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

[Malcolm Hutty]

On 29/08/2016 16:15, Burr, Becky wrote:
> David McAuley has weighed in to support application of the
> “extraordinary circumstances” 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
> “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
>


-- 
             Malcolm Hutty | tel: +44 20 7645 3523
    Head of Public Affairs | Read the LINX Public Affairs blog
  London Internet Exchange | http://publicaffairs.linx.net/

                  London Internet Exchange Ltd
            Monument Place, 24 Monument Street London EC3R 8AJ

          Company Registered in England No. 3137929
        Trinity Court, Trinity Street, Peterborough PE1 1DA