[IOT] IRP IOT – moving toward first reading of DISCOVERY, EVIDENCE, STATEMENTS issue

[Mike Rodenbaugh]

With respect to Additional Written Statements, it is critical to discuss
and define what is meant by "*showing of a compelling basis for such
request."*

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

On Tue, Oct 24, 2017 at 11:20 AM, McAuley, David via IOT <iot at icann.org>
wrote:

> Dear members of the IRP IOT:
>
>
>
> This email below from Liz presents the latest draft on getting this topic
> to first reading.
>
>
>
> Below Liz’s mail is my original mail on the issue.
>
>
>
> As a little additional context, we are discussing here the rule as
> contemplated by bylaw 4.3(n)(iv)(C) and (D), which state:
>
>
>
> *(iv) The Rules of Procedure are intended to ensure fundamental fairness
> and due process and shall at a minimum address the following elements: …*
>
> *(C)Rules governing written submissions, including the required elements
> of a Claim, other requirements or limits on content, time for filing,
> length of statements, number of supplemental statements, if any, permitted
> evidentiary support (factual and expert), including its length, both in
> support of a Claimant's Claim and in support of ICANN's Response;*
>
> *(D)Availability and limitations on discovery methods; …*
>
> (Note – we have split out the topic of “Hearings” for separate handling.)
>
> These rules deal with what the parties can do. We are not discussing the
> panel’s right to request additional written submissions from parties under
> bylaw 4.3(o)(ii).
>
> Please consider and agree to the mail Liz sent either on list or on our
> next call (Nov. 14 at 19:00 UTC), or if you suggest a change please provide *specific
> language and rationale*.
>
>
>
> Many thanks and best wishes,
>
> David
>
>
>
> David McAuley
>
> Sr International Policy & Business Development Manager
>
> Verisign Inc.
>
> 703-948-4154 <(703)%20948-4154>
>
>
>
> *From:* Elizabeth Le [mailto:elizabeth.le at icann.org]
> *Sent:* Tuesday, October 24, 2017 1:18 AM
> *To:* iot at icann.org
> *Cc:* McAuley, David <dmcauley at Verisign.com>
> *Subject:* [EXTERNAL] Re: [IOT] Discovery, Evidence, Statements issue
> discussion IRP IOT call Oct 5 (19:00 UTC)
>
>
>
> Dear IRP IOT members,
>
>
>
> During our call on 5 October 2017, ICANN organization raised some concerns
> regarding the proposed addition to Rule 6 in so far as it may be
> inconsistent with the rule on joinder.  As promised, below are our proposed
> amendments to the current version that was circulated by David on 4
> October.  David’s proposed additions are in *red* and ICANN
> organization’s proposed revisions are in *blue*.  Also, during the call,
> Kavouss raised some concerns about page limitation for supplemental
> briefing and David asked that we attempt to capture and address this
> concern in our proposed amendments.  The following includes ICANN
> organization’s suggestion on page limitation for additional written
> submissions.
>
>
>
> *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 **persons or entities that meet the standing
> requirement to be a Claimant under the IRP at Section 4.3(b) of the ICANN
> Bylaws and as Defined within these Supplemental Procedures,**parties** upon
> the showing of a compelling basis for such request.  **In the event the
> IRP PANEL grants a request for additional written submissions, any such
> additional written submission shall not exceed 15 pages.*
>
>
>
> Best regards,
>
> Liz
>
>
>
> --
>
> Elizabeth Le
>
> Associate General Counsel, ICANN
>
> 12025 Waterfront Drive, Suite 300
>
> Los Angeles, CA 90094
>
> Direct Dial:  +1 310 578 8902 <(310)%20578-8902>
>
>
>
>
>
>
>
> *From: *<iot-bounces at icann.org> on behalf of "McAuley, David via IOT" <
> iot at icann.org>
> *Reply-To: *"McAuley, David" <dmcauley at verisign.com>
> *Date: *Wednesday, October 4, 2017 at 5:24 AM
> *To: *"iot at icann.org" <iot at icann.org>, "aloup at usc.edu" <aloup at usc.edu>
> *Subject: *[IOT] Discovery, Evidence, Statements issue discussion IRP IOT
> call Oct 5 (19:00 UTC)
>
>
>
> 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[icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system_files_files_draft-2Dirp-2Dsupp-2Dprocedures-2D31oct16-2Den.pdf&d=DwMFAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=3mBfUTvyfqDEumrbzweVIa6qFyeEmDaNE5eHQf9QFdU&m=isNrHaGWPuOK7Q8EC8td30qRmee0LdKO_29uN_4Anwc&s=QELgIUuK8j9P3W-n7pZHtX8nH8tkix_KWKMm4TPa1-0&e=>
> 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[icdr.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icdr.org_icdr_faces_i-5Fsearch_i-5Frule_i-5Frule-5Fdetail-3Fdoc-3DADRSTAGE2025301&d=DwMFAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=3mBfUTvyfqDEumrbzweVIa6qFyeEmDaNE5eHQf9QFdU&m=isNrHaGWPuOK7Q8EC8td30qRmee0LdKO_29uN_4Anwc&s=dFgOT1sBd2cuG5bYizhnOhjlWpOfM7HfVplhPKlkGP8&e=>
> 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 <(703)%20948-4154>
>
>
>
> DotMusic commented[forum.icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_comments-2Dirp-2Dsupp-2Dprocedures-2D28nov16_pdfzqApbhRMhH.pdf&d=DwMFAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=3mBfUTvyfqDEumrbzweVIa6qFyeEmDaNE5eHQf9QFdU&m=isNrHaGWPuOK7Q8EC8td30qRmee0LdKO_29uN_4Anwc&s=JIt4QFsjkGaLZxf_pVMtAoE0pfahUZhF2SyiHTWywi4&e=>,
> 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[forum.icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_comments-2Dirp-2Dsupp-2Dprocedures-2D28nov16_pdfyVMCP8h4dU.pdf&d=DwMFAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=3mBfUTvyfqDEumrbzweVIa6qFyeEmDaNE5eHQf9QFdU&m=isNrHaGWPuOK7Q8EC8td30qRmee0LdKO_29uN_4Anwc&s=TZjJ6qlP2XQkXoaeFdyzhhLD3XTDLtgkHS1wbFor8DA&e=>
> :
>
>
>
> 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[forum.icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_comments-2Dirp-2Dsupp-2Dprocedures-2D28nov16_msg00007.html&d=DwMFAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=3mBfUTvyfqDEumrbzweVIa6qFyeEmDaNE5eHQf9QFdU&m=isNrHaGWPuOK7Q8EC8td30qRmee0LdKO_29uN_4Anwc&s=vFzXfuSkbCENkgwv2yfAvS85kvqlG2UZ3h2p7bp0dTA&e=>:
>
>
>
>
> 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[forum.icann.org]
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__forum.icann.org_lists_comments-2Dirp-2Dsupp-2Dprocedures-2D28nov16_pdfItzWUYHrLU.pdf&d=DwMFAg&c=FmY1u3PJp6wrcrwll3mSVzgfkbPSS6sJms7xcl4I5cM&r=3mBfUTvyfqDEumrbzweVIa6qFyeEmDaNE5eHQf9QFdU&m=isNrHaGWPuOK7Q8EC8td30qRmee0LdKO_29uN_4Anwc&s=OSWWnyuujQiKFZuEZVd92pKK33_DtTyInUbqYqsgMH8&e=>
> :
>
>
>
> *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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>
>
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