[IOT] Discussion thread #4 (and the last one!)

[Mike Rodenbaugh]

Can ICANN substantiate its purported "serious concerns about the cost and
delay associated with cross examination of witnesses?"  In other words,
when has there been such an associated cost, in ICANN's opinion?  ICANN has
fought every time they were asked to provide witnesses, though it has only
been a few times.

To my mind, the issue is not whether there should be cross-examination, but
whether there should be witnesses at all.  If there are witnesses, then of
course they must be subject to cross-examination; otherwise there is no
point in having them at all.  So I think we should focusing on that
slightly broader question whether there should be witnesses at all, rather
than whether any witnesses may be cross-examined.

I think there should be witnesses in any live hearing, as the parties may
agree or as the panel deems relevant and necessary.  There should not be
any "default against" witnesses or cross examination.

Thanks,
Mike

Mike Rodenbaugh
RODENBAUGH LAW
tel/fax:  +1.415.738.8087
http://rodenbaugh.com

On Mon, Aug 22, 2016 at 2:33 PM, Burr, Becky <Becky.Burr at neustar.biz> wrote:

>
> 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 “extraordinary
> circumstances.”  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>
>
> _______________________________________________
> IOT mailing list
> IOT at icann.org
> https://mm.icann.org/mailman/listinfo/iot
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/iot/attachments/20160822/0861f188/attachment.html>