[Gnso-epdp-team] Request for independent legal counsel to assist the EPDP

Alan Greenberg alan.greenberg at mcgill.ca
Sun Oct 7 21:20:41 UTC 2018

Thanks Kurt,

I was hesitant to jump in here, not on the 
substance of the benefits of legal counsel, but on the implementation.

Having sat through the CWG-IANA Stewardship and 
the CCWG-Accountability, where we went through 
tens of millions of dollars of outside legal 
fees, not all of it wisely (in my opinion), the 
details of how we do this are crucial.  A few points:

- If the outside counsel is a firm that ICANN has 
not already dealt with, the delays in 
establishing that relationship can be problematic 
(as they might have been with the outside 
facilititator if it was not an already contracted firm)

- As you implied, open-ended vague questions get 
the same in return, and while they may provide 
options, provide little certainty.

- Having someone sitting in out meetings and 
reading all of our e-mail not only has the 
results you imply, but is bloody expensive.

- Exactly who makes the choices of when and how 
to use counsel will be important.

Certainly burned by the earlier experiences, 
ICANN is going to be leary if we do not have a clear plan.


At 07/10/2018 03:54 PM, Kurt Pritz wrote:
>Thanks, Stephanie (and to those who collaborated on this).
>We have anticipated this request since the 
>meeting in Los Angeles but our thinking on how 
>to best execute on it has not fully evolved. Nor 
>does the request provide the information 
>necessary to write the Statement of Work 
>necessary to procure the requisite skill set.
>In order to rapidly create that document in a 
>form to everyone’s satisfaction, I am asking 
>the Support team to set up an Adobe Connect room 
>for early in the week for anyone interested so 
>that we can jointly form a statement of work. 
>I’d like to schedule it at a time convenient 
>for Rafik, who has been attending calls at 
>midnight and 6AM everyday. I would ask 
>interested members of the EPDP team to provide 
>bullets that describe the legal expertise required.
>Without opining on the legal expertise and 
>knowledge requirement, here is what I am for and 
>not for as far as the operational aspects of this procurement.
>I think that appropriate legal expertise will 
>increase our effectiveness / efficiency. The 
>charter (rightly or wrongly) asks us to make a number of legal determinations,
>I am for a reserved resource that can provide 
>detailed, on-point, written responses to written 
>questions within 24 hours of receipt. If 
>necessary, we can request an in-person briefing on a specific issue.
>I am not for having an attorney attend all our 
>meetings, whether they be telephonic or 
>face-to-face. Here is my rationale for this:
>1) Orally-posed questions are often poorly 
>formed and not sufficiently well-considered to 
>elicit the desired information. The legal 
>response is often “it depends.” Written 
>questions require appropriate reflection on the 
>desired information and will serve to promote an 
>understanding of an issue across the entire group.
>2) A corollary to the point above, vaguely 
>worded questions, combined with on-hand counsel 
>are likely to result in time-consuming back-and 
>forth discussion. We attend meetings to discuss 
>policy, not legal issues. (It goes without 
>saying - but I cannot help myself - that outside 
>counsel will have the incentive to extend such discussions.)
>3) The Heisenberg Uncertainty Principle. The 
>mere act of observing any event will affect that 
>event. I believe, especially after witnessing 
>some of the IANA transition / accountability 
>discussions that this principle applies to ICANN 
>discussions. I.e., having on-hand counsel would 
>change the nature and content of our discussions - and retard progress.
>4) Cost - benefit. Most all of us have employed 
>outside counsel and with good reason - to 
>provide specialized expertise when needed. It is 
>likely we will have periods where there are more 
>legal questions and then periods where there are 
>not. I do think we have a duty to act in a 
>fiscally responsible way and employ outside 
>counsel in the same way that we would do in our own organizations.
>I believe that using outside counsel as outlined 
>here is the most effective and efficient path for our group.
>I hope you find this constructive.
>Best regards,
>>On Oct 5, 2018, at 4:14 PM, Stephanie Perrin 
>><<mailto:stephanie.perrin at mail.utoronto.ca>stephanie.perrin at mail.utoronto.ca> 
>>Hello everyone, please find attached a request 
>>to hire outside counsel with expertise in data 
>>protection law, to assist us with the analysis 
>>on the EPDP.  The RySG, RrSG, and NCSG 
>>representatives on the EPDP are all in support 
>>of this proposal, which as you know was 
>>foreseen in the Charter and in our earlier GNSO discussions.
>>Thank you.
>>Stephanie Perrin
>><EPDP note re EPDP Counsel.docx>
>Gnso-epdp-team mailing list
>Gnso-epdp-team at icann.org
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