Attendees: 

Sub-group Members:   Amy Stathos, Avri Doria, Becky Burr, David McAuley, Ed McNicholas, Fran Faircloth, Holly Gregory, Kate Wallace, Kavouss Arasteh, Samantha Eisner, Tijani Ben Jemaa

Staff:  Bernie Turcotte, Brenda Brewer

Apologies:  Chris Disspain

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

Transcript

Recording

Notes

  • Becky Burr: only Avri Doria, and David McAuley members present.
  • Becky Burr: questions from Sidley regarding COVERED ACTIONS.
  • Holly Gregory: when considering the definition of Dispute vs Covered Action: but the use of action or inaction in the definition of dispute is either redundant or circular. Becky Burr: Agree it is redundant and should be taken out from the defintion of Disputes.
  • Becky Burr: Proposed modifications regarding when new rules come into effect: ICANN has commented it is too early to make such a decision: rules in effect when the process starts should remain in effect. David McAuley has suggested that the old rules continue to apply unless a party claims they are being harmed by the old rules being applied (similar to supreme court): whereby the panel could decide. Becky Burr need a method to apply new rules. Holly Gregory: substantive rules should not apply: procedural rules could be applied and supports David McAuley's proposal for these rules. This is a good suggestion and we should draft according to this to see if it resolves the issues for everyone. Samantha Eisner: ready to look at suggestion and want to run it by ICDR.
  • Becky Burr: Composition Panel: Footnote 16. David McAuley: I think this is a good idea, a confirmation of impartiality upon assignment to a panel. Becky Burr this is a good idea to have a confirmation of independence. 
  • Holly Gregory: page 4 WHEN AN INDEPENDENT REVIEW IS STARTED and TIME FOR FILING: need to tie the two concepts together clearly.
  • Becky Burr: if there is ambiguity it should be looked at.
  • Ed McNicholas: the Bylaws are clear on this.
  • Holly Gregory: the old language was clearer.
  • Becky Burr: and fees have to be paid for proceedings to start.
  • Becky Burr: CONDUCT OF INDEPENDENT REVIEW: current language would seem to address concerns of ICANN: In-Person hearings would be exceptional (as described). However, ICANN is still objecting to the language.
  • Avri Doria: Concerned about narrowing who or what can appear under these exceptional circumstances. If it is truly exceptional there should not be such limitations. Calling it extraordinary is fine: limiting is problematic.  Are issues of financial burden more important than due process? Arguments only is also an issue. Does Status Quo mean there can be no changes?
  • Becky Burr: there can be changes.
  • David McAuley: generally, agree with Avri Doria. What we seem to be searching for are the words to describe what is Extraordinary: maybe use drafting notes: need to keep in mind how these will be used. Many people believe that the current process is unfair: in the context of the new rules things should settle down.
  • Becky Burr: I do not read the current language to say you cannot have witnesses. The language says the time and expense of a F2F does not outweigh due process. The fact that statements would have to be provided ahead of time does not limit the ability of calling witnesses.
  • Samantha Eisner: We need more information in the text to better define Extraordinary Circumstances. Need to give guidance as to what are Extraordinary Circumstances so this does not become a full blown trial.
  • Becky Burr: we are saying what are Extraordinary Circumstances for a fair resolution of the claim. Using the term NECESSARY is a fairly high bar for a fair resolution of the claim taking into account the purpose of the claim and balancing costs and time.
  • Samantha Eisner: what would we look to in order to say that something is necessary?  Is it an issue of first impression that is very fact intensive?
  • Becky Burr: do not agree. It will be a determination by the panel in this case.
  • David McAuley: I think the nature of Necessary will probably be best left to panel: so long as the concept of necessity is clear and meaningful.
  • Samantha Eisner: Is it complex in the number of issues presented: If a panel says it is necessary there must be adequate documentation which shows the need to ensure it is reserved for exceptional cases. It should not become a presumption: if all cases become week long cases it could break ICANN financially and would be a detriment for the ICANN community.
  • Becky Burr: this should not allow for a default to be a week long hearing. We have a 3 part test:
  • Ed McNicholas: the development of guidance through case law could be useful vs a drafting note.
  • Becky Burr: if we start with an explicit statement that any hearing should only be conducted electronically which would be the standard but in an extraordinary situation it could be in person. Seems ICANN would like a higher bar but not hearing what that would be from them. Sam can you give examples.
  • Samantha Eisner: things like complex issues if they cover multiple grounds may be ok. But if something is very similar to something that has been resolved electronically it would not be. Important to not have witnesses create necessity.
  • Becky Burr: Have no issue to adding examples or information to better describe Necessary and you could draft some examples of this.
  • Samantha Eisner: yes.
  • David McAuley: I think "Necessary" must be clearly underscored as a requirement but panel will have to say if it is met in any one instance.
  • Becky Burr: if the facts are not in dispute there is no need for witnesses. Recap of fairness vs cost.
  • Avri Doria: but money cannot trump or even be equal to fairness. Some consideration may be fine, but not as an equal condition.
  • Becky Burr- Cost and efficiency should not trump the other two tests.
  • Amy Stathos: for information re the IRPs to date from ICANN's perspective: witness testimony cost vs argument only can be in the order of 1M$US which is 10x more than not having witnesses.
  • Becky Burr: we will need one more call on this: fairness is key. Sam will come back with some additional guidance language for our next discussion of this.
  • Becky Burr: Footnote 22: Language around cross examination of live witnesses. Question for ICANN: do you want to re-insert to prohibition on live witnesses?
  • David McAuley: I think this issue, cross examination, is similar to one just discussed: we need to high bar wording that will work to make it extraordinary.
  • Becky Burr: agree with David.
  • Samantha Eisner: this would be our preference.
  • Becky Burr: to be discussed on the next call.
  • Becky Burr: Consolidation of disputes: Word missing: Drafting team should look at this.
  • Becky Burr: Discovery methods:
  • Samantha Eisner: the panel decides if something is material.
  • Becky Burr: a final determination cannot be made until the documents are produced: so just need to align the language in those paragraphs.
  • David McAuley: I have no problem with panel determining materiality: if we think these words get there then that is ok: but the determination of materiality cannot be by the party holding the document.
  • Becky Burr: David McAuley has other suggestions: re interim protection but the other party can rebut the order.
    • David McAuley: the original language on interim relief could be heard Ex-parte: if the case the other party should be able to be heard. List of issues presented in email.
  • Kavouss Arasteh: did not follow David McAuley's points. Becky Burr: please see email.
  • David McAuley: Excluding panelists: disagree with ICDR experience. Federal judges have 3 sitting En-Banc to hear appeals.
  • Kavouss Arasteh: what we are doing is implementation of the IRP and we must stay in the envelop of the Bylaws. This means implementation details or clarify any possible confusion. We seen to be going beyond this. How can we ensure we do not go beyond bylaws? How do we get confirmation of this?
  • Becky Burr we cannot go beyond the Bylaws. However, we have a slightly larger mandate to develop detailed rules. With respect to the Supplementary Rules we are simply ensuring that we have a set of rules that meet the requirements of the CCWG for Oct 1st when the transition occurs. What we are doing now is looking at the ICANN Supplementary Rules to ensure we have a compliant set of rules. This will go to the CCWG for approval which would require a public comment period.
  • Becky Burr: Drafters will clean up some glitches. Sam will detail Necessary. Want to report that David McAuley has produced a first draft of a call of interest for panelists. We should have a call next week: will reach out to the group to ensure better participation.
  • Kavouss Arasteh: need a master schedule. (Bernard Turcotte – will circulate)
  • Becky Burr: meeting adjourned.

Documents Presented

Chat Transcript

  Brenda Brewer:Good day all and welcome to the IRP-IOT Meeting #7 on 3 August 2016 @ 13:00 UTC!

  David McAuley:Hi Brenda - I am also 4154

  Brenda Brewer:Thank you David.

  David McAuley:Hi Avri

  David McAuley:Hi Holly - see you now

  David McAuley:I don't know why I have two log-ins on adobe - just did it once

  David McAuley:oh - i guess that is my phone

  David McAuley:someone sounds weary

  Bernard Turcotte Staff Support:hi all connectivity issuews this AM

  Bernard Turcotte Staff Support:but am on now

  David McAuley:dog days

  Brenda Brewer:Good to go, recordings are started

  David McAuley:it is a little light today - we will need to stir folks up for next call

  David McAuley:I agree becky

  David McAuley:I did not see issue even after reading footnote

  David McAuley:I have no issue with what Holly just said

  Kavouss Arasteh:Dear Brenda

  Kavouss Arasteh:I have not been able to be connected

  Brenda Brewer:Kavouss, we can hear you typing, so I believe your microphone is working

  David McAuley:sounds good Becky

  Kavouss Arasteh:Dear Brenda

  Kavouss Arasteh:May you pls adfvise to dial me up

  David McAuley:I think this is a good idea, a confirmation of impartiality upon assignment to a panel

  Kavouss Arasteh:dEAR bECKIE

  Kavouss Arasteh:mAY YOU ADVISE TO DIAL ME UP

  Brenda Brewer:Kavouss, you are being dialed out to

  Brenda Brewer:thank you Kavouss

  David McAuley:interference on line

  David McAuley:No issue on that - commence should start once fees paid

  David McAuley:that is within three days of filing

  Bernard Turcotte Staff Support:Please remember to mute if you are not speaking

  Kavouss Arasteh:I have two quesions, 1. what is meant by electronic means? idoes it means e-mail correspondence or what?

  Kavouss Arasteh:ALSO WHO AND HOW DECISION IS MADE THAT A MEETING IS EXTRAORDINARY?!£

  David McAuley:please mute if typing

  Kavouss Arasteh:wHAT DOES IT MEAN" LIMITED TO ARGUMENT"?

  Kavouss Arasteh:WHAT IS MEANT BY EXTRAORDINARY CASE?

  Samantha Eisner:can scrolling be turned back on?

  Kavouss Arasteh:Who decides that a case is extraordinary?

  Kavouss Arasteh:What do you mean by " Argument only"

  David McAuley:Right now witness statements are to be in writing - maybe, in EXTRAORDINARY CASES, witness testimony should be subject to cross-examination - if we can well draft such rules so this does not become the normal course

  Kavouss Arasteh:Beckie, your exoplnation was bnot clear?

  Kavouss Arasteh:it is a egg and chicken?

  Becky Burr:Kavouss, the panelists determine whether or not the circumstances justify a face to face hearing, by applying the three part test.

  David McAuley:I have no problem with such a presumption as Sam just stated

  Kavouss Arasteh:Still , I am not clear what we mean by extraordinary cases?

  David McAuley:it might help explain that extraordinary circumstances are meant to be relatively rare

  Kavouss Arasteh:what are the criteria based on which the panelist decides that a case is extraordinary?

  Samantha Eisner:"necessary" doesn't help explain WHY it is necessary

  Kavouss Arasteh:My question to describe what we mean by " arguement only"

  Samantha Eisner:what would we look to in order to say that something is necessary?  Is it an issue of first impression that is very fact intensive?

  David McAuley:I think the nature of necessary will probably be best left to panel - so long as the concept of necessity is clear and meaningful

  Samantha Eisner:Is it complex in teh number of issues presented

  Kavouss Arasteh:sorry, we are talking in subjective manner, such as, if necessary; extraordinary; argument only

  Kavouss Arasteh:What these things mean?

  David McAuley:can we allow interim appeal to standing panel of these issues

  Kavouss Arasteh:who decides that something is not or it is necessary?

  David McAuley:a quick appeal of sorts

  Kavouss Arasteh:WE NEED CRITERIA FOR ALL THESE THINGS

  David McAuley:agree with Sam - IRPs cannot default to week long hearings - we need to prtect against that and the norm should be electronic

  Avri Doria:i have a problem with condition 3.  Fairness and furtherance should be enough.

  Kavouss Arasteh:Beckie, what are the criteria based on which the panelist determine that something is neccessary ?

  David McAuley:The problem with case law is already existing decisions in a constrictive IRP setting - cases would have to start with new IRP, no?

  Samantha Eisner:@Ed, are you talking about IRP "case law" or US case law?

  Kavouss Arasteh:when panelists decide ,based on a predtermined criteria , or based on their own judgement something is necessary, is it on unanimity or majority?

  Ed McNicholas, Sidley Austin LLP:Yes; IRP cases going forward

  Kavouss Arasteh:I am sorry, no answer was given to any of four questions that I raised

  Samantha Eisner:Initial guidance on what would demonstrate "necessary"

  Samantha Eisner:that's what we're looking for

  David McAuley:I think "necessary" must be clearly underscored as a requirement but panel will have to say if it is met in any one instance

  Samantha Eisner:Yes, we can do that

  David McAuley:Thanks Sam - it should help

  David McAuley:isn't it majority?

  David McAuley:Good idea to check with ICDR

  Avri Doria:but money cannot trump or even be eqqual to fairness.

  Avri Doria:some consideration may be fine, but not as an equal condition.

  David McAuley:"considertions of fairness" could conclude that fairness is not at risk

  David McAuley:Becky's recollections sounds right

  David McAuley:one more call on this plus the draft of Sam in meantime

  David McAuley:I think this issue, cross examination, is similar to one just discussed - we need to high bar wording that will work to make it extraordinary

  Samantha Eisner:@Becky, reinstating the bar on live witness testimony would be our preference at this time

  David McAuley:please mute if not speaking

  David McAuley:I have no problem with panel determikning materiality - if we think these words get there then that is ok - but the determination of materiality cannot be by the party holding the document

  Ed McNicholas, Sidley Austin LLP:On the ex parte issue, should we add something to the effect that  "If circumstances require the ex parte consideration of emergency relief, all parties shall be heard as soon as reasonably possible after the grant of emergency relief."?

  Samantha Eisner:@ David, D is taken directly from the Bylaws

  Samantha Eisner:ICANN's breach on PTI matters

  David McAuley:ok Sam

  Bernard Turcotte Staff Support:Note - last 13 minutes of the call

  David McAuley:thanks bernie

  David McAuley:Bernie

  Kavouss Arasteh:Does  CCWG have any opportunity to discuss or comments on what we are doing?

  Kavouss Arasteh:Does our work conditions to receive comments from public

  David McAuley:I must leave. Thanks Becky, staff, and all – look forward to call next week.

  Brenda Brewer:we post meetings here:  https://community.icann.org/x/FCOOAw

  Kavouss Arasteh:thanks a lot

  Kavouss Arasteh:That helps considerably

  Kavouss Arasteh:Regards

  Bernard Turcotte Staff Support:by all

  Avri Doria:bye

  Becky Burr:thanks

  Ed McNicholas, Sidley Austin LLP:Goodbye


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