6 Pursuant to Paragraph 201 of the Panel’s Decision on Phase I dated 12 February 2020, ICANN submits herewith the witness statements of Amici NDC and Verisign in order to help ensure that the factual record in this IRP is complete. ICANN does so without endorsing those statements or agreeing with them in full.
195. The conclusions the Panel draws from its review of the provisions of Rule 7, read as a whole, are the following:
• Amici are not treated as parties, unlike interveners or parties whose cases are consolidated.
• Amici do not have a right to access the full record of the IRP, unlike interveners or parties whose cases are consolidated.
• Amici are permitted to submit "written briefings on the DISPUTE or on such discrete questions as the IRP PANEL may request briefing".
• Unlike an intervener, who becomes a Claimant and is bound by the outcome of the IRP, Rule 7 does not provide that an amicus will be bound by the outcome of a case in which it participates, and the Applicant Amici have made clear that they did not accept to be bound by the result of this IRP.
• The provisions of the Interim Procedures relating to Exchange of Information (Rule 8) apply to Parties, and the Panel can find no basis in Rules 7 or 8 for the submission that Afilias may be subject to motions for exchange of documents by the Applicant Amici.
• Nowhere in the Interim Procedures can the Panel find support for the proposition that an amicus allowed to participate in an IRP may be afforded the right to assert claims of its own in the IRP.
200. In the opinion of the Panel, this reasoning applies to the type of broad participation rights that are being sought by the Applicant Amici in this case. To paraphrase the Methanex Tribunal, if the Panel cannot add VeriSign and NDC as parties to the IRP, by granting them intervener status or otherwise, the Panel cannot accept the invitation to achieve this result indirectly, by granting them the rights and privileges of parties while they would not, like parties or interveners, be bound by the Panel’s decision.
202. When all is said and done, it is a striking feature of the Applicant Amici’s requests that while they are seeking the broadest participation rights in respect of what would be the core issues of Phase II, they insist that they would not be bound by the Panel’s decision. The Panel can find no basis in Rule 7 to accede to such requests.
203. Having considered all relevant circumstances, the Panel has decided that the Applicant Amici shall be allowed to participate in this IRP as amici. Except for commercially sensitive or privileged material, the Amici shall be given access to all briefings and materials related to the IRP and shall be allowed to attend procedural and merits hearings. The Panel will shortly hold an early preparatory conference to identify, in consultation with the Parties, the issues that fall to be determined in Phase II. Once those issues have been identified, the Panel will decide, in consultation with the Parties and the Amici, the questions as to which the Amici will be permitted to submit briefings to the Panel, as well as the deadlines, page limits and other modalities of the filing of those briefings and supporting exhibits related to the IRP. The extent to which the Amici will be allowed to supplement their written submissions with oral submissions at the merits hearing will be decided, in consultation with the Parties and the Amici, during the relevant pre-hearing conference(s). The Amici shall bear the full costs of their participation in the IRP.
In its Decision on Phase I, the Panel made clear that, under the Interim Procedures, the Amici are non-disputing parties whose participation in the IRP is through the submission of "written briefings", possibly supplemented by oral submissions at the merits hearing. The Panel also rejected the notion that, under the Interim Procedures, the Amici can enjoy the same participation rights as the disputing parties. It follows that it is for the Parties, who bear the burden of proving their case, to build the evidentiary record of the IRP, and it is based on that record that the Amici "may submit to the IRP Panel written briefing(s) on the DISPUTE or on such discrete questions as the IRP Panel may request briefing" (see Rule 7 of the Interim Procedures).
The Panel expects the Parties, in accordance with the Procedural Timetable, to file the entirety of the remainder of their case as part of the second round of submissions contemplated by the timetable, that is to say, with the Claimant’s Reply and the Respondent’s Rejoinder. As evoked in the Panel’s Decision on Phase I (see par. 201), if there is evidence in the possession of the Amici that the Respondent considers relevant to, and that it wishes to adduce in support of its case, be it witness or documentary evidence, that evidence is required to be filed as part of the Respondent’s Rejoinder, and not with the Amici’s Briefs.
The Panel did not preclude the possibility in its Phase I Decision (and the Procedural Timetable) that the Amici might wish to file documents in support of the submissions to be made in their Briefs. By referring to such documents as "exhibits", however, as other arbitral tribunals have in referring to materials to be filed with the submissions of amicus participants, the Panel did not mean to suggest that these "exhibits" (which the Panel would expect to be few in number, and to be directed to supporting the Amici’s submissions, not the Respondent’s case) would become part of the record and acquire the same status as the documentary evidence filed by the Parties.
• The disputing parties in this IRP are the Claimant and the Respondent;
• It is for the Parties, who bear the burden of proving their case, to build the evidentiary record of the IRP;
• The Amici are non-disputing parties that were granted the limited participation rights of an amicus curiae as provided for in Rule 7; these rights do not include the right to file evidence, whether it be documentary or witness evidence;
• The parties were expected to file the entirety of "their case" (our emphasis) as part of the second round of submissions contemplated by the Revised Procedural Timetable for Phase II;
• The sentence in PO 3 "evidence in the possession of the Amici that the Respondent may consider relevant to, and that it wishes to adduce in support of its case, be it witness or documentary evidence" refers –- in language that the Panel considers non-ambiguous –- to evidence that the Respondent wishes to make its own, and offer "in support of its case" even though it may be in the possession of, and therefore originate from, the Amici. Because this was evidence that the Respondent would choose to adduce in support of its case, PO 3 directed that it was "required to be filed as part of the Respondent’s Rejoinder, and not with the Amici’s Briefs";
• Whatever documents the Amici may wish to file in support of the submissions to be made in their Briefs (which documents the Panel stated it expected to be "few in number and to be directed to supporting the Amici’s submissions, not the Respondent’s case"), these are not ""exhibits" [that] become part of the record and acquire the same status as the documentary evidence filed by the Parties." In the opinion of the Panel, this language both followed from, and reinforced the notion that the Amici as non-disputing parties are not entitled to adduce evidence in this IRP.
Given that ICANN has not fully evaluated the competing contentions of Afilias and the Amici, for reasons ICANN explains at length in its Rejoinder, ICANN is not in a position to identify the portions of the Amici witness statements with which it "agrees or disagrees." But ICANN views it as essential that this evidence be of record, and that the Panel consider it, if the Panel decides to address the competing positions of Afilias and Amici regarding the latter’s conduct.
SoCalGas has done nothing in the present proceedings to place in issue its privileged communications. Nowhere in its CAM application or in the proceedings before the Commission does SoCalGas state that it intends to rely on its attorneys’ advice or state of mind to demonstrate that it acted reasonably when it bought out the Getty contract. It has expressly stated otherwise. Because its attorneys’ advice or state of mind is not in issue, it has not impliedly waived its attorney-client privilege. […]
SoCalGas has represented that it will demonstrate that its buyout was reasonable based on an examination of the contract itself, the economic analysis it relied on to arrive at its decision, and testimony from appropriate witnesses. […] After analyzing this information, the commission can determine what SoCalGas should have known regarding the contract’s validity and decide whether SoCalGas’ buyout was reasonable. SoCalGas, therefore, can meet its burden of proof under the commission’s standard without disclosing its actual legal advice. If the commission decides, after considering all the above evidence, that SoCalGas has not adequately demonstrated that its buyout was reasonable, the commission can disallow recovery of the expense. SoCalGas does not, however, impliedly waive its privilege if it simply fails to make an adequate showing that it acted reasonably. […]
While it is true that the commission, in fundamental fairness to SoCalGas’ ratepayers, must make a careful effort to ascertain whether SoCalGas’ expenses are reasonable, this effort does not have to come at the expense of trampling on SoCalGas’s attorney-client privilege. […] SoCalGas’s actual legal advice may be relevant information, but it is not essential. "Privileged communications do not become discoverable simply because they are related to issues raised in the litigation." […]
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