Sub-group Members:   Staff:    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

• Word Doc

• PDF

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

Action Item: 

• ACTION ITEM Staff can we look at the transcripts of WS1 to see if timing limits were discussed?

Four Issues with Updated Supplementary Procedures:

1.  Filing Timeline

• Final Report - A complaint must be filed “within a certain number of days (to be determined by the IRP Subgroup) and becoming aware of the alleged violation and how it allegedly affects them.”
• Draft Updated Supp. Procedures - A Claimant shall file a written statement of a Dispute with the ICDR no more than 45 days after a Claimant becomes aware or reasonably should have been aware of the ac>on or inaction giving rise to the Dispute.”
• Becky Burr - This should be straightforward. this is a change from the CCWG Final Report - how do we feel about it.
• Mike Rodenbaugh: I dislike this, it opens up litigation over "reasonable"
• Greg Shatan: Lawyers call this Constructive Notice. this was not what was in the final report and we should stick with what was agreed to originally.
• Mike Rodenbaugh: Better to replace "reasonable" concept with some outside drop-dead date, like 180 or 365 days from the action?
• Becky Burr: ACTION ITEM Staff can we look at the transcripts to see if timing limits were discussed? STAFF yes but it will take some time - not under a week.
• 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. The short answer to Jeff's question is no.
• Samantha Eisner: there has to be some sort of bright line put on this, 45 days or Reasonably Aware. It does not benefit anyone to have Board decisions challenged 2 years down the road. There has to be some sort of timeframe.
• David McAuley: I am between SE and GS. Malcolm Hutty was also noting that a change in status by the complainant could have an impact. We can go back to the full CCWG if we struggle too much.
• Greg Shatan: Actual Awareness is what was meant in the final report. It creates a tension. A final date could make sense but it has to be way longer than 45 days and maybe even longer than 2 years. 45 days after actual notice seems ok but otherwise maybe one year.
• 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....
• Becky Burr: We need a statute of limitations. We will check if this was discussed in WS1 and then deicide if we need to go back to the full CCWG.
• David McAuley: If we go back to we should have that well documented.
• Becky Burr: would like to present this to the CCWG at its August 30th meeting if required.

2.  Standard for in-person hearings

• Becky Burr: I was persuaded in our last meeting that Clearly Demonstrates would be confusing.
• 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
• Becky Burr: discussion of slides - Background on Burden of Persuasion and Comparison of Evidentiary Standards.
• 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
• Becky Burr: choices are either Demonstrated or Demonstrated with Clear and Convincing. I do not think that Clear and Convincing is that high but it could bring in US case law. 
• Greg Shatan: We already have a standard of Extraordinary Circumstances - so we are just discussing the level of proof of this. Uncertain we need a standard. The Panel should be able to decide if the conditions are extraordinary.
• David McAuley: GS has convinced me.  Panels should not become trial courts but rather arbitration.
• 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 videoconference hearing?)
• Becky Burr: Hearing that Clear and Convincing is a high bar and may pull in US case law. I would expect ICANN staff to bring up that not having a standard may bring more cases.
• Greg Shatan: doing research on proving Extraordinary Circumstances - custody cases - just needs to be demonstrated to the satisfaction of the court. To the Satisfaction of the Panel should be good enough. NY standard: "demonstrate to the satisfaction of the court the existence of extraordinary circumstances"
• Becky Burr: Propose "Panel determines that the party seeking an in-person hearing has clearly demonstrated that ...". Does ICANN staff wish to speak to this? No need for To the Satisfaction of the Panel with this language. So we take Clearly out.
• Robin Gross: or to mirror the other language "demonstrate to the satisfaction 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

3.  Cross examination in in-person hearings.

• BeckyBurr: Should be the same standard as the one from the previous point? Balancing a good accountability process vs one that is efficient and not overly expensive.
• Avri Doria: Why such a strong standard against cross examination. 

• Mike Rodenbaugh: The current draft does not limit this to "in-person hearings", but instead prohibits cross in ALL hearings -- which is completely unacceptable.
• David McAuley: Should be allowed but on a witness by witness basis and not on a complete IRP basis.
• Avri Doria: agree Mike - 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?
• Greg Shatan: We have proved we need an In Person Hearing and then we would also have to additionally prove that we need cross-examination - why would we have a second gating factor does not seem to make sense.
• Avri Doria: is cross allowed elsewhere, e.g. on a phone 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
• Mike Rodenbaugh: Not true, they still must be deemed "necessary" for even a phone hearing
• Greg Shatan: The new IRP is going to be quite different and the Necessary standard is too high for phone. Cross should be allowed unless it is vexatious or frivolous.
• Mike Rodenbaugh: Cross should be allowed regardless of the type of process if there are witnesses.
• 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
• Mike Rodenbaugh: delete "where necessary".no need to litigate whether a hearing is necessary
• Robin Gross: agree, Mike
• Becky Burr: Review of discussions.
• David McAuley: Our purpose is not to build a trial. There should be a request for specific crosses and the Panel should be able to decide (possibility of rebuttal).
• Becky Burr: We need concrete language for people to look at.
• Mike Rodenbaugh: who is saying that?  (anyone other than ICANN?)

• Becky Burr: David earlier said that the standard for witness’s 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 fundamental

4  Application of subsequent modifications of the rules to existing IRPs

• Becky Burr: currently active IRPs would continue under the current rules. New Supp. Rules would not apply unless the IRP panel decides.
• Mike Rodenbaugh: more important whether amended Bylaws apply to pending IRPs, rather than Supp Rules.

Next Steps

• Next meeting August 24^th 1900UTC

Documents Presented

• 17 Aug 2016 IRP IOT.pdf
• ICANN Draft IRP Updated Supplemental Procedures v.20.pdf
  

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