[gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working Group call on 25 April 2018 at 1700 UTC

claudio di gangi ipcdigangi at gmail.com
Wed May 2 16:19:08 UTC 2018 

All, Paul,

Just wanted to confirm that we are developing a survey that is completely
voluntary in form?

I am trying to look at our intended approach from a practical perspective.
Whatever the expected response rate may be for a voluntary, external survey
that seeks feedback on relatively complex issues (and with no
reward/incentive to respondents), I can't imagine it being very high.

If such a survey were to also include questions that may be interpreted as
pressing (or perhaps suggesting some form of unintentional malfeasance) by
those answering the questions, then I expect the response rate is going to
be even lower, perhaps even approaching the zero range.

In the past, I've assisted in the development of a few surveys that have
gone out to legal practitioners and have learned the hard way that the
experience in developing the survey (with all the good intentions and lofty
goals involved), does not correlate to the experience of receiving the
questionnaire and everything that is involved in completing. I'm sure many
others are familiar with this same experience.

On that basis, I believe we will be more successfull if we keep the
perspective of the survey respondents at the forefront of the process.

For example, do we have a current estimate on how long it will take the
respondents to complete all the questions? If yes, that information should
be included upfront. The survey tool itself should enable respondents to
take breaks, save, and skip ahead to various questions, etc.

Paul, in terms of your specific questions - if a survey respondent were to
answer No to both parts of question 5, and yes to question 6, can you
please clarify the policy implications of how you believe those answers
should be interpreted by our WG?

Thank you.

Best regards,
Claudio



On Wed, May 2, 2018 at 10:38 AM, Paul Keating <Paul at law.es> wrote:

> Sorry but I do not see what you see.
>
> The questions are neutral questions asking for a fact-based reply.  They
> do not presume anything.  This is clear from reading the qualifying
> questions at issue.
>
> Regarding some panelists not being attorneys, I have several responses.
> Primarily, given that the UDRP/URS is founded in legal principles, I
> question the use of those without legal training.  Further, conflicts
> checking is not limited to attorneys.
>
> Regarding your suggestion that attorneys confirm who they are representing
> when domains use false WHOIS data or privacy, rest assured.  There are
> plenty of rules and regulations that require an attorney to verify the
> identity of clients – the least of which are the regulations concerning
> money laundering.
>
> Regarding the fact-checking, I am fine with your suggestion - as long as
> it applies to both complainants and to respondents.  Personally, I am
> troubled by the fact that representatives can even provide a certification
> when they themselves have no personal knowledge.  I presume that allowing
> such a process in the UDRP/URS space grew out of the trademark practice
> (where providing such certifications to the registration authorities is a
> common practice).  However, if you want to change it that is fine with me –
> as long as it applies to both sides.
>
> As to the proposal to limit inquiry to those clearly provided under the
> rules, that is not consistent with our marching orders.  In fact if we took
> that approach to everything we would be left without much to investigate.
>
> To conclude, I would submit that it is really your comments that are the
> loaded ones and intended to prevent an inquiry into a legitimate issue.
>
> Paul
>
>
> From: gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> on behalf of Georges
> Nahitchevansky <ghn at kilpatricktownsend.com>
> Date: Wednesday, May 2, 2018 at 2:28 PM
> To: Greg Shatan <gregshatanipc at gmail.com>, Julie Hedlund <
> julie.hedlund at icann.org>
> Cc: "gnso-rpm-wg at icann.org" <gnso-rpm-wg at icann.org>
> Subject: Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working
> Group call on 25 April 2018 at 1700 UTC
>
> Dear All:
>
>
>
> Below are the questions being referred to. I likewise object to these
> questions which have an underlying assumption that Panelists are somehow
> biased and don’t screen conflicts properly.  It also assumes that the
> panelists are all attorneys at law firms and the law firms do not have
> proper screening mechanisms for conflicts.  Simply put, most of these
> questions are loaded questions that are meant to further a particular
> agenda.  If we are going to go down the route of these type of loaded
> questions, should we also be asking about attorneys, for example,  who
> represent parties that registered names with bogus contact information
> whether they conducted a thorough check so that they can certify that they
> truthfully identified the party they are representing and how they
> conducted that check (e.g., what mechanisms are in place and all steps
> taken).  After all the ethical rules make clear that attorneys are bound by
> requirements that attorneys be truthful.  In that vein, should we also ask
> whether the attorneys representing parties have been truthful and checked
> the facts that they are stating in their papers – and what steps they take
> to certify and insure this.  I can think of several examples I personally
> know of where an attorney simply lied in the submissions.  Should this now
> be an entire line of inquiry.  Should we ask whether Rule 11 type sanctions
> be available in URS cases where an attorney representing a party is found
> to represent a party with fake contact information or has lied in the
> papers.  I can think of many more loaded lines of inquiries if that what
> some want to do, but ultimately I don’t think these are going to be
> productive in moving the ball forward.
>
>
>
> In light of the questions that were suggested on the provider side of
> things, I think the only issue to raise is whether Panelists are impartial
> per the requirements of the rules and what providers do to make sure that
> is the case – and nothing more, .  These questions should not be here and
> should be deleted in their entirety
>
>
>
>
>
>
>
>
>
> *4.    Do you serve as a URS panelist?*
>
>
>
> A. Yes
>
> B. No
>
>
>
> *5. If yes, do you undertake a law firm-wide conflicts check to verify
> that neither you nor your law firm has any actual or potentially adverse
> conflict of interest to the complainant and/or respondent?*
>
>
>
> A. Yes
>
> B. No
>
>
>
> *If yes, please briefly describe the methods used to verify the absence of
> conflicts:___________________________________________________’*
>
>
>
> *If yes, do you retain records of your search?*
>
>
>
> A. Yes
>
> B. No
>
>
>
> *6. Have you ever communicated with a third party regarding an ongoing URS
> dispute in which you were a panelist?*
>
>
>
> A. Yes
>
> B. No
>
>
>
> *If yes, please briefly explain the nature of such
> communications:_________________________*
>
>
>
>
>
>
>
>
>
>
>
> *From:* gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org
> <gnso-rpm-wg-bounces at icann.org>] *On Behalf Of *Greg Shatan
> *Sent:* Wednesday, May 2, 2018 1:05 AM
> *To:* Julie Hedlund <julie.hedlund at icann.org>
> *Cc:* gnso-rpm-wg at icann.org
> *Subject:* Re: [gnso-rpm-wg] REMINDER: Proposed agenda for RPM Working
> Group call on 25 April 2018 at 1700 UTC
>
>
>
> All,
>
>
>
> I have significant objections to the questions to Examiners that were
> tacked on to the end of the Practitioners questionnaire at the 11th hour.
> Apologies for not focusing on this before now.  I don't believe these have
> really been properly reviewed or discussed.
>
>
>
> I believe these questions are inappropriate in a poll of practitioners, as
> these are questions directed to "panelists."   (The proper term is
> Examiner....) It feels like a "bait and switch" tactic.  If we are going to
> survey Examiners, let's survey Examiners -- not ambush practitioners.  On
> that basis alone, we should eliminate these questions.
>
>
>
> I am also troubled by the questions themselves.  Singling out these
> questions, out of all that we might ask Examiners, seems vaguely
> accusatory.
>
>
>
> The basis for these questions is questionable.  I've reviewed the URS
> Procedures and Rules, and none of these questions comes out of a Procedure
> or Rule.  The Examiners are supposed to declare conflicts of interest, but
> there is no instruction on how to implement that.  As such, there is no
> requirement that an Examiner undertake any type of conflicts check much
> less something as specific as "a law firm-wide conflicts check to verify
> that neither you nor your law firm has any actual or potentially adverse
> conflict of interest to the complainant and/or respondent."  Asking the
> question implies that this is an imperative when it is not.
>
>
>
> On top of that, this verbiage does not accurately describe a conflict
> check.  What is a "potentially adverse conflict of interest"? Why is it
> only asking about adverse conflicts?  I note that the Forum does have a
> Supplementary Rule that "A Examiner will be disqualified if circumstances
> exist that create a conflict of interest or cause the Examiner to be unfair
> and biased, including but not limited to ...  The Examiner has served as an
> attorney to any party or the Examiner has been associated with an attorney
> who has represented a party during that association."  This does not ask
> the Examiner to run a conflict check, but notably, the issue it raises is
> the exact *opposite* of the issue implied in these proposed questions --
> the Forum is highlighting representing a party, not being adverse (much
> less "potentially adverse) to a party.
>
>
>
> Now, I'm not saying it's a bad idea for an Examiner to run a (properly
> defined) conflict check, but the very fact that we are debating Examiner
> actions and requirements in a practitioners poll should tell us we're in
> the wrong place.
>
>
>
> For that reason, I will not discuss the problems in the follow-up
> questions on conflict checks.
>
>
>
> The final question is even worse. ("Have you ever communicated with a
> third party regarding an ongoing URS dispute in which you were a
> panelist?')  As far as I know, this is not prohibited behavior, especially
> not this broadly described.  It seems designed to make people feel like
> they might have done something wrong.  (If this is expressly prohibited by
> the Rules or Procedures, then perhaps we could fashion a question out of
> that Rule/Procedure *if we were putting together a poll for Examiners*.)
> Is it improper to "communicate" with your spouse about a URS case?  With
> one of your law partners? With a fellow Examiner?
>
>
>
> Long story short, these questions should be deleted.
>
>
>
> Greg
>
>
>
>
>
> On Tue, May 1, 2018 at 10:15 AM, Julie Hedlund <julie.hedlund at icann.org>
> wrote:
>
> Dear RPM PDP WG members,
>
>
>
> Per the WG Co-Chairs, here is the proposed agenda for the Working Group
> call Wednesday, 02 May 2018, scheduled for 1700 UTC.  Times are proposed as
> estimates and may be adjusted.
>
>
>
> Proposed Agenda:
>
>    1. Roll call and updates to Statements of Interest (1 minute)
>    2. Final Status of Questions for Practitioners and Providers (9
>    minutes)
>    3. Report from the Documents Sub Team (20 minutes)
>    4. Discussion on URS Phase II proposal (59 minutes)  See John
>    McElwaine’s original email at: http://mm.icann.org/pipermail/
>    gnso-rpm-wg/2018-April/002857.html
>    <http://mm.icann.org/pipermail/gnso-rpm-wg/2018-April/002857.html> and
>    a Google Sheet with the proposal as tab one, and the responses as tab two
>    at: https://docs.google.com/spreadsheets/d/1apbVrFayn_
>    vbPfhKDpjYs66iBWjvwhWFGZbuGpQnOgI/edit?usp=sharing
>    <https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZbuGpQnOgI/edit?usp=sharing>
>    5. Notice of agenda for 09 May meeting (1 minute)
>
>
>
> Best regards,
>
> Mary, Julie, Ariel and Berry
>
>
>
>
>
>
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