[IOT] Summary Discussion thread #4 - please review and respond.

[Burr, Becky]

Thanks Malcolm.  The standard for telephonic hearings is far short of the
³extraordinary circumstances² test (Currently reads ³if necessary² but
Mike Rodenbaugh has proposed lowering that.) How would you approach
witness cross examination in that situation?


J. Beckwith Burr 
Neustar, Inc. / Deputy
General Counsel & Chief Privacy Officer
1775 Pennsylvania Avenue NW, Washington D.C. 20006
Office: +1.202.533.2932  Mobile: +1.202.352.6367 / neustar.biz
<http://www.neustar.biz>




On 8/29/16, 4:36 PM, "Malcolm Hutty" <malcolm at linx.net> wrote:

>On 29/08/2016 16:15, Burr, Becky wrote:
>> David McAuley has weighed in to support application of the
>> ³extraordinary circumstances² test to BOTH the question of whether or
>> not an in-person hearing is held AND to whether cross examination is
>> permitted.  I know others have different views but not hearing them yet
>> on these emails.
>
>I would have thought that the most obvious reason why the Panel would
>think it necessary to hold a hearing in person would be because they
>wanted the opportunity to examine a witness. So setting up a two-stage
>test (once to allow a hearing, and a second to allow examination of a
>witness) would seem to defeat the most likely purpose.
>
>I recognise ICANN's concern about the cost of flying in witnesses
>(especially if contractors rather than staff, such as EIU). But the
>"extraordinary circumstances test" already sets a very high bar, so I
>think this concern is already protected; I don't see what more we can
>reasonably do other than prohibit witnesses altogether, and I do feel
>very uncomfortable about telling the Panel "Even if you feel it
>essential to achieve a fair outcome, and if you believe the failure to
>hear this witness fundamentally undermines the purpose of the IRP, you
>still may not hear them".
>
>I suppose it's also worth noting that witnesses are not compelled. If a
>party feels that producing their witness is too expensive, they don't
>have to do so. This may put them at a disadvantage if the other party
>has a compelling witness that needs answering, but it's their choice.
>
>But this isn't an issue I want to die in a ditch over, if others disagree.
>
>
>>
>> *J. Beckwith Burr****
>> **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer
>> 1775 Pennsylvania Avenue NW, Washington D.C. 20006
>> *Office:***+1.202.533.2932  *Mobile:***+1.202.352.6367 */**neustar.biz*
>> <http://www.neustar.biz>
>>
>>
>> From: <Burr>, Becky Burr <becky.burr at neustar.biz
>> <mailto:becky.burr at neustar.biz>>
>> Date: Monday, August 22, 2016 at 5:33 PM
>> To: "iot at icann.org <mailto:iot at icann.org>" <iot at icann.org
>> <mailto:iot at icann.org>>
>> Subject: [IOT] Discussion thread #4 (and the last one!)
>>
>>
>> The current draft provides:
>>
>>     "All hearings shall be limited to argument only."
>>
>> This would generally prohibit cross examination of witnesses.  There
>> appear to be a number of views among the IOT.  Several members think
>> that cross examination of witnesses should be permitted as a matter of
>> course, assuming in the case of F2F hearings, that the extraordinary
>> circumstances standard has been met.  In that case, all we need do is
>> drop the language above.
>>
>> Others think that cross-examination should be permitted on a
>> case-by-case basis and only where the requesting party demonstrates that
>> the requested cross-examination would meet the 3 part test for
>> ³extraordinary circumstances.²  The following language would accomplish
>> that
>>
>>         [unless the IRP Panel determines that the party seeking cross
>>         examination of [a] witness[es] has demonstrated that such cross
>>         examination is: (1) necessary for a fair resolution of the
>>         claim; (2) necessary to further the PURPOSES OF THE IRP; /and/
>>         (3) considerations of fairness and furtherance of the PURPOSES
>>         OF THE IRP outweigh the time and financial expense of witness
>>         cross examination.]
>>
>> ICANN continues to have serious concerns about the cost and delay
>> associated with cross examination of witnesses.
>>
>> *J. Beckwith Burr****
>> **Neustar, Inc.***/**Deputy General Counsel & Chief Privacy Officer
>> 1775 Pennsylvania Avenue NW, Washington D.C. 20006
>> *Office:***+1.202.533.2932  *Mobile:***+1.202.352.6367 */**neustar.biz*
>> <http://www.neustar.biz>
>>
>>
>>
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>
>
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