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Sub-group Members: Avri Doria, Becky Burr, David McAuley, Edward McNicholas, Fran Faircloth, Greg Shatan, Jeff LeVee, Mike Rodenbaugh, Olga Cavalli, Robin Gross, Tijani Ben Jemaa (11)
Staff: Amy Stathos, Bernard Turcotte, Brenda Brewer, Mandy Carver, Samantha Eisner
Apologies: Kavouss Arasteh
**Please let Brenda know if your name has been left off the list (attendees or apologies).**
Transcript
Recording
The Adobe Connect recording is available here: https://icann.adobeconnect.com/p75rc00t36p/
The audio recording is available here: http://audio.icann.org/accountability/irp-iot-17aug16-en.mp3
Notes
Documents Presented
Chat Transcript
Brenda Brewer:Hello all and welcome to IRP-IOT Subgroup Meeting #9 on 17 August 2016 @ 19:00 UTC!
Bernard Turcotte Staff Support:hello all
Avri Doria:hi
Becky Burr:Hello everyone
Greg Shatan:Hi all
David McAuley:Hi Brenda, I am 4154
Brenda Brewer:Thank you David!
David McAuley:Hi all
Brenda Brewer:If your phone number is in the Attendee pod, please identify your name. Thanks!
Jeff LeVee (Jones Day):I dialed in from a separate line, which is why my phone number "213xxx3939" is showing. Jeff LeVee
David McAuley:I’m sorry Malcolm is not here to explain his concern further – but I recall not having an issue with it
Olga Cavalli:hi all
Mike Rodenbaugh:I dislike this, it opens up litigation over "reasonable"
Brenda Brewer:Thank you Jeff!
Mike Rodenbaugh:better to replace "reasonable" concept with some outside drop-dead date, like 180 or 365 days from the action?
Mike Rodenbaugh:not sure how that would apply to "inaction" though (same with 45 days!)
Avri Doria:how does one know when someone else becomes aware?
Mike Rodenbaugh:@avri, they have to prove it
Avri Doria:so ICANN has to prove that i knew?
Mike Rodenbaugh:you have to prove when you knew.... which is problematic for ICANN of course
Jeff LeVee (Jones Day):I do worry that the standard of when the claimant "becomes aware" could create confusion. For example, if the Board posts minutes, with respect to an issue, does the claimant "become aware" on that date?
Greg Shatan:Jeff, that would be constructive notice. They would only become aware when they read the minutes.
Mike Rodenbaugh:@Jeff No! Because we all should not be bound to watching ICANN's posting of minutes, as that is what we have to do today and it is problematic
Greg Shatan:The short answer to Jeff's question is no.
Avri Doria:a return receipt on a notification?
Avri Doria:i would think that in IRP, the issue under discussion, we can assume the know ICANn exists.
Robin Gross:I agree with Greg - that's a good compromise
Greg Shatan:The existence of ICANN is not at issue (I hope...). At the least, it's a rebuttable presumption....
Avri Doria:it was just parts of Sam's argument.
Greg Shatan:Aha.
Avri Doria:sort of an adabsurdum i thought.
Bernard Turcotte Staff Support:aug 30th
David McAuley:Good plan, Becky
David McAuley:In last week’s call I believe that Holly mentioned that use of “clear and convincing” would draw in case law and that seemed to me to be an unacceptable unintended consequence of using the phrase.
Mike Rodenbaugh:agree with David, bad idea
David McAuley:I was also supportive of clearly, in fact suggested it
Mike Rodenbaugh:I don't like 'clearly' unless it is clear that does NOT mean "clear and convincing"
Mike Rodenbaugh:why not just "demonstrates"?
David McAuley:Remember – there are three conditions and a presumption that will apply, the use of “clearly” in such context seems acceptable.
Mike Rodenbaugh:"clearly" is pretty much always inferred, no?
Robin Gross:yes, I think leaving it there invites debate about how clear is it?
David McAuley:Not in my view Mike, but folks can differ I am sure
David McAuley:I think preponderance is possibly not good - undermining perhaps the idea that this is not a normal instance
Robin Gross:Clear and convincing seems too high
Mike Rodenbaugh:by "in person" hearing, we not talking about telephonic hearings, right?
Mike Rodenbaugh:iok thanks
David McAuley:and those three conditions are the hurdles to get by a presumption
Robin Gross:I worry not having a standard means we will end up with conflicting standards, so we should pick one.
Mike Rodenbaugh:this is never going to happen. a panel is never going to find it "necessary" to have an in-person hearing rather than a telephonic hearing (which I assume includes a videoonference hearing?)
Greg Shatan:David, you cleared your throat and disappeared.
Becky Burr:Mike, there have been in-person hearings
Mike Rodenbaugh:One, I believe, but this was not the standard
David McAuley:i was speaking as a ventiloquist and my voice was across the room
David McAuley:ventril ...
David McAuley:that was fast research Greg, hats off
Greg Shatan:NY standard: "demonstrate to the satisfaction of the court the existence of extraordinary circumstances"
David McAuley:presumption language
Becky Burr:Panel determines that the party seeking an in-person hearing has clearly demonstrated that ...
Robin Gross:I would just take out "clearly" from wording.
Mike Rodenbaugh:what is the difference between conditions 1 and 2?
Greg Shatan:what about just to the satisfaction of the Panel?
Robin Gross:or to mirror the other language "demonstrate to the statisfaction of the panel"
David McAuley:I can live with that even though I was one to put clearly in
Robin Gross:I don't have a strong feeling on that 2nd point
Avri Doria:why such a strong standard against corss exammination.
Mike Rodenbaugh:the current draft does not limit this to "in-person hearings", but instead prohibits cross in ALL hearings -- which is completely unacceptable
Avri Doria:agree Mike
Avri Doria:and why only extraordinary. history has shown a need for cross examination at times.
Mike Rodenbaugh:in phone or video hearings, cross must be allowed in ordinary circs, not only in extraordinary circs
Robin Gross:Agree, we should not prevent cross-x. otherwise it is too easy to get less that adequate information.
Mike Rodenbaugh:otherwise why have a hearing?
Robin Gross:Meaningful accountability means there will be cross examination of purported facts
Avri Doria:is cross allowed else were, e.g. on a pphone hearing?
Samantha Eisner:There could be situations where the argument is complex but the credibility of witnesses is not at issue - that would support a live hearing without need for witnesses
David McAuley:I was also thinking a hearing could be for argument
Greg Shatan:Credibility is not the only reason to do cross.
Avri Doria:does live hearing mean both in voice and in person
Robin Gross:we are trying to build a robust accountability mechanism, so we need to include cross x in our tool kits
Greg Shatan:It should be up to the claimant to decide whether to do cross. Unless it's vexatious. That would be my standard.
Robin Gross:that works for me, Greg
Avri Doria:so cross is ok in telephonic?
Mike Rodenbaugh:not true, they still must be deemed "nedessary" for even a phone hearing
David McAuley 2:I dropped for a minute
David McAuley 2:please mute if not speaking
Avri Doria:Important words: "the new IRP is different from the old IRP"
Robin Gross:yep, just shift the presumption
David McAuley 2:as happens at trial
David McAuley 2:we are not trying to dupl;icate a trial court are we?
Avri Doria:not completely, but we do want due process and rights of claimanants to be repsected.
Samantha Eisner:It is difficult to have a presumption for a full-blown hearing and adhere to a presumption of six-month time from filing to decision
Bernard Turcotte Staff Support:13 minutes to the top of the hour
Mike Rodenbaugh:delete "where necessary"
Mike Rodenbaugh:no need to litigate whether a hearing is necessary
Robin Gross:agree, Mike
Mike Rodenbaugh:who is sayng that? (anyone other than ICANN?)
Becky Burr:David earlier said that the standard for witnesses cross should be made on a case by case basis
David McAuley 2:I still feel that way as well
Robin Gross:I don't think it helps us get to the facts by not allowing cross x as a matter of course. it is a hole in our accountability mechanism to not allow that.
Samantha Eisner:@Mike, the discussion is about two things. 1. whether an in-person hearing is necessary, as opposed to telephonic. There is no fight about whether a hearing should even occur. 2. At a hearing, what should be the showing to overcome a presumption that it is for argument only
Mike Rodenbaugh:@Sam 1? the draft says "where necessary" for any hearing and 2? there should be no such presumption of 'argument only', imho
Greg Shatan 2:Agree with Mike -- he typed it first.
Robin Gross:we need to have reliable facts, which means they must be subject to test for the veracity of the claims made. this is a fundamental principle that we should not ignore, but incorporate into this system.
David McAuley 2:could we get scope page on screen
David McAuley 2:I think itis page 7 of slides
Mike Rodenbaugh:I tend to agree with ICANN on this one
David McAuley 2:I feel like you do Becky on tjhis issue
Mike Rodenbaugh:more important whether amended Bylaws apply to pending IRPs, rather than Supp Rules
David McAuley 2:we may need a special call at some point, running out of time
Avri Doria:ok, maybe i am in the weeds. will wor on my understanding.
Avri Doria:yes Mike to do agree, forgive my slow understanding.
Edward McNIcholas, Sidley:Could you mention the time slot for next week? The Sidley legal team is not getting the updated time slots.
Mike Rodenbaugh 2:agree/. but modifictions can indicate intent in original procedures or bylaws, and thus be highly relevant
Mike Rodenbaugh 2:agree this is a very important issue warranting more discussion
Bernard Turcotte Staff Support:the same slot is avaialble next week?
Bernard Turcotte Staff Support:Same place same time next week
Mike Rodenbaugh 2:thanks Becky!!
Olga Cavalli:thanks all bye!
Avri Doria:thanks. bye
Edward McNIcholas, Sidley:Thanks; bye
Bernard Turcotte Staff Support:bye all
Robin Gross:thanks Becky and all, bye!
David McAuley 2:OK thanks, bye all
Becky Burr:bye all