[IOT] Discovery, Evidence, Statements issue discussion IRP IOT call Oct 5 (19:00 UTC)

[McAuley, David]

Dear members of the IRP IOT,



Let's address the public comments on Discovery, Evidence, Statements on our call this Thursday (19:00 UTC).



Background.



The public comments in this area are shown at the bottom of this mail.



The Draft Updates to ICDR Supplementary Procedures<https://www.icann.org/en/system/files/files/draft-irp-supp-procedures-31oct16-en.pdf> address Written Statements in section 6 (pages 7-8) and Discovery Methods in section 8 (pages 8-9).



Other sections are relevant as well, such as section 5 (Conduct of the Independent Review, pages 6-7).



The primary ICDR rules<https://www.icdr.org/icdr/faces/i_search/i_rule/i_rule_detail?doc=ADRSTAGE2025301> applicable in this area appear to be Articles 20 (Conduct of Proceedings) and 21 (Exchange of Information) (although others may also apply, such as Article 22 on Privilege). (Care should be exercised in accessing these rules inasmuch as they appear in the same publications as rules for mediation.)



Brief summary of comments:



I suggest you read the public comments in their entirety.



They express, in my personal opinion, various concerns with:



*       Deadline issues on submitting written statements and the impact it might have on what is submitted;
*       Limits on numbers of pages (25 pages written statements);
*       Ability to reply, not just on expert witness statements;
*       More expansive discovery allowed in rules, not just at panel discretion;
*       Allowance of certain depositions, interrogatories, and requests for admission;
*       Ability to produce confidential documents;
*       Sanctions power (or consequences) for non-compliance.



(This is by no means comprehensive.)



Recommendation:



I recommend an addition into Rule 6 as follows (where the red, underlined language is the addition).



6. Written Statements



The initial written submissions of the parties shall not exceed 25 pages each in argument, double-spaced and in 12-point font. All necessary and available evidence in support of the Claimant's Claim(s) should be part of the initial written submission. Evidence will not be included when calculating the page limit. The parties may submit expert evidence in writing, and there shall be one right of reply to that expert evidence. The IRP PANEL may request additional written submissions from the party seeking review, the Board, the Supporting Organizations, or from other parties. In addition, the IRP PANEL may grant a request for additional written submissions from the party seeking review, the Board, the Supporting Organizations, or from other parties upon the showing of a compelling basis for such request.



Otherwise, with respect to Rule 8, Discovery Methods, I recommend no change. The rule directs the panel to be guided by considerations of accessibility, fairness, and efficiency (both as to time and cost) in considering discovery requests. This leaves the matter to the panel, where it will be better handled than by us trying to imagine a context to fix. I also note that ICDR Article 21 states that depositions, interrogatories, and requests to admit are not appropriate for these arbitrations. Article 21.5 deals with exchanging confidential information. We should keep in mind that the IRP is not just for US lawyers and it is meant to be streamlined and efficient.



Best regards,



David



David McAuley

Sr International Policy & Business Development Manager

Verisign Inc.

703-948-4154



DotMusic commented<https://forum.icann.org/lists/comments-irp-supp-procedures-28nov16/pdfzqApbhRMhH.pdf>, saying, among other things:



New Rule 6. Written Statements: The requirement to file "all necessary and available evidence" should be removed from the Supplementary Procedures entirely in light of the short deadline to initiate IRP proceedings as well as the reality that both parties should be entitled to file at least one additional set of responsive pleading with such factual and legal support as they deem appropriate.



Furthermore, this requirement contradicts with the new requirement in New Rule 5, which requires that all evidence must be submitted in writing "[X] days" in advance of any hearing. Such a requirement indicates that additional "necessary and available evidence" can be submitted after the initial written submissions and before the hearing.



Further, the Rules must provide for a right of reply that is not limited only to expert evidence. As currently drafted, the Requestor is entitled to only a single, 25-page submission filed simultaneously with its Notice of IRP and one right of reply to expert evidence.



New Rule 8. Discovery Methods: The request for discovery is a basic facet of requiring equality of arms between the parties in international arbitration and should not be consigned to the discretion of the of the IRP Panel as a matter of principle but instead the IRP Panel should be required to rule on both parties individual requests for discovery and whether such requests are relevant and material to the claims advanced in the arbitration. In accordance with this, there should not be a complete bar on all depositions, interrogatories, and requests for admission.



Additionally, consider whether it would be appropriate to make reference to the International Bar Association (IBA) Rules on the Taking of Evidence in International Arbitration given the reference in the May 2016 Bylaws to developing "clear published rules for IRP . . . that conform with international arbitration norms . . . ." Alternatively, discovery rules could also be drawn from the IBA Rules on the Taking of Evidence.



INTA commented<https://forum.icann.org/lists/comments-irp-supp-procedures-28nov16/pdfyVMCP8h4dU.pdf>:



4. Certain Discovery Methods Should be Allowed based on a Good Faith Need for Information



USP Rule 8 provides that "depositions, interrogatories, and requests for admission will not be permitted." INTA is concerned that a blanket prohibition on depositions, interrogatories and requests for admission will prevent a claimant from discovering facts that are necessary to its case. INTA believes that witness testimony and interrogatories are important methods of discovery that should not be peremptorily ruled out. Claimants preparing claims of this nature are unlikely to have all the necessary facts in their possession, and in some cases the facts will be difficult to acquire through the documentary discovery outlined in USP Rule 8. To ensure fairness and allow for adequate discovery, INTA recommends that a claimant be given an opportunity to demonstrate a good faith need for either a deposition or interrogatories based on the standard used to determine whether a witness is necessary at the hearing, namely, that the deposition or interrogatory requests (1) are necessary for a fair resolution of the claim; (2) are 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 the deposition and/or interrogatory requests. INTA would support that a limited number of requests for admissions be allowed. Moreover, the Updated Supplemental Rules permit relevant and material documents to be withheld on the nebulous grounds that the documents are "otherwise protected from disclosure by applicable law."



INTA believes that the reference to other "applicable law" is too vague and could encompass, for instance documents that are subject to a confidentiality agreement. In addition, this standard allows parties to forum shop and re-locate documents to jurisdictions that have laws protecting disclosure of documents outside of international legal norms. INTA recommends that, to the extent documents are subject to confidentiality restrictions, that the parties should be able to produce documents subject to a protective order. Moreover, INTA suggest striking "otherwise protected from disclosure by applicable law" and replacing it with "otherwise protected from disclosure by a valid order of a court with competent jurisdiction."



Richard Hill commented<https://forum.icann.org/lists/comments-irp-supp-procedures-28nov16/msg00007.html>:



Regarding article 6, Written Statements, I do not support page limits on

briefs.  Pursuant to the fundamental right to be heard, parties should be

free to submit briefs of whatever length they consider appropriate. (This

comment also applies to the last paragraph of article 7.)



The RySG commented<https://forum.icann.org/lists/comments-irp-supp-procedures-28nov16/pdfItzWUYHrLU.pdf>:



Discovery With respect to Sec. 8 (Discovery Methods) -- The panel should have the power to allow other forms of discovery on a limited basis if it deems appropriate, and also should have sanctions power to compel compliance or to provide consequences for non-compliance.





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