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
The Adobe Connect recording is available here: https://icann.adobeconnect.com/p11a0oc8qw6/
The audio recording is available here:
Notes
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!