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Auerbach beats ICANN

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May 7, 2002
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From Brett Fauset's Icann Blog located at icann.blog.us

Auerbach Wins, Court Criticizes ICANN
It's hard to imagine a more complete win than what ICANN Director Karl Auerbach received today from Los Angeles Superior Court Judge Dzintra Janavs. Working from my notes, Judge Janavs' ruling was in three parts: (1) non-confidential records maintained in electronic form shall be delivered to Mr. Auerbach by August 2nd; (2) non-confidential documents maintained in non-electronic form shall be made available for Mr. Auerbach's review in Marina del Rey at a mutually agreeable time before August 9th (and Mr. Auerbach is entitled to request copies of the non-confidential documents); and (3) "Confidential" documents, whether in electronic form or in hard-copy, shall be made available for Mr. Auerbach's review in Marina del Rey at a mutually agreeable time before August 9th. Mr. Auerbach cannot disclose the contents of a document designated "confidential" without giving ICANN at least 10 days notice (and the burden then would fall to ICANN to seek further protective orders preventing disclosure). Mr. Auerbach's access is not conditioned on his signing, or agreeing to abide by, the confidentiality form presented by ICANN.

(That's what my notes reflect, but a written Order and Judgment should issue from the Court later this week.)

The more interesting part of today's hearing was what the Court said from the bench. The Court was very sympathetic to Mr. Auerbach's position as a critic of ICANN and someone who occasionally votes in the minority. Her initial rulings were on the evidentiary objections that Mr. Auerbach made to the Declarations of Stuart Lynn and Vint Cerf. Objections to allegations about Mr. Auerbach's voting record, among other things, were sustained as not being relevent to his ability to access documents. In fact, those allegations may have been counter-productive to what ICANN hoped to accomplish. The Judge acknowledged that Mr. Auerbach was elected precisely because he was a critic of ICANN, and she viewed the California Corporations code as being supportive of the interests of minority Directors.

Judge Janavs was quite concerned about the passage of time since Mr. Auerbach first made his request and the fact that he would be "legislated out of office" in October. She was especially critical of ICANN, and its other Directors, for the fact that it took ten months to come up with a procedure for reviewing documents. This is from my notes (it's close, but not verbatim, to the exchange in Court):

Court: "Ten months to come up with a procedure? This organization has been going since 1998, and still no procedures for access to records? You mean none of these people had ever looked at a single record before Mr. Auerbach's request? That's a sad statement."

ICANN reponded: "Directors are entitled to rely on the work of outside consultants."

Court: "Yeah, we know how far that goes. Taking one's duties seriously means taking, from time to time, the initiative to look at things. Yes, Directors are entitled to rely, but the whole reason for having outside directors is to allow independent inspections."

More soon.
-- Monday, July 29, 2002 --
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