Attendees: 

Sub-group Members:   Amy Stathos, Becky Burr, David McAuley, Marianne Georgelin, Kate Wallace, Robin Gross, Olga Cavalli, Samantha Eisner, Tijani Ben Jemaa, 

Legal Counsel:  Edward McNicholas, Holly Gregory, Ken Meyer   (3)

Staff:  Bernie Turcotte, Brenda Brewer, Berry Cobb, Trang Nguyen, Yuko Green

Apologies:  Kavouss Arasteh, Avri Doria

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

Transcript

Recording

Notes

  • Becky Burr Chairing
  • 16 participants, 1 Presenter, 2 staff.
  • Becky Burr: Apologies for the short time for reviewing the documents. No final decisions will be made today as confirmed on the list. This document is a consensus between ICANN Legal and Sidley on the Supplementary Procedures. There are questions for this group to consider as per the CCWG recommendations and as such we will be going through the red-lined document.
  • Becky Burr:  ACTION for ICANN Legal and Sidley may need to modify this to include the PTI Causes of Action. Need to ensure all disputes types are covered.
  • Becky Burr - question to drafters - why the limitation re in advice from SOACs, Ed McNicholas - was meant to be an example as including but not limited to – Samantha Eisner - agree. Chat seems to support.
  • Becky Burr: Does the definition of claimant need to pick up the PTI clauses. Ed McNicholas - the definition of disputes was lifted from the Bylaws - have to check vs DEFINITIONS 1B and 1C. 
  • ACTION Ed McNicholas Agree claimant definition has to be modified to reflect B and C.
  • Becky Burr: Emergency Panelists - suggested language for this works for me - no comments.
  • Becky Burr: Definitions for IRP panels. Procedures Officer concept for consolidation etc.David McAuley: This concept seems fine.
  • Becky Burr: Purposes of the IRP is useful to make the document understandable.
  • Becky Burr: Scope - David McAuley - need to take care to address appeals of consolidation. May be a good point to add the Bylaws to the inconsistency rules. Becky Burr: interesting and potentially important point. Samantha Eisner - we would fully agree with this - this shows this must be done very carefully. Becky Burr: summarizing the Bylaws are the ultimate source of authority - however Samantha Eisner is reflecting some points with respect to the provider who needs a fully fleshed out document. We need to ensure we have very carefully reflected the Bylaws in this.
  • Becky Burr: David McAuley's point on consolidation etc. what happens if the rules change on appeal - this is a good and hard question. Another such question a process by which the supp. procedures could be modified since this process is not in the Bylaws. David McAuley: maybe we could apply later rules but give party an opportunity to show prejudice by that. Becky Burr: seems reasonable. Samantha Eisner - would this apply to existing IRPs? Need a delineation between existing rules and what we are working on here. Two questions - are we modifying IRPs that are currently under way. Secondly how would iterative rule changes be brought in. Becky Burr: David McAuley 's procedures would be fine for when the new rules in place - we need to have a separate discussion with respect to current cases. Samantha Eisner rules for ongoing cases should be the rules when it was filed. Ed McNicholas: agree with David McAuley. Amy Stathos: we need to look at this. Need to have the rules that are in place when you file the ones that apply to ensure certainty.
  • Gregory Holly:  substance vs procedure point - agree with Ed McNicholas. Becky Burr: ACTION asking the legal drafters to recommend something on this point.
  • Becky Burr: I want to put a marker down re the substantive standard.  I have very significant heartburn about the current standard of review and I want the opportunity to discuss that in the context of existing IRPs – for a later conversation.
  • Becky Burr: Panelists - Can a drafter explain the last few sentences of this section - Ed McNicholas: this is a reference out to the ICDR rules - question is do we want to proceed with their rules. Amy Stathos - yes this has come up - a panelist passed away on a case and the party picked a new panelist. Becky Burr is this the ICDR rules. Amy Stathos: uncertain. Ed McNicholas: the supplemental has a reference back to the initial selection procedure. Becky Burr: should use the rules in place here vs introducing new rules for this.
  • Becky Burr: Time for Filing. There was no specific time in the CCWG recommendations. David McAuley: glad this is days and not business days. and strongly support footnote 14. Recommends 45 days. David McAuley: Under para 4, time for filing, I support 45 or 60 days – I don’t think we can use the term “business days” as that varies around the world. David McAuley: I like footnote 14 on para 4, time for filing, requiring that fees be paid in order to have met deadline. Becky Burr: what is the current requirement? Amy Stathos: 30 days following the posting of the Board materials. Becky Burr:  Robin Gross any thoughts on timing? Robin Gross: I believe it was in the 30-45 days also. Samantha Eisner: 30 days, increased from 15. Becky Burr: we will be suggesting 45 days as a straw man. Support in chat for this
  • Becky Burr - Conduct of the review - Proposed language seems to correctly reflect our discussions. David McAuley: Is there any way to put a high hurdle on panel calling live testimony? Becky Burr - There is a debate to be had on this point for us for in-person meetings. Samantha Eisner - Sidley has recommended language that is different from that proposed by ICANN Legal. Look forward to guidance from the IOT on this while keeping in mind the effectiveness and costs. Live-person testimony generates skyrocketing costs. Need strong oversight for this. Ed McNicholas: the mechanism proposed is default efficiency - but allows the panelists discretion - there is an inherent restriction in here and panelists would be guided by the wish of the community in the Bylaws. Amy Stathos: just want to confirm we need to talk about this more - live testimony is an order of magnitude more expensive. Discretion of the panel may not be sufficiently restrictive. If we want to be certain we properly reflect the wish of the community, we need more language. Becky Burr: does the current language include IN THE EXTRAORDINARY EVENT? Amy Stathos; yes. Becky Burr: So the current language allows the panel latitude (Amy Stathos - but no witness testimony - the experts added this in the 2013 rules). Becky Burr: we are going to talk about this next week - we need to all reflect on this and discuss on the list - generally agreed. Still very much a discussion point.
  • Becky Burr Written Statements - straightforward.
  • Becky Burr - Section 7 Consolidation, Intervention, and Joinder - there are no existing rules for this. The CCWG recommendations asked for this. David McAuley: good idea to give the panel some discretion on this but there needs to be a time limit on this. Also need page limits for this. Amy Stathos: consolidation and joinder issues - we have some experience in the new gTLDS and another where the same lawyer represented diffrent parties. Becky Burr: interveners? Amy Stathos: new gTLD programs. Becky Burr: would be useful to affirmatively contemplate where one party makes a claim re Bylaws and another party is directly affected. David McAuley: I agree panel discretion will be wise in para 7 on consolidation, intervention & joinder but I also think we should look for some objective “cut off” time to stop these kinds of things once evidence starts coming in – to avoid confusion and avoid the need for parties to restate positions in light of new allegations David McAuley: Also on consolidation, there should also be a cumulative page total so one party can’t be unduly swamped by several joined parties. Becky Burr: courts usually have rules on page limits etc. ACTION - Can the drafters suggest something here.
  • Becky Burr: 8 Discovery Methods - no existing rules on this. This is complicated and important issue which goes to accessibility on one side and to due process on another. Samantha Eisner: This is a significant change from the current rules which will require the IOT to properly consider all aspects - there is divergence bet the legal teams on this point. Again issues of costs and efficiency. Ed McNicholas: this was deferred to the discussion in the IOT - the question is what discretion does the panel have - due process question is central here (forcing disclosure of documents). Could simply have a requirement to have each party disclose relevant documents which would be policed by the panel. We could also look into having the panel decide based on facts and circumstances - much debate to be had here. Becky Burr: critical discussion - we need to discuss this on the list. Next call needs to discuss these points.
  • Becky Burr: Summary dismissal - this seems consistent with the recommendations. Robin Gross - believe we struck Vexatious.
  • Becky Burr - 10 - Interim Measures - based on the Bylaws.
  • Becky Burr - 11 - Standard of Review - taken from the Bylaws.
  • Becky Burr- 12 - IRP panel decisions - from the Bylaws.
  • Becky Burr 13 same.
  • Becky Burr14 - Appeal - based on the final proposal but need to discuss next week.
  • David McAuley: The interim measures in para 10 seem fine but also appear to be ex parte. There should be added a review of sorts within a short time as well – a chance to rebut. As to the standard of review, para 11, perhaps this is a bit over the top following the DotAfrica case, but shouldn’t we add a sentence at Para 11.a. along lines like this: “The IRP Panel has no authority to fashion any kind of relief of any nature to such findings of fact in light of the fact that its ultimate
  • Becky Burr: I will kick off the discussions on the list over the coming weeks. Everyone should read this document in detail. Would like to thank all lawyers who drafted this. Call next week.

Documents Presented

Chat Transcript

  Brenda Brewer:Good day all and welcome to the IRP-IOT Meeting #5 on 20 July 2016 At 14:30 UTC!

  Becky Burr:welcome everyone. 

  Bernard Turcotte Staff Support:Hi all

  Becky Burr:Brenda - who is the "host" to take us off hold music?

  Bernard Turcotte Staff Support:soothing, sooooo soothing

  Becky Burr:And could 310xxx5477 tell us who you are?

  Amy Stathos:Becky - that's me - Amy Stathos

  Becky Burr:thanks Amy

  Bernard Turcotte Staff Support:All - plese remember to MUTE if you are not speaking

  David McAuley:I plan to speak up but have had some voice issues lately so will also type some comments in chat in this call.

  Becky Burr:Brenda, could you give me scroll control please?

  Brenda Brewer:you should be able to scroll Becky

  Becky Burr:if you are identified in the participant by a telephone number could you please let us know who you are?

  David McAuley:xxx4154 is me

  Edward McNicholas (Sidley):Good morning  This is Ed from Sidley.  I am also 202xxx8010

  David McAuley:Appreciate great amount of work that went into this

  David McAuley:I started to do a document like this and it was daunting - thankful to legal folks for doing it

  David McAuley:Definitions look good to me

  David McAuley:Definition of CLAIMANT uses "causally" correctly - para 9 uses "casually" - a typo in para 9

  David McAuley:good question Becky

  Robin Gross:indeed

  David McAuley:and sounds like good answer also

  Robin Gross:yep - thanks

  Brenda Brewer:If your phone number is listed in Attendees field above, please identify yourself for attendance purposes.  Thank you!

  David McAuley:good catch Becky

  David McAuley:works for me as well

  Robin Gross:ok for me

  David McAuley:This concept seems fine - i have comment on joinder later

  David McAuley:i have two comments on scope

  Robin Gross:good point, David.

  David McAuley:On para 2, scope, we should take care to address appeals and consolidated cases to eliminate uncertainties in case one bit comes before the rules change and another (appeal, consolidated case) comes later.

  David McAuley:Also, on para 2, scope, we could add bylaws to inconsistency sentence so that at all times bylaws take precedence over rules or supplemental rules. The bylaws should be the ultimate reference point.

  David McAuley:If that's the case then we need special care on winding this up - give the panel any room and they will take it

  David McAuley:(the case being Sam's point just now)

  David McAuley:maybe we could apply later rules but give party an opportunity to show prejudice by that

  David McAuley:If I was not on mute while coughing I apologize

  David McAuley:Right Becky - what happens if rules change in mid-case

  David McAuley:That seems fair - we just need to find a wat to state this

  David McAuley:way to state this

  David McAuley:Sounds good as a discussion point going forward

  Becky Burr:I want to put a marker down re the substantive standard.  I have very significant heartburn about the current standard of review and I want the opportunity to discuss that in the context of existing IRPs

  Robin Gross:yes, that's important, Becky.

  David McAuley:I have two comments on time for filing

  Samantha Eisner:There was not a time requirement

  Edward McNicholas (Sidley):Yes; the time period was not mentioned in the proposal

  David McAuley:Under para 4, time for filing, I support 45 or 60 days – I don’t think we can use the term “business days” as that varys around the world.

  David McAuley:I like footnote 14 on para 4, time for filing, requiring that fees be paid in order to have met deadline.

  Robin Gross:I believe it was in the 30-45 days also

  Samantha Eisner:30 days, increased from 15

  Robin Gross:that sounds right

  David McAuley:sounds tgood Becky - straw man of 45

  David McAuley:Is there any way to put a high hurdle on panel calling live testimony?

  David McAuley:OK - thanks Becky, we can always change rules if this is being abused

  David McAuley:Maybe a live hearing should go to a procedures officer for decision

  David McAuley:Good points Sam

  Marianne Georgelin:Yes, costs must be taken into account

  Becky Burr:alternative approach is that the panelists may go to live hearing only if they think that the purposes of the IRP would be undermined without that

  David McAuley:what if neither party wanted a live hearing - could panel still order one?

  Becky Burr:that has never occurred David.  Issue has been that claimant wanted one and ICANN didn't. 

  David McAuley:OK thanks

  David McAuley:Sounds good Becky

  Robin Gross:ok

  David McAuley:I agree panel discretion will be wise in para 7 on consolidation, intervention & joinder but I also think we should look for some objective “cut off” time to stop these kinds of things once evidence starts coming in – to avoid confusion and avoid the need for parties to restate positions in light of new allegations

  David McAuley:Also on consolidation, there should also be a cumulative page total so one party can’t be unduly swamped by several joined parties.

  David McAuley:Some reasonable limit - yes

  David McAuley:good idea

  David McAuley:On para 8, discovery, we will need to keep an eye on the transparency sub-team developments as DIDP should be an important part of discovery. A party must have reasonable inspection rights, maintaining confidentiality as normally accommodated in courts.

  David McAuley:I agree that a high hurdle should be connected to depositions etc - achievable but not just as a matter of course

  David McAuley:I agree with Ed on mutual document discovery

  Robin Gross:so do I

  David McAuley:good idea

  David McAuley:Para 9 has the typo mentioned above – casually should be causally

  David McAuley:I find it vexing, that term

  Robin Gross:I think we struck it

  David McAuley:The interim measures in para 10 seem fine but also appear to be ex parte. There should be added a review of sorts within a short time as well – a chance to rebut.

  David McAuley:As to the standard of review, para 11, perhaps this is a bit over the top following the DotAfrica case, but shouldn’t we add a sentence at Para 11.a. along lines like this: “The IRP Panel has no authority to fashion any kind of relief of any nature to such findings of fact in light of the fact that its ultimate authority is to determine whether the COVERED ACTION constituted an action or inaction that violated ICANN’s Articles or Bylaws.”

  David McAuley:But we have made a lot of progress today, thanks Becky

  Robin Gross:yes we have - thank you, Becky, and all

  David McAuley:Great thanks to legal team, exactly

  David McAuley:Weekly calls - sounds like a plan running up to Aug 12

  Bernard Turcotte Staff Support:bye all

  Marianne Georgelin:Thank you very much Becky

  David McAuley:Thanks becky, staff, legal team and all, bye

  Robin Gross:Bye!

  Edward McNicholas (Sidley):Bye!

  Becky Burr:thanks!


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