, especially in the age of Skype and Adobe

  David Post:Shouldn't ths language track the language Holly just sent around - except in extraordnary circumstantces where such face-to-face meeting is necessary for fair resolution of the claim....

  David McAuley:agree w Holly suggestion on hearings

  Robin Gross:shouldn't it be the same "unusual circumstance" language as opposed to "exceptional circumstance"?

  David McAuley:Maybe the entire panel should have to approve a F2F in the end

  Holly J. Gregory (Sidley):we should have one standard of high hurdle whether "extraordinary circumstances, and necessary for a fair resolution

  David McAuley:agree w Holly

  Robin Gross:"necesary" to adjudicate the claim seems reasonable to me

  David Post:I think that gets it right - the language should be identical,  I think - one standard, two different places it comes into play

  Samantha Eisner:There has to be some guidance about what that "hurdle" would mean and when it would be used

  Holly J. Gregory (Sidley):could also say that the extraordinary circumstances and necessary for a fair resolution and that these considerations outweigh the considerable community interest in efficiency.cost savings

  David McAuley:That is worth considering Holly, thank you

  David McAuley:Maybe elevating these questions to the full seven panel can import the importance that Sam is asking for

  Holly J. Gregory (Sidley):David, your point re enbanc panel is a good one.  Wonder how Sam and others react?

  David McAuley:Then maybe send these questions to the special panelist

  David McAuley:we have two special panelsist

  David McAuley:one on joinder, one on interim relief

  Holly J. Gregory (Sidley):Happy to work on this with Sam and Amy.  I will circulate suggested language later today.

  Amy Stathos 2:Thanks Holly

  David McAuley:I have a few things to add to list if we don't get there today

  David McAuley:Meantime - Ed and Holly on drafting inpara 9 summary dismissal the word "casually" still appears, should be causally

  Robin Gross:I agree, Becky, that standard is VERY troubling.

  Holly J. Gregory (Sidley):sorry David; will change next draft

  David McAuley:I find it conflicting also but don't know how to fix it -

  Avri Doria:how many in CEP?

  David Post:Can someone point me to the language Becky just referred to?  it's not on my screen ...

  Becky Burr:sorry David P.  It is in the current ICANN Bylaws

  Becky Burr:https://www.icann.org/resources/pages/governance/bylaws-en#IV

  Becky Burr:Requests for such independent review shall be referred to an Independent Review Process Panel ("IRP Panel"), which shall be charged with comparing contested actions of the Board to the Articles of Incorporation and Bylaws, and with declaring whether the Board has acted consistently with the provisions of those Articles of Incorporation and Bylaws. The IRP Panel must apply a defined standard of review to the IRP request, focusing on:did the Board act without conflict of interest in taking its decision?;did the Board exercise due diligence and care in having a reasonable amount of facts in front of them?; anddid the Board members exercise independent judgment in taking the decision, believed to be in the best interests of the company?

  Robin Gross:maybe we should take this issue to the group?

  David McAuley:it is a fair question, Becky, thanks for raising

  David Post:got it - thx

  Avri Doria:there needs to be a way to deal with IRP initiated recently or during this transtion period.  this will also apply to the problem of those intitiated during the interim period while still working on the ultimate decsion.

  Robin Gross:Question: will any of our sub-group's work go out for public comment?

  Robin Gross:aren't we supposed to done with IOT work by 30 Sept.?

  David McAuley:agree Becky

  Robin Gross:ok - so possible public comment and probably longer than 30 Sept. to complete our work.

  Becky Burr:agree Robin

  Robin Gross:thanks

  David McAuley:I will volunteer

  David McAuley:is there a deadline?

  Robin Gross:sign me up

  David McAuley:sounds good

  David Post:i'll pitch in too

  David McAuley:thanks Becky and all, bye

  Robin Gross:Thanks, Becky, and all.  Bye!

  Ed McNicholas, Sidley Austin:Thanks  Talk to you later.

  Avri Doria:bye


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