ICANN Registration Restrictions Dispute Resolution Procedure (RRDRP)

The Internet Corporation for Assigned Names and Numbers (ICANN) is the not-for-profit corporation with participants from the world over dedicated to keeping the internet secure, stable and interoperable. It promotes competition and develops policy on unique identifiers. ICANN's RRDRP is intended to address circumstances in which a community-based "New gTLD" Registry Operator deviates from the registration restrictions outlined in its Registry Agreement. This rubric addresses circumstances in which a New gTLD deviates from community-based restrictions. A "community-based" gTLD is one operated for the benefit of a clearly delineated community, restricting the individuals and entities that may register domains in the gTLD. To have standing, the complainant must show that it is an established institution associated with a defined community related to the gTLD string at issue. Complainants must establish that the defined community consists of a restricted population that the gTLD supports. To maintain a successful claim, they must prove that the gTLD operator violated its own community-based restrictions in its registry agreement and that there is a measurable harm to the complainant and the community at issue. Under the RRDRP, parties are encouraged-- but not required-- to participate in informal negotiations or mediation at any time throughout the dispute resolution process. However, the conducting of any such settlement negotiation is not, standing alone, a reason to suspend any deadline under the proceedings. See more information here-- http://bit.ly/1uDKgS3 and http://bit.ly/ZmV0JR

Save the Date (5/14) for E-Neutrals in E-Discovery Disputes CLE

Last fall, the Supreme Court of Florida approved proposed E-discovery rules for state cases. The court adopted amendments to case management to include ESI. The new rules will affect the state’s diverse legal community of trial attorneys. They aim to streamline case management, but they will also impose unfamiliar burdens on practitioners who are new to E-discovery. Neutral third parties, such as special magistrates (formerly masters in FL) and mediators, may be able to assist in these instances. I will be speaking in conjunction with the Orange County Bar Association's Intellectual Property and Technology Committees who are presenting an afternoon CLE called "Florida's New E-Discovery Rules and Best Practices for All Cases: Taming the ESI Beast," on May 14, 2013 in Orlando. My topic before joining a panel on best practices is entitled, "Using E-Neutrals to Limit the Cost of E-Discovery." For the uninitiated, “E-neutrals” can help shape discovery plans, allocate costs and suggest and create efficiencies that may not have existed in litigation. Our services are not limited to grappling with old or new rules, or to discovery disputes. The course description states, "Lawrence Kolin, an Orlando lawyer and full-time mediator, chaired the Florida Bar subcommittee that drafted these rules. In his CLE, he will present how neutrals can help litigants navigate e-discovery pitfalls and resolve expensive battles before they arise. The course material quotes me: “In resolving these issues, I focus parties on the merits, rather than using E-discovery as a sword or shield,” states Kolin. “Mediation of ESI disputes is an avenue that can present parties with significant cost-savings through self-determination, if performed early enough in the litigation.” I hope you will join me! Contact Marie West-- mariew@ocbanet.org for registration or see http://orangecountybar.org/calendar.asp for more information.

Join me March 1, 2013 for E-Discovery Conference

I'll be speaking on the following panels at next week's ACEDS annual E-Discovery Conference: What Florida’s Bouts with New E-Discovery Rules Teach Lawyers and Corporations Florida’s first ever rules for discovery of electronically stored information in civil courts just took effect. They caused a sea change in the way the state’s many trial attorneys practice, and have imposed novel burdens on the Florida court system, parties in litigation, visiting litigants, and the multitude of large and small businesses inhabiting the state. The rules have created some efficiencies in civil procedure, but they have also tested the infrastructure of county and circuit courts from Pensacola to Key West. Though Florida is not one of the first to join the E-discovery fray, its legal and corporate diversity, division of rural and metropolitan areas, and abundance of international businesses make it a melting pot that lawyers, rulemakers, and E-discovery professionals nationwide and at the federal level are eying closely. What new liabilities and opportunities have the rules created, and how can you learn from them? Where are lawyers, litigants and judges most vulnerable to the perils of electronic evidence? What tools and services do you need to excel at E-discovery as the volume of your client’s data balloons? How can you navigate the rules to reduce costs? Can mediation by an E-Neutral save money? And how do you protect against E-discovery malpractice? On this panel, legal experts from across the state, including the attorneys who crafted the rules, will give you important lessons gleaned from this unsettled legal terrain. Double-Edged Sword of Social Media-- Boost Your Bottom Line While Avoiding Risk As Facebook hits one billion global users and Twitter approaches a half billion, it’s safe to say that social media is here to stay. Some organizations and law firms have embraced it for the unique marketing and networking avenues it affords, and the business it can drive. Others pass on its benefits because of the clear reputational and legal risks it presents. Social media can open doors to engage stakeholders and potential clients, but it is hard to monitor and even tougher to incorporate into existing information governance frameworks. The stakes are high. When the threat of a lawsuit strikes, it is crucial to know who is saying what, where it is located, and how to preserve and collect it for litigation. How can you use social media to drive business success, while reigning in the dangers it presents? What does an effective employee social media policy look like, and how can you integrate it with compliance policies that are already in place? How do you govern social media in the cloud? What are the best ways to preserve, collect, and produce social media? And how do you decide which methods are best? In this panel, e-discovery and technology experts from top organizations and law firms show you how to use and regulate social media in a way that is safe, effective, and profitable. More about the E-Discovery conference here: http://www.ediscoveryconference.com/panels

Apple and HTC bury handset hatchet, will others?

Apple and HTC this week announced a broad ten-year licensing agreement that settles all lawsuits between the smartphone makers. Last spring, a Delaware court ordered Apple and HTC to meet before Labor Day in the hopes that they could shake hands and put an end to an escalating legal battle through mediation. Apple's CEO, Tim Cook, while reportedly not a fan of lawsuits, did take the Samsung patent case to trial this year. HTC of Taiwan was eager to eliminate handset shipping delays stemming from Apple's court wins. The global settlement to their patent battle includes current and future patents held by both companies. HTC agreed to pay Apple $6 to $8 in licensing fees for each Android phone it sells, estimated at as much as $280 million to be paid to Apple annually from HTC's expected shipments. Apple first sued HTC for infringing on patents related to the iPhone in 2010, as part of the war against Google Android phones and its manufacturing partners declared by Apple’s founder Steve Jobs. Apple and HTC have since fought in courts around the world, with Apple winning multiple decisions. Industry experts comment that the terms of this agreement could be used as a blueprint for future settlements with other Android manufacturers, including Samsung and Motorola. See more at http://on.mash.to/Tuu42k and http://engt.co/JjLjlm

New gTLD Objections and Dispute Resolution

Because recent new generic top level domain names or gTLDs opened by ICANN will likely lead to violations of existing trademarks, an objection period and dispute resolution process have been implemented. The objection period is provided to protect existing rights and interests. However, objections must be filed directly with selected Dispute Resolution Service Providers or DRSPs, not with ICANN. Grounds for objection include: “String Confusion,” i.e., if confusingly similar to existing TLD or another applied-for GTLD, to be filed with ICDR; “Legal Rights" objection, to filed with World Intellectual Property Organization or WIPO; “Limited Public Interest” objection to be invoked when the applied-for GTLD string goes against generally accepted legal norms of morality and public order under principles of international law, to be filed with the International Center of Expertise of the International Chamber of Commerce; and finally, “Community Rights” objections, e.g., substantial opposition to a GTLD application from a significant portion of the community that the GTLD string is targeting, filed with the International Center of Expertise of the International Chamber of Commerce. Within 30 days of the closing of the objections filing window, ICANN will post Dispute Announcements and notify DRSPs to begin the objection proceedings. For details on the procedure, including fees and response deadlines see - http://newgtlds.icann.org/en/program-status/objection-dispute-resolution and http://newgtlds.icann.org/en/applicants/agb/guidebook-full-04jun12-en.pdf

ODR - Online Dispute Resolution

I listened to a live streaming broadcast on http://www.blogtalkradio.com regarding Understanding the Benefits of Online Dispute Resolution. This show was produced for Cyberweek 2011 - the annual virtual conference dedicated to the innovations and developments of ODR by the Werner Institute at Creighton University via ADRHub.com. This show broadly discussed how online dispute resolution processes are used to deal with disputes. Some examples were the voluminous complaints associated with eBay customers and vendors. Other elements of the discussion were geared toward using technology to communicate with mediation participants and even software for moving the positions of the parties. While this may work well in some contexts, I find that the parties' physical presence is integral to the process and must occur in certain types of disputes. Face to face meetings with the help of the facilitator can be crucial in cases involving personal injury and small business. The broadcast outlined various forms of ODR processes, and the benefits and challenges to using virtual communications, including email and Skype. The show, hosted by Texas mediator, Pattie Porter, contained highlights from ODR experts in the field Dan Rainey, Colin Rule, and Noam Ebner. It appears we are increasingly utilizing technology in ADR, but perhaps not yet on the verge of virtual mediation. Some longtime services like CyberSettle have found success in limited areas, such as a computer-assisted system for settling insurance claims. However, for thousands of years, the personal interaction of the neutral third-party mediator working directly with the parties has been essential to the process and will likely remain a part of modern dispute resolution.

Steve Jobs unsuccessful before death in personal appeal to end Samsung litigation

Samsung has been engaged in international patent wars with Apple over mobile devices, seeking injunctions in several countries regarding phones and tablets. Yesterday's death of Apple co-founder, Steve Jobs, may have ended any hope that CEOs (as the true decision makers in these disputes) could end them short of the courthouse. In fact, as Jobs lay dying, Samsung apparently filed two lawsuits in Europe to block the sale of the newly launched Apple iPhone 4S. While Jobs already personally tried to fix the situation by calling Samsung in an appeal to avoid a messy legal battle and to avoid a parts supply problem for Apple's iPad, he failed. This was not done under the formality of a confidential mediation which could have served to set parameters for negotiation and a process by which a facilitator could ease the tension between the parties, while working on achieving a creative solution that would benefit all in a post-PC and now post-Jobs era. Unfortunately, Jobs' death will eliminate at least one avenue to resolution that is utilized by mediators in their negotiation toolbox, which prevents the posturing of litigators and seeks direct dialogue between the head honchos-- face to face. Jobs' successor at Apple, Tim Cook, now might play a role in settling the ongoing technology dispute, but likely lacks the larger-than-life influence of Jobs. See story here: http://tinyurl.com/3gg9rzu

Big enough guns with full authority?

In a pending patent infringement case between Oracle and Google, the judge recently ordered the parties to identify "top corporate executives" to participate in mediation. It seems the litigation is now focused on who those folks would be, with Oracle now complaining that none other than Google Android's very developer is not good enough! Google offered to send SVP Andy Rubin of mobile to meet Oracle President Safra Catz to resolve Oracle's patent lawsuit over Java code incorporated into Android. Oracle objects that Rubin is not senior enough to make the decisions needed for a successful mediation and claims he actually caused problem in the first place by infringing. In an unusual move involving the court in mediation participants before the conference, a letter was written to the judge, complaining of Google's corporate representative choice. It seems reminiscent though not a corollary of Apex-type deposition fights. Should a judge be in charge of what decision makers attend mediation or does that necessarily affect self-determination of the parties? Is a party's designated representative even subject to challenge in a seemingly premature manner, when the mediation has not even commenced and no issue on authority has been properly raised? See story: http://bit.ly/mPH2gN