Thanks Jamie. Subject to further comment from the full WG, I think this is where we are as to AGB language:

“deemed necessary to verify the community status of the applicant (the “Limited Research”), provided, however, that the evaluator shall disclose the results of such Limited Research to the applicant and the applicant shall be provided 30 days to respond before the evaluation decision is rendered. When conducting any such Limited Research, panelists are cautioned not to assume an advocacy role either for or against such community status.”

Anne

From: Jamie Baxter <jbaxter@spimarketing.com>
Sent: Thursday, April 30, 2020 6:57 AM
To: Aikman-Scalese, Anne <AAikman@lrrc.com>; McGrady, Paul D. <PMcGrady@taftlaw.com>; gnso-newgtld-wg@icann.org
Cc: Cheryl Langdon-Orr (cheryl@hovtek.com.au) <cheryl@hovtek.com.au>; Kathy Kleiman <kathy@kathykleiman.com>
Subject: Re: [Gnso-newgtld-wg] Community Applications - Independent Research by panelist standards

[EXTERNAL]

Hey Anne

I have spent some time thinking about this and I think the edit you provided to Paul’s original text would suffice. It’s not to say I won’t continue to be uneasy with the notion of evaluator advocacy going forward, especially in cases when its counter-intuitive to the larger interests of the community being evaluated. Ensuring a more transparent CPE process and holding evaluators accountable is the key to improvement, and it appears that is the direction this PDP group is moving in.

Jamie

From: "Aikman-Scalese, Anne" <AAikman@lrrc.com>
Date: Friday, April 24, 2020 at 7:17 PM
To: Jamie Baxter <jbaxter@spimarketing.com>, "McGrady, Paul D." <PMcGrady@taftlaw.com>, "gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org>
Cc: "Cheryl Langdon-Orr (cheryl@hovtek.com.au)" <cheryl@hovtek.com.au>, Kathy Kleiman <kathy@kathykleiman.com>
Subject: RE: [Gnso-newgtld-wg] Community Applications - Independent Research by panelist standards

Thanks Jamie. I don’t think the CPE scoring system that we are supposed to be modifying for use in the next round is geared to only the verification of applicant statements. The scoring system goes to applicant’s community status. You might want to check that document again to see if there are edits you would like to make to the scoring language.

On the second point, I think that goes to the question of the weight of the evidence and that is a question relative to the standard on appeal. It’s one of the reasons I was trying to be careful about how to measure the“clearly erroneous” standard for appeal., i.e. panelist failed to consider material evidence. We could potentially say “evaluator failed to consider and/or accord proper weight to material evidence”?

Anne

From: Jamie Baxter <jbaxter@spimarketing.com>
Sent: Friday, April 24, 2020 4:00 PM
To: Aikman-Scalese, Anne <AAikman@lrrc.com>; McGrady, Paul D. <PMcGrady@taftlaw.com>; gnso-newgtld-wg@icann.org
Cc: Cheryl Langdon-Orr (cheryl@hovtek.com.au) <cheryl@hovtek.com.au>
Subject: Re: [Gnso-newgtld-wg] Community Applications - Independent Research by panelist standards

[EXTERNAL]

Hey Paul & Anne

I think both your edits are improvements.

Ideally I would like to see something that limits the independent research activity to “verifying statements or claims made in the application” and not just to “verify the community status of the applicant.” The later seems to introduce opportunity for advocacy.

I would also like considered a requirement by the evaluators to produce an equal or resounding body of research when countering claims or statements made in an application. This avoids single sourced or fringe views from impeding the larger community interests, and it helps ensure balance and perspective are considered in the decisions.

Thanks

Jamie

From: Gnso-newgtld-wg <gnso-newgtld-wg-bounces@icann.org> on behalf of "Aikman-Scalese, Anne" <AAikman@lrrc.com>
Date: Friday, April 24, 2020 at 5:01 PM
To: "McGrady, Paul D." <PMcGrady@taftlaw.com>, "gnso-newgtld-wg@icann.org" <gnso-newgtld-wg@icann.org>
Cc: "Cheryl Langdon-Orr (cheryl@hovtek.com.au)" <cheryl@hovtek.com.au>, Jamie Baxter <Jamie@dotgay.com>
Subject: Re: [Gnso-newgtld-wg] Community Applications - Independent Research by panelist standards

Paul,

I think you could use this language in the AGB, but I would change the last sentence to “When conducting such Limited Research, panelists are cautioned not to assume an advocacy role either for or against such community status.”

I think “especially aware” is tough to measure and “evidence which a party should have included in its filings” is impossible to judge. I am mindful of the fact that these determinations will now be subject to appeal and that we are laying groundwork for an appeal with this language, e.g. appeal on the grounds that the panelist acted as an advocate in conducting independent research.

Do you intend to set up grounds for appeal with your proposal? Should we be avoiding those grounds and stick to the substance of the community priority decision as demonstrated via objective evidence/research rather than setting up grounds based on a charge of improper conduct on the part of the evaluator?

Thank you,

Anne

From: McGrady, Paul D. <PMcGrady@taftlaw.com>
Sent: Friday, April 24, 2020 12:10 PM
To: Aikman-Scalese, Anne <AAikman@lrrc.com>; gnso-newgtld-wg@icann.org
Cc: Jeff Neuman <jeff.neuman@comlaude.com>; Cheryl Langdon-Orr (cheryl@hovtek.com.au) <cheryl@hovtek.com.au>; Kathy Kleiman <kathy@kathykleiman.com>; Jamie Baxter (jamie@dotgay.com) <jamie@dotgay.com>
Subject: RE: Community Applications - Independent Research by panelist standards

[EXTERNAL]

Thanks Anne.

I think your language is a good start to a compromise. The concern is both knowing what the panelist is looking at and relying on as well as making sure that panelists don’t slip into an advocacy role s/he believes that a particular party is not being very well represented. Even the best of us are vulnerable to confirmation bias from time to time. How about:

“deemed necessary to verify the community status of the applicant (the “Limited Research”), provided, however, that the evaluator shall disclose the results of such Limited Research to the applicant and the applicant shall be provided 30 days to respond ~~to such research~~ before the evaluation decision is rendered. When conducting any such Limited Research, panelists must be especially aware not assume an advocacy role, such as searching for evidence which a party should have already included in its filings.”

Thanks in advance for your thoughts.

Best,

Paul

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From: Aikman-Scalese, Anne <AAikman@lrrc.com>
Sent: Tuesday, April 21, 2020 9:34 AM
To: gnso-newgtld-wg@icann.org; McGrady, Paul D. <PMcGrady@taftlaw.com>
Cc: Jeff Neuman <jeff.neuman@comlaude.com>; Cheryl Langdon-Orr (cheryl@hovtek.com.au) <cheryl@hovtek.com.au>; McGrady, Paul D. <PMcGrady@taftlaw.com>; Kathy Kleiman <kathy@kathykleiman.com>; Jamie Baxter (jamie@dotgay.com) <jamie@dotgay.com>
Subject: RE: Community Applications - Independent Research by panelist standards

Paul,

You wanted to start a small group on this topic, but we have not heard from you as to a counter-proposal. Jamie and Kathy are copied.

Thank you,

Anne

From: Aikman-Scalese, Anne
Sent: Monday, March 30, 2020 7:52 AM
To: gnso-newgtld-wg@icann.org
Cc: 'Jeff Neuman' <jeff.neuman@comlaude.com>; Cheryl Langdon-Orr (cheryl@hovtek.com.au) <cheryl@hovtek.com.au>; McGrady, Paul D. <PMcGrady@taftlaw.com>; 'Kathy Kleiman' <kathy@kathykleiman.com>; Jamie Baxter (jamie@dotgay.com) <jamie@dotgay.com>
Subject: Community Applications - Independent Research by panelist standards

Dear WG,

In light of the short time frame, I am proposing language re the standard for Community Evaluation panelist relying on independent research (proposed limitation from 2012 by Kristine Dorrain and Paul McGrady) as follows:

“deemed necessary to verify the community status of the applicant, provided, however, that the evaluator shall disclose such independent research to the applicant and the applicant shall be provided 30 days to respond to such research before the evaluation decision is rendered.”

Just trying to get the ball rolling on this proposed compromise – noting that a lack of consensus results in a fallback to 2012 implementation.

In addition, I think I have missed the proposed revisions to the Community Guidelines for scoring. Jeff, was this sent around again?

Thank you,

Anne

Anne E. Aikman-Scalese

Of Counsel

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