Flip J. Petillion (Petillion, Huizingen, Belgium), counsel for Claimant, Namecheap, Inc. (“Namecheap” or “Claimant”)
Jan Janssen (Petillion, Huizingen, Belgium), counsel for Claimant
Jeffrey A. LeVee (Jones Day, Los Angeles, CA), counsel for Respondent, Internet Corporation for Assigned Names and Numbers (“ICANN” or “Respondent”)
Kelly Ozurovich (Jones Day, Los Angeles, CA), counsel for Respondent
Casandra Furey (Associate General Counsel, ICANN)
Amy A. Stathos (Deputy General Counsel, ICANN)
Glenn P. Hendrix, Chairman of the Independent Review Panel (the “Panel”)
Grant L. Kim, Panel Member
Christof Siefarth, Panel Member
Tom Simotas, International Centre for Dispute Resolution (“ICDR”)
The hearing was adjourned at approximately 11:30 am Pacific Time. By agreement of the parties, the hearing was recorded.
i. For Namecheap Request No. 1, ICANN proposes an end date in November 2019, but its proposed beginning date is not indicated. It is our understanding that ICANN is proposing to search ESI for certain email custodians for documents and communications regarding the modification and/or removal of the price control provisions in the 2019 .org, .info, and .biz registry agreements.
a. How far back will those ESI searches go?
b. What is that date tied to? The date that ICANN staff began considering modification or removal of the price control revisions? The date that the ICANN board began considering modification or removal of the price control revisions? The date that ICANN began discussing the possible modification or removal of the price control revisions with the registry operators? The date that ICANN began negotiating the possible modification or removal of the price control revisions with the registry operators? Some other date?
c. As to documents related to the .org, .info, and .biz registry agreements prior to 2019, is there some narrow subset of documents related to the most recent prior agreements, such as final executed agreements and/or external communications between ICANN and the registries, upon which the parties could agree?
ii. In connection with Namecheap Request No. 3, is Namecheap still asserting a claim for relief regarding the proposed (but now withdrawn) change of control of PIR [Public Interest Registry]? (We understand that Namecheap contends that the proposed change of control could have motivated the removal of price controls, but this strikes the Panel as different from asserting a claim for relief in connection with the proposed change of control.) If Namecheap is not asserting a claim for relief in connection with the formerly-proposed/withdrawn change of control, why shouldn't the Panel accept ICANN's proposal to produce documents and communications regarding the proposed change in control only to the extent that these documents and communications also refer to the modification and/or removal of the price control provisions in the 2019 .org, .info, and .biz registry agreements?
iii. Have the parties discussed possible ESI custodians and search terms? Would agreement on custodians and search terms perhaps moot some of the disagreements regarding the scope of ICANN's ESI production?
iv. In connection with Namecheap's Request No. 2, ICANN states that it “does not maintain as a matter of course some of the data Namecheap seeks.” Does ICANN maintain any of the data? For Namecheap, how would the historical data that it is seeking aid the Panel in assessing whether the removal of price controls for the .org, .info, and .biz registry agreements violated ICANN's Articles of Incorporation or Bylaws?
v. Does Namecheap have any non-privileged documents that it can produce in response to ICANN's Requests 1 and 2 (regarding alleged harm)?
a. If ICANN were granted leave to file a motion to dismiss for lack of standing, would Namecheap seek to present any documents (aside from one or more expert reports) opposing that motion?
b. We understand that Namecheap stated at the hearing before the Emergency Arbitrator that it was willing to provide an affidavit explaining why the removal of price controls causes harm to Namecheap. Would it be helpful to set a date for Namecheap to produce such a document at this point, so that ICANN could then make a decision as to whether to challenge Namecheap's standing?
vi. Regarding ICANN's Request No. 3, it is the Panel's understanding that Namecheap is willing to provide the requested price information. Why are all notifications and communications associated with price changes also necessary? Could the scope be narrowed?
vii. How, if at all, does the standard of review to be applied by the Panel in its ultimate decision on the merits impact the scope of disclosure? The Emergency Arbitrator Decision applied the business judgment rule set forth in Section 4.3(i)(iii) of the ICANN Bylaws, which provides that “(f)or Claims arising out of the Board's exercise of fiduciary duties, the IRP Panel shall not replace the Board's reasonable judgment with its own so long as the Board's action or inaction is within the realm of reasonable business judgment.” It appears that the Claimant argued for a different standard, relying at least in part on ICM Registry v. ICANN, ICDR Case No. 50,117 T 00224 08 (2010). The Panel does not wish to sidetrack the hearing tomorrow with argument regarding which standard is proper in this case (although we will need to tackle that issue at some point), but is interested in whether the parties' views on the standard of review affect in any way their views on the scope of disclosure.
On the motion of either Party and upon finding by the IRP PANEL that such exchange of information is necessary to further the PURPOSES OF THE IRP, the IRP PANEL may order a Party to produce to the other Party, and to the IRP PANEL if the moving Party requests, documents or electronically stored information in the other Party's possession, custody, or control that the Panel determines are reasonably likely to be relevant and material to the resolution of the CLAIMS and/or defenses in the DISPUTE and are not subject to the attorney-client privilege, the work product doctrine, or otherwise protected from disclosure by applicable law (including, without limitation, disclosures to competitors of the disclosing person, group or entity, of any competition-sensitive information of any kind).
IRP Procedures, Rule 8 (emphasis added).
In carrying out its Mission, ICANN shall be accountable to the community for operating in accordance with the Articles of Incorporation and these Bylaws, including the Mission set forth in Article 1 of these Bylaws. This Article 4 creates reconsideration and independent review processes for certain actions as set forth in these Bylaws and procedures for periodic review of ICANN's structure and operations, which are intended to reinforce the various accountability mechanisms otherwise set forth in these Bylaws, including the transparency provisions of Article 3 and the Board and other selection mechanisms set forth throughout these Bylaws.
ICANN Bylaws, Section 4.1 (emphasis added).
• Subject to applicable privileges, the Panel may order the disclosure of documents or electronically stored information (ESI) that:
o are reasonably likely to be relevant and material to the resolution of the claims and/or defenses in the dispute; and
o are not subject to the attorney-client privilege, the work product doctrine, or otherwise protected from disclosure by applicable law (including disclosures to competitors).
• The Panel is charged with endeavoring to avoid unnecessary delay and expense while at the same time avoiding surprise, assuring equality of treatment, and safeguarding each party's opportunity to present its claims and defenses fairly. In doing so, the Panel considered the need for proportionality. This involves balancing the disclosure necessary for a fair search for truth—which may fall short of an idealized notion of perfection (for example, complete and full disclosure of each and every conceivably relevant document)—against the burden and cost of disclosure. The Panel applied this principle in the rulings in the Appendices where it denied all or part of a request on the ground that the requested documents may be only marginally relevant and material relative to the burden of production.
• International arbitration “norms” are generally applicable here, although there is no single international arbitration “norm” regarding the scope of disclosure. As stated in one widely-cited treatise, it is “impossible to identify a single ‘standard' approach to disclosure in international arbitration.” GARY BORN, INT'L COMM. ARB. (2nd ed.), at 2346 (2014). “Nevertheless, there is an emerging consensus among experienced arbitrators and practitioners that a measure of document disclosure is desirable in most international; disputes. Justice is almost always best served by a degree of transparency, which brings the relevant facts before the arbitrators.” Id. Even so, the scope of disclosure in international arbitration is narrower than in U.S. civil litigation, and the Panel has been guided in part by that consideration here. The reference in the Appendices to “GDPR or other privacy laws” also takes into account the international character of this IRP proceeding.
• ICANN is obligated to act in an “open and transparent manner” and, indeed, one of the purposes of an IRP proceeding, including this matter, is ensuring that ICANN is accountable to the Internet community, including in connection with “the documentation and public disclosure of the rationale for decisions made by the Board and ICANN's constituent bodies.” That obligation, together with the fact that the sole issue in this proceeding is whether ICANN complied with its Articles of Incorporation and Bylaws, means that disclosure will necessarily be somewhat asymmetrical, with ICANN sustaining a heavier burden than Namecheap.
o The locations that will be searched for relevant ESI;
o The persons (custodians) likely to possess relevant ESI; and
o The methods to be used to collect ESI. For example, will search terms be used, or will the parties use predictive coding or computer assisted review? If search terms are used, what are they? What process will be used to test the search terms to determine whether relevant ESI is likely to be identified by using the proposed search protocol? (At a minimum, the producing party should verify that documents already identified as relevant are included in the search results.)
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