[IOT] Comments on latest draft supplemental rules (28 July draft)

[McAuley, David]

Thank you Becky for the latest draft Supplemental Rules.

I think we continue to make progress and offer a number of brief comments below.

First, under Scope, I tend to agree with comment SE1. Could we reverse this current approach and instead say that any new modification to the rules will only apply to IRPs filed after the new mod takes effect BUT allow either party to a then-pending IRP to ask the panel to apply the new rules so long as such application would be just and practicable and would not materially prejudice either party?

Second, under #3 (Composition) should we consider deleting the following quoted language as setting the stage for endless challenges to the panel composition: "or the requisite diversity of skill and experience needed for a particular IRP proceeding". Sorry not to have raised this before but it seems problematic on current reading.

Third, on footnote 19 I strongly support the notion that fees must be paid for filings to be timely.

Fourth, on Comment SE2, I tend to agree insofar as in-person hearings should not become routine. There are some issues, however, where just the dry paper will not do justice to a full and fair resolution of the matter. We need to find words that set the bar high but recognize these special (extraordinary?) cases for what they are.

Fifth, in the last paragraph of 5 (Conduct of the IR) I suggest changing the first sentence from "The IRP PANEL retains responsibility for determining the timetable for the IRP proceeding." To this: "With due regard to Bylaw Section 4.3(s), the IRP PANEL retains responsibility for determining the timetable for the IRP proceeding."

Sixth, with respect to question in yellow in 7 (Consolidation) the sentence does seem a bit off and we need clarification.

Seventh, in 8 (Discovery Methods) and Footnote 32 - I don't understand the "materiality" requirement as stated here - who makes that determination? Can it be challenged? How would a document withheld as "immaterial" even be flagged for review? Moreover, this language does not seem to be in alignment with ICDR rules. I believe the ICDR rules talk of documents "that are reasonably believed to exist and to be relevant and material to the outcome of the case." ICDR Rules, Article 21.4 (emphasis added). That puts the discovery-requestor in some reasonable control, as it is their belief that is in issue. I believe that relevance is the appropriate standard but in any event this section needs work.

Eighth, the last sentence in the same paragraph in 8 needs some more work, in my opinion. The words "In the extraordinary circumstances where such discovery method(s) are allowed," should be deleted. As I recall, we said that documentary discovery would be permitted - we ruled out depositions, interrogatories, and requests for admission. But allowing documentary discovery would not be an extraordinary circumstance. However, we need to insert, relative to document inspection rights, an explicit reference that will allow a party providing documents for review to seek protection from public disclosure via a protective order in appropriate cases.

And further with respect to this section, there are times when cross-examination is crucial to getting at hard facts. Just as we set a high bar elsewhere, perhaps we can allow depositions in extraordinary cases. It is worth considering and again would require that we find the right phrasing that instructs the panels that these are not for routine application.

Ninth, with respect to 10 (Interim Measures of Protection) I propose that if interim relief is granted ex parte then the other party be given a chance to rebut/overcome that order within a reasonable time. Maybe all we need is clarification here - I read the provision as possibly allowing ex parte decisions, perhaps that is wrong.

Tenth, with respect to 11 (Standard of Review) subparagraph d. - this seems confusing - is the following what we mean?:  the standard of review shall be whether there was a material breach of PTI's obligations to ICANN under the IANA Naming Function Contract, where ICANN has failed to enforce its rights and the alleged breach has resulted in material harm to the Claimant.

Eleventh, with respect to 14 (Appeal ...) why do we exclude the original panel from an en banc review? I realize there are good arguments on both sides but it seems to me that as quasi-juridical officers these panelists can objectively consider what amounts to a reconsideration request and that way the prevailing party does not simply lose the advantage of persuasion that it won below.

David

David McAuley
International Policy Manager
Verisign Inc.
703-948-4154

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