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

Tue Aug 30 04:59:39 UTC 2016

I assume cross-examination to mean questioning by the opposing counsel, not
the panel.

I would also assume the panel can always question a witness whether  or
not they grant the opposing counsel the right to cross-examination.

I have not read any IRP transcripts so I don't know how witnesses are
handled.  In a US civil matter, the witnesses are typically questioned by
the side putting them up ("direct") and then opposing counsel ("cross").
Questions from the bench are unusual. Is that how IRPs work, or is it a
situation where the panel does a lot of questioning of the witness? If it's
the former, Malcolm's thoughts about the panel's reasoning would not seem
on target.

All that said, if there is a hearing with witnesses, I strongly believe
that opposing counsel should always have the right to question them.

Greg

On Monday, August 29, 2016, Burr, Becky <Becky.Burr at neustar.biz> wrote:

> 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 <javascript:;>>
> 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 <javascript:;>
> >> <mailto:becky.burr at neustar.biz <javascript:;>>>
> >> Date: Monday, August 22, 2016 at 5:33 PM
> >> To: "iot at icann.org <javascript:;> <mailto:iot at icann.org <javascript:;>>"
> <iot at icann.org <javascript:;>
> >> <mailto:iot at icann.org <javascript:;>>>
> >> 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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