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

Paul Keating Paul at law.es
Thu May 3 12:45:07 UTC 2018 

Your true colors are showing.  You are simply repeating a mantra that is
based upon subjectively flawed and illogical presumptions.  I believe you
have an ulterior motive of simply delaying things.

If you have some suggested questions please present them.  Otherwise I will
simply ignore your comments.

Paul


From:  gnso-rpm-wg <gnso-rpm-wg-bounces at icann.org> on behalf of Georges
Nahitchevansky <ghn at kilpatricktownsend.com>
Date:  Thursday, May 3, 2018 at 4:23 AM
To:  Michael Karanicolas <mkaranicolas at gmail.com>, "Corwin, Philip via
gnso-rpm-wg" <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

> Yes it is incredible that some want to include loaded and biased questions
> that are full of assumptions.  In that vein, should we ask practitioners if
> they have ever lied in the papers they submitted in a matter and what specific
> steps they take to make sure that what they say is truthful.  How about a
> question to practitioners about whether they have ever orchestrated measures
> beyond an appeal to deprive a successful claimant from being able to secure a
> domain name won in a proceeding.  The point is that there are many loaded
> questions full of assumptions that can be asked to create issues to further an
> agenda.  a better way of approaching the issue of impartiality without
> throwing out questions that assume a wrong exists is to simply focus on the
> concept of impartiality per the Rules as opposed to crafting and revising
> questions that have underlying assumptions not grounded in the rules. What
> would have been great is if the folks that posit these 11th hour questions had
> bothered to join the subgroups who worked very hard to get a set of questions
> that would be answered.  Sweeping in at the 11th hour with these loaded
> questions, and when there is limited opportunity to discuss, is not
> productive. If it was that important of an issue you would think that these
> folks would have joined the groups and raised these issues.  They didn't so I
> really ask why the loaded questions at this point.
> 
> 
> 
> 
> 
> 
> 
> 
> From: gnso-rpm-wg [mailto:gnso-rpm-wg-bounces at icann.org] On Behalf Of Michael
> Karanicolas
> Sent: Wednesday, May 2, 2018 4:57 PM
> To: Corwin, Philip via gnso-rpm-wg <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
>  
> 
> Incredible. This looks like the exact same kabuki we just went through on the
> providers doc.
> 
>  
> 
> Once again, it's the same tactic of trying to equate a basic and general
> question with a personal attack against individual panelists/examiners.
> Somehow, I doubt that the recipients of this survey will faint with outrage at
> the temerity of being asked about their conflict of interest procedures. The
> question does not presume that they are acting in an improper manner - it asks
> how they're acting. If they have proper conflict procedures in place, I can't
> believe they would be shy about saying as much.
> 
>  
> 
> I also see the same arguments that the responses will be meaningless or
> frivolous (which is funny, considering how people are fighting tooth and nail
> to exclude the line of inquiry), and the same protests against imagined policy
> debates that might flow from the information.
> 
>  
> 
> And, buried amidst the hyperbole, are a few substantive claims addressing the
> wording of these questions. So why don't we all save a bit of time and focus
> on how the questions can be improved to be better targeted and accurate? I've
> made a couple of suggested edits, based on Greg's objections. It would be
> great to try and build forward with actual, constructive suggestions on
> wording that people can live with.
> 
>  
> 
> Or we can keep going in circles...
> 
>  
> 
> Best,
> 
>  
> 
> Michael
> 
>  
> 
>  
> 
>  
> 
>  
> 
>  
> 
> On Wed, May 2, 2018 at 1:51 PM, Nahitchevansky, Georges
> <ghn at kilpatricktownsend.com> wrote:
>> 
>> Paul:
>> 
>>  
>> 
>> Your questions are loaded questions that have a bias that panelists are not
>> properly vetting conflicts.  As a California attorney you know fully well
>> that your questions go well beyond the norm.  When was the last time you were
>> asked to detail your conflict procedures -- apart from when there is an
>> actual challenge by a party claiming a conflict of interest.  By the same
>> token as an attorney representing parties in URS and UDRP proceedings you
>> must have done a conflict check.  Should we be looking into what all parties
>> do in regards to conflict checks.  Attorneys are not asked because they are
>> are covered by an ethical obligation and unless someone challenges on the
>> ground of conflict it is presumed that they did a proper check.  Similarly,
>> Judges all over the world are presumed to have done a conflict check and to
>> recuse themselves if a conflict exists.  When is the last you asked a judge
>> to explain what they did and what procedures they have in place before taking
>> on a case. You presume they conducted a proper check and challenge if you
>> believe a conflict of interest.  The same should apply in the URS context.
>> URS panelists should not be put into a separate category that goes beyond
>> what attorneys and judges do. The panelists typicallly attest to the fact
>> that they have no conflict.  If someone feels otherwise, they can always
>> challenge the panelist appointment.
>> 
>>  
>> 
>> The bottom line is that this entire issue you are trying to inject here is
>> part and parcel of some notion that panelists are not acting in an impartial
>> manner ias required by the URS rules.  The questions of such whether
>> panelists are acting impartially should be directed to the providers, who can
>> answer more appropriately on this issue and what they require of panelists.
>> 
>>  
>> 
>> One other basic problem with your questions, is that many answers will be
>> meaningless as they will simply be yes we have appropriate procedures in
>> place.  You may get a handful of more detailed responses, but then we will be
>> arguing for months on end about whether procedures are sufficient or not etc.
>> We are not here to rewrite the procedures firms take to run conflict checks.
>> Again, the issue is about having impartial panelists and what steps are taken
>> to make sure that is the case.  As in my judge example above, if you were
>> going to go down this path of inquiry you would ask a judicial commission to
>> advise on what they do to have impartial judges.  That is the more relevant
>> and productive inquiry.  So again I stress that these questions should be
>> removed.
>> 
>>  
>> 
>> Lastly, I am glad you agree that there should be ramifications for attorneys
>> or others acting for parties for filing false statements, supporting parties
>> that hide behind bogus contact information, or fail to disclose their own
>> interests in a matter. Maybe we should ask practitioners if they feel their
>> should be meaningful sanctions for such behavior and the type of sanctions.
>> 
>>  
>> From:Paul at law.es <mailto:Paul at law.es>
>> Sent: May 2, 2018 10:39 AM
>> To:ghn at kilpatricktownsend.com <mailto:ghn at kilpatricktownsend.com> ;
>> gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com> ;
>> julie.hedlund at icann.org <mailto:julie.hedlund at icann.org>
>> Cc:gnso-rpm-wg at icann.org <mailto: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
>>  
>> 
>> 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
>> <mailto:gnso-rpm-wg-bounces at icann.org> > on behalf of Georges Nahitchevansky
>> <ghn at kilpatricktownsend.com <mailto:ghn at kilpatricktownsend.com> >
>> Date: Wednesday, May 2, 2018 at 2:28 PM
>> To: Greg Shatan <gregshatanipc at gmail.com <mailto:gregshatanipc at gmail.com> >,
>> Julie Hedlund <julie.hedlund at icann.org <mailto:julie.hedlund at icann.org> >
>> Cc: "gnso-rpm-wg at icann.org <mailto:gnso-rpm-wg at icann.org> "
>> <gnso-rpm-wg at icann.org <mailto: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 don¹t 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 don¹t 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:___________________________________________________¹
>>>  
>>> 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
>>> <mailto: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 <mailto:julie.hedlund at icann.org>
>>> >
>>> Cc: gnso-rpm-wg at icann.org <mailto: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
>>> <mailto: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 McElwaine¹s
>>>> 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_vbPfhKDpjYs66iBWjvwhWFGZb
>>>> uGpQnOgI/edit?usp=sharing
>>>> <https://docs.google.com/spreadsheets/d/1apbVrFayn_vbPfhKDpjYs66iBWjvwhWFGZ
>>>> buGpQnOgI/edit?usp=sharing>
>>>> 5. Notice of agenda for 09 May meeting (1 minute)
>>>>   
>>>> Best regards,
>>>> Mary, Julie, Ariel and Berry
>>>>  
>>>>  
>>>> 
>>>> _______________________________________________
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>>>  
>>>  
>>> 
>>> 
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