INTERNATIONAL CENTRE for DISPUTE RESOLUTION Independent Review Process Panel Namecheap, Inc. Claimant, Case Number: 01-20-000

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INTERNATIONAL CENTRE FOR DISPUTE RESOLUTION Independent Review Process Panel

Namecheap, Inc.

Claimant, Case Number: 01-20-0000-6787

- and -

Internet Corporation for Assigned Names and Numbers (ICANN)

Respondent.

PROCEDURAL ORDER NO. 5 (Ruling on the Parties’ Motions to Compel Disclosure)

Procedural Background

1. As provided in Procedural Order No. 1, the parties timely served their respective disclosure requests and responses and objections. The parties attempted to informally resolve the objections, including through videoconferences between lead counsel, but were unable to reach agreement on a number of issues. As provided in Procedural Order No. 2, the parties thus submitted motions to compel the disclosure of documents that the other party refused to produce (on November 4, 2020), followed by responses to those motions (on November 24, 2020).

2. On December 2, 2020, at 8:00 a.m. Pacific Time, a hearing was conducted via Zoom videoconference on the parties’ motions to compel disclosure. The following individuals participated:

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 2

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.

3. In addition to legal memoranda supporting their respective motions to compel and opposing the motion to compel submitted by the other party, the parties prepared charts similar to “Redfern Schedules” reflecting, for each document request, a description of the documents requested, the parties’ respective positions on the request, and any resolutions reached during the course of the meet-and-confer process.

4. Prior to the hearing, on December 1, 2020, the Panel submitted the following questions to the parties in connection with the motions to compel:

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 3

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? 4

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. The Panel’s Rulings 5. Appendix A and Appendix B to this Order set forth the Panel’s rulings on each disputed disclosure request submitted by ICANN and Namecheap, respectively. Both Appendices were issued to the parties in advance of this Order, on December 18, 2020.

6. The starting point for the Appendices was the Redfern Schedules prepared by the parties. The Panel’s rulings were inserted into the final column of each schedule.

7. The following provides further explanation and context for the rulings in the Appendices.

General Principles

8. Rule 8 of the ICANN Interim Supplementary Procedures for ICANN Independent Review Process (the “IRP Procedures”) provides:

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 5

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).

9. The ICDR Rules provide that the Panel may “require a party to make available to another party documents in that party’s possession not otherwise available to the party seeking the documents, that are reasonably believed to exist and to be relevant and material to the outcome of the case.” ICDR Arbitration Rules, Art. 21(4). The ICDR Rules provide further that the Panel and the parties “should endeavor 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.” Id., Art. 21(1).

10. The ICANN Bylaws provide that the independent review process (“IRP”) is intended to “[l]ead to binding, final resolutions consistent with international arbitration norms that are enforceable in any court with proper jurisdiction.” ICANN Bylaws, Section 4.3(a)(viii).

11. The ICANN Bylaws contain numerous references to transparency, including Section 3.1, which provides that “ICANN and its constituent bodies shall operate to the maximum extent feasible in an open and transparent manner …” and that “ICANN shall also implement procedures for the documentation and public disclosure of the rationale for decisions made by the Board and ICANN's constituent bodies.”

12. Regarding IRP proceedings, specifically, Section 4.1. of the ICANN Bylaws provides that:

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). 6

13. Distilling the foregoing:

 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 7

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.

“Reasonable Search”

14. Certain rulings in the Appendices direct the parties to conduct a “reasonable search” for documents. In conducting a reasonable search for ESI, the parties shall meet and confer regarding ESI protocols addressing at least the following issues:

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.)

15. Each party shall provide the other party with the ESI protocols it intends to use by January 8, 2021, with any objections to be filed by January 22, 2021.

Relevant Time Periods

16. Except as otherwise specified in Appendix B, the relevant time period for ICANN’s production is generally deemed to be January 1, 2018 through November 18, 2019. ICANN indicated during the December 2, 2020 hearing that discussions with the .ORG, .INFO and .BIZ registry operators began in May 2018. The Panel is establishing a January 1, 2018 beginning date to better capture documents and ESI that may reflect internal deliberations or communications, if any, prior to discussions with the registry operators.

17. For certain requests to ICANN (e.g., Nos. 1.r., 2.1. and 2.t.), the Panel has limited ICANN’s obligation to conduct an ESI search to the period of January 1, 2018 through November 18, 2019, but nonetheless requires that ICANN conduct a reasonable inquiry to identify responsive documents and ESI outside that period. Such inquiry shall, at a minimum, include interviews with relevant ICANN staff. If ICANN prefers to supplement such inquiry through e-searches, it may of course do so. 8

18. As specified in Appendix A, the relevant time period for Request No. 10 in Namecheap’s production is March 18, 2019 through November 18, 2019. The starting date is not symmetrical with the relevant time period for much of ICANN’s production because March 18, 2019 is when ICANN first invited public comments on the possibility of removing price controls and thus the first time that Namecheap would have been aware of the proposal.

Further Disclosure

19. Namecheap requests 2.n., 2.o., 2.p., and 2.q. seek certain data. These requests presently stand denied, but the Panel is potentially open to requiring production, subject to better understanding: 1) the precise data sought by Namecheap and precisely how that data would be utilized by its expert(s) as evidence regarding whether ICANN violated its Articles of Incorporation or Bylaws; 2) whether that data is reasonably available to ICANN; 3) if so, the burden to ICANN of producing that data; 4) whether equivalent data is reasonably available to Namecheap from sources other than ICANN; and 5) whether the data constitutes confidential commercial information or trade secrets of registries or other registrars (or, indeed, competition-sensitive information of any kind, as protected in the IRP Procedures, Rule 8). In the event Namecheap wishes to continue pursuing these requests, Namecheap shall promptly initiate a meet-and-confer process with ICANN to discuss the foregoing factors. If the parties are unable to reach agreement, Namecheap may apply to the Panel by no later than January 15, 2021 for an order to resolve any disputed issues. To be clear, however, the Panel is not encouraging Namecheap to do so, as any such further disclosure will further delay the proceedings, and it is not at all clear at the present time that the requested data will assist the Panel in deciding this matter.

20. As reflected in Appendix B, the Panel also denied several other Namecheap requests “absent a further particularized showing of relevance, materiality and need.” Namecheap may re-propound those requests upon such a particularized showing. Again, the Panel is not encouraging Namecheap to do so, especially in the absence of any new information that was not previously available, as any such further disclosure might further delay the proceedings and, based on the information presently available, the information sought in these requests strikes the Panel as only marginally relevant, if at all.

The PIR Change of Control

21. During the hearing, Namecheap’s counsel advised in response to the Panel’s Question ii. (see Paragraph 4 above) that it was, in fact, still asserting a claim for relief regarding the proposed (but since withdrawn) change of control of the .ORG registry operator (PIR). ICANN then requested leave from the Panel to submit a motion to dismiss the allegations in Namecheap’s IRP Request regarding the proposed change 9 of control of PIR. Such leave was granted (as reflected in Procedural Order No. 3) and a briefing schedule was established.

22. Several disclosure requests relate to the PIR change of control. As reflected in the Appendices to this Order, the Panel defers ruling on those requests pending a ruling on the motion to dismiss.

Other

23. The parties shall be precluded from relying on documents in the merits phase of this proceeding that were responsive to disclosure requests, but that they did not produce, except upon a compelling showing of good cause. This ruling does not encompass documents that do not already exist and that are created specifically for the hearing, such as expert reports and demonstrative exhibits.

As at Los Angeles, California, USA December 24, 2020

FOR THE PANEL:

Glenn P. Hendrix Chair Appendix A

Appendix A

Panel Rulings on ICANN’s Requests for the Production of Documents (Disputed Requests Only)

NOTE: Only the “Panel Ruling” in Column 5 (entered in bold type) was drafted by the Panel. The remaining information in the Schedule was prepared by the parties.

Description of ICANN’s Position Regarding Namecheap Response or Objection No Requested Relevance and Materiality to the (Pre-Meet-and-Confer) ICANN Reply/Panel Ruling Document Outcome of the IRP 1 All documents The documents sought by this request are Namecheap does not object to the ICANN Reply: or relevant and material to the Panel’s production of documents that are communications determination of whether Namecheap relevant to the assessment of Namecheap has effectively refused referring to or constitutes a “Claimant” under ICANN’s Namecheap’s actual or potential harm as to produce any documents in reflecting the Bylaws, specifically whether Namecheap a result of the ICANN’s policy changes response to this Request. alleged harm has “suffer[ed] an injury or harm that is concerned (in particular the removal of Namecheap objected that Namecheap has directly and causally connected to the the price control provisions in responsive documents are suffered or will alleged violation.” Bylaws, Art. IV, the .ORG, .INFO, and .BIZ Registry protected by the work product suffer as a result § 4.3(b)(i) (RM-2). Agreements). At the same time, doctrine. Namecheap then agreed of removal of Namecheap questions how ICANN’s to produce “qualitative and the price control In its Request for IRP, Namecheap claims request is relevant and material to quantitative data reflecting provisions in that it “has suffered direct harm as a determining whether Namecheap Namecheap’s harm” but only in the .ORG, .INFO result of” ICANN’s alleged breaches of its qualifies as a Claimant. connection with “a comprehensive , and .BIZ Articles of Incorporation and Bylaws, and study, that will be commissioned.”1 Registry that Namecheap “is an ICANN-accredited Arguments showing Namecheap’s harm Namecheap is presumably Agreements. registrar that is directly impacted by have already been exchanged in the referring to an expert report it will [ICANN’s] decision.” Request for IRP framework of Namecheap’s request for submit with its pre-hearing brief, ¶¶ 1, 2. But Namecheap fails to identify emergency relief. Yet, in those well after 1 April 2021. ICANN is what harm it has purportedly suffered (or proceedings, ICANN objected to the moving to compel all responsive,

1 Ex. B, at pp. 1–2; Ex. D, at p. 2. {01334971}

will suffer). ICANN has therefore argued production of an affidavit in redacted non-privileged documents that Namecheap is not a Claimant under form, showing monetary and potential responsive to this Request. the Bylaws because it has not established monetary harm and which was based on that it suffered any harm as a direct result information that was publicly disclosed Panel’s Ruling: of ICANN’s conduct. Response to by the proposed acquirer of Public Request for IRP ¶¶ 40–44. Accordingly, Interest Registry, the operator of .ORG. Procedural Order No. 3 requires this request seeks documents that are It seems that ICANN is now seeking the Namecheap to make an relevant to determining what harm (if production of documents that evidentiary submission any) Namecheap has suffered or likely Namecheap offered to produce in the articulating the harm that will suffer, and are material to framework of these emergency supports its claim of standing determining whether Namecheap proceedings. under the ICANN Bylaws, and qualifies as a Claimant. sets a schedule for ICANN to file The Emergency Arbitrator already ruled a motion to dismiss for lack of This request also seeks documents that that Namecheap has suffered harm that standing, which has been updated are relevant to whether Namecheap’s is directly and causally connected to the by Procedural Order No. 4. claims in this IRP are valid. Therefore, alleged violation. If the motion to dismiss is granted this request seeks documents relevant and as to the removal of price controls, material to Namecheap’s central claims in Namecheap intends to quantify its harm. the Panel expects that this request this IRP and ICANN’s defenses. However, such quantification can only will be moot, unless ICANN can be done effectively after ICANN has demonstrate that it is not moot. These documents are not in ICANN’s produced the information that possession, custody, or control, but are in Namecheap requested from ICANN in If the motion to dismiss is not Namecheap’s possession, custody, or its request for document production. granted and the harm caused by control, as only Namecheap can explain the removal of price controls the purported harm it has or will suffer. As a result, Namecheap objects to remains relevant (as stated by the having to respond to ICANN’s request Panel in its ruling on the motion before ICANN has provided the to dismiss), Namecheap shall information that Namecheap has produce any other pre-existing, requested. non-privileged documents that Namecheap contends supports its In addition, Namecheap objects to the claim of standing as to the request for documents or removal of price controls in communications as phrased by ICANN. accordance with the schedule in {01334971}

Namecheap submits that ICANN’s Procedural Order No. 2. request is vague and does not describe Namecheap shall be precluded in sufficient detail a narrow and specific from relying on documents that it category of documents. It would be does not produce, except upon a overly burdensome for Namecheap compelling showing of good having to search for all documents or cause. This ruling does not communications reflecting Namecheap’s encompass documents that do not harm. There is no plausible benefit that already exist and are created ICANN can expect from Namecheap specifically for the purpose of having to submit all documents or showing standing, such as expert communications that reflect reports. Any expert reports and Namecheap’s harm. other specially created documents shall be submitted in accordance Finally, Namecheap objects to this with the schedule in Procedural request to the extent it seeks documents Order No. 2. or communications that are privileged or

that contain confidential or commercially sensitive documentation.

Namecheap proposes to submit documents showing financial projections and monetary harm in redacted form. Namecheap is amenable to a protective order that allows for the submission of confidential documents in unredacted form, but protecting them from being viewed by anyone else other than the IRP Panel and ICANN’s outside counsel of record.

{01334971}

2 All documents ICANN maintains that Namecheap’s Namecheap incorporates by reference its ICANN Reply: or claims regarding ICANN’s consideration response to Request No. 1 above. communications and/or rejection of the change of control Namecheap has effectively refused referring to or request are moot, given that ICANN did to produce any documents in reflecting the not consent to the change of control response to this Request. alleged harm request. ICANN intends to raise this Namecheap objected that Namecheap has objection in response to Namecheap’s responsive documents are suffered or will requests for production and/or through a protected by the work product suffer as a result motion to dismiss these claims. To the doctrine. Namecheap then agreed of ICANN’s extent the IRP Panel allows Namecheap to to produce “qualitative and consideration pursue these claims, ICANN propounds quantitative data reflecting and/or rejection this request to preserve its right to seek Namecheap’s harm” but only in of the change of information pertaining to Namecheap’s connection with “a comprehensive control request. claims. If the Panel determines that the study, that will be commissioned.”2 issue is moot (and denies Namecheap’s Namecheap is presumably requests for production regarding this referring to an expert report it will claim and dismisses this claim altogether), submit with its pre-hearing brief, then ICANN will withdraw this request. well after 1 April 2021. ICANN is moving to compel all responsive, The documents sought by this request are non-privileged documents relevant and material to the Panel’s responsive to this Request. determination of whether Namecheap constitutes a “Claimant” under ICANN’s Panel’s Ruling: Bylaws, specifically whether Namecheap has “suffer[ed] an injury or harm that is As noted in Procedural Order No. directly and causally connected to the 3, the Panel has granted ICANN’s alleged violation.” Bylaws, Art. IV, request for leave to file a motion § 4.3(b)(i) (RM-2). to dismiss Namecheap’s allegations regarding change of In its Request for IRP, Namecheap claims control. The Panel defers a ruling that it “has suffered direct harm as a on this document request until

2 Ex. B, at pp. 1–2; Ex. D, at p. 2. {01334971}

result of” ICANN’s alleged breaches of its after it decides ICANN’s motion Articles of Incorporation and Bylaws, and to dismiss, since granting that that Namecheap “is an ICANN-accredited motion would appear to moot this registrar that is directly impacted by request. [ICANN’s] decision.” Request for IRP ¶¶ 1, 2. But Namecheap fails to identify what harm it has purportedly suffered (or will suffer). ICANN has argued that Namecheap is not a Claimant under the Bylaws because it has not established that it suffered any harm as a direct result of ICANN’s conduct. Response to Request for IRP ¶¶ 40–44. Accordingly, this request seeks documents that are relevant to determining what harm (if any) Namecheap has suffered or likely will suffer and are material to determining whether Namecheap qualifies as a Claimant.

This request also seeks documents that are relevant to whether Namecheap’s claims in this IRP are valid. Therefore, this request seeks documents relevant and material to Namecheap’s central claims in this IRP, and ICANN’s defenses.

These documents are not in ICANN’s possession, custody, or control, but likely are in Namecheap’s possession, custody, or control, as only Namecheap can explain the purported harm it has or will suffer. {01334971}

3 Documents The documents sought by this request are Namecheap is prepared to collect ICANN Reply: sufficient to relevant and material to the Panel’s information that shows the prices that show the prices determination of whether Namecheap the .ORG, .BIZ and .INFO registry ICANN accepts Namecheap’s that constitutes a “Claimant” under ICANN’s operators have charged Namecheap for agreement to produce information the .ORG, .BIZ, Bylaws, specifically whether Namecheap registrations in the .ORG, .BIZ that shows the prices that and .INFO has “suffer[ed] an injury or harm that is and .INFO TLDs from 1 January 2015 to the .ORG, .BIZ and .INFO registry registry directly and causally connected to the the present. operators have charged operators have alleged violation.” Bylaws, Art. IV, Namecheap for registrations in charged § 4.3(b)(i) (RM-2). However, this information is the .ORG, .BIZ, and .INFO TLDs Namecheap for commercially sensitive and highly from 1 January 2015 to the present. registrations in In its Request for IRP, Namecheap claims confidential. Therefore, pricing the .ORG, .BIZ, that it “has suffered direct harm as a information can only be submitted, Namecheap refuses to produce and .INFO result of” ICANN’s alleged breaches of its subject to protection from being viewed communications from TLDS from 1 Articles of Incorporation and Bylaws, and by anyone else than the IRP Panel and the .ORG, .BIZ, and .INFO registry January 2015 to that Namecheap “is an ICANN-accredited ICANN’s outside counsel of record. operators regarding registration or the present, registrar that is directly impacted by Without such protection, Namecheap renewal pricing. ICANN is including but [ICANN’s] decision.” Request for IRP objects to the production of information moving to compel all notifications not limited to all ¶¶ 1, 2. But Namecheap fails to identify that shows the prices that the .ORG, .BIZ and communications from notifications and what harm it has purportedly suffered (or and .INFO registry operators have the .ORG, .BIZ, and .INFO registry communications will suffer). ICANN has argued that charged Namecheap for registrations in operators regarding registration or from Namecheap is not a Claimant under the the .ORG, .BIZ and .INFO TLDs from 1 renewal pricing from 1 January the .ORG, .BIZ, Bylaws because it has not established that January 2015 to the present. 2015 to the present. and .INFO it suffered any harm as a direct result of registry ICANN’s conduct. Response to Request Namecheap also objects to collecting and Panel’s Ruling: operators for IRP ¶¶ 40–44. producing all notifications and regarding communications from the .ORG, .BIZ Namecheap has agreed to registration or The documents requested here are and .INFO registry operators regarding produce, and is hereby ordered to renewal pricing. relevant to determining whether registration or renewal pricing. From produce, documents that are the .ORG, .BIZ, and .INFO registry ICANN’s Request No. 3 and its sufficient to show the prices that operators increased the prices they charge explanation as to why the requested the .ORG, .BIZ and .INFO registry Namecheap for Registry Services after the documents would be relevant, it is clear operators have charged price control provisions were removed that ICANN is looking for the prices Namecheap for registrations in from the Registry Agreements. It also registry operators charge and have the .ORG, .BIZ and .INFO TLDs {01334971}

seeks documents relevant to determining charged Namecheap. It is not necessary from 1 January 2015 to the present, whether the registry operators historically to have access to all notifications and subject to appropriate protections charged the maximum price allowed communications from registry operators of confidentiality. under the Registry Agreements. to establish the prices registry operators Accordingly, this request seeks charge and have charged. In this context, ICANN’s request to produce all documents that are relevant to it would be unnecessarily burdensome notifications and communications determining what harm (if any) to search for and produce all such from the .ORG, .BIZ, and .INFO Namecheap has suffered or likely will notifications and communications. registry operators regarding suffer, and are material to determining registration or renewal pricing is whether Namecheap qualifies as a denied, except to the extent that Claimant. Namecheap intends to rely on such notifications and This request also seeks documents that communications. If Namecheap are relevant to whether Namecheap’s intends to rely on any such claims in this IRP are valid. Therefore, notifications and communications, this request seeks documents relevant and then it shall produce all material to Namecheap’s central claims in responsive notifications and this IRP and ICANN’s defenses. communications. If Namecheap does not produce any such These documents are not in ICANN’s notifications and communications, possession, custody, or control, but are it shall be precluded from later likely in Namecheap’s possession, relying on such documents, except custody, or control, as only Namecheap upon a compelling showing of knows the prices that the registry good cause. operators charge Namecheap.

5 Documents The documents sought by this request are Namecheap questions the relevance of ICANN Reply: sufficient to relevant and material to the Panel’s Request No. 5. The new gTLDs show the prices determination of whether Namecheap identified by ICANN in this request are Namecheap agreed to produce “a that registry constitutes a “Claimant” under ICANN’s not the subject-matter of the present complete and accurate overview” operators have Bylaws, specifically whether Namecheap dispute. The new gTLDs are also not of the prices that registry operators charged has “suffer[ed] an injury or harm that is comparable to the legacy TLDs that are have charged Namecheap for the Namecheap for directly and causally connected to the the subject of this dispute. noted TLDs from 1 January 2015 to {01334971}

the following alleged violation.” Bylaws, Art. IV, the present.3 ICANN accepts TLDs from 1 § 4.3(b)(i) (RM-2). As a result, Namecheap objects to Namecheap’s agreement. January 2015 to Request No. 5, as they lack sufficient the present, In its Request for IRP, Namecheap claims relevance to the case or materiality to its Namecheap refuses to produce including but that it “has suffered direct harm as a outcome. communications from the not limited to result of” ICANN’s alleged breaches of its respective registry operators any notifications Articles of Incorporation and Bylaws, and Nevertheless, Namecheap reserves the regarding registration or renewal and that Namecheap “is an ICANN-accredited right to collect the information requested pricing. ICANN is moving to communications registrar that is directly impacted by and to produce it at its own volition, compel notifications and from the [ICANN’s] decision.” Request for IRP provided that the information is communications from the registry registry ¶¶ 1, 2. But Namecheap fails to identify protected from being viewed by anyone operators regarding registration or operators what harm it has purportedly suffered (or else than the IRP Panel and ICANN’s renewal pricing for the noted TLDs regarding will suffer). ICANN argues that outside counsel of record. Without such from 1 January 2015 to the present. registration or Namecheap is not a Claimant under the protection, Namecheap objects to the renewal Bylaws because it has not established that production of information that shows Panel’s Ruling: pricing: .ICU, .X it suffered any harm as a direct result of the prices that the .ORG, .BIZ and .INFO YZ, .TOP, .SITE, ICANN’s conduct. Response to Request registry operators have charged Namecheap has agreed to .ONLINE, .CLU for IRP ¶¶ 40–44. Namecheap for registrations in produce, and is hereby ordered to B, .VIP, .APP, .S the .ORG, .BIZ and .INFO TLDs from 1 produce, a complete and accurate HOP, .WORK, . The documents requested here are January 2015 to the present. overview of the prices that BUZZ, relevant to determining whether registry operators have charged and .LIVE. the .ORG, .BIZ, and .INFO registry In any event, Namecheap objects to Namecheap for the noted TLDs operators charge Namecheap lower prices collect and produce all notifications and from 1 January 2015 to the present. for Registry Services compared to registry communications from the gTLD registry ICANN’s request to produce all operators for other TLDs, and relates to operators identified under Request No. 5 notifications and communications whether Namecheap has enjoyed regarding registration or renewal from the registry operators artificially low prices for .ORG, .BIZ, pricing. From its Request No. 5 and its identified in this request and .INFO Registry Services. ICANN explanation as to why the requested regarding registration or renewal identified the 12 TLDs with the highest documents would be relevant, it is clear pricing is denied, except to the domain count that Namecheap offers. that ICANN is looking for the prices extent that Namecheap intends to Accordingly, this request seeks registry operators charge and have rely on such notifications and

3 Ex. D, at p. 2. {01334971}

documents that are relevant to charged Namecheap. This pricing communications. If Namecheap determining what harm (if any) information can be collected without intends to rely on any such Namecheap has suffered or likely will having to search through all notifications and communications, suffer, and are material to determining notifications and communications from then it shall produce all whether Namecheap qualifies as a registry operators. In this context, it responsive notifications and Claimant. would be unnecessarily burdensome to communications. If Namecheap search for and produce all such does not produce any such This request also seeks documents that notifications and communications. notifications and communications, are relevant to whether Namecheap’s it shall be precluded from later claims in this IRP are valid. Therefore, relying on such documents, except this request seeks documents relevant and upon a compelling showing of material to Namecheap’s central claims in good cause. this IRP and ICANN’s defenses.

These documents are not in ICANN’s possession, custody, or control, but likely are in Namecheap’s possession, custody, or control, as only Namecheap knows the prices that registry operators charge Namecheap. 9 All documents The documents sought by this request are Namecheap objects that ICANN’s ICANN Reply: and relevant and material to the Panel’s request for ‘[a]ll documents and communications determination of whether Namecheap communications referring to or reflecting ICANN amended this Request as referring to or constitutes a “Claimant” under ICANN’s any actual or potential changes’ is follows: “Communications with reflecting any Bylaws, specifically whether Namecheap overbroad. Namecheap has hundreds of registrants of second-level domains actual or has “suffer[ed] an injury or harm that is thousands of customers. It would be in the .ORG, .BIZ, and .INFO TLDs, potential directly and causally connected to the unreasonably burdensome for related to modification and/or changes to alleged violation.” Bylaws, Art. IV, Namecheap to produce all documents removal of the price control Namecheap’s § 4.3(b)(i) (RM-2). and communications with all of these provisions in the .ORG, .BIZ, relationships, customers whenever there is a change to and .INFO Registry Agreements agreements, or In its Request for IRP, Namecheap claims the terms of the registration agreement. from 1 May 2018 to the present.”5

5 Ex. A, at p. 4; Ex. C, at p. 2. {01334971}

contracts with that it “has suffered direct harm as a registrants of result of” ICANN’s alleged breaches of its Moreover, many of these documents and Namecheap’s responses during the second-level Articles of Incorporation and Bylaws, and communications includes personal data meet-and-confer process have been domains in that Namecheap “is an ICANN-accredited that is protected under the General Data vague, such that ICANN cannot the .ORG, .BIZ, registrar that is directly impacted by Protection Regulation4 or other determine what documents and .INFO [ICANN’s] decision.” Request for IRP applicable privacy laws. Namecheap is agreeing to TLDs, related to ¶¶ 1, 2. But Namecheap fails to identify produce.6 ICANN is moving to modification what harm it has purportedly suffered (or There is no legal basis for disclosing this compel documents responsive to and/or removal will suffer). ICANN argues that information and the redaction of this Request as modified. of the price Namecheap is not a Claimant under the virtually all documents and control Bylaws because it has not established that communications with all of Panel’s Ruling: provisions in it suffered any harm as a direct result of Namecheap’s customers would be the .ORG, .BIZ, ICANN’s conduct. Response to Request unreasonably burdensome. Namecheap Namecheap shall provide a and .INFO for IRP ¶¶ 40–44. further objects to this request to the written stipulation on or before Registry extent it calls for privileged information. January 15, 2021, that identifies Agreements. The documents requested are relevant to links for all versions of the determining whether Namecheap has Notwithstanding and without waiving template contracts that suffered any harm in its relations with the above objections, Namecheap states Namecheap has offered to registrants of second-level domains as a that the contracts that Namecheap offers registrants of second-level result of the removal of the price control to registrants of second-level domains domains in the .ORG, .BIZ., provisions in the .ORG, .BIZ, and .INFO are made publicly available on and .INFO TLDs, and certifies that Registry Agreements. The extent to Namecheap’s website, available at the links are active and include which the relationships between https://www.namecheap.com. Previous complete and accurate copies of Namecheap and the relevant registrants contracts may be available via the such contracts. In the alternative, has changed, if at all, will demonstrate the Internet Wayback Machine at Namecheap may, at its option, impact of the removal of the price control https://web.archive.org. This produce copies of those contracts provisions on Namecheap. Accordingly, information can thus be collected by by the same date. this request seeks documents that are ICANN. The information that is thus ICANN’s request for other relevant to determining what harm (if publicly available is sufficient for documents referring to or

4 Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), OJ L 119, 4.5.2016, pp. 1–88. 6 See Ex. B, at p. 3; Ex. D, at p. 3. {01334971}

any) Namecheap has suffered or likely ICANN’s stated purpose in requesting reflecting any actual or potential will suffer, and are material to this information. Hence, Namecheap changes to Namecheap’s determining whether Namecheap objects to produce any information relationships, agreements, or qualifies as a Claimant. beyond what is publicly available at contracts with such registrants is https://www.namecheap.com and denied, except to the extent that This request also seeks documents that https://web.archive.org. Namecheap intends to rely on are relevant to whether Namecheap’s such actual or potential changes. claims in this IRP are valid. Therefore, If Namecheap intends to rely on this request seeks documents relevant and such actual or potential changes, it material to Namecheap’s central claims in shall produce all responsive this IRP, and ICANN’s defenses. documents. If Namecheap does not produce any such responsive These documents are not in ICANN’s documents, it shall be precluded possession, custody, or control, but from later relying on such likely are in Namecheap’s possession, documents, except upon a custody, or control, as only Namecheap compelling showing of good can explain whether the relationships cause. have changed.

ICANN’s Position Description of Regarding Namecheap Response or Relevance and No Requested Objection ICANN Reply/Panel Ruling Document Materiality to the (Pre-Meet-and-Confer) Outcome of the IRP 10 All documents Namecheap claims in its Namecheap objects to Request ICANN Reply: and Request for IRP that No. 10, as it would be communications ICANN removed the unreasonably burdensome to Namecheap’s responses during the meet-and-confer process have referring or price control provisions produce all documents and been vague, such that ICANN cannot determine what documents related to the despite public communications referring or Namecheap is agreeing to produce.7 ICANN is moving to compel

7 See Ex. B, at p. 3; Ex. D, at p. 3. {01334971}

modification to, comments raising related to the modification to, documents responsive to this Request for the time period from 1 and/or removal concerns about removal and/or removal of, the price May 2018 to the present. of, the price of the price control control provisions. control provisions. See, e.g., Panel’s Ruling: provisions in Request for IRP ¶¶ 25, The requested documents and the .ORG, .INFO 41–42. Namecheap also communications risk to Namecheap shall perform a reasonable search and produce non- , and .BIZ claims that it “strongly include personal data that is public, non-privileged communications with registrants and Registry opposed removal of protected under the General other registrars that relate or refer to comments to ICANN Agreements, the” price control Data Protection Regulation or concerning modification to, and/or removal of, the price control including but provisions. Id., Section other applicable privacy laws. provisions in the 2019 .ORG, .INFO, and .BIZ Registry not limited to III.C. This request seeks There is no legal basis for Agreements, including, but not limited to any efforts to communications documents that either disclosing this information encourage, solicit, or lobby for the submission of such with registries, support or disprove that and the redaction of virtually comments. registrants, or Namecheap and the all documents would be Such communications may be redacted to the extent mandated other registrars Internet community unreasonably burdensome. by the GDPR or other privacy laws. referring or were opposed to Namecheap further objects to related to the removal of the price Request No. 10 to the extent it The time period shall be March 18, 2019 through November 18, modification to, control provisions. It calls for the production of 2019. The ending date is the same time limitation imposed with and/or removal also seeks documents privileged information. regard to a number of Namecheap’s requests to ICANN, and of the price relevant to whether which ICANN has suggested. The starting date is the date that control Namecheap has Nevertheless, Namecheap ICANN first appears to have invited public comments on the provisions in suffered or will suffer reserves the right to collect possibility of removing price controls. the .ORG, .BIZ, any harm as a result of non-privileged information This request is otherwise denied; provided, however, that in the and .INFO removal of the price responsive to this request and event Namecheap intends to rely on communications with third Registry control provisions. to produce it at its own Agreements. parties regarding the modification to, and/or removal of, the Accordingly, this volition in redacted form. price control provisions in the 2019 .ORG, .INFO, and .BIZ request seeks Registry Agreements (including, but not limited to, complaints documents relevant and Namecheap is also willing to from Namecheap customers), Namecheap shall produce copies material to share in a further submission of all communications with such third parties that relate or refer Namecheap’s central its analysis of complaints, to the modification to, and/or removal of, the price control claims in this IRP, public comments, etc., provisions in the 2019 .ORG, .INFO, and .BIZ Registry ICANN’s defenses, and showing concerns and strong Agreements. whether Namecheap opposition about the removal {01334971}

qualifies as a Claimant of the price cap provisions. under the Bylaws.

These documents are not in ICANN’s possession, custody, or control, but likely are in Namecheap’s possession, custody, or control, as Namecheap likely maintains such documents in the ordinary course of business.

ICANN’s Position Description Regarding Namecheap Response or Objection No of Requested Relevance and (Pre-Meet-and-Confer) ICANN Reply/Panel Ruling Document Materiality to the Outcome of the IRP 11 All Namecheap claims in its Namecheap objects to Request No. 11, as it ICANN Reply: documents Request for IRP that would be unreasonably burdensome to search Namecheap’s responses during the meet-and-confer and ICANN removed the for and produce all documents and process have been vague, such that ICANN cannot communicati price control provisions communications that reflect complaints, be it determine what documents Namecheap is agreeing to ons that despite public comments complaints about the modification to, and/or produce.8 ICANN is moving to compel documents reflect raising concerns about removal of, the price control provisions or responsive to this Request for the time period from 1 complaints removal of the price complaints about price increases, resulting May 2018 to the present. (either formal control provisions. See, from any such modification and/or removal. or informal) e.g., Request for IRP Panel’s Ruling: Namecheap has hundreds of thousands of made by ¶¶ 25, 41–42. Namecheap customers and a customer support team that This request is denied; provided, however, that if

8 See Ex. B, at p. 3; Ex. D, at p. 3. {01334971}

actual or also claims that it is available 24/7. Namecheap’s customer Namecheap seeks to rely on communications with potential “strongly opposed support team handles customer requests third parties regarding the modification to, and/or second-level removal of the” price constantly. Namecheap’s customer support removal of, the price control provisions in the domain control provisions. Id., team is consulted on a wide variety of topics, 2019 .ORG, .INFO, and .BIZ Registry Agreements customers Section III.C. This request with actual or potential customers (e.g., why (including, but not limited to, complaints from regarding the seeks documents that can’t I access my account?, how can I increase Namecheap customers), Namecheap shall produce modification either support or my web hosting data limits?, etc.). copies of all communications with such third parties to, and/or disprove that Namecheap that relate or refer to the modification to, and/or It would be unreasonably burdensome to removal of, and the Internet removal of, the price control provisions in the search all documents and communications the .ORG, .IN community were opposed 2019 .ORG, .INFO, and .BIZ Registry Agreements. and filter those documents and FO, and .BIZ to removal of the price communications that reflect complaints made price control control provisions. It also by actual or potential second-level domain provisions. seeks documents relevant customers regarding the modification to, to whether Namecheap and/or removal of, the .ORG, .INFO, and .BIZ has suffered or will suffer price control provisions. any harm as a result of removal of the price Furthermore, the requested documents and control provisions. communications risk to include personal data Accordingly, this request that is protected under the General Data seeks documents relevant Protection Regulation or other applicable and material to privacy laws. There is no legal basis for Namecheap’s central disclosing this information and the redaction claims in this IRP, of virtually all documents would be ICANN’s defenses, and unreasonably burdensome. Namecheap whether Namecheap further objects to the request to the extent it qualifies as a Claimant calls for the production of privileged under the Bylaws. information. These documents are not Nevertheless, and without waiving the in ICANN’s possession, foregoing objections, Namecheap reserves the custody, or control, but right to collect non-privileged information likely are in Namecheap’s responsive to this request and to produce it at possession, custody, or its own volition in redacted form.

{01334971}

control, as Namecheap Namecheap is also willing to share in a likely maintains such further submission its analysis of complaints, documents in the public comments, etc., showing concerns and ordinary course of strong opposition about the removal of the business. price cap provisions.

{01334971}

Appendix B Appendix B

Panel Rulings on Namecheap’s Requests for the Production of Documents

This schedule contains the following information:

• Column 1, #: Namecheap’s document request number. • Column 2, Documents or Category of Documents Requested: Namecheap’s Requests as modified during the meet-and- confer process; the underlining in various requests was done by Namecheap. • Column 3, Namecheap’s Position Regarding Relevance and Materiality to the Dispute: Namecheap’s position, as reflected in its Request for the Production of Documents served on 18 August 2020. • Column 4, ICANN’s Responses and Objections (Pre-Meet-and-Confer): ICANN’s responses and objections to Namecheap’s Requests, as reflected in ICANN’s response served on 8 September 2020. • Column 5, Status/Panel’s Ruling: This column reflects: (1) ICANN’s position (after the meet-and-confer process); (2) Namecheap’s position (per Annex 25), (3) ICANN’s response to Namecheap’s position; and (4) the Panel’s Ruling.

Only the “Panel Ruling” in Column 5 (entered in bold type) was drafted by the Panel. The remaining information in the Schedule was prepared by the parties.

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

1. All documents directly Access to those documents is ICANN objects that the At issue. and indirectly1 relating required to understand: documents sought by this to the negotiations - the extent of ICANN Request, and each subpart, are ICANN’s Position: ICANN will pertaining to the obligations under the not relevant or material to the conduct a reasonable search and reassignment, renewal registry agreements, outcome of this dispute. produce non-public, non-privileged and amendments of all Namecheap’s claims in this IRP documents and communications

1 By ‘indirectly’, Namecheap refers to refer to the narrow and specific requests as detailed in the subsection 1.a to 1.s of Request No. 1. 1

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

.ORG, .BIZ, and/or - the reasons for imposing, relate to the narrow issue of regarding negotiations pertaining to .INFO Registry modifying or removing ICANN’s removal of the price the modification and/or removal of Agreements (initial or price caps via the registry control provisions in the 2019 the price control provisions in the subsequent agreements), agreements, .ORG, .BIZ, and .INFO Registry 2019 .ORG, .INFO, and .BIZ Registry including: - the processes ICANN used Agreements.3 Documents Agreements through 18 November in negotiating and regarding any other provisions 2019. renegotiating registry in the 2019 Registry agreements, Agreements, reassignment of Namecheap’s Position: Relevant - the potential conflicts of the Registry Agreements, or any period for which documents are interest of ICANN staff prior Registry Agreements are sought. ICANN should produce when deciding to remove not relevant or material to documents from the time when the price caps, etc. Namecheap’s claims. For the negotiations pertaining to the same reason, information reassignment, renewal and Access to these documents must relating to the “extent of amendments of the first .org, .biz, help – among other things – to get ICANN obligations under” all and/or .info Registry Agreements clarity on whether any changed prior Registry Agreements, or between ICANN and the relevant circumstances could provide an all provisions of the Registry registry operators started objective justification for the Agreements, is not material to (presumably in 1998) until the removal or modification of the Namecheap’s claims. present. previously imposed price caps. To

answer such question, the Claimant ICANN objects that this ICANN’s Response: Documents requires a dynamic view of the Request is vague, ambiguous, regarding any prior .ORG, .BIZ, or facts as they have evolved over

3 The term “price control provisions” refers to Section 7.3 of the 2013 .ORG Registry Agreement (RM-18), Section 7.3 of the 2013 .BIZ Registry Agreement (RM-28), and Section 7.3 of the 2013 .INFO Registry Agreement (RM-27), which specifies the maximum price the registry operator may charge for Registry Services each year. Namecheap often refers to these price control provisions as “price caps.” ICANN uses the term “removal” of the price control provisions because that is the term used by Namecheap. In reality, however, ICANN did not remove the price control provisions per se, but instead transitioned the .ORG, .BIZ, and .INFO Registry Agreements to the Base Registry Agreement that is applicable to the new gTLDs and most other legacy TLDs, which does not include a price control provision. 2

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

time, and therefore a complete set and overbroad in that it seeks .INFO Registry Agreement are of documents. documents “directly and irrelevant, especially given the indirectly” relating to drastic changes in the DNS since the The requested documents under negotiations pertaining to all agreements were negotiated. this Section 1 (including Section 1.a provisions in all .ORG, .BIZ, ICANN agrees to search for and to Section 1.s) are not in the and .INFO Registry collect documents through Claimant’s possession, custody or Agreements. The burden on 18 November 2019 because that is control, as the Claimant was not ICANN of searching for the day that Namecheap initiated part of the negotiations with documents that may “indirectly the CEP with ICANN, and respect to the Registry Agreements. relate” to negotiations documents post-dating the CEP are substantially outweighs any more likely than not to be protected The documents requested are benefit that Namecheap by the attorney-client privilege or assumed to be in ICANN’s plausibly could expect to work product doctrine. possession, custody or control, as obtain. they relate to the Respondent’s core Panel’s Ruling: obligations towards ICANN’s main ICANN further objects that this contracting parties and to ICANN’s Request is a fishing expedition ICANN shall conduct a reasonable primary mission to coordinate ‘the in that it does not identify any search and produce non-public, allocation and assignment of names particular persons whose non-privileged documents and in the root zone of the Domain documents or communications communications that relate or refer Name System’.2 Namecheap seeks, but instead to the modification and/or removal seeks to have ICANN search of price control provisions in indiscriminately among its registry agreements (regardless of officers and staff. The burden whether such documents or of conducting such a search communications specifically substantially outweighs any reference the .ORG, .INFO, and legitimate benefit Namecheap .BIZ Registry Agreements). Except

2 Bylaws, Article I(1)(a)(i) (RM 2). 3

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

plausibly could expect from the as otherwise specified below, the results of such a search. time period shall be January 1, 2018 through November 18, 2019. ICANN also objects to this ICANN indicated during oral Request to the extent it seeks argument on December 2, 2020 that documents protected by the discussions with the .ORG, .INFO attorney-client privilege, work and .BIZ registry operators began product doctrine, or any other in May 2018. The Panel is applicable privilege. ICANN establishing a January 1, 2018 will not produce privileged beginning date to better capture documents. documents that may reflect internal deliberations or communications, if Subject to these objections, any, prior to discussions with the ICANN will conduct a registry operators. reasonable search and produce non-public, non-privileged documents and communications regarding negotiations pertaining to the modification and/or removal of the price control provisions in the 2019 .ORG, .INFO, and .BIZ Registry Agreements.

1.a An executed copy of all ICANN submits that all Registry ICANN objects that this At issue. Registry Agreements Agreements executed by ICANN Request seeks publicly available (original or subsequent, are made available through the information, as all Registry ICANN’s Position: ICANN will and amendments Registry Agreements page on the Agreements for all gTLDs are produce the executed copies of the thereto) for the original ICANN website. While the Registry located on ICANN’s website.

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

gTLDs (.COM, .NET, Agreements published on this Indeed, in response to 30 June 2019 .ORG, .INFO, and .BIZ .ORG) and the gTLDs website are not the executed Namecheap’s request for these Registry Agreements. that were delegated agreements, ICANN submits that documents in a separate pursuant to ICANN these agreements mirror the fully ICANN process, the Namecheap’s Position: ICANN Resolution 00.89 of 16 executed Registry Agreements with Documentary Information should produce executed copy of all November 2000 the exception of the relevant Disclosure Policy (“DIDP”), registry agreements requested. (including .BIZ and signatures.4 ICANN directed Namecheap to References to non-executed versions .INFO), including those the portion of ICANN’s website on ICANN’s website are incomplete However, a website is a dynamic agreements that have where the Registry Agreements and may contain inaccuracies. space. Content on a website can be been terminated, can be found. See Annex 16, pp. changed instantaneously. Without reassigned or renewed. 4–5. Namecheap’s allegations ICANN’s Response: Documents access to the executed Registry that ICANN’s website may not regarding any prior .ORG, .BIZ, or Agreements, it simply is impossible contain accurate records is .INFO Registry Agreement are to verify whether the unexecuted unfounded. irrelevant, especially given the versions of the Registry drastic changes in the DNS since the Agreements published on ICANN’s ICANN further objects that the agreements were negotiated. website mirror the Registry documents sought by this ICANN agrees to provide Agreements that have been Request are not relevant or Namecheap with the underlying executed with relevant registry material to the outcome of this documents for any link on ICANN’s operators. Therefore, the Claimant dispute. website that is not operable (to the submits that the IRP Panel should extent ICANN still maintains those have access to a complete and Namecheap’s claims in this IRP documents). accurate record that includes the relate only to the 2019 .ORG, original documents rather than .BIZ, and .INFO Registry Panel’s Ruling: unexecuted copies that purportedly Agreements. Documents mirror the executed versions of the regarding any prior Registry On or before January 15, 2021, agreements. Agreements, or Registry Namecheap shall provide a written

4 Annex 16, p. 12. 5

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

Agreements for other gTLDs stipulation that identifies Internet ICANN also submits that are not relevant or material to links for the final versions of the Resolution 00.89 did not delegate Namecheap’s claims. registry agreements that were any gTLDs. ICANN submits that, ultimately executed by ICANN and instead, the resolution ‘selected the Subject to these objections, the respective registry operators for proposals for negotiations toward ICANN will produce the the .INFO, .BIZ., ORG, .COM, and appropriate agreements between executed copies of the 30 June .NET domains and that certifies that ICANN org and the registry 2019 .ORG, .INFO, and .BIZ the links are active and include operator or sponsoring Registry Agreements. complete and accurate copies of all organization, or both’.5 those agreements (although it is not necessary that links include signed However, the Claimant never agreements, so long as the maintained that Resolution 00.89 agreements have identical content ‘delegated’ the gTLDs. The to those that would have been Claimant assumed that the gTLDs signed). In the alternative, ICANN mentioned in Resolution 00.89 have may, at its option, produce copies of been delegated subsequently in those agreements by the same date. accordance with (or pursuant to) Namecheap’s request is otherwise Resolution 00.89. The fact that denied. ICANN appears to be making a distinction between the resolution and the negotiations that resulted from it only shows the importance of having access to the documents related to those negotiations. Access to those documents will help the IRP Panel understand the

5 Annex 16, p. 11. 6

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

extent of ICANN obligations and the reasons for imposing price caps via the registry agreements. 1.b All correspondence Access to this correspondence is ICANN objects that the At issue. between ICANN and required to understand: documents sought by this the registry operators - the extent of ICANN Request are not relevant or ICANN’s Position: ICANN will (and their obligations under the material to the outcome of this conduct a reasonable search and representatives) in registry agreements, dispute. produce non-public, non-privileged relation to the - the reasons for imposing, communications between relevant preparation, discussion, modifying or removing Namecheap’s claims in this IRP ICANN personnel and the .ORG, redaction, amendments, price caps via the registry relate to the narrow issue of .INFO, and .BIZ registry operators and execution of the agreements, ICANN’s removal of the price regarding modification and/or original .ORG, .BIZ - the processes ICANN used control provisions in the 2019 removal of the price control and/or .INFO Registry in negotiating and .ORG, .BIZ, and .INFO Registry provisions in the 2019 .ORG, .INFO, Agreements and of the renegotiating registry Agreements. Documents and .BIZ Registry Agreements reassignment, renewal agreements, regarding any other provisions through 18 November 2019. and amendments of the - the potential conflicts of in the 2019 Registry .ORG, .BIZ, and/or interest of ICANN staff Agreements, redaction or Namecheap’s Position: Same as .INFO Registry when deciding to remove reassignment of the Registry with Request No. 1. Agreements. the price caps, etc. Agreements, or any prior Registry Agreements are not ICANN’s Response: Documents The request for these documents is relevant or material to regarding any prior .ORG, .BIZ, or sufficiently clear and reasonable. Namecheap’s claims. .INFO Registry Agreement are Indeed, one may expect that irrelevant, especially given the ICANN has this information For the same reason, drastic changes in the DNS since the readily available, as it relates to its information relating to the agreements were negotiated. core obligations towards ICANN’s “extent of ICANN obligations ICANN agrees to search for and main contracting parties and to under” all prior Registry collect documents through ICANN’s primary mission to Agreements, or all provisions of 18 November 2019 because that is 7

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

coordinate ‘the allocation and the Registry Agreements, is not the day that Namecheap initiated assignment of names in the root material to Namecheap’s the CEP with ICANN, and zone of the Domain Name claims. The burden on ICANN documents post-dating the CEP are System’.6 of searching for documents that more likely than not to be protected relate to irrelevant Registry by the attorney-client privilege or Agreements, or irrelevant work product doctrine. provisions in the Registry Agreements substantially Panel’s Ruling: outweighs any benefit that Namecheap plausibly could ICANN shall conduct a reasonable expect to obtain. search and produce non-public, non-privileged communications ICANN further objects that this between relevant ICANN Request is a fishing expedition personnel and the .ORG, .INFO, in that it does not identify any and .BIZ registry operators that particular persons whose relate or refer to modification communications Namecheap and/or removal of the price control seeks, but instead seeks to have provisions in the 2019 .ORG, ICANN search indiscriminately .INFO, and .BIZ Registry among its officers and staff. Agreements. The time period shall The burden of conducting such be January 1, 2018 through a search substantially November 18, 2019. This request is outweighs any legitimate otherwise denied on the ground benefit Namecheap plausibly that the requested documents are could expect from the results of only marginally relevant and such a search. material relative to the burden of production.

6 Bylaws, Article I(1)(a)(i) (RM 2). 8

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

Subject to these objections, ICANN will conduct a reasonable search and produce non-public, non-privileged communications between relevant ICANN personnel and the .ORG, .INFO, and .BIZ registry operators regarding modification and/or removal of the price control provisions in the 2019 .ORG, .INFO, and .BIZ Registry Agreements.

1.c All documents that Access to these documents is ICANN objects that the At issue. contain requests by the required to understand: documents sought by this registry operators (and - the extent of ICANN Request are not relevant or ICANN’s Position: ICANN stands their representatives) in obligations under the material to the outcome of this on its objections. relation to the registry agreements, dispute. Namecheap’s claims in reassignment of the - the reasons for imposing, this IRP relate to the narrow Namecheap’s Position: Full .ORG, .BIZ and/or modifying or removing issue of ICANN’s removal of contention. .INFO Registry price caps via the registry the price control provisions in Agreements. agreements, the 2019 .ORG, .BIZ, and .INFO Panel’s Ruling: - the processes ICANN used Registry Agreements. None of in negotiating and Namecheap’s claims relates to The Panel defers ruling on this renegotiating registry the reassignment of the .ORG, request pending a ruling on agreements, .INFO, and .BIZ Registry ICANN’s motion to dismiss - the potential conflicts of Agreements. Even Namecheap’s change of control interest of ICANN staff Namecheap’s claims regarding claim. the change of control request

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

when deciding to remove (which ICANN maintains are the price caps, etc. moot) do not relate to reassignment of the .ORG The request for these documents is Registry Agreement. sufficiently clear and reasonable.

Indeed, one may expect that Pursuant to Rule 6 of the ICANN has this information Interim Supplementary readily available, as it relates to its Procedures, a Claimant’s core obligations towards ICANN’s Request for IRP “shall include main contracting parties and to all claims that give rise to a ICANN’s primary mission to particular dispute,” along with coordinate ‘the allocation and “[a]ll necessary and available assignment of names in the root evidence in support of the zone of the Domain Name CLAIMANT’S claim(s).” System’.7 Hence, requests for documents that are not based on an existing claim cannot be material to the outcome of the case, as required by Rule 8 of the Interim supplementary Procedures and Article 3 of the IBA Rules.

For the same reason, information relating to the “extent of ICANN obligations under” all prior Registry Agreements, or all provisions of

7 Bylaws, Article I(1)(a)(i) (RM 2). 10

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

the Registry Agreements, is not material to Namecheap’s claims. The burden on ICANN of searching for documents that relate to irrelevant Registry Agreements, or irrelevant provisions in the Registry Agreements substantially outweighs any benefit that Namecheap plausibly could expect to obtain.

Based on these objections, ICANN does not agree to produce documents responsive to this Request.

1.d All documents that Access to these documents is ICANN objects that the At issue. contain requests by the required to understand: documents sought by this registry operators (and - the extent of ICANN Request are not relevant or ICANN’s Position: ICANN will their representatives) in obligations under the material to the outcome of this conduct a reasonable search and relation to the renewal registry agreements, dispute. Namecheap’s claims produce non-public, non-privileged of the .ORG, .BIZ - the reasons for imposing, in this IRP relate to the narrow communications between relevant and/or .INFO Registry modifying or removing issue of ICANN’s removal of ICANN personnel and the .ORG, Agreements. price caps via the registry the price control provisions in .INFO, and .BIZ registry operators agreements, the 2019 .ORG, .BIZ, and .INFO regarding requests from the registry - the processes ICANN used Registry Agreements. operators related to modification in negotiating and Documents regarding renewal and/or removal of the price control of any other provisions in the provisions in the 2019 .ORG, .INFO,

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

renegotiating registry 2019 Registry Agreements, or and .BIZ Registry Agreements agreements, any prior Registry Agreements through 18 November 2019. - the potential conflicts of are not relevant or material to interest of ICANN staff Namecheap’s claims. Namecheap’s Position: Same as when deciding to remove with Request No. 1. the price caps, etc. For the same reason, information relating to the ICANN’s Response: Documents The request for these documents is “extent of ICANN obligations regarding any prior .ORG, .BIZ, or sufficiently clear and reasonable. under” all prior Registry .INFO Registry Agreement are Indeed, one may expect that Agreements, or all provisions of irrelevant, especially given the ICANN has this information the Registry Agreements, is not drastic changes in the DNS since the readily available, as it relates to its material to Namecheap’s agreements were negotiated. core obligations towards ICANN’s claims. The burden on ICANN ICANN agrees to search for and main contracting parties and to of searching for documents that collect documents through ICANN’s primary mission to relate to irrelevant Registry 18 November 2019 because that is coordinate ‘the allocation and Agreements, or irrelevant the day that Namecheap initiated assignment of names in the root provisions in the Registry the CEP with ICANN, and zone of the Domain Name Agreements substantially documents post-dating the CEP are System’.8 outweighs any benefit that more likely than not to be protected Namecheap plausibly could by the attorney-client privilege or expect to obtain. work product doctrine.

Subject to these objections, Panel’s Ruling: ICANN will conduct a reasonable search and produce ICANN shall conduct a reasonable non-public, non-privileged search and produce non-public, communications between non-privileged documents that

8 Bylaws, Article I(1)(a)(i) (RM 2). 12

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

relevant ICANN personnel and contain requests by the registry the .ORG, .INFO, and .BIZ operators (and their registry operators regarding representatives) in relation to the requests from the registry renewal of the .ORG, .BIZ and/or operators related to .INFO Registry Agreements to the modification and/or removal of extent to the extent that they relate the price control provisions in or refer to the modification and/or the 2019 .ORG, .INFO, and .BIZ removal of price control provisions Registry Agreements. in those Registry Agreements. The time period shall be January 1, 2018 through November 18, 2019. This request is otherwise denied on the ground that the requested documents are only marginally relevant and material relative to the burden of production.

1.e All requests by the Access to these documents is ICANN objects that the At issue. registry operators (and required to understand: documents sought by this their representatives) in - the extent of ICANN Request are not relevant or ICANN’s Position: ICANN will relation to the obligations under the material to the outcome of this conduct a reasonable search and amendments of the price registry agreements, dispute to the extent they relate produce non-public, non-privileged caps in the .ORG, .BIZ - the reasons for imposing, to Registry Agreements other communications between relevant and/or .INFO Registry modifying or removing than the 2019 .ORG, .BIZ, and ICANN personnel and the .ORG, Agreements. price caps via the registry .INFO Registry Agreements. .INFO, and .BIZ registry operators agreements, Namecheap’s claims in this IRP regarding requests from the registry - the processes ICANN used relate to the narrow issue of operators related to modification in negotiating and ICANN’s removal of the price and/or removal of the price control

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

renegotiating registry control provisions in the 2019 provisions in the 2019 .ORG, .INFO, agreements, .ORG, .BIZ, and .INFO Registry and .BIZ Registry Agreements - the potential conflicts of Agreements. Documents through 18 November 2019. interest of ICANN staff regarding any prior Registry when deciding to remove Agreements are not relevant or Namecheap’s Position: Same as the price caps, etc. material to Namecheap’s with Request No. 1. claims. The request for these documents is ICANN’s Response: Documents sufficiently clear and reasonable. For the same reason, regarding any prior .ORG, .BIZ, or Indeed, one may expect that information relating to the .INFO Registry Agreement are ICANN has this information “extent of ICANN obligations irrelevant, especially given the readily available, as it relates to its under” any prior Registry drastic changes in the DNS since the core obligations towards ICANN’s Agreements is not material to agreements were negotiated. main contracting parties and to Namecheap’s claims. The ICANN agrees to search for and ICANN’s primary mission to burden on ICANN of searching collect documents through coordinate ‘the allocation and for documents that relate to 18 November 2019 because that is assignment of names in the root irrelevant Registry Agreements the day that Namecheap initiated zone of the Domain Name System’9 substantially outweighs any the CEP with ICANN, and and to ICANN’s commitment of benefit that Namecheap documents post-dating the CEP are operating ‘through open and plausibly could expect to more likely than not to be protected transparent processes that enable obtain. by the attorney-client privilege or competition and open entry in work product doctrine. Internet-related markets’.10 Subject to these objections, ICANN will conduct a reasonable search and produce Panel’s Ruling: non-public, non-privileged

9 Bylaws, Article I(1)(a)(i) (RM 2). 10 AoI, Article III (RM 1); Bylaws, Article I(2)(a) (RM 2). 14

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

communications between ICANN shall conduct a reasonable relevant ICANN personnel and search and produce non-public, the .ORG, .INFO, and .BIZ non-privileged documents registry operators regarding regarding requests by the registry requests from the registry operators (and their operators related to representatives) in relation to the modification and/or removal of amendments of the price caps in the price control provisions in the .ORG, .BIZ and/or .INFO the 2019 .ORG, .INFO, and .BIZ Registry Agreements. The time Registry Agreements. period shall be January 1, 2018 through November 18, 2019. This request is otherwise denied on the ground that the requested documents are only marginally relevant and material relative to the burden of production.

1.f All requests by the Access to these documents is ICANN objects that the At issue. registry operators (and required to understand: documents sought by this their representatives) in - the extent of ICANN Request are not relevant or ICANN’s Position: ICANN will relation to the removal obligations under the material to the outcome of this conduct a reasonable search and of the price caps in the registry agreements, dispute to the extent they relate produce non-public, non-privileged .ORG, .BIZ and/or - the reasons for imposing, to Registry Agreements other communications between relevant .INFO Registry modifying or removing than the 2019 .ORG, .BIZ, and ICANN personnel and the .ORG, Agreements. price caps via the registry .INFO Registry Agreements. .INFO, and .BIZ registry operators agreements, Namecheap’s claims in this IRP regarding requests by the registry - the processes ICANN used relate to the narrow issue of operators to remove the price in negotiating and ICANN’s removal of the price control provisions in the 2019 .ORG, control provisions in the 2019 .INFO, and .BIZ Registry

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

renegotiating registry .ORG, .BIZ, and .INFO Registry Agreements through 18 November agreements, Agreements. Documents 2019. - the potential conflicts of regarding any prior Registry interest of ICANN staff Agreements are not relevant or Namecheap’s Position: Same as when deciding to remove material to Namecheap’s with Request No. 1. the price caps, etc. claims. ICANN’s Response: Documents The request for these documents is For the same reason, regarding any prior .ORG, .BIZ, or sufficiently clear and reasonable. information relating to the .INFO Registry Agreement are Indeed, one may expect that “extent of ICANN obligations irrelevant, especially given the ICANN has this information under” any prior Registry drastic changes in the DNS since the readily available, as it relates to its Agreements is not material to agreements were negotiated. core obligations towards ICANN’s Namecheap’s claims. The ICANN agrees to search for and main contracting parties and to burden on ICANN of searching collect documents through ICANN’s primary mission to for documents that relate to 18 November 2019 because that is coordinate ‘the allocation and irrelevant Registry Agreements the day that Namecheap initiated assignment of names in the root substantially outweighs any the CEP with ICANN, and zone of the Domain Name benefit that Namecheap documents post-dating the CEP are System’11 and to ICANN’s plausibly could expect to more likely than not to be protected commitment of operating ‘through obtain. by the attorney-client privilege or open and transparent processes work product doctrine. that enable competition and open Subject to these objections, entry in Internet-related markets’.12 ICANN will conduct a Panel’s Ruling: reasonable search and produce non-public, non-privileged ICANN shall conduct a reasonable communications between search and produce non-public,

11 Bylaws, Article I(1)(a)(i) (RM 2). 12 AoI, Article III (RM 1); Bylaws, Article I(2)(a) (RM 2). 16

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

relevant ICANN personnel and non-privileged documents the .ORG, .INFO, and .BIZ regarding requests by the registry registry operators regarding operators (and their requests by the registry representatives) in relation to the operators to remove the price removal of the price caps in the control provisions in the 2019 .ORG, .BIZ and/or .INFO Registry .ORG, .INFO, and .BIZ Registry Agreements. The time period shall Agreements. be January 1, 2018 through November 18, 2019. This request is otherwise denied on the ground that the requested documents are only marginally relevant and material relative to the burden of production.

1.g Any document showing Access to these documents is ICANN objects that the phrase At issue. the reasons for ICANN required to understand: “to accept to examine requests” to accept to examine - the extent of ICANN is vague and ambiguous, such ICANN’s Position: ICANN will requests for (i) renewal obligations under the that ICANN cannot ascertain conduct a reasonable search and of the .ORG, .BIZ registry agreements, what documents Namecheap is produce non-public, non-privileged and/or .INFO Registry - the reasons for imposing, requesting here, above and documents and communications Agreements, and (ii) modifying or removing beyond those documents regarding modification and/or modification and/or price caps via the registry already requested, and that removal of the price control removal of price caps in agreements, ICANN has agreed to produce. provisions in the 2019 .ORG, .INFO, the .ORG, .BIZ and/or - the processes ICANN used and .BIZ Registry Agreements in negotiating and ICANN further objects that the through 18 November 2019. renegotiating registry documents sought by this agreements, Request are not relevant or Namecheap’s Position: Same as with Request No. 1.

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

.INFO Registry - the potential conflicts of material to the outcome of this Agreements.13 interest of ICANN staff dispute. ICANN’s Response: Documents when deciding to remove regarding any prior .ORG, .BIZ, or the price caps, etc. Namecheap’s claims in this IRP .INFO Registry Agreement are relate to the narrow issue of irrelevant, especially given the The request for these documents is ICANN’s removal of the price drastic changes in the DNS since the sufficiently clear and reasonable. control provisions in the 2019 agreements were negotiated. Indeed, one may expect that .ORG, .BIZ, and .INFO Registry ICANN agrees to search for and ICANN has this information Agreements. Documents collect documents through readily available, as it relates to its regarding renewal of any other 18 November 2019 because that is core obligations towards ICANN’s provisions in the 2019 Registry the day that Namecheap initiated main contracting parties and to Agreements, or any prior the CEP with ICANN, and ICANN’s primary mission to Registry Agreements are not documents post-dating the CEP are coordinate ‘the allocation and relevant or material to more likely than not to be protected assignment of names in the root Namecheap’s claims. For the by the attorney-client privilege or zone of the Domain Name same reason, information work product doctrine. System’14 and to ICANN’s relating to the “extent of commitment of operating ‘through ICANN obligations under” all Panel’s Ruling: open and transparent processes prior Registry Agreements, or all provisions of the Registry ICANN shall conduct a reasonable search and produce non-public,

13 Under Part 1, No. 7 of its DIDP Request, the Claimant requested access to documents relating to ‘such removal, modification and removal’, building further on the document request in the bullets above and listing specific items requested under Part 1 (Annex 15). ICANN considered that this request was vague and confusing as, according to ICANN, ‘it is not clear what TLDs are being referenced’ (Annex 16, p. 14). The Claimant fails to see how its request was not clear. All items requested under Part 1 of the DIDP Request relate to ‘documents directly and indirectly relating to the negotiations pertaining to the reassignment, renewal and amendments of the .ORG, .BIZ and/or .INFO Registry Agreements’ (Annex 15). As a result, it was clear what TLDs are being referenced. To avoid any misunderstanding, the Claimant has specified in the present request that it is seeking those documents relating to the .ORG, .BIZ and .INFO Registry Agreements. 14 Bylaws, Article I(1)(a)(i) (RM 2). 18

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

that enable competition and open Agreements, is not material to non-privileged documents and entry in Internet-related markets’.15 Namecheap’s claims. communications that relate or refer to the modification and/or removal ICANN also objects to this of price control provisions in the Request to the extent it seeks .ORG, .INFO, and .BIZ Registry documents protected by the Agreements). The time period shall attorney-client privilege, work be January 1, 2018 through product doctrine, or any other November 18, 2019. This request is applicable privilege. ICANN otherwise denied on the ground will not produce privileged that the requested documents are documents. only marginally relevant and material relative to the burden of Subject to these objections, production. ICANN will conduct a reasonable search and produce non-public, non-privileged documents and communications regarding modification and/or removal of the price control provisions in the 2019 .ORG, .INFO, and .BIZ Registry Agreements.

1.h Any document showing Access to these documents is ICANN objects that the At issue. the reasons for ICANN required to understand: documents sought by this to accept requests for (i) - the reasons for imposing, Request are not relevant or ICANN’s Position: ICANN will renewal of the .ORG, modifying or removing material to the outcome of this conduct a reasonable search and

15 AoI, Article III (RM 1); Bylaws, Article I(2)(a) (RM 2). 19

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

.BIZ and/or .INFO price caps via the registry dispute. Namecheap’s claims in produce non-public, non-privileged Registry Agreements, agreements, this IRP relate to the narrow documents and communications and (ii) modification - the processes ICANN used issue of ICANN’s removal of regarding modification and/or and/or removal of price in negotiating and the price control provisions in removal of the price control caps in the .ORG, .BIZ renegotiating registry the 2019 .ORG, .BIZ, and .INFO provisions in the 2019 .ORG, .INFO, and/or .INFO Registry agreements, Registry Agreements. and .BIZ Registry Agreements Agreements.16 - the potential conflicts of Documents regarding any other through 18 November 2019. interest of ICANN staff provisions in the 2019 Registry when deciding to remove Agreements, or any prior Namecheap’s Position: Same as the price caps, etc. Registry Agreements are not with Request No. 1. relevant or material to The request for these documents is Namecheap’s claims. The ICANN’s Response: Documents sufficiently clear and reasonable. burden on ICANN of searching regarding any prior .ORG, .BIZ, or Indeed, one may expect that for documents that relate to .INFO Registry Agreement are ICANN has this information irrelevant Registry Agreements, irrelevant, especially given the readily available, as it relates to its or irrelevant provisions of the drastic changes in the DNS since the core obligations towards ICANN’s Registry Agreements agreements were negotiated. main contracting parties and to substantially outweighs any ICANN agrees to search for and ICANN’s primary mission to benefit that Namecheap collect documents through coordinate ‘the allocation and plausibly could expect to 18 November 2019 because that is assignment of names in the root obtain. the day that Namecheap initiated zone of the Domain Name the CEP with ICANN, and

16 Under Part 1, No. 8 of its DIDP Request, the Claimant requested access to documents relating to ‘such removal, modification and removal’, building further on the document request in the bullets above and listing specific items requested under Part 1 (Annex 15). ICANN considered that this request was vague and confusing as, according to ICANN, ‘it is not clear what TLDs are being referenced’ (Annex 16, p. 14). The Claimant fails to see how its request was not clear. All items requested under Part 1 of the DIDP Request relate to ‘documents directly and indirectly relating to the negotiations pertaining to the reassignment, renewal and amendments of the .ORG, .BIZ and/or .INFO Registry Agreements’ (Annex 15). As a result, it was clear what TLDs are being referenced. To avoid any misunderstanding, the Claimant has specified in the present request that it is seeking those documents relating to the .ORG, .BIZ and .INFO Registry Agreements. 20

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

System’17 and to ICANN’s ICANN also objects to this documents post-dating the CEP are commitment of operating ‘through Request to the extent it seeks more likely than not to be protected open and transparent processes documents protected by the by the attorney-client privilege or that enable competition and open attorney-client privilege, work work product doctrine. entry in Internet-related markets’.18 product doctrine, or any other applicable privilege. ICANN Panel’s Ruling: will not produce privileged documents. ICANN shall conduct a reasonable search and produce non-public, Subject to these objections, non-privileged documents and ICANN will conduct a communications that relate or refer reasonable search and produce to the modification and/or removal non-public, non-privileged of price control provisions in the documents and .ORG, .INFO, and .BIZ Registry communications regarding Agreements). The time period shall modification and/or removal of be January 1, 2018 through the price control provisions in November 18, 2019. This request is the 2019 .ORG, .INFO, and .BIZ otherwise denied on the ground Registry Agreements. that the requested documents are only marginally relevant and material relative to the burden of production.

1.i Any documents Access to these documents is ICANN objects that the At issue. showing the reasons for required to understand: documents sought by this ICANN not to impose Request are overbroad and

17 Bylaws, Article I(1)(a)(i) (RM 2). 18 AoI, Article III (RM 1); Bylaws, Article I(2)(a) (RM 2). 21

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

price caps for new - the reasons for imposing, unduly burdensome. After a ICANN’s Position: ICANN stands gTLDs. modifying or removing years-long community-driven on its objections. price caps via the registry process, ICANN implemented agreements, the New gTLD Program Namecheap’s Position: Full - the processes ICANN used through which interested contention. in negotiating and applicants could apply to renegotiating registry operate new gTLDs that were Panel’s Ruling: agreements, not already in the root zone. - the potential conflicts of That program launched in 2012, ICANN shall conduct a reasonable interest of ICANN staff and ICANN has since search and produce non-public, when deciding to remove introduced 1,235 new gTLDs non-privileged documents and the price caps, etc. into the root. ICANN communications that relate or refer developed a Base Registry to the modification and/or removal The request for these documents is Agreement in conjunction with of price control provisions in sufficiently clear and reasonable. the program that most registry registry agreements (regardless of Indeed, one may expect that operators for those 1,235 new whether such documents or ICANN has this information gTLDs have executed with communications specifically readily available, as it relates to its ICANN. The burden on reference the .ORG, .INFO, and core obligations towards ICANN’s ICANN of searching for .BIZ Registry Agreements). The main contracting parties and to documents over a multi-year time period shall be January 1, 2018 ICANN’s primary mission to development process through November 18, 2019. This coordinate ‘the allocation and substantially outweighs any request is otherwise denied on the assignment of names in the root benefit that Namecheap ground that the requested zone of the Domain Name plausibly could expect to documents are only marginally System’19 and to ICANN’s obtain. relevant and material relative to the commitment of operating ‘through burden of production. open and transparent processes

19 Bylaws, Article I(1)(a)(i) (RM 2). 22

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

that enable competition and open ICANN further objects that this entry in Internet-related markets’.20 Request is a fishing expedition in that it does not identify any particular persons whose communications Namecheap seeks, but instead seeks to have ICANN search indiscriminately among its officers and staff. The burden of conducting such a search substantially outweighs any legitimate benefit Namecheap plausibly could expect from the results of such a search.

ICANN also objects to this Request to the extent it seeks documents protected by the attorney-client privilege, work product doctrine, or any other applicable privilege. ICANN will not produce privileged documents.

ICANN objects to the extent that documents responsive to this Request are in the public

20 AoI, Article III (RM 1); Bylaws, Article I(2)(a) (RM 2). 23

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

domain, and therefore are equally available to Namecheap.

Based on these objections, ICANN does not agree to produce documents responsive to this Request.

1.j Any document showing Access to these documents is ICANN objects to Namecheap’s At issue. that ICANN has required to understand mischaracterization of the considered, and made a - the reasons for imposing, DNSO’s recommendation as a ICANN’s Position: ICANN stands reasoned decision, modifying or removing “policy” or as imposing any on its objections. whether or not the price caps via the registry “requirement” on ICANN. renewal of the .ORG agreements, ICANN set forth in detail in its Namecheap’s Position: Full registry agreement that - the processes ICANN used Response to Namecheap’s contention. included the removal of in negotiating and Request for IRP that the DNSO the price cap, is in line renegotiating registry made recommendations to the Panel’s Ruling: with the requirement for agreements, ICANN Board, but did not the .ORG registry fee - the potential conflicts of impose any requirements on The Panel notes ICANN’s charged to accredited interest of ICANN staff ICANN, or otherwise institute objection that the DNSO registrars to be as low as when deciding to remove any formal policy, as that term recommendation does not establish feasible consistent with the price caps, etc. is defined in ICANN’s Bylaws. “policy.” Without ruling on that the maintenance of good Response to Request for IRP issue at this point, ICANN shall quality service, as The request for these documents is ¶¶ 60–63. conduct a reasonable search and required in the DNSO sufficiently clear and reasonable. produce non-public, non-privileged policy and in the request Indeed, one may expect that ICANN also objects to this documents showing that ICANN for proposals for ICANN has this information Request to the extent it seeks has considered, and made a reassignment of the readily available, as it relates to its documents protected by the reasoned decision, whether or not

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

.ORG gTLD, as imposed core obligations towards ICANN’s attorney-client privilege, work the renewal of the .ORG registry in 2002. main contracting parties and to product doctrine, or any other agreement that included the ICANN’s primary mission to applicable privilege. ICANN removal of price control provisions coordinate ‘the allocation and will not produce privileged violated ICANN’s Articles of assignment of names in the root documents. Incorporation or Bylaws. The time zone of the Domain Name period shall be January 1, 2018 System’21 and to ICANN’s ICANN objects that this through November 18, 2019, except commitment of operating ‘through Request is duplicative of prior that in the event ICANN relies on open and transparent processes Requests. To the extent that documents or communications that enable competition and open Namecheap is seeking dating prior to that period to entry in Internet-related markets’.22 information regarding “the affirmatively demonstrate in this reasons for . . . modifying or IRP that removal of the price control removing price caps” in the provisions complied with the .ORG, .BIZ, and .INFO Registry Articles of Incorporation and Agreements, that information is Bylaws, Namecheap may seek leave encompassed by Namecheap’s from the Panel to obtain the Requests above, for which disclosure of such other documents ICANN agreed to produce and communications that are documents. reasonably related to the documents or communications relied upon by Based on these objections, ICANN. This request is otherwise ICANN does not agree to denied on the ground that the produce documents responsive requested documents are only to this Request. marginally relevant and material

21 Bylaws, Article I(1)(a)(i) (RM 2). 22 AoI, Article III (RM 1); Bylaws, Article I(2)(a) (RM 2). 25

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

relative to the burden of production. 1.k All exchanges of Access to these documents is ICANN objects that the At issue. communication between required to understand: documents sought by this ICANN and the registry - the extent of ICANN Request are not relevant or ICANN’s Position: ICANN will operators discussing the obligations under the material to the outcome of this conduct a reasonable search and renewal of the .ORG, registry agreements, dispute to the extent they relate produce non-public, non-privileged .BIZ and/or .INFO - the reasons for imposing, to Registry Agreements other communications between relevant Registry Agreements, modifying or removing than the 2019 .ORG, .BIZ, and ICANN personnel and the .ORG, modification and price caps via the registry .INFO Registry Agreements. .INFO, and .BIZ registry operators removal of price caps in agreements, Namecheap’s claims in this IRP regarding modification and/or the .ORG, .BIZ and/or - the processes ICANN used relate to the narrow issue of removal of the price control .INFO Registry in negotiating and ICANN’s removal of the price provisions in the 2019 .ORG, .INFO, Agreements from the renegotiating registry control provisions in the 2019 and .BIZ Registry Agreements time when such agreements, .ORG, .BIZ, and .INFO Registry through 18 November 2019. discussions were first - the potential conflicts of Agreements. Documents initiated through the interest of ICANN staff regarding any prior Registry Namecheap’s Position: Same as date of ICANN’s when deciding to remove Agreements, or renewal of non- with Request No. 1. response to this request. the price caps, etc. price related provisions of the 23 Registry Agreements are not ICANN’s Response: Documents The request for these documents is relevant or material to regarding any prior .ORG, .BIZ, or sufficiently clear and reasonable. Namecheap’s claims. .INFO Registry Agreement are

23 Under Part 1, No. 10 of its DIDP Request, the Claimant requested access to documents relating to ‘such removal, modification and removal’, building further on the document request in the bullets above and listing specific items requested under Part 1 (Annex 15). ICANN considered that this request was vague (Annex 16, p. 17). The Claimant fails to see how its request was not clear. All items requested under Part 1 of the DIDP Request relate to ‘documents directly and indirectly relating to the negotiations pertaining to the reassignment, renewal and amendments of the .ORG, .BIZ and/or .INFO Registry Agreements’ (Annex 15). As a result, it was clear what TLDs are being referenced. To avoid any misunderstanding, the Claimant has specified in the present request that it is seeking those documents relating to the .ORG, .BIZ and .INFO Registry Agreements. 26

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

Indeed, one may expect that irrelevant, especially given the ICANN has this information For the same reason, drastic changes in the DNS since the readily available, as it relates to its information relating to the agreements were negotiated. core obligations towards ICANN’s “extent of ICANN obligations ICANN agrees to search for and main contracting parties and to under” any prior Registry collect documents through ICANN’s primary mission to Agreements or any other 18 November 2019 because that is coordinate ‘the allocation and provisions of the Registry the day that Namecheap initiated assignment of names in the root Agreements is not material to the CEP with ICANN, and zone of the Domain Name Namecheap’s claims. The documents post-dating the CEP are System’24 and to ICANN’s burden on ICANN of searching more likely than not to be protected commitment of operating ‘through for such documents by the attorney-client privilege or open and transparent processes substantially outweighs any work product doctrine. that enable competition and open benefit that Namecheap entry in Internet-related markets’.25 plausibly could expect to Panel’s Ruling: obtain. ICANN shall conduct a reasonable ICANN objects that this search and produce non-public, Request is duplicative of non-privileged communications Request Nos. 1.d through 1.f. between relevant ICANN personnel and the .ORG, .INFO, ICANN further objects that this and .BIZ registry operators Request is a fishing expedition regarding modification and/or in that it does not identify any removal of the price control particular persons whose provisions in the 2019 .ORG, communications Namecheap .INFO, and .BIZ Registry seeks, but instead seeks to have Agreements during the period

24 Bylaws, Article I(1)(a)(i) (RM 2). 25 AoI, Article III (RM 1); Bylaws, Article I(2)(a) (RM 2). 27

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

ICANN search indiscriminately between January 1, 2018 and among its officers and staff. November 18, 2019. This request is The burden of conducting such otherwise denied on the ground an expansive search that the requested documents are substantially outweighs any only marginally relevant and legitimate benefit Namecheap material relative to the burden of plausibly could expect from the production. results of such a search.

ICANN objects to the time period proposed by Namecheap, insofar as it requests documents after 30 June 2019. The .ORG, .BIZ, and .INFO Registry Agreements were renewed on 30 June 2019, and any subsequent communications are irrelevant to Namecheap’s claims regarding ICANN’s decision to remove the price control provisions. ICANN will not produce any documents after 30 June 2019.

Subject to these objections, ICANN will conduct a reasonable search and produce non-public, non-privileged

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

communications between relevant ICANN personnel and the .ORG, .INFO, and .BIZ registry operators regarding modification and/or removal of the price control provisions in the 2019 .ORG, .INFO, and .BIZ Registry Agreements.

1.l All communications Access to these documents is ICANN objects that the At issue. (including emails, required to understand: documents sought by this recordings of conference - the reasons for imposing, Request are not relevant or ICANN’s Position: ICANN will calls via Adobe Connect, modifying or removing material to the outcome of this conduct a reasonable search and Zoom or otherwise, price caps via the registry dispute to the extent they relate produce non-public, non-privileged transcripts of meetings, agreements, to Registry Agreements other communications between relevant meeting agenda’s) - the processes ICANN used than the 2019 .ORG, .BIZ, and ICANN staff and the ICANN Board between ICANN staff in negotiating and .INFO Registry Agreements. regarding the modification and/or and the ICANN Board renegotiating registry Namecheap’s claims in this IRP removal of the price control in relation to the .ORG, agreements, relate to the narrow issue of provisions in the 2019 .ORG, .INFO, .BIZ and/or .INFO - the potential conflicts of ICANN’s removal of the price and .BIZ Registry Agreements Registry Agreements, interest of ICANN staff control provisions in the 2019 through 18 November 2019. namely with regard to when deciding to remove .ORG, .BIZ, and .INFO Registry the renewal of these the price caps, etc. Agreements. Documents Namecheap’s Position: Same as agreements, the regarding any prior Registry with Request No. 1. modification and Agreements, or renewal of non- The request for these documents is removal of the price price related provisions of the ICANN’s Response: Documents sufficiently clear and reasonable. caps, the reasons to Registry Agreements are not regarding any prior .ORG, .BIZ, or Indeed, one may expect that accept to examine the relevant or material to .INFO Registry Agreement are ICANN has this information readily requests related to the Namecheap’s claims. The irrelevant, especially given the available, as it relates to its core 29

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

renewal, modification obligations towards ICANN’s main burden on ICANN of searching drastic changes in the DNS since the and removal of the contracting parties and to ICANN’s for such documents agreements were negotiated. registry agreements c.q. primary mission to coordinate ‘the substantially outweighs any ICANN agrees to search for and the price caps imposed allocation and assignment of names benefit that Namecheap collect documents through via these agreements, in the root zone of the Domain plausibly could expect to 18 November 2019 because that is and the reasons to Name System’27 and to ICANN’s obtain. the day that Namecheap initiated accept these requests, commitment of operating ‘through the CEP with ICANN, and from the time when open and transparent processes that ICANN objects that the phrase documents post-dating the CEP are such discussions were enable competition and open entry “to accept to examine the more likely than not to be protected first initiated through in Internet-related markets’.28 requests” is vague and by the attorney-client privilege or the date of ICANN’s ambiguous, such that ICANN work product doctrine. response to this request. In addition, ICANN claims that its cannot ascertain what 26 staff conferred with the ICANN documents Namecheap is Panel’s Ruling: Board when deciding to proceed requesting here, above and with the 2019 Registry Agreements beyond those documents ICANN shall conduct a reasonable without price control provisions. already requested, and that search and produce non-public, As ICANN and its Board are ICANN has agreed to produce. non-privileged communications committed to openness and between relevant ICANN staff and transparency and have a practice of ICANN further objects that this the ICANN Board regarding the recording meetings and preparing Request is a fishing expedition modification and/or removal of the them in advance via email (given in that it does not identify any price control provisions in registry

26 Under Part 1, No. 11 of its DIDP Request, the Claimant requested access to documents relating to ‘such removal, modification and removal’, building further on the document request in the bullets above and listing specific items requested under Part 1 (Annex 15). ICANN considered that this request was vague (Annex 16, p. 17). The Claimant fails to see how its request was not clear. All items requested under Part 1 of the DIDP Request relate to ‘documents directly and indirectly relating to the negotiations pertaining to the reassignment, renewal and amendments of the .ORG, .BIZ and/or .INFO Registry Agreements’ (Annex 15). As a result, it was clear what TLDs are being referenced. To avoid any misunderstanding, the Claimant has specified in the present request that it is seeking those documents relating to the .ORG, .BIZ and .INFO Registry Agreements. 27 Bylaws, Article I(1)(a)(i) (RM 2). 28 AoI, Article III (RM 1); Bylaws, Article I(2)(a) (RM 2). 30

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

the fact that ICANN’s Board particular persons whose agreements (regardless of whether members are located in different communications Namecheap such documents or geographical locations), there must seeks, but instead seeks to have communications specifically be records of the purported ICANN search indiscriminately reference the .ORG, .INFO, and meetings between ICANN Staff among its staff and Board. The .BIZ Registry Agreements). The and the Board on these topics. The burden of conducting such an time period shall be January 1, 2018 point is all the stronger as the expansive search substantially through November 18, 2019. This removal of price caps is a major outweighs any legitimate request is otherwise denied on the shift in ICANN’s existing practice benefit Namecheap plausibly ground that the requested and policy that goes to core of could expect from the results of documents are only marginally ICANN’s mission and purpose. such a search. relevant and material relative to the burden of production. ICANN also objects to this Request to the extent it seeks documents protected by the attorney-client privilege, work product doctrine, or any other applicable privilege. ICANN will not produce privileged documents.

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

communications are irrelevant to Namecheap’s claims regarding ICANN’s decision to remove the price control provisions. ICANN will not produce any communications after 30 June 2019.

Subject to these objections, ICANN will conduct a reasonable search and produce non-public, non-privileged communications between relevant ICANN staff and the ICANN Board regarding the modification and/or removal of the price control provisions in the 2019 .ORG, .INFO, and .BIZ Registry Agreements.

1. All communications Access to these documents is ICANN objects that the At issue. m between ICANN staff required to understand: documents sought by this and individual ICANN - the reasons for imposing, Request are not relevant or ICANN’s Position: ICANN will Board members in modifying or removing material to the outcome of this conduct a reasonable search and relation to the .ORG, price caps via the registry dispute to the extent they relate produce non-public, non-privileged .BIZ and/or .INFO agreements, to Registry Agreements other communications between relevant Registry Agreements, - the processes ICANN used than the 2019 .ORG, .BIZ, and ICANN staff and the ICANN Board namely with regard to in negotiating and .INFO Registry Agreements. regarding the modification and/or the renewal, Namecheap’s claims in this IRP removal of the price control

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

modification and renegotiating registry relate to the narrow issue of provisions in the 2019 .ORG, .INFO, removal of these registry agreements, ICANN’s removal of the price and .BIZ Registry Agreements agreements c.q. the price - the potential conflicts of control provisions in the 2019 through 18 November 2019. caps imposed via those interest of ICANN staff .ORG, .BIZ, and .INFO Registry agreements, the reasons when deciding to remove Agreements. Documents Namecheap’s Position: Same as to accept to examine the the price caps, etc. regarding any prior Registry with Request No. 1. requests for renewal, Agreements, or renewal of non- modification and The request for these documents is price related provisions of the ICANN’s Response: Documents removal of these registry sufficiently clear and reasonable. Registry Agreements are not regarding any prior .ORG, .BIZ, or agreements c.q. the price Indeed, one may expect that relevant or material to .INFO Registry Agreement are caps imposed via those ICANN has this information Namecheap’s claims. The irrelevant, especially given the agreements, and the readily available, as it relates to its burden on ICANN of searching drastic changes in the DNS since the reasons to accept these core obligations towards ICANN’s for such documents agreements were negotiated. requests, from the date main contracting parties and to substantially outweighs any ICANN agrees to search for and upon which these ICANN’s primary mission to benefit that Namecheap collect documents through communications coordinate ‘the allocation and plausibly could expect to 18 November 2019 because that is commenced through the assignment of names in the root obtain. the day that Namecheap initiated date of ICANN’s zone of the Domain Name the CEP with ICANN, and response to this request. System’30 and to ICANN’s ICANN objects that the phrase documents post-dating the CEP are 29 commitment of operating ‘through “to accept to examine the more likely than not to be protected open and transparent processes requests” is vague and by the attorney-client privilege or ambiguous, such that ICANN work product doctrine.

29 Under Part 1, No. 12 of its DIDP Request, the Claimant requested access to documents relating to ‘such removal, modification and removal’, building further on the document request in the bullets above and listing specific items requested under Part 1 (Annex 15). ICANN considered that this request was vague (Annex 16, p. 17). The Claimant fails to see how its request was not clear. All items requested under Part 1 of the DIDP Request relate to ‘documents directly and indirectly relating to the negotiations pertaining to the reassignment, renewal and amendments of the .ORG, .BIZ and/or .INFO Registry Agreements’ (Annex 15). As a result, it was clear what TLDs are being referenced. To avoid any misunderstanding, the Claimant has specified in the present request that it is seeking those documents relating to the .ORG, .BIZ and .INFO Registry Agreements. 30 Bylaws, Article I(1)(a)(i) (RM 2). 33

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

that enable competition and open cannot ascertain what entry in Internet-related markets’.31 documents Namecheap is requesting here, above and Panel’s Ruling: In addition, ICANN claims that its beyond those documents staff conferred with the ICANN already requested, and that ICANN shall conduct a reasonable Board when deciding to proceed ICANN has agreed to produce. search and produce non-public, with the 2019 Registry Agreements non-privileged communications without price control provisions. ICANN further objects that this between relevant ICANN staff and As ICANN and its Board are Request is a fishing expedition ICANN Board members regarding committed to openness and in that it does not identify any the modification and/or removal of transparency and have a practice of particular persons whose the price control provisions in recording meetings and preparing communications Namecheap registry agreements (regardless of them in advance via email (given seeks, but instead seeks to have whether such documents or the fact that ICANN’s Board ICANN search indiscriminately communications specifically members are located in different among its staff and Board. The reference the .ORG, .INFO, and geographical locations), there must burden of conducting such an .BIZ Registry Agreements). The be records of the purported expansive search substantially time period shall be January 1, 2018 meetings between ICANN Staff outweighs any legitimate through November 18, 2019. and the Board on these topics. The benefit Namecheap plausibly point is all the stronger as the could expect from the results of removal of price caps is a major such a search. shift in ICANN’s existing practice and policy that goes to core of ICANN objects that this ICANN’s mission and purpose. Request is duplicative of Request No. 1.l above.

31 AoI, Article III (RM 1); Bylaws, Article I(2)(a) (RM 2). 34

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

Subject to these objections, ICANN will conduct a reasonable search and produce non-public, non-privileged

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

communications between relevant ICANN staff and the ICANN Board regarding the modification and/or removal of the price control provisions in the 2019 .ORG, .INFO, and .BIZ Registry Agreements.

1.n All communications Access to these documents is ICANN objects that the At issue. between ICANN staff in required to understand: documents sought by this relation to the .ORG, - the reasons for imposing, Request are not relevant or ICANN’s Position: ICANN will .BIZ and/or .INFO modifying or removing material to the outcome of this conduct a reasonable search and Registry Agreements, price caps via the registry dispute to the extent they relate produce non-public, non-privileged namely with regard to agreements, to Registry Agreements other communications between relevant the renewal, - the processes ICANN used than the 2019 .ORG, .BIZ, and ICANN staff regarding the modification and in negotiating and .INFO Registry Agreements. modification and/or removal of the removal of these registry renegotiating registry Namecheap’s claims in this IRP price control provisions in the 2019 agreements c.q. the price agreements, relate to the narrow issue of .ORG, .INFO, and .BIZ Registry caps imposed via those - the potential conflicts of ICANN’s removal of the price Agreements through 18 November agreements, the reasons interest of ICANN staff control provisions in the 2019 2019. to accept to examine the when deciding to remove .ORG, .BIZ, and .INFO Registry requests for renewal, the price caps, etc. Agreements. Documents Namecheap’s Position: Same as modification and regarding any prior Registry with Request No. 1. removal of these registry The request for these documents is Agreements, or renewal of non- agreements c.q. the price sufficiently clear and reasonable. price related provisions of the ICANN’s Response: Documents caps imposed via those Indeed, one may expect that Registry Agreements are not regarding any prior .ORG, .BIZ, or agreements, and the ICANN has this information relevant or material to .INFO Registry Agreement are reasons to accept these readily available, as it relates to its Namecheap’s claims. The irrelevant, especially given the requests, from the date core obligations towards ICANN’s burden on ICANN of searching drastic changes in the DNS since the

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

upon which these main contracting parties and to for such documents agreements were negotiated. communications ICANN’s primary mission to substantially outweighs any ICANN agrees to search for and commenced through the coordinate ‘the allocation and benefit that Namecheap collect documents through date of ICANN’s assignment of names in the root plausibly could expect to 18 November 2019 because that is response to this request. zone of the Domain Name obtain. the day that Namecheap initiated 32 System’33 and to ICANN’s the CEP with ICANN, and commitment of operating ‘through ICANN objects that the phrase documents post-dating the CEP are open and transparent processes “to accept to examine the more likely than not to be protected that enable competition and open requests” is vague and by the attorney-client privilege or entry in Internet-related markets’.34 ambiguous, such that ICANN work product doctrine. cannot ascertain what In addition, ICANN claims that it documents Namecheap is Panel’s Ruling: analyzed the public comments it requesting here, above and received from the Internet beyond those documents ICANN shall conduct a reasonable community with respect to the already requested, and that search and produce non-public, proposed renewal of the registry ICANN has agreed to produce. non-privileged communications agreements without the price caps. between relevant ICANN staff If that were true, there must be ICANN further objects that this regarding the modification and/or reports and communications about Request is a fishing expedition removal of the price control ICANN’s analysis. in that it does not identify any provisions in registry agreements particular persons whose (regardless of whether such

32 Under Part 1, No. 13 of its DIDP Request, the Claimant requested access to documents relating to ‘such removal, modification and removal’, building further on the document request in the bullets above and listing specific items requested under Part 1 (Annex 15). ICANN considered that this request was vague (Annex 16, p. 17). The Claimant fails to see how its request was not clear. All items requested under Part 1 of the DIDP Request relate to ‘documents directly and indirectly relating to the negotiations pertaining to the reassignment, renewal and amendments of the .ORG, .BIZ and/or .INFO Registry Agreements’ (Annex 15). As a result, it was clear what TLDs are being referenced. To avoid any misunderstanding, the Claimant has specified in the present request that it is seeking those documents relating to the .ORG, .BIZ and .INFO Registry Agreements. 33 Bylaws, Article I(1)(a)(i) (RM 2). 34 AoI, Article III (RM 1); Bylaws, Article I(2)(a) (RM 2). 37

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

communications Namecheap documents or communications seeks, but instead seeks to have specifically reference the .ORG, ICANN search indiscriminately .INFO, and .BIZ Registry among its staff. The burden of Agreements). The time period shall conducting such an expansive be January 1, 2018 through search substantially outweighs November 18, 2019. This request is any legitimate benefit otherwise denied on the ground Namecheap plausibly could that the requested documents are expect from the results of such a only marginally relevant and search. material relative to the burden of production. ICANN also objects to this Request to the extent it seeks documents protected by the attorney-client privilege, work product doctrine, or any other applicable privilege. ICANN will not produce privileged documents.

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

to Namecheap’s claims regarding ICANN’s decision to remove the price control provisions. ICANN will not produce any communications after 30 June 2019.

Subject to these objections, ICANN will conduct a reasonable search and produce non-public, non-privileged communications between relevant ICANN staff regarding the modification and/or removal of the price control provisions in the 2019 .ORG, .INFO, and .BIZ Registry Agreements.

1.o All communications Access to these documents is ICANN objects that the At issue. between ICANN Board required to understand: documents sought by this members in relation to - the reasons for imposing, Request are not relevant or ICANN’s Position: ICANN will the .ORG, .BIZ and/or modifying or removing price material to the outcome of this conduct a reasonable search and .INFO Registry caps via the registry dispute to the extent they relate produce non-public, non-privileged Agreements, namely agreements, to Registry Agreements other communications between relevant with regard to the - the processes ICANN used than the 2019 .ORG, .BIZ, and ICANN staff regarding the renewal, modification in negotiating and .INFO Registry Agreements. modification and/or removal of the and removal of these renegotiating registry Namecheap’s claims in this IRP price control provisions in the 2019 registry agreements c.q. agreements, relate to the narrow issue of .ORG, .INFO, and .BIZ Registry

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

the price caps imposed - the potential conflicts of ICANN’s removal of the price Agreements through 18 November via those agreements, interest of ICANN staff control provisions in the 2019 2019. the reasons to accept to when deciding to remove the .ORG, .BIZ, and .INFO Registry examine the requests for price caps, etc. Agreements. Documents Namecheap’s Position: Same as renewal, modification regarding any prior Registry with Request No. 1. and removal of these The request for these documents is Agreements, or renewal of non- registry agreements c.q. sufficiently clear and reasonable. price related provisions of the ICANN’s Response: Documents the price caps imposed Indeed, one may expect that Registry Agreements are not regarding any prior .ORG, .BIZ, or via those agreement, ICANN has this information readily relevant or material to .INFO Registry Agreement are and the reasons to available, as it relates to its core Namecheap’s claims. The irrelevant, especially given the accept these requests, obligations towards ICANN’s main burden on ICANN of searching drastic changes in the DNS since the from the date upon contracting parties and to ICANN’s for such documents agreements were negotiated. which these primary mission to coordinate ‘the substantially outweighs any ICANN agrees to search for and communications allocation and assignment of names benefit that Namecheap collect documents through commenced through the in the root zone of the Domain plausibly could expect to 18 November 2019 because that is date of ICANN’s Name System’36 and to ICANN’s obtain. the day that Namecheap initiated response to this commitment of operating ‘through the CEP with ICANN, and request.35 open and transparent processes that ICANN objects that the phrase documents post-dating the CEP are enable competition and open entry “to accept to examine the more likely than not to be protected in Internet-related markets’.37 requests” is vague and by the attorney-client privilege or ambiguous, such that ICANN work product doctrine.

35 Under Part 1, No. 15 of its DIDP Request, the Claimant requested access to documents relating to ‘such removal, modification and removal’, building further on the document request in the bullets above and listing specific items requested under Part 1 (Annex 15). ICANN considered that this request was vague (Annex 16, p. 17). The Claimant fails to see how its request was not clear. All items requested under Part 1 of the DIDP Request relate to ‘documents directly and indirectly relating to the negotiations pertaining to the reassignment, renewal and amendments of the .ORG, .BIZ and/or .INFO Registry Agreements’ (Annex 15). As a result, it was clear what TLDs are being referenced. To avoid any misunderstanding, the Claimant has specified in the present request that it is seeking those documents relating to the .ORG, .BIZ and .INFO Registry Agreements. 36 Bylaws, Article I(1)(a)(i) (RM 2). 37 AoI, Article III (RM 1); Bylaws, Article I(2)(a) (RM 2). 40

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

cannot ascertain what documents Namecheap is requesting here, above and Panel’s Ruling: beyond those documents already requested, and that ICANN shall conduct a reasonable ICANN has agreed to produce. search and produce non-public, non-privileged communications ICANN further objects that this between ICANN Board members Request is a fishing expedition regarding the modification and/or in that it does not identify any removal of the price control particular persons whose provisions in the 2019 .ORG, communications Namecheap .INFO, and .BIZ Registry seeks, but instead seeks to have Agreements. ICANN will not be ICANN search indiscriminately required to search the Board among its Board. The burden of members’ personal (non-ICANN) conducting such an expansive email accounts. The time period search substantially outweighs shall be January 1, 2018 through any legitimate benefit November 18, 2019. This request is Namecheap plausibly could otherwise denied on the ground expect from the results of such a that the requested documents are search. only marginally relevant and material relative to the burden of ICANN also objects to this production. Request to the extent it seeks documents protected by the attorney-client privilege, work product doctrine, or any other applicable privilege. ICANN

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

will not produce privileged documents.

Subject to these objections, ICANN will conduct a reasonable search and produce non-public, non-privileged communications between relevant ICANN Board members regarding the modification and/or removal of the price control provisions in

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

the 2019 .ORG, .INFO, and .BIZ Registry Agreements.

1.p All communications Access to these documents is ICANN objects that the At issue. between ICANN staff or required to understand: documents sought by this ICANN Board member - the reasons for imposing, Request are burdensome and ICANN’s Position: ICANN stands and any person or modifying or removing price overbroad to the extent they on its objections. organisation other than caps via the registry request communications ICANN staff or ICANN agreements, between ICANN and literally Namecheap’s Position: Same as Board members in - the processes ICANN used every other person or with Request No. 1. ICANN relation to the .ORG, in negotiating and organization regarding a vast considers that this request is .BIZ and/or .INFO renegotiating registry array of topics. This request is duplicative. However, ICANN is Registry Agreements, agreements, also a fishing expedition in that invited to specify to which namely with regard to - the potential conflicts of it does not identify any individual request(s) the documents the renewal, interest of ICANN staff particular persons whose they produce are responsive. modification and communications Namecheap when deciding to remove the ICANN’s Response: ICANN does removal of these registry seeks, but instead seeks to have price caps, etc. not agree to identify to which of agreements c.q. the price ICANN search indiscriminately Namecheap’s multiple Requests a caps imposed via those among its staff, Board, and The request for these documents is document is responsive. There is no agreements, the reasons officers. The burden of sufficiently clear and reasonable. such requirement anywhere in the to accept to examine the conducting such an expansive Indeed, one may expect that applicable rules, and requiring requests for renewal, search substantially outweighs ICANN has this information readily ICANN to do so would be unduly modification and any legitimate benefit available, as it relates to its core burdensome. removal of these registry Namecheap plausibly could obligations towards ICANN’s main agreements c.q. the price contracting parties and to ICANN’s expect from the results of such a Panel’s Ruling: caps imposed via those search. primary mission to coordinate ‘the agreement, and the allocation and assignment of names The Panel sustains ICANN’s reasons to accept these ICANN further objects that this in the root zone of the Domain objections and denies this Request, requests, from the date Request seeks documents that except to the extent that the Panel 43

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

upon which these Name System’39 and to ICANN’s are not relevant or material to has ordered that documents be communications commitment of operating ‘through the outcome of this dispute to produced by ICANN in response to commenced through the open and transparent processes that the extent they relate to other subparts of Namecheap’s date of ICANN’s enable competition and open entry Registry Agreements other than Request No. 1. response to this in Internet-related markets’.40 the 2019 .ORG, .BIZ, and .INFO request.38 Registry Agreements. Namecheap’s claims here relate to the narrow issue of ICANN’s removal of the price control provisions in the 2019 .ORG, .BIZ, and .INFO Registry Agreements. Documents regarding any prior Registry Agreements, or renewal of non- price related provisions of the Registry Agreements are not relevant or material to Namecheap’s claims. The burden on ICANN of searching for such documents substantially outweighs any

38 Under Part 1, No. 13 of its DIDP Request, the Claimant requested access to documents relating to ‘such removal, modification and removal’, building further on the document request in the bullets above and listing specific items requested under Part 1 (Annex 15). ICANN considered that this request was vague (Annex 16, p. 17). The Claimant fails to see how its request was not clear. All items requested under Part 1 of the DIDP Request relate to ‘documents directly and indirectly relating to the negotiations pertaining to the reassignment, renewal and amendments of the .ORG, .BIZ and/or .INFO Registry Agreements’ (Annex 15). As a result, it was clear what TLDs are being referenced. To avoid any misunderstanding, the Claimant has specified in the present request that it is seeking those documents relating to the .ORG, .BIZ and .INFO Registry Agreements. 39 Bylaws, Article I(1)(a)(i) (RM 2). 40 AoI, Article III (RM 1); Bylaws, Article I(2)(a) (RM 2). 44

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

benefit that Namecheap plausibly could expect to obtain.

ICANN objects that the phrase “to accept to examine the requests” is vague and ambiguous, such that ICANN cannot ascertain what documents Namecheap is requesting here, above and beyond those documents already requested, and that ICANN has agreed to produce.

ICANN objects to the time period proposed by Namecheap, insofar as it requests documents after 30 June 2019. The .ORG, .BIZ, and

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

.INFO Registry Agreements were renewed on 30 June 2019, and any subsequent communications are irrelevant to Namecheap’s claims regarding ICANN’s decision to remove the price control provisions. ICANN will not produce any communications after 30 June 2019.

ICANN further objects that this Request is duplicative of Requests 1, 1.b, 1.d–1.h, 1.k–1.o, for which ICANN already agreed to produce documents. ICANN does not agree to produce any additional documents in response to this Request.

1.q All documents related to Access to these documents is ICANN objects that the At issue. the preparation of the required to understand: documents sought by this Report of Public - the reasons for imposing, Request are not relevant or ICANN’s Position: ICANN will Comments for Proposed modifying or removing price material to the outcome of this conduct a reasonable search and Renewal of .ORG, .BIZ caps via the registry dispute to the extent they relate produce non-public, non-privileged and/or .INFO Registry agreements, to provisions in the 2019 .ORG, documents regarding preparation of Agreements, including - the processes ICANN used .INFO, and .BIZ Registry the Report of Public Comments for summaries and in negotiating and Agreements other than the price Proposed Renewal as it relates to

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

analyses, including the renegotiating registry control provisions. modification and/or removal of the documents exchanged agreements, Namecheap’s claims in this IRP price control provisions in the 2019 between ICANN staff - the potential conflicts of relate to the narrow issue of .ORG, .INFO, and .BIZ Registry and the ICANN Board, interest of ICANN staff ICANN’s removal of the price Agreements through 18 November between ICANN staff when deciding to remove the control provisions in the 2019 2019. and individual ICANN price caps, etc. .ORG, .BIZ, and .INFO Registry Board members, Agreements. Documents Namecheap’s Position: Same as between ICANN staff, The request for these documents is regarding any non-price related with Request No. 1. between ICANN Board sufficiently clear and reasonable. provisions of the Registry members, and between Indeed, one may expect that Agreements are not relevant or ICANN’s Response: Documents ICANN staff or ICANN ICANN has this information readily material to Namecheap’s regarding any prior .ORG, .BIZ, or Board members and any available, as it relates to its core claims. The burden on ICANN .INFO Registry Agreement are person or organisation obligations towards ICANN’s main of searching for such irrelevant, especially given the other than ICANN staff contracting parties and to ICANN’s documents substantially drastic changes in the DNS since the or ICANN Board primary mission to coordinate ‘the outweighs any benefit that agreements were negotiated. members. allocation and assignment of names Namecheap plausibly could ICANN agrees to search for and in the root zone of the Domain expect to obtain. collect documents through Name System’41 and to ICANN’s 18 November 2019 because that is commitment of operating ‘through ICANN objects that the the day that Namecheap initiated open and transparent processes that documents sought by this the CEP with ICANN, and enable competition and open entry Request are overbroad to the documents post-dating the CEP are in Internet-related markets’.42 extent they request documents more likely than not to be protected exchanged between ICANN by the attorney-client privilege or and literally every other person work product doctrine. or organization. This Request is also a fishing expedition in that Panel’s Ruling:

41 Bylaws, Article I(1)(a)(i) (RM 2). 42 AoI, Article III (RM 1); Bylaws, Article I(2)(a) (RM 2). 47

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

it does not identify any particular persons whose ICANN shall conduct a reasonable documents Namecheap seeks, search and produce non-public, but instead seeks to have non-privileged documents ICANN search indiscriminately regarding preparation of the among its officers, staff, and Report of Public Comments for Board. The burden of Proposed Renewal as it relates to conducting such an expansive modification and/or removal of the search substantially outweighs price control provisions in the 2019 any legitimate benefit .ORG, .INFO, and .BIZ Registry Namecheap plausibly could Agreements. The period shall be expect from the results of such a January 1, 2018 through search. 18 November 2019. This request is otherwise denied on the ground ICANN also objects to this that the requested documents are Request to the extent it seeks only marginally relevant and documents protected by the material relative to the burden of attorney-client privilege, work production. product doctrine, or any other applicable privilege. ICANN will not produce privileged documents.

Subject to these objections, ICANN will conduct a reasonable search and produce non-public, non-privileged documents regarding preparation of the Report of

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

Public Comments for Proposed Renewal as it relates to modification and/or removal of the price control provisions in the 2019 .ORG, .INFO, and .BIZ Registry Agreements.

1.r Any and all Access to these documents is ICANN objects that the At issue. authorisations granted required to understand: documents sought by this by, and communications - the reasons for imposing, Request are not relevant or ICANN’s Position: ICANN stands with, government modifying or removing price material to the outcome of this on its objections. officials in relation to the caps via the registry dispute. Namecheap’s claims delegation, agreements, here relate to the narrow issue Namecheap’s Position: Same as reassignment, renewal, - the processes ICANN used of ICANN’s removal of the with Request No. 1. amendments and/or in negotiating and price control provisions in the operation of the .ORG, renegotiating registry 2019 .ORG, .BIZ, and .INFO Panel’s Ruling: .BIZ and/or .INFO agreements, Registry Agreements. None of Registry Agreements. - the potential conflicts of Namecheap’s claims relates to ICANN shall conduct a reasonable interest of ICANN staff the delegation, reassignment, search and produce non-public, when deciding to remove the renewal, amendments and/or non-privileged communications price caps, etc. operation of the .ORG, .INFO, between ICANN staff and and .BIZ Registry Agreements. government officials regarding the The request for these documents is Even Namecheap’s claims modification and/or removal of the sufficiently clear and reasonable. regarding the change of control price control provisions in registry Indeed, one may expect that request (which ICANN agreements in gTLDs (regardless of ICANN has this information readily maintains are moot) do not whether such documents or available, as it relates to its core relate to reassignment of the communications specifically obligations towards ICANN’s main .ORG Registry Agreement. reference the .ORG, .INFO, and contracting parties and to ICANN’s .BIZ Registry Agreements).

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

primary mission to coordinate ‘the Pursuant to Rule 6 of the The time period for the allocation and assignment of names Interim Supplementary electronically stored information in the root zone of the Domain Procedures, a Claimant’s (ESI) protocol shall be January 1, Name System’43 and to ICANN’s Request for IRP “shall include 2018 through November 18, 2019. commitment of operating ‘through all claims that give rise to a Beyond an ESI search, ICANN open and transparent processes that particular dispute,” along with shall conduct a reasonable inquiry enable competition and open entry “[a]ll necessary and available through interviews with relevant in Internet-related markets’.44 evidence in support of the ICANN staff to identify and CLAIMANT’S claim(s).” produce non-public, non- Hence, requests for documents privileged documents and that are not based on an existing communications with government claim cannot be material to the officials prior to May 1, 2018, if outcome of the case, as required any, regarding the modification by Rule 8 of the Interim and/or removal of the price control supplementary Procedures and provisions in registry agreements Article 3 of the IBA Rules. in gTLDs (regardless of whether such documents or To the extent that Namecheap is communications specifically seeking information regarding reference the .ORG, .INFO, and “the reasons for. . . modifying .BIZ Registry Agreements). or removing price caps” in the .ORG, .BIZ, and .INFO TLDs, that information is The Panel defers ruling on the encompassed by Namecheap’s production of communications Requests above, for which with government officials ICANN agreed to produce regarding the reassignment of the

43 Bylaws, Article I(1)(a)(i) (RM 2). 44 AoI, Article III (RM 1); Bylaws, Article I(2)(a) (RM 2). 50

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

documents. ICANN does not .ORG, .BIZ and/or .INFO Registry agree to produce any additional Agreements pending a ruling on documents in response to this ICANN’s motion to dismiss Request. Namecheap’s change of control claim. 1.s All ICANN Board Access to these documents is ICANN objects that the At issue. agendas, minutes and required to understand: documents sought by this notes relating to the - the reasons for imposing, Request are overbroad and ICANN’s Position: ICANN stands removal of price caps in modifying or removing price unduly burdensome. After a on its objections. legacy and new gTLDs. caps via the registry years-long community-driven agreements, process, ICANN implemented Namecheap’s Position: Full - the processes ICANN used the New gTLD Program contention. in negotiating and through which interested renegotiating registry applicants could apply to Panel’s Ruling: agreements, operate new gTLDs that were - the potential conflicts of not already in the root zone. ICANN shall provide a written interest of ICANN staff That program launched in 2012, stipulation that the complete when deciding to remove the and ICANN has since agendas and minutes for all Board price caps, etc. introduced 1,235 new gTLDs meetings addressing the into the root. ICANN modification and/or removal of the The request for these documents is developed a Base Registry price control provisions in the 2019 sufficiently clear and reasonable. Agreement in conjunction with .ORG, .INFO, and .BIZ Registry Indeed, one may expect that the program that most registry Agreements) are posted on the ICANN has this information readily operators for those 1,235 new ICANN website (www.icann.org). available, as it relates to its core gTLDs have executed with If not, ICANN shall produce and obligations towards ICANN’s main ICANN. The burden on missing agendas or minutes. contracting parties and to ICANN’s ICANN of searching for Namecheap’s request is otherwise primary mission to coordinate ‘the documents over a multi-year denied absent any particularized allocation and assignment of names development process showing of need with respect to the

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

in the root zone of the Domain substantially outweighs any deliberations at any particular Name System’45 and to ICANN’s benefit that Namecheap Board meetings. commitment of operating ‘through plausibly could expect to open and transparent processes that obtain. enable competition and open entry in Internet-related markets’.46 ICANN also objects to this Request to the extent it seeks documents protected by the attorney-client privilege, work product doctrine, or any other applicable privilege.

ICANN further objects that non-privileged Board agendas and minutes are publicly available on ICANN’s website, and therefore are equally available to Namecheap.

Based on these objections, ICANN does not agree to produce documents responsive to this Request.

45 Bylaws, Article I(1)(a)(i) (RM 2). 46 AoI, Article III (RM 1); Bylaws, Article I(2)(a) (RM 2). 52

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

2. All documents, and Price caps, equal access rules and ICANN objects that the At issue. qualitative and vertical integration between documents sought by this quantitative data, registries and registrars may Request, and each subpart, are ICANN’s Position: To the extent directly and indirectly47 interact. As a nonprofit public not relevant or material to the that this Request seeks documents relating to all economic benefit corporation that must carry outcome of this dispute. related to ICANN’s decision to studies, impact studies, out its activities through open and Namecheap’s claims in this IRP remove the price control provisions and other studies transparent processes that enable relate to the narrow issue of in the 2019 .ORG, .BIZ, and .INFO ICANN has competition and open entry in ICANN’s removal of the price TLDs (including any “studies” commissioned, Internet-related markets, ICANN control provisions in the 2019 ICANN considered in reaching that examined and/or has commissioned economic .ORG, .BIZ, and .INFO Registry conclusion), such documents would performed with respect studies in the past examining the Agreements. But this request is naturally be encompassed by the to competition and/or effects to competition of possible not tied whatsoever to documents ICANN agreed to pricing of TLDs (in changes to ICANN’s policies and ICANN’s decision to remove produce in response to Request No. particular original practices on pricing, equal access the price control provisions; 1, and therefore this Request is gTLDs (.COM, .NET, rules and vertical integration. The instead, it seeks documents duplicative of Request No. 1. .ORG) and gTLDs that commissioning and consideration regarding “studies” ICANN ICANN therefore stands on its were delegated of such studies is consistent with “commissioned, examined objections. pursuant to ICANN ICANN’s commitment of and/or performed with respect Resolution 00.89 of 16 promoting ‘well-informed to competition and/or pricing Namecheap’s Position: ICANN has November 2000 (e.g., decisions based on expert advice.’48 of” TLDs and gTLDs, and “with refused to perform a specific search .BIZ, .INFO)), and with respect to vertical integration for, and produce, any documents To assess whether ICANN has respect to vertical between registries and responsive to Request No. 2. operated in a manner consistent integration between registrars,” which refers to the with its AoI and Bylaws through an registries and registrars, extent to which registries own ICANN’s Response: The documents open and transparent process that including: registrars and vice-versa. Namecheap seeks are not relevant enables competition, it is important Vertical integration is utterly or material to the only issue in this

47 By ‘indirectly’, Namecheap refers to the narrow and specific requests as detailed in the subsections 2.a to 2.t of Request No. 2. 48 Bylaws, Article I(2)(a)(iv) (RM 2). 53

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

to analyze the studies that ICANN irrelevant to Namecheap’s IRP: whether ICANN violated its has commissioned, examined claims in this IRP. Articles or Bylaws by deciding not and/or performed and to analyze to include a price control provision the documents surrounding such To the extent that this Request in the 2019 .ORG, .BIZ, and .INFO studies and data used to produce does seek documents related to Registry Agreements. Namecheap the studies or considered by ICANN’s decision to remove has failed to demonstrate otherwise. ICANN in its decision-making the price control provisions in process. the 2019 .ORG, .BIZ, and .INFO Panel’s Ruling: TLDs (including any “studies” Key questions include: ICANN considered in reaching The Panel previously directed in - What studies did ICANN that conclusion), such Procedural Order No. 3 that final consider when it decided to documents would naturally be versions of reports commissioned remove the price caps in encompassed by the documents by ICANN on price controls, .ORG, .BIZ and .INFO? ICANN agreed to produce in competition and vertical - How does the removal of response to Request No. 1, and integration be produced. Such final price caps in today’s market therefore this Request is studies shall be produced enable competition and duplicative of Request No. 1. regardless of whether they were open entry in Internet- published on the ICANN website related markets? Namecheap claims that these and regardless of the date of the - Has ICANN used open and documents are relevant to studies. Draft studies shall not be transparent processes when understanding whether produced, but the mere fact that a commissioning, examining “removal of the price caps in study was not published on the and/or performing studies? today’s market enable[s] ICANN website shall not render it - The analysis of the competition and open entry in as a draft. Any final studies not requested documents is Internet-related markets.” But produced based on an assertion of relevant and material to the in its IRP Request, Namecheap attorney-client privilege, the question as to whether does not claim that ICANN attorney work product doctrine, or ICANN has complied with violated its Articles or Bylaws any other applicable privilege shall its AoI and Bylaws. by failing to promote be identified on a privilege log.

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

competition. Nor does it The requested documents under reference any economic studies this Section 2 (including Section 2.a that ICANN inappropriately to Section 2.t) are not in the considered, except for Dr. Claimant’s possession, custody or Dennis Carlton’s 2009 reports, control, as they relate to studies which are publicly available. commissioned by ICANN. It may be Pursuant to Rule 6 of the possible to retrieve some of the Interim Supplementary studies and data from ICANN’s Procedures, a Claimant’s website. However, in view of the Request for IRP “shall include vastness of information available on all claims that give rise to a the ICANN website and its complex particular dispute,” along with structure, it would be unreasonably “[a]ll necessary and available burdensome for the Claimant to evidence in support of the retrieve these documents and data CLAIMANT’S claim(s).” without a view on the website’s Hence, requests for documents structure and the totality of the that are not based on an existing requested information that is claim cannot be material to the available to ICANN. outcome of the case, as required by Rule 8 of the Interim The documents requested are Supplementary Procedures and assumed to be in ICANN’s Article 3 of the IBA Rules. possession, custody or control, as they relate to studies that have Namecheap also claims that the been commissioned, examined requested documents are not in and/or performed by ICANN in its possession, custody, or the exercise of its core activities. control. Namecheap is wrong. The non-privileged, final versions of the studies

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

Namecheap seeks are publicly available, as Namecheap is aware. Indeed, when its counsel submitted a DIDP Request seeking this exact same information, ICANN provided a detailed response, identifying for Namecheap a number of publicly available links to such studies. See Annex 16, pp. 7–10, 21–23.

ICANN further objects that this Request is vague, ambiguous and overbroad in that it seeks documents “directly and indirectly” relating to “studies” ICANN commissioned, examined and/or performed. The burden on ICANN of searching for documents that may “indirectly relate” to these studies substantially outweighs any benefit that Namecheap plausibly could expect to obtain. This Request is also overbroad and irrelevant to the extent it seeks studies pertaining to “competition” that

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

have no relevance to ICANN’s decision to remove the price control provisions from the 2019 .ORG, .BIZ, and .INFO Registry Agreements.

ICANN objects that this Request is a fishing expedition in that it does not identify any particular persons whose documents Namecheap seeks, but instead seeks to have ICANN search indiscriminately among its officers and staff. The burden of conducting such an expansive search substantially outweighs any legitimate benefit Namecheap plausibly could expect from the results of such a search, especially given that ICANN already provided publicly available links to Namecheap in response to the DIDP Request. See Annex 16, pp. 7–10, 21–23.

ICANN also objects to this Request to the extent it seeks documents protected by the

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

attorney-client privilege, work product doctrine, or any other applicable privilege. ICANN will not produce privileged documents.

Based on these objections, ICANN does not agree to produce documents responsive to this Request.

ICANN will not repeat these objections in response to each subpart, but expressly incorporates these objections therein.

2.a Documents, and To assess whether ICANN has ICANN incorporates by At issue. qualitative and operated in a manner consistent reference its objections to quantitative data related with its AoI and Bylaws through Request No. 2 above. ICANN’s Position: ICANN stands to competition and/or open and transparent process that on its objections. pricing of TLDs (in enable competition, it is important particular original to analyze the documents and data Namecheap’s Position: Same as gTLDs (.COM, .NET, that were used in the studies with Request No. 2. .ORG) and gTLDs that commissioned by ICANN and were delegated considered by ICANN in its ICANN’s Response: The documents pursuant to ICANN decision-making process. Namecheap seeks are not relevant Resolution 00.89 of 16 or material to the only issue in this Key questions include: IRP: whether ICANN violated its

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

November 2000 (e.g., - How does the removal of Articles or Bylaws by deciding not .BIZ, .INFO)). price caps in today’s market to include a price control provision enable competition and in the 2019 .ORG, .BIZ, and .INFO open entry in Internet- Registry Agreements. Namecheap related markets? has failed to demonstrate otherwise. - Has ICANN used open and transparent processes when Panel’s Ruling: commissioning, examining and/or performing studies? As the Panel understands this - The analysis of the request, Namecheap is seeking requested documents is data that were used in studies relevant and material to the commissioned by ICANN and question as to whether considered by ICANN in its ICANN has complied with decision-making process. The its AoI and Bylaws. Panel has directed that the studies themselves be produced. The Panel denies this request absent a further particularized showing of relevance, materiality and need with respect to the data used in a specific study.

2.b The requests for Access to these documents is ICANN incorporates by At issue. proposals and relevant and material to reference its objection to expressions of interest understand the context in which Request No. 2 above. ICANN’s Position: ICANN stands for performing the the studies were performed. on its objections. studies. ICANN further objects that this Request seeks documents that Namecheap’s Position: Same as are not relevant or material to with Request No. 2.

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

this dispute, and constitutes a fishing expedition. Namecheap ICANN’s Response: The documents has not explained why any such Namecheap seeks are not relevant studies are relevant, let alone or material to the only issue in this how requests for proposals or IRP: whether ICANN violated its expressions of interests from Articles or Bylaws by deciding not third parties are relevant to to include a price control provision resolving whether ICANN in the 2019 .ORG, .BIZ, and .INFO complied with its Articles and Registry Agreements. Namecheap Bylaws in removing the price has failed to demonstrate otherwise. control provisions from the 2019 .ORG, .BIZ, and .INFO Panel’s Ruling: Registry Agreements. The Panel denies this request absent a further particularized showing of relevance, materiality and need with respect to the requests for proposals or expressions of interest in connection with a specific study.

2.c The criteria for the Access to these documents is ICANN incorporates by At issue. selection of the service relevant and material to reference its objections to providers performing understand the context in which Request No. 2 above. ICANN’s Position: ICANN stands the studies. the studies were performed. on its objections. ICANN further objects that this Request seeks documents that Namecheap’s Position: Same as are not relevant or material to with Request No. 2. this dispute and constitutes a

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

fishing expedition. Namecheap ICANN’s Response: The documents has not explained why any such Namecheap seeks are not relevant studies are relevant, let alone or material to the only issue in this how the “criteria for the IRP: whether ICANN violated its selection of the service Articles or Bylaws by deciding not providers” is relevant to to include a price control provision resolving whether ICANN in the 2019 .ORG, .BIZ, and .INFO complied with its Articles and Registry Agreements. Namecheap Bylaws in removing the price has failed to demonstrate otherwise. control provisions from the 2019 .ORG, .BIZ, and .INFO Panel’s Ruling: Registry Agreements. The Panel denies this request absent a further particularized showing of relevance, materiality and need with respect to the selection of service provider for a specific study.

2.d The draft reports of the Access to these documents is ICANN incorporates by At issue. studies, as exchanged relevant and material to reference its objections to with ICANN, whether understand the context in which Request No. 2 above. ICANN’s Position: ICANN stands completed or not, the studies were performed and to on its objections. whether ultimately used understand ICANN’s examination ICANN further objects that by ICANN or not, and and analysis of the studies. ICANN already directed Namecheap’s Position: Same as published by ICANN or Namecheap to where it can find with Request No. 2. not. the final studies on ICANN’s website in Response to

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

Namecheap’s DIDP Request (see ICANN’s Response: The documents Annex 16), and that any draft Namecheap seeks are not relevant versions of any study ICANN or material to the only issue in this commissioned would be IRP: whether ICANN violated its protected by the attorney-client Articles or Bylaws by deciding not privilege, work product to include a price control provision doctrine, or any other in the 2019 .ORG, .BIZ, and .INFO applicable privilege. Registry Agreements. Namecheap has failed to demonstrate otherwise.

Panel’s Ruling:

The Panel denies this request absent a further particularized showing of relevance, materiality and need with respect to the drafts of a specific study.

2.e The final studies. ICANN has interpreted the request ICANN incorporates by At issue. for the final studies as those studies reference its objections to it has publicly posted on its Request No. 2 above. ICANN’s Position: ICANN stands website.49 However, ICANN’s on its objections. wording seems to suggest that ICANN already directed there are other studies that ICANN Namecheap to where it can find Namecheap’s Position: Same as has commissioned, but elected not the final studies on ICANN’s with Request No. 2. to publish. website in its Response to Namecheap’s DIDP Request (see

49 Annex 16, p. 22. 62

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

Those unpublished studies are Annex 16), and any ICANN’s Response: The documents particularly relevant and material unpublished studies or draft of Namecheap seeks are not relevant to the dispute, as they relate to the any study ICANN or material to the only issue in this subject-matter of the dispute, commissioned would be IRP: whether ICANN violated its namely ICANN’s decision to protected by the attorney-client Articles or Bylaws by deciding not remove price caps. privilege, work product to include a price control provision doctrine, or any other in the 2019 .ORG, .BIZ, and .INFO applicable privilege. Registry Agreements. Namecheap has failed to demonstrate otherwise.

Panel’s Ruling:

The Panel previously directed in Procedural Order No. 3 that final versions of reports commissioned by ICANN on price controls, competition and vertical integration be produced. Such final studies shall be produced regardless of whether they were published on the ICANN website and regardless of the date of the studies. Draft studies shall not be produced, but the mere fact that a study was not published on the ICANN website shall not render it as a draft. Any final studies not produced based on an assertion of attorney-client privilege, the

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

attorney work product doctrine, or any other applicable privilege shall be identified on a privilege log.

2.f The reasons given by the Access to these documents is ICANN incorporates by At issue. authors of the studies to relevant and material to reference its objections to change draft reports understand the context in which Request No. 2 above. ICANN’s Position: ICANN stands before issuing final the studies were performed and to on its objections. studies. understand ICANN’s involvement ICANN further objects that and possible nuances expressed by ICANN already directed Namecheap’s Position: Same as the authors of the studies. Namecheap to where it can find with Request No. 2. ICANN purportedly relied upon the final studies on ICANN’s preliminary studies in making website in Response to ICANN’s Response: The documents decisions. Access to the requested Namecheap’s DIDP Request (see Namecheap seeks are not relevant documents is thus critical to Annex 16), and that any draft or material to the only issue in this understand ICANN’s reasons for versions of any study ICANN IRP: whether ICANN violated its doing so and the impact ICANN commissioned, or Articles or Bylaws by deciding not may have had on the authors’ communications about drafts, to include a price control provision opinions. would be protected by the in the 2019 .ORG, .BIZ, and .INFO attorney-client privilege, work Registry Agreements. Namecheap product doctrine, or any other has failed to demonstrate otherwise. applicable privilege. Panel’s Ruling:

The Panel denies this request absent a further particularized showing of relevance, materiality and need with respect to

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

documents relating to drafts of a specific study.

2.g The names and Not all of the studies that ICANN ICANN incorporates by At issue. qualifications of the has provided contain the names reference its objections to authors and participants and qualifications of the authors Request No. 2 above. ICANN’s Position: ICANN stands of the studies. and participants of the studies (E.g., on its objections. the report ‘Revisiting Vertical ICANN further objects that this Separation of Registries and Request seeks documents that Namecheap’s Position: Same as Registrars by CRA International are not relevant or material to with Request No. 2. dated 23 October 2008’). It is this dispute, and constitutes a quintessential to know who fishing expedition. Namecheap ICANN’s Response: The documents performed and who participated in has not explained why any such Namecheap seeks are not relevant the study to ascertain that the study studies are relevant, let alone or material to the only issue in this was performed by appropriately how the authors’ or IRP: whether ICANN violated its qualified individuals and to participants’ names and Articles or Bylaws by deciding not examine potential conflicts of qualifications are relevant to to include a price control provision interest. resolving whether ICANN in the 2019 .ORG, .BIZ, and .INFO complied with its Articles and Registry Agreements. Namecheap Bylaws in removing the price has failed to demonstrate otherwise. control provisions from the 2019 .ORG, .BIZ, and .INFO Panel’s Ruling: Registry Agreements. The Panel denies this request ICANN further objects that absent a further particularized ICANN already directed showing of relevance, materiality Namecheap to where it can find and need with respect to the the final studies on ICANN’s authors of and participants in a website in Response to specific study.

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

Namecheap’s DIDP Request (see Annex 16), which identify the author or the entity that authored the study.

2.h The data and To evaluate the usefulness of a ICANN incorporates by At issue. documentation on study that is based on data reference its objections to which the studies were elements and documentation, it is Request No. 2 above. ICANN’s Position: ICANN stands based. essential to have access to the on its objections. underlying data and ICANN already directed documentation. Namecheap to where it can find Namecheap’s Position: Same as the final studies on ICANN’s with Request No. 2. website in its Response to Namecheap’s DIDP (see Annex ICANN’s Response: The documents 16), which, where applicable, Namecheap seeks are not relevant cite to the data and or material to the only issue in this documentation on which the IRP: whether ICANN violated its studies were based. Articles or Bylaws by deciding not to include a price control provision in the 2019 .ORG, .BIZ, and .INFO Registry Agreements. Namecheap has failed to demonstrate otherwise.

Panel’s Ruling:

The Panel denies this request absent a further particularized showing of relevance, materiality and need with respect to the data

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

and documents upon which a specific study was based.

2.i Updates to the data and Access to this updated information ICANN incorporates by At issue. documentation on is relevant and material to evaluate reference its objections to which the studies were the effects of ICANN’s decision to Request No. 2 above. ICANN’s Position: ICANN stands based, including the remove the price caps on the on its objections. data that was collected Internet community as a whole and ICANN already directed and used by ICANN on competition and open entry in Namecheap to where it can find Namecheap’s Position: Same as when it made the Internet-related markets in the final studies on ICANN’s with Request No. 2. decision to renew the particular. website in its Response to .ORG, .BIZ, and .INFO Namecheap’s DIDP (see Annex ICANN’s Response: The documents registry agreements 16), which, where applicable, Namecheap seeks are not relevant without price caps. cite to the data and or material to the only issue in this documentation on which the IRP: whether ICANN violated its studies were based. Articles or Bylaws by deciding not to include a price control provision Namecheap’s request for in the 2019 .ORG, .BIZ, and .INFO “updates” to the data on which Registry Agreements. Namecheap studies were based is vague and has failed to demonstrate otherwise. ambiguous such that ICANN cannot ascertain what Panel’s Ruling: information Namecheap is seeking. The Panel denies this request absent a further particularized showing of relevance, materiality and need with respect to any updates in the data and documents 67

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

upon which a specific study was based.

2.j The contractual Access to the contractual ICANN incorporates by At issue. arrangements with the arrangements is relevant and reference its objections to authors of the studies. material to understand the context Request No. 2 above. ICANN’s Position: ICANN stands in which the studies were made. on its objections. ICANN further objects that this Request seeks documents that Namecheap’s Position: Same as are not relevant or material to with Request No. 2. this dispute, and constitutes a fishing expedition. Namecheap ICANN’s Response: The documents has not explained why any such Namecheap seeks are not relevant studies are relevant, let alone or material to the only issue in this how the contractual IRP: whether ICANN violated its arrangements with the authors Articles or Bylaws by deciding not are relevant to resolving to include a price control provision whether ICANN complied with in the 2019 .ORG, .BIZ, and .INFO its Articles and Bylaws in Registry Agreements. Namecheap removing the price control has failed to demonstrate otherwise. provisions from the 2019 .ORG, .BIZ, and .INFO Registry Panel’s Ruling: Agreements. The Panel denies this request absent a further particularized showing of relevance, materiality and need with respect to the

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

contractual arrangements for a specific study.

2.k Documents referring or Access to this information is ICANN incorporates by At issue. relating to the relevant and material to reference its objections to consideration/compens understand the context in which Request No. 2 above. ICANN’s Position: ICANN stands ation paid by ICANN the studies were made. on its objections. for the studies. ICANN further objects that this Request seeks documents that Namecheap’s Position: Same as are not relevant or material to with Request No. 2. this dispute, and constitutes a fishing expedition. Namecheap ICANN’s Response: The documents has not explained why any such Namecheap seeks are not relevant studies are relevant, let alone or material to the only issue in this how the IRP: whether ICANN violated its consideration/compensation Articles or Bylaws by deciding not paid by ICANN for the studies to include a price control provision is relevant to resolving whether in the 2019 .ORG, .BIZ, and .INFO ICANN complied with its Registry Agreements. Namecheap Articles and Bylaws in has failed to demonstrate otherwise. removing the price control provisions from the 2019 .ORG, Panel’s Ruling: .BIZ, and .INFO Registry Agreements. The Panel denies this request absent a further particularized showing of relevance, materiality and need with respect to the consideration or compensation

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

paid by ICANN for a specific study.

2.l Any document Access to this information is ICANN incorporates by At issue. containing ICANN’s relevant and material to reference its objections to analysis and/or understand whether ICANN has Request No. 2 above. ICANN’s Position: ICANN stands summary of the studies taken reasoned, well-informed on its objections. identified in Section 2.d decisions based on expert advice ICANN further objects that this and 2.e and of the and whether ICANN has acted to Request seeks documents that Namecheap’s Position: Same as comments made in the benefit of the public. are not relevant or material to with Request No. 2. response to these this dispute, and constitutes a studies. fishing expedition. Namecheap ICANN’s Response: The documents has not explained why any such Namecheap seeks are not relevant studies are relevant, let alone or material to the only issue in this how ICANN’s analysis and/or IRP: whether ICANN violated its summary of the studies, or the Articles or Bylaws by deciding not comments made in response to to include a price control provision the studies are relevant to in the 2019 .ORG, .BIZ, and .INFO resolving whether ICANN Registry Agreements. Namecheap complied with its Articles and has failed to demonstrate otherwise. Bylaws in removing the price control provisions from the Panel’s Ruling: 2019 .ORG, .BIZ, and .INFO Registry Agreements. ICANN shall conduct a reasonable search and produce non-public, Moreover, ICANN already non-privileged analyses of any directed Namecheap to where it studies that specifically relate to can find the final studies on the modification or removal of ICANN’s website, and price controls in the .ORG, .BIZ

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

comments made to those and .INFO Registry Agreements studies in its Response to (including Registry Agreements Namecheap’s DIDP (see Annex prior to 2019). The time period for 16). the electronically stored information (ESI) protocol shall be January 1, 2018 through November 18, 2019. Beyond an ESI search, ICANN shall conduct a reasonable inquiry through interviews with relevant ICANN staff to identify and produce non-public, non- privileged analyses of any studies that specifically relate to the modification or removal of price controls in the .ORG, .BIZ and .INFO Registry Agreements (including Registry Agreements prior to 2019).

2. All communications Access to this information is ICANN incorporates by At issue. m between ICANN and relevant and material to reference its objections to the authors and understand the context in which Request No. 2 above. ICANN’s Position: ICANN stands participants of the the studies were made, to identify on its objections. studies. potential conflicts of interest, etc. ICANN further objects that this Request seeks documents that Namecheap’s Position: Same as are not relevant or material to with Request No. 2. this dispute, and constitutes a fishing expedition. Namecheap ICANN’s Response: The documents has not explained why any such Namecheap seeks are not relevant

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

studies are relevant, let alone or material to the only issue in this how the communications IRP: whether ICANN violated its between ICANN and the Articles or Bylaws by deciding not authors are relevant to to include a price control provision resolving whether ICANN in the 2019 .ORG, .BIZ, and .INFO complied with its Articles and Registry Agreements. Namecheap Bylaws in removing the price has failed to demonstrate otherwise. control provisions from the 2019 .ORG, .BIZ, and .INFO Panel’s Ruling: Registry Agreements. The Panel denies this request ICANN objects that absent a further particularized communications between showing of relevance, materiality ICANN and the authors of the and need with respect to studies would be protected by ccommunications between ICANN the attorney-client privilege, and the authors and participants of work product doctrine, or any a specific study. other applicable privilege.

2.n All quantitative and Access to this data is relevant and ICANN incorporates by At issue. qualitative data relating material to evaluate the effects of reference its objections to to registry prices ICANN’s decision to remove the Request No. 2 above. ICANN’s Position: ICANN stands (wholesale level), price caps on the Internet on its objections. including actual prices community as a whole, and on ICANN objects that this and price caps, to the Namecheap in particular, and on Request does not seek Namecheap’s Position: Same as extent available to competition and open entry in documents relevant or material with Request No. 2. ICANN, for the period Internet-related markets in to the narrow issue of whether 2000-2020, and at the particular. ICANN complied with its ICANN’s Response: The documents highest frequency (e.g. Articles and Bylaws in Namecheap seeks are not relevant

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

monthly) and most removing the price control or material to the only issue in this detailed level available provisions in the 2019 .ORG, IRP: whether ICANN violated its to ICANN (e.g .BIZ, and .INFO Registry Articles or Bylaws by deciding not transaction level data). Agreements. to include a price control provision in the 2019 .ORG, .BIZ, and .INFO ICANN further objects that this Registry Agreements. Namecheap Request is overbroad and has failed to demonstrate otherwise. constitutes a fishing expedition. Indeed, this Request seeks Additionally, ICANN does not information pertaining to maintain this data as a matter of registry prices for a 20-year course. period, and for over 1,200 gTLDs. The burden on ICANN Panel’s Ruling: of conducting such an expansive search substantially The Panel is potentially open to outweighs any benefit that requiring the production of some Namecheap plausibly could data relating to registry prices expect to obtain. (wholesale level), including actual prices and price caps for a limited ICANN objects to the extent period (certainly not the entire 20- that this information is publicly year period of 2010-2020), but would available, and therefore is require further information to make equally accessible to such a ruling. Specifically, the Panel Namecheap. Additionally, this needs to better understand: 1) the information likely is in precise data sought by Namecheap Namecheap’s possession, and precisely how that data would custody, or control, as be utilized by its expert(s) as Namecheap is aware of the evidence regarding whether registry prices that registry ICANN violated its Articles of

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

operators charge it for registry Incorporation or Bylaws; 2) whether services. that data is reasonably available to ICANN; 3) if so, the burden to ICANN of producing that data; 4) whether equivalent data is reasonably available to Namecheap from sources other than ICANN; and 5) whether the data constitutes confidential commercial information or trade secrets of registries or other registrars. In the event Namecheap wishes to continue pursuing this request, Namecheap shall promptly initiate a meet-and-confer process with ICANN to discuss the foregoing factors. If the parties are unable to reach agreement, Namecheap may apply to the Panel by no later than January 15, 2021 for an order to resolve any disputed issues. 2.o All quantitative and Access to this data is relevant and ICANN incorporates by At issue. qualitative data, to the material to evaluate the effects of reference its objections to extent available to ICANN’s decision to remove the Request No. 2 above. ICANN’s Position: ICANN stands ICANN, relating to price caps on the Internet on its objections. retail prices (charged by community as a whole, and on ICANN objects that this registrars to registrants), Namecheap in particular, and on Request does not seek Namecheap’s Position: Same as for the period 2000-2020, competition and open entry in documents relevant or material with Request No. 2. at the highest frequency to the narrow issue of whether 74

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

(e.g. monthly) and most Internet-related markets in ICANN complied with its ICANN’s Response: The documents detailed level available particular. Articles and Bylaws in Namecheap seeks are not relevant to ICANN (e.g. removing the price control or material to the only issue in this transaction level data). provisions in the 2019 .ORG, IRP: whether ICANN violated its This includes any data .BIZ, and .INFO Registry Articles or Bylaws by deciding not on add-on prices. Agreements. to include a price control provision in the 2019 .ORG, .BIZ, and .INFO ICANN further objects that this Registry Agreements. Namecheap Request is overbroad and has failed to demonstrate otherwise. constitutes a fishing expedition. Indeed, there are over 2,000 Additionally, ICANN does not ICANN-accredited registrars maintain this data as a matter of across the world. The burden course. on ICANN of conducting such an expansive search for a 20- Panel’s Ruling: year period substantially outweighs any benefit that The Panel is potentially open to Namecheap plausibly could requiring the production of some expect to obtain. data relating to retail prices (charged by registrars to ICANN objects to the extent registrants), registry prices that this information is publicly (wholesale level), including actual available, and therefore is prices and price caps, for a limited equally accessible to period (certainly not the entire 20- Namecheap. year period of 2010-2020), but would require further information to make such a ruling. Specifically, the Panel needs to better understand: 1) the precise data sought by Namecheap

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

and precisely how that data would be utilized by its expert(s) as evidence regarding whether ICANN violated its Articles of Incorporation or Bylaws; 2) whether that data is reasonably available to ICANN; 3) if so, the burden to ICANN of producing that data; 4) whether equivalent data is reasonably available to Namecheap from sources other than ICANN; and 5) whether the data constitutes confidential commercial information or trade secrets of registries or other registrars. In the event Namecheap wishes to continue pursuing this request, Namecheap shall promptly initiate a meet-and-confer process with ICANN to discuss the foregoing factors. If the parties are unable to reach agreement, Namecheap may apply to the Panel by no later than January 15, 2021 for an order to resolve any disputed issues.

2.p All quantitative and Access to this data is relevant and ICANN incorporates by At issue. qualitative data relating material to evaluate the effects of reference its objections to to registration volumes, ICANN’s decision to remove the Request No. 2 above. 76

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

by registry, TLD, and price caps on the Internet ICANN’s Position: ICANN stands registrar, for the period community as a whole, and on ICANN further objects that this on its objections. 2000-2020, at the highest Namecheap in particular, and on Request does not seek frequency (e.g. monthly) competition and open entry in documents relevant or material Namecheap’s Position: Same as and most detailed level Internet-related markets in to the narrow issue of whether with Request No. 2. available to ICANN (e.g. particular. ICANN complied with its transaction level data). Articles and Bylaws in ICANN’s Response: The documents removing the price control Namecheap seeks are not relevant provisions in the 2019 .ORG, or material to the only issue in this .BIZ, and .INFO Registry IRP: whether ICANN violated its Agreements. Articles or Bylaws by deciding not to include a price control provision ICANN further objects that this in the 2019 .ORG, .BIZ, and .INFO Request is overbroad and Registry Agreements. Namecheap constitutes a fishing expedition. has failed to demonstrate otherwise. Indeed, this Request seeks information pertaining to Panel’s Ruling: registration volumes for a 20- year period, and for over 1,200 The Panel is potentially open to gTLDs. The burden on ICANN requiring the production of some of conducting such an data relating to registration expansive search substantially volumes for a limited period outweighs any benefit that (certainly not the entire 20-year Namecheap plausibly could period of 2010-2020), but would expect to obtain. require further information to make such a ruling. Specifically, the Panel needs to better understand: 1) the precise data sought by Namecheap and precisely how that data would

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

be utilized by its expert(s) as evidence regarding whether ICANN violated its Articles of Incorporation or Bylaws; 2) whether that data is reasonably available to ICANN; 3) if so, the burden to ICANN of producing that data; 4) whether equivalent data is reasonably available to Namecheap from sources other than ICANN; and 5) whether the data constitutes confidential commercial information or trade secrets of registries or other registrars. In the event Namecheap wishes to continue pursuing this request, Namecheap shall promptly initiate a meet-and-confer process with ICANN to discuss the foregoing factors. If the parties are unable to reach agreement, Namecheap may apply to the Panel by no later than January 15, 2021 for an order to resolve any disputed issues. 2.q To the extent available Access to this data is relevant and ICANN incorporates by At issue. to ICANN, all material to evaluate the effects of reference its objections to quantitative and ICANN’s decision to remove the Request No. 2 above. ICANN’s Position: ICANN stands qualitative data relating price caps on the Internet on its objections. to (incremental) costs community as a whole, and on 78

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

and margins of Namecheap in particular, and on ICANN objects that this Namecheap’s Position: Same as registries (the wholesale competition and open entry in Request does not seek with Request No. 2. level) and registrars (the Internet-related markets in documents relevant or material retail level) for the particular. to the narrow issue of whether ICANN’s Response: The documents period 2000-2020, at the ICANN complied with its Namecheap seeks are not relevant highest frequency (e.g. Articles and Bylaws in or material to the only issue in this monthly) and most removing the price control IRP: whether ICANN violated its detailed level available provisions in the 2019 .ORG, Articles or Bylaws by deciding not to ICANN. .BIZ, and .INFO Registry to include a price control provision Agreements. in the 2019 .ORG, .BIZ, and .INFO Registry Agreements. Namecheap ICANN further objects that this has failed to demonstrate otherwise. Request is overbroad and constitutes a fishing expedition. Additionally, ICANN does not Indeed, there are over 1,200 maintain this data as a matter of gTLDs and over 2,000 course. accredited registrars. The burden on ICANN of Panel’s Ruling: conducting such an expansive search for a 20-year period The Panel is potentially open to substantially outweighs any requiring the production of some benefit that Namecheap data relating to incremental costs plausibly could expect to and margins of registries and obtain. registrars for a limited period (certainly not the entire 20-year period of 2010-2020), but would require further information to make such a ruling. Specifically, the Panel needs to better understand: 1) the

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

precise data sought by Namecheap and precisely how that data would be utilized by its expert(s) as evidence regarding whether ICANN violated its Articles of Incorporation or Bylaws; 2) whether that data is reasonably available to ICANN; 3) if so, the burden to ICANN of producing that data; 4) whether equivalent data is reasonably available to Namecheap from sources other than ICANN; and 5) whether the data constitutes confidential commercial information or trade secrets of registries or other registrars. In the event Namecheap wishes to continue pursuing this request, Namecheap shall promptly initiate a meet-and-confer process with ICANN to discuss the foregoing factors. If the parties are unable to reach agreement, Namecheap may apply to the Panel by no later than January 15, 2021 for an order to resolve any disputed issues. 2.r All qualitative and Access to this data is relevant and ICANN incorporates by At issue. quantitative data that material to evaluate the effects of reference its objections to ICANN collected for the ICANN’s decision to remove the Request No. 2 above. 80

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

purpose of producing price caps on the Internet ICANN’s Position: ICANN stands the report “Competition, community as a whole, and on ICANN already directed on its objections. Consumer Trust, and Namecheap in particular, and on Namecheap to where it can find Consumer Choice competition and open entry in the final Competition, Namecheap’s Position: Same as Review” (8 September Internet-related markets in Consumer Trust, and Consumer with Request No. 2. 2018) in particular the particular. Choice Review on ICANN’s data underlying the website in its Response to ICANN’s Response: The documents tables in that report. Namecheap’s DIDP (see Annex Namecheap seeks are not relevant 16), which cites to the data and or material to the only issue in this documentation on which the IRP: whether ICANN violated its review was based, where Articles or Bylaws by deciding not applicable. to include a price control provision in the 2019 .ORG, .BIZ, and .INFO Registry Agreements. Namecheap has failed to demonstrate otherwise.

Panel’s Ruling:

It appears that ICANN previously directed Namecheap to the final Competition, Consumer Trust, and Consumer Choice Review on ICANN’s website in its Response to Namecheap’s DIDP (see ICANN’s Annex 16), which cites to the data and documentation on which the review was based, where

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

applicable. Accordingly, this request is denied.

2.s All other documents, Access to this data is relevant and ICANN incorporates by At issue. qualitative data and material to evaluate the effects of reference its objections to quantitative data which ICANN’s decision to remove the Request No. 2 above. ICANN’s Position: ICANN stands relate to competition, price caps on the Internet on its objections. pricing of TLDs and/or community as a whole, and on ICANN objects that this vertical integration Namecheap in particular, and on Request does not seek Namecheap’s Position: Same as between registries and competition and open entry in documents relevant or material with Request No. 2. registrars for the period Internet-related markets in to the narrow issue of whether 2000-2020, at the most particular. ICANN complied with its ICANN’s Response: The documents detailed level available Articles and Bylaws in Namecheap seeks are not relevant to ICANN. Data related removing the price control or material to the only issue in this to competition includes provisions in the 2019 .ORG, IRP: whether ICANN violated its but is not limited to: (i) .BIZ, and .INFO Registry Articles or Bylaws by deciding not substitutability between Agreements. to include a price control provision TLDs, (ii) competition in the 2019 .ORG, .BIZ, and .INFO between registries, (iii) Additionally, none of Registry Agreements. Namecheap competition between Namecheap’s claims relate to has failed to demonstrate otherwise. registrars, (iv) the “competition,” or “vertical competition between integration between registries Panel’s Ruling: TLDs, (v) the degree of and registrars.” Pursuant to market power for TLDs Rule 6 of the Interim This request is denied as vague, and (vi) the definition of Supplementary Procedures, a ambiguous and overbroad in that it the relevant markets. Claimant’s Request for IRP seeks “all other documents, “shall include all claims that qualitative data and quantitative give rise to a particular data” broadly relating to dispute,” along with “[a]ll “competition, pricing of TLDs 82

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

necessary and available and/or vertical integration between evidence in support of the registries and registrars” for a 20- CLAIMANT’S claim(s).” year period and is not sufficiently Hence, requests for documents targeted to the claims giving rise to that are not based on an existing this particular dispute. claim cannot be material to the outcome of the case, as required by Rule 8 of the Interim Supplementary Procedures and Article 3 of the IBA Rules.

ICANN objects that this Request is overbroad to the extent it seeks “all” qualitative and quantitative data for a 20- year period. The burden on ICANN of conducting such an expansive search for a 20-year period substantially outweighs any benefit that Namecheap plausibly could expect to obtain.

2.t All documents Access to this data is relevant and ICANN incorporates by At issue. addressed to ICANN material to evaluate whether reference its objections to containing any ICANN, when deciding to remove Request No. 2 above. ICANN’s Position: ICANN stands expressions of concerns and/or modify price caps, duly took on its objections. in relation to the into account the public policy ICANN objects that this introduction of new advice of governments and public Request seeks documents that

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

gTLDs, removals of price authorities50 and whether it acted in are not relevant or material to Namecheap’s Position: Same as caps, the general state of the public interest. Namecheap’s claims. with Request No. 2. competition in the “Expressions of concern” domain name system, regarding ICANN’s ICANN’s Response: The documents etc. by the US (Federal or implementation of a program to Namecheap seeks are not relevant State) or other relevant introduce new gTLDs into the or material to the only issue in this authorities. root zone is irrelevant to IRP: whether ICANN violated its whether ICANN complied with Articles or Bylaws by deciding not its Articles and Bylaws in to include a price control provision deciding to remove the price in the 2019 .ORG, .BIZ, and .INFO control provisions in the 2019 Registry Agreements. Namecheap .ORG, .INFO, and .BIZ Registry has failed to demonstrate otherwise. Agreements. These three TLDs are not new gTLDs, and were Panel’s Ruling: introduced into the root zone years before the New gTLD ICANN shall conduct a reasonable Program launched. To the search and produce non-public, extent that this Request seeks non-privileged documents information regarding removal reflecting the public policy advice and/or modification of the of governments and public price control provisions in the authorities regarding the 2019 Registry Agreements, modification or removal of price responsive documents would controls in registry agreements for naturally be encompassed by gTLDs (regardless of whether such Request No. 1 above. documents or communications specifically reference the .ORG, .INFO, and .BIZ Registry

50 In accordance with Article I(2)(a)(iv) Bylaws (RM 2), ICANN must duly take into account the public policy advice of governments and public authorities. 84

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

ICANN further objects that this Agreements). The time period for Request is vague, ambiguous, the electronically stored and overbroad to the extent it information (ESI) protocol shall be seeks information regarding January 1, 2018 through November “the general state of 18, 2019. Beyond an ESI search, competition in the domain ICANN shall conduct a reasonable name system.” Additionally, inquiry through interviews with none of Namecheap’s claims relevant ICANN staff to identify relate to the “general state of and produce non-public, non- competition.” Pursuant to Rule privileged documents reflecting 6 of the Interim Supplementary the public policy advice of Procedures, a Claimant’s governments and public Request for IRP “shall include authorities regarding the all claims that give rise to a modification or removal of price particular dispute,” along with controls in registry agreements for “[a]ll necessary and available gTLDs (regardless of whether such evidence in support of the documents or communications CLAIMANT’S claim(s).” specifically reference the .ORG, Hence, requests for documents .INFO, and .BIZ Registry that are not based on an existing Agreements). claim cannot be material to the outcome of the case, as required by Rule 8 of the Interim Supplementary Procedures and Article 3 of the IBA Rules.

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

3 All documents directly Access to these documents is ICANN objects to this Request, At issue. and indirectly51 relating relevant and material to and each subpart, because they to the proposed change understand how ICANN’s decision relate to the now moot change ICANN’s Position: ICANN stands of control of Public to remove the price caps may have of control request. In its IRP on its objections. Interest Registry, been impacted by Public Interest Request, Namecheap argues including: Registry’s intended change of that ICANN violated its Articles Namecheap’s Position: Relevant control and to understand whether of Incorporation and Bylaws by period for which documents are ICANN has taken sufficient evaluating PIR’s change of sought. ICANN should search for measures to avoid capture by a control request, and advocated and produce all non-privileged self-interested party or forces with that ICANN should not consent documents responsive to these narrow interests. to the request. See Request for Requests, dating back to the date IRP ¶¶ 51–54. ICANN upon which these communications Moreover, access to these responded that it was fully commenced until the date of documents is relevant and material complying with its Articles of production. ICANN should to understand the relevance of Incorporation and Bylaws in communicate openly about any new .ORG (and other domains with evaluating the change of control developments that relate to the price caps) in constraining the request. See Response to dispute and immediately disclose exercise of market power by other Request for IRP ¶¶ 53–59. After any new documents relating to the TLD registry operators and ICANN filed its Response to acquisition or proposed acquisition therefore the impact of removal or Request for IRP, ICANN did of a registry operator for .org, .biz modification of price caps on exactly what Namecheap and/or .info, as they become competition, registrars, and argued it should—it did not available. registrants / consumers. consent to the change of control request. Accordingly, there are ICANN’s Response: Contrary to no longer any ripe claims what Namecheap stated in Annex The request for these documents is related to the change of control 25, ICANN did not “agree[] to the sufficiently clear and reasonable. request. Despite this, and production for those documents

51 By ‘indirectly’, Namecheap refers to the narrow and specific requests as detailed in the subsections 3.a to 3.f of Request No. 3. 86

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

Indeed, one may expect that without any logical rationale, between (i) the start of negotiations ICANN has this information readily Namecheap has refused to drop to the 2019 Registry Agreements for available, as it relates to its core these claims. ICANN therefore .org, .info and .biz and (ii) 18 obligations towards ICANN’s main requests that this Panel deny November 2019.”53 Instead, ICANN contracting parties and to ICANN’s each of Namecheap’s Requests explained that it “will produce primary mission to coordinate ‘the that seek documents pertaining documents regarding the transition allocation and assignment of names to the change of control request, of the .ORG, .BIZ, and .INFO in the root zone of the Domain as they are no longer relevant or Registry Agreements to the Base Name System’.52 The documents material to the issues in this Registry Agreement in June 2019, requested under this Section 3 IRP. ICANN further requests within the parameters set forth in (including Section 3.a to Section 3.f) that the Panel dismiss ICANN’s Response [to are thus assumed to be in ICANN’s Namecheap’s claims regarding Namecheap’s Request for possession, custody or control. In the change of control request, Production]. To the extent that addition, ICANN has made public and strike paragraphs 12 ICANN considered any ‘actual or selected documents regarding the through 15, 27 through 29, 32 potential changes of control’ in proposed change of control of through 38, and 51 through 54 reaching the decision to transition Public Interest Registry, albeit in of its Request for IRP. To the the .ORG, .BIZ, and .INFO Registry redacted form. extent that the Panel does not Agreements to the Base Registry have sufficient information to Agreement in June 2019, those The requested documents under consider ICANN’s request for documents should be encompassed this Section 3 (including Section 3.a partial dismissal, ICANN by ICANN’s proposed collection.”54 to Section 3.f) are not in the requests that the Panel permit ICANN, therefore, stands on its Claimant’s possession, custody or ICANN to file a motion to objections. control, as the Claimant was not dismiss the claims related to the part of the discussions related to the proposed change of control. Panel’s Ruling:

52 Bylaws, Article I(1)(a)(i) (RM 2). 53 See Annex 25, at Request No. 3. 54 Annex 27, at p. 6. 87

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

proposed change of control. At most, the Claimant can retrieve part ICANN objects that this The Panel defers ruling on this of the information in redacted form Request is vague, ambiguous, request pending a ruling on on ICANN’s website. Such retrieval and overbroad in that it seeks ICANN’s motion to dismiss is (i) unreasonably burdensome in documents “directly and Namecheap’s change of control view of the complex structure of indirectly” relating to the claim. ICANN’s website, and (ii) change of control request. The inefficient in view of likely relevant burden on ICANN of searching information being redacted and/or for documents that may unavailable on ICANN’s website. “indirectly relate” to the change of control request substantially

outweighs any benefit that Namecheap plausibly could expect to obtain.

ICANN further objects that this Request is a fishing expedition in that it does not identify any particular persons whose documents Namecheap seeks, but instead seeks to have ICANN search indiscriminately among its officers and staff for any document regarding the change of control request. The burden of conducting such a search substantially outweighs any legitimate benefit Namecheap plausibly could

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

expect from the results of such a search.

ICANN objects to the extent the Request seeks documents after 30 April 2020, the date on which the ICANN Board withheld consent for the change of control request. Any subsequent communications are irrelevant to Namecheap’s claims regarding ICANN’s consideration of the change of control request.

Namecheap claims that “[a]ccess to these documents is relevant and material to understand how ICANN’s decision to remove the price

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

caps may have been impacted by Public Interest Registry’s intended change of control and to understand whether ICANN has taken sufficient measures to avoid capture by a self- interested party or forces with narrow interests.” Documents regarding the overlap (if any) between ICANN’s decision to remove the price control provisions and the consideration of the change of control request, would naturally be encompassed by the documents ICANN agreed to produce in response to Request No. 1, and therefore this Request is duplicative of Request No. 1.

Namecheap also claims that these documents are relevant to understanding the relevance of .ORG “in constraining the exercise of market power by other TLD registry operators.” But none of Namecheap’s claims relates to market power

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

by any TLD registry operator, or the necessity of price control provisions to constrain market power. Pursuant to Rule 6 of the Interim Supplementary Procedures, a Claimant’s Request for IRP “shall include all claims that give rise to a particular dispute,” along with “[a]ll necessary and available evidence in support of the CLAIMANT’S claim(s).” Hence, requests for documents that are not based on an existing claim cannot be material to the outcome of the case, as required by Rule 8 of the Interim Supplementary Procedures and Article 3 of the IBA Rules.

Based on these objections, ICANN does not agree to produce documents responsive to this Request.

ICANN will not repeat these objections in response to each subpart, but expressly

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

incorporates these objections therein.

3.a All correspondence Access to these documents is ICANN incorporates by At issue. between ICANN and relevant and material to reference its objections to Public Interest Registry, understand how ICANN’s decision Request No. 3 above. ICANN’s Position: ICANN stands their representatives, to remove the price caps may have on its objections. their related companies been impacted by Public Interest and organisations Registry’s intended change of Namecheap’s Position: Same as relating to the proposed control and to understand whether with Request No. 3. change of control of ICANN has taken sufficient Public Interest Registry. measures to avoid capture by a ICANN’s Response: Contrary to self-interested party or forces with what Namecheap stated in Annex narrow interests. 25, ICANN did not “agree[] to the production for those documents Moreover, access to these between (i) the start of negotiations documents is relevant and material to the 2019 Registry Agreements for to understand the relevance of .org, .info and .biz and (ii) 18 .ORG (and other domains with November 2019.”56 Instead, ICANN price caps) in constraining the explained that it “will produce exercise of market power by other documents regarding the transition TLD registry operators and of the .ORG, .BIZ, and .INFO therefore the impact of removal or Registry Agreements to the Base modification of price caps on Registry Agreement in June 2019, competition, registrars, and within the parameters set forth in registrants / consumers. ICANN’s Response [to Namecheap’s Request for

56 See Annex 25, at Request No. 3. 92

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

The request for these documents is Production]. To the extent that sufficiently clear and reasonable. ICANN considered any ‘actual or Indeed, one may expect that potential changes of control’ in ICANN has this information reaching the decision to transition readily available, as it relates to its the .ORG, .BIZ, and .INFO Registry core obligations towards ICANN’s Agreements to the Base Registry main contracting parties and to Agreement in June 2019, those ICANN’s primary mission to documents should be encompassed coordinate ‘the allocation and by ICANN’s proposed collection.”57 assignment of names in the root ICANN, therefore, stands on its zone of the Domain Name objections. System’.55 Panel’s Ruling:

The Panel defers ruling on this request pending a ruling on ICANN’s motion to dismiss Namecheap’s change of control claim.

3.b All communications Access to these documents is ICANN incorporates by At issue. between ICANN staff relevant and material to reference its objections to and the ICANN Board understand how ICANN’s decision Request No. 3 above. ICANN’s Position: ICANN stands in relation to the to remove the price caps may have on its objections.

55 Bylaws, Article I(1)(a)(i) (RM 2). 57 Annex 27, at p. 6. 93

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

proposed change of been impacted by Public Interest control of Public Interest Registry’s intended change of Namecheap’s Position: Same as Registry. control and to understand whether with Request No. 3. ICANN has taken sufficient measures to avoid capture by a ICANN’s Response: Contrary to self-interested party or forces with what Namecheap stated in Annex narrow interests. 25, ICANN did not “agree[] to the production for those documents Moreover, access to these between (i) the start of negotiations documents is relevant and material to the 2019 Registry Agreements for to understand the relevance of .org, .info and .biz and (ii) 18 .ORG (and other domains with November 2019.”59 Instead, ICANN price caps) in constraining the explained that it “will produce exercise of market power by other documents regarding the transition TLD registry operators and of the .ORG, .BIZ, and .INFO therefore the impact of removal or Registry Agreements to the Base modification of price caps on Registry Agreement in June 2019, competition, registrars, and within the parameters set forth in registrants / consumers. ICANN’s Response [to Namecheap’s Request for The request for these documents is Production]. To the extent that sufficiently clear and reasonable. ICANN considered any ‘actual or Indeed, one may expect that potential changes of control’ in ICANN has this information reaching the decision to transition readily available, as it relates to its the .ORG, .BIZ, and .INFO Registry core obligations towards ICANN’s Agreements to the Base Registry main contracting parties and to Agreement in June 2019, those

59 See Annex 25, at Request No. 3. 94

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

ICANN’s primary mission to documents should be encompassed coordinate ‘the allocation and by ICANN’s proposed collection.”60 assignment of names in the root ICANN, therefore, stands on its zone of the Domain Name objections. System’.58 Panel’s Ruling:

The Panel defers ruling on this request pending a ruling on ICANN’s motion to dismiss Namecheap’s change of control claim.

3.c All communications Access to these documents is ICANN incorporates by At issue. between ICANN staff relevant and material to reference its objections to and individual ICANN understand how ICANN’s decision Request No. 3 above. ICANN’s Position: ICANN stands Board members in to remove the price caps may have on its objections. relation to the proposed been impacted by Public Interest change of control of Registry’s intended change of Namecheap’s Position: Same as Public Interest Registry, control and to understand whether with Request No. 3. from the date upon ICANN has taken sufficient which these measures to avoid capture by a ICANN’s Response: Contrary to communications self-interested party or forces with what Namecheap stated in Annex commenced through the narrow interests. 25, ICANN did not “agree[] to the

58 Bylaws, Article I(1)(a)(i) (RM 2). 60 Annex 27, at p. 6. 95

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

date of ICANN’s production for those documents response to this Request. Moreover, access to these between (i) the start of negotiations documents is relevant and material to the 2019 Registry Agreements for to understand the relevance of .org, .info and .biz and (ii) 18 .ORG (and other domains with November 2019.”62 Instead, ICANN price caps) in constraining the explained that it “will produce exercise of market power by other documents regarding the transition TLD registry operators and of the .ORG, .BIZ, and .INFO therefore the impact of removal or Registry Agreements to the Base modification of price caps on Registry Agreement in June 2019, competition, registrars, and within the parameters set forth in registrants / consumers. ICANN’s Response [to Namecheap’s Request for The request for these documents is Production]. To the extent that sufficiently clear and reasonable. ICANN considered any ‘actual or Indeed, one may expect that potential changes of control’ in ICANN has this information reaching the decision to transition readily available, as it relates to its the .ORG, .BIZ, and .INFO Registry core obligations towards ICANN’s Agreements to the Base Registry main contracting parties and to Agreement in June 2019, those ICANN’s primary mission to documents should be encompassed coordinate ‘the allocation and by ICANN’s proposed collection.”63 assignment of names in the root ICANN, therefore, stands on its zone of the Domain Name objections. System’.61

61 Bylaws, Article I(1)(a)(i) (RM 2). 62 See Annex 25, at Request No. 3. 63 Annex 27, at p. 6. 96

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

Panel’s Ruling:

The Panel defers ruling on this request pending a ruling on ICANN’s motion to dismiss Namecheap’s change of control claim. 3.d All communications Access to these documents is ICANN incorporates by At issue. between ICANN staff in relevant and material to reference its objections to relation to the proposed understand how ICANN’s decision Request No. 3 above. ICANN’s Position: ICANN stands change of control of to remove the price caps may have on its objections. Public Interest Registry, been impacted by Public Interest from the date upon Registry’s intended change of Namecheap’s Position: Same as which these control and to understand whether with Request No. 3. communications ICANN has taken sufficient commenced through the measures to avoid capture by a ICANN’s Response: Contrary to date of ICANN’s self-interested party or forces with what Namecheap stated in Annex response to this Request. narrow interests. 25, ICANN did not “agree[] to the production for those documents Moreover, access to these between (i) the start of negotiations documents is relevant and material to the 2019 Registry Agreements for to understand the relevance of .org, .info and .biz and (ii) 18 .ORG (and other domains with November 2019.”65 Instead, ICANN price caps) in constraining the explained that it “will produce exercise of market power by other documents regarding the transition TLD registry operators and of the .ORG, .BIZ, and .INFO

65 See Annex 25, at Request No. 3. 97

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

therefore the impact of removal or Registry Agreements to the Base modification of price caps on Registry Agreement in June 2019, competition, registrars, and within the parameters set forth in registrants / consumers. ICANN’s Response [to Namecheap’s Request for The request for these documents is Production]. To the extent that sufficiently clear and reasonable. ICANN considered any ‘actual or Indeed, one may expect that potential changes of control’ in ICANN has this information reaching the decision to transition readily available, as it relates to its the .ORG, .BIZ, and .INFO Registry core obligations towards ICANN’s Agreements to the Base Registry main contracting parties and to Agreement in June 2019, those ICANN’s primary mission to documents should be encompassed coordinate ‘the allocation and by ICANN’s proposed collection.”66 assignment of names in the root ICANN, therefore, stands on its zone of the Domain Name objections. System’.64 Panel’s Ruling:

The Panel defers ruling on this request pending a ruling on ICANN’s motion to dismiss Namecheap’s change of control claim.

64 Bylaws, Article I(1)(a)(i) (RM 2). 66 Annex 27, at p. 6. 98

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

3.e All communications Access to these documents is ICANN incorporates by At issue. between ICANN Board relevant and material to reference its objections to members in relation to understand how ICANN’s decision Request No. 3 above. ICANN’s Position: ICANN stands the proposed change of to remove the price caps may have on its objections. control of Public Interest been impacted by Public Interest Registry, from the date Registry’s intended change of Namecheap’s Position: Same as upon which these control and to understand whether with Request No. 3. communications ICANN has taken sufficient commenced through the measures to avoid capture by a ICANN’s Response: Contrary to date of ICANN’s self-interested party or forces with what Namecheap stated in Annex response to this Request. narrow interests. 25, ICANN did not “agree[] to the production for those documents Moreover, access to these between (i) the start of negotiations documents is relevant and material to the 2019 Registry Agreements for to understand the relevance of .org, .info and .biz and (ii) 18 .ORG (and other domains with November 2019.”68 Instead, ICANN price caps) in constraining the explained that it “will produce exercise of market power by other documents regarding the transition TLD registry operators and of the .ORG, .BIZ, and .INFO therefore the impact of removal or Registry Agreements to the Base modification of price caps on Registry Agreement in June 2019, competition, registrars, and within the parameters set forth in registrants / consumers. ICANN’s Response [to Namecheap’s Request for

68 See Annex 25, at Request No. 3. 99

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

The request for these documents is Production]. To the extent that sufficiently clear and reasonable. ICANN considered any ‘actual or Indeed, one may expect that potential changes of control’ in ICANN has this information reaching the decision to transition readily available, as it relates to its the .ORG, .BIZ, and .INFO Registry core obligations towards ICANN’s Agreements to the Base Registry main contracting parties and to Agreement in June 2019, those ICANN’s primary mission to documents should be encompassed coordinate ‘the allocation and by ICANN’s proposed collection.”69 assignment of names in the root ICANN, therefore, stands on its zone of the Domain Name objections. System’.67 Panel’s Ruling:

The Panel defers ruling on this request pending a ruling on ICANN’s motion to dismiss Namecheap’s change of control claim.

3.f All communications Access to these documents is ICANN incorporates by At issue. between ICANN staff or relevant and material to reference its objections to ICANN Board members understand how ICANN’s decision Request No. 3 above. ICANN’s Position: ICANN stands and any other person or to remove the price caps may have on its objections.

67 Bylaws, Article I(1)(a)(i) (RM 2). 69 Annex 27, at p. 6. 100

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

organisation other than been impacted by Public Interest ICANN further objects that the ICANN staff or ICANN Registry’s intended change of documents sought by this Namecheap’s Position: Same as Board member in control and to understand whether Request are overbroad to the with Request No. 3. relation to the proposed ICANN has taken sufficient extent they request change of control of measures to avoid capture by a communications between ICANN’s Response: Contrary to Public Interest Registry, self-interested party or forces with ICANN and literally every what Namecheap stated in Annex from the date upon narrow interests. other person or organization 25, ICANN did not “agree[] to the which these regarding the change of control production for those documents communications Moreover, access to these request. This request is a between (i) the start of negotiations commenced through the documents is relevant and material fishing expedition, and the to the 2019 Registry Agreements for date of ICANN’s to understand the relevance of burden of conducting such an .org, .info and .biz and (ii) 18 response to this Request. .ORG (and other domains with expansive search substantially November 2019.”71 Instead, ICANN price caps) in constraining the outweighs any legitimate explained that it “will produce exercise of market power by other benefit Namecheap plausibly documents regarding the transition TLD registry operators and could expect from the results of of the .ORG, .BIZ, and .INFO therefore the impact of removal or such a search. Registry Agreements to the Base modification of price caps on Registry Agreement in June 2019, competition, registrars, and within the parameters set forth in registrants / consumers. ICANN’s Response [to Namecheap’s Request for The request for these documents is Production]. To the extent that sufficiently clear and reasonable. ICANN considered any ‘actual or Indeed, one may expect that potential changes of control’ in ICANN has this information reaching the decision to transition readily available, as it relates to its the .ORG, .BIZ, and .INFO Registry core obligations towards ICANN’s Agreements to the Base Registry main contracting parties and to Agreement in June 2019, those

71 See Annex 25, at Request No. 3. 101

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

ICANN’s primary mission to documents should be encompassed coordinate ‘the allocation and by ICANN’s proposed collection.”72 assignment of names in the root ICANN, therefore, stands on its zone of the Domain Name objections. System’.70 Panel’s Ruling:

The Panel defers ruling on this request pending a ruling on ICANN’s motion to dismiss Namecheap’s change of control claim.

4 All documents directly Access to these documents is ICANN objects that the At issue. and indirectly73 relating relevant and material to documents sought by this to the acquisition or understand how ICANN’s decision Request, and each subpart, are ICANN’s Position: ICANN stands proposed acquisition of to remove the price caps may have not relevant or material to the on its objections. Neustar by GoDaddy, been impacted by GoDaddy’s outcome of this dispute. including: intended acquisition and to Namecheap’s claims in this IRP Namecheap’s Position: Same as understand whether ICANN has relate to the narrow issue of with Request No. 3. taken sufficient measures to avoid ICANN’s removal of the price capture by a self-interested party or control provisions in the 2019 ICANN’s Response: Contrary to forces with narrow interests. .ORG, .BIZ, and .INFO Registry what Namecheap stated in Annex Agreements. This request does 25, ICANN did not “agree[] to the

70 Bylaws, Article I(1)(a)(i) (RM 2). 72 Annex 27, at p. 6. 73 By ‘indirectly’, Namecheap refers to the narrow and specific requests as detailed in the subsections 4.a to 4.f of Request No. 4. 102

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

Access to these documents is also not seek any documents related production for those documents relevant to understand ICANN’s to ICANN’s decision to remove between (i) the start of negotiations views of the competitive the price control provisions; to the 2019 Registry Agreements for implications of vertical integration instead, it seeks documents .org, .info and .biz and (ii) 18 between wholesalers and retailers regarding a proposed November 2019.”75 Instead, ICANN in the DNS registration markets. In transaction between two explained that it “will produce turn, this is relevant to the unrelated third parties that documents regarding the transition competitive implications of a occurred in 2020, long after the of the .ORG, .BIZ, and .INFO removal of price caps for the removal of the price control Registry Agreements to the Base concerned TLD. provisions in the 2019 .ORG, Registry Agreement in June 2019, .BIZ, and .INFO Registry within the parameters set forth in Agreements, and Namecheap ICANN’s Response [to The request for these documents is makes no serious effort to Namecheap’s Request for sufficiently clear and reasonable. connect the facts related to that Production]. To the extent that Indeed, one may expect that proposed transaction to the ICANN considered any ‘actual or ICANN has this information readily issues in this IRP. Indeed, it potential changes of control’ in available, as it relates to its core would appear that reaching the decision to transition obligations towards ICANN’s main Namecheap’s primary the .ORG, .BIZ, and .INFO Registry contracting parties and to ICANN’s motivation is to obtain Agreements to the Base Registry primary mission to coordinate ‘the information about one of Agreement in June 2019, those allocation and assignment of names Namecheap’s principal documents should be encompassed in the root zone of the Domain competitors—GoDaddy—and by ICANN’s proposed collection.”76 Name System’.74 The documents that motivation is completely Namecheap has failed to requested under this Section 4 inappropriate in terms of demonstrate the relevance of the (including Section 4.a to Section 4.f) additional documents it has

74 Bylaws, Article I(1)(a)(i) (RM 2). 75 See Annex 25, at Request Nos. 3, 4. 76 Annex 27, at p. 6. 103

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

are thus assumed to be in ICANN’s requesting documents in this requested and, thus, ICANN stands possession, custody or control. IRP. on its objections.

The requested documents under Namecheap claims that Panel’s Ruling: this Section 4 (including Section 4.a “[a]ccess to these documents is to Section 4.f) are not in the relevant and material to As noted by ICANN, documents Claimant’s possession, custody or understand how ICANN’s regarding the overlap (if any) control, as the Claimant was not decision to remove the price between ICANN’s decision to part of the discussions related to the caps may have been impacted remove the price control provisions acquisition or proposed acquisition by GoDaddy’s intended and the proposed acquisition of of Neustar by GoDaddy. acquisition and to understand Neustar by GoDaddy should be whether ICANN has taken encompassed by the documents to

sufficient measures to avoid be produced in response to Request capture by a self-interested No. 1. The ESI search protocol shall party or forces with narrow be designed to reasonably assure interests.” Documents that such documents, if any exist, regarding the overlap (if any) are within the scope of the search. between ICANN’s decision to This request is otherwise denied. remove the price control provisions and this third-party proposed acquisition would naturally be encompassed by the documents ICANN agreed to produce in response to Request No. 1, and therefore this Request is duplicative of Request No. 1.

104

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

Namecheap also claims that these documents are relevant to understanding “ICANN’s views of the competitive implications of vertical integration between wholesalers and retailers in the DNS registration markets. In turn, this is relevant to the competitive implications of a removal of price caps for the concerned TLD.” But none of Namecheap’s claims relate to the competitive implications of vertical integration, or even the competitive implications of removal of the price control provisions. Pursuant to Rule 6 of the Interim Supplementary Procedures, a Claimant’s Request for IRP “shall include all claims that give rise to a particular dispute,” along with “[a]ll necessary and available evidence in support of the CLAIMANT’S claim(s).” Hence, requests for documents that are not based on an existing claim cannot be material to the

105

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outcome of the case, as required by Rule 8 of the Interim Supplementary Procedures and Article 3 of the IBA Rules.

ICANN objects that this Request is vague, ambiguous, and overbroad in that it seeks documents “directly and indirectly” relating to the acquisition or proposed acquisition of Neustar by GoDaddy. The burden on ICANN of searching for documents that may “indirectly relate” to the acquisition substantially outweighs any benefit that Namecheap plausibly could expect to obtain.

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# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

The burden of conducting such a search substantially outweighs any legitimate benefit Namecheap plausibly could expect from the results of such a search.

ICANN objects to the extent the Request seeks documents after 30 June 2019, the date that the .ORG, .BIZ, and .INFO Registry Agreements were renewed. Any subsequent communications are irrelevant to Namecheap’s claims regarding ICANN’s decision to remove the price control provisions.

107

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Based on these objections, ICANN does not agree to produce documents responsive to this Request.

ICANN will not repeat these objections in response to each subpart, but expressly incorporates these objections therein.

4.a All correspondence Access to these documents is ICANN incorporates by At issue. between ICANN and relevant and material to reference its objections to Neustar and/or understand how ICANN’s decision Request No. 4 above. ICANN’s Position: ICANN stands GoDaddy, their to remove the price caps may have on its objections. representatives, their been impacted by GoDaddy’s related companies and intended acquisition and to Namecheap’s Position: Same as organisations relating to understand whether ICANN has with Request No. 3. the acquisition or taken sufficient measures to avoid proposed acquisition of capture by a self-interested party or ICANN’s Response: Contrary to Neustar, from the date forces with narrow interests. what Namecheap stated in Annex upon which these 25, ICANN did not “agree[] to the communications Access to these documents is also production for those documents commenced through the relevant to understand ICANN’s between (i) the start of negotiations date of ICANN’s views on the competitive to the 2019 Registry Agreements for response to this Request. implications of vertical integration .org, .info and .biz and (ii) 18 between wholesalers and retailers November 2019.”78 Instead, ICANN

78 See Annex 25, at Request Nos. 3, 4. 108

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

in the DNS registration markets. In explained that it “will produce turn, this is relevant to the documents regarding the transition competitive implications of a of the .ORG, .BIZ, and .INFO removal of price caps for the Registry Agreements to the Base concerned TLD. Registry Agreement in June 2019, within the parameters set forth in The request for these documents is ICANN’s Response [to sufficiently clear and reasonable. Namecheap’s Request for Indeed, one may expect that Production]. To the extent that ICANN has this information ICANN considered any ‘actual or readily available, as it relates to its potential changes of control’ in core obligations towards ICANN’s reaching the decision to transition main contracting parties and to the .ORG, .BIZ, and .INFO Registry ICANN’s primary mission to Agreements to the Base Registry coordinate ‘the allocation and Agreement in June 2019, those assignment of names in the root documents should be encompassed zone of the Domain Name by ICANN’s proposed collection.”79 System’.77 Namecheap has failed to demonstrate the relevance of the additional documents it has requested and, thus, ICANN stands on its objections.

Panel’s Ruling:

77 Bylaws, Article I(1)(a)(i) (RM 2). 79 Annex 27, at p. 6. 109

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As noted by ICANN, documents regarding the overlap (if any) between ICANN’s decision to remove the price control provisions and the proposed acquisition of Neustar by GoDaddy should be encompassed by the documents to be produced in response to Request No. 1. The ESI search protocol shall be designed to reasonably assure that such documents, if any exist, are within the scope of the search. This request is otherwise denied.

4.b All communications Access to these documents is ICANN incorporates by At issue. between ICANN staff relevant and material to reference its objections to and the Board in understand how ICANN’s decision Request No. 4 above. ICANN’s Position: ICANN stands relation to the to remove the price caps may have on its objections. acquisition or proposed been impacted by GoDaddy’s acquisition of Neustar, intended acquisition and to Namecheap’s Position: Same as from the date upon understand whether ICANN has with Request No. 3. which these taken sufficient measures to avoid communications capture by a self-interested party or ICANN’s Response: Contrary to commenced through the forces with narrow interests. what Namecheap stated in Annex date of ICANN’s 25, ICANN did not “agree[] to the response to this Request. Access to these documents is also production for those documents relevant to understand ICANN’s between (i) the start of negotiations 110

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

views on the competitive to the 2019 Registry Agreements for implications of vertical integration .org, .info and .biz and (ii) 18 between wholesalers and retailers November 2019.”81 Instead, ICANN in the DNS registration markets. In explained that it “will produce turn, this is relevant to the documents regarding the transition competitive implications of a of the .ORG, .BIZ, and .INFO removal of price caps for the Registry Agreements to the Base concerned TLD. Registry Agreement in June 2019, within the parameters set forth in The request for these documents is ICANN’s Response [to sufficiently clear and reasonable. Namecheap’s Request for Indeed, one may expect that Production]. To the extent that ICANN has this information ICANN considered any ‘actual or readily available, as it relates to its potential changes of control’ in core obligations towards ICANN’s reaching the decision to transition main contracting parties and to the .ORG, .BIZ, and .INFO Registry ICANN’s primary mission to Agreements to the Base Registry coordinate ‘the allocation and Agreement in June 2019, those assignment of names in the root documents should be encompassed zone of the Domain Name by ICANN’s proposed collection.”82 System’.80 Namecheap has failed to demonstrate the relevance of the additional documents it has requested and, thus, ICANN stands on its objections.

80 Bylaws, Article I(1)(a)(i) (RM 2). 81 See Annex 25, at Request Nos. 3, 4. 82 Annex 27, at p. 6. 111

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4.c All communications Access to these documents is ICANN incorporates by At issue. between ICANN staff relevant and material to reference its objections to and individual ICANN understand how ICANN’s decision Request No. 4 above. ICANN’s Position: ICANN stands Board members in to remove the price caps may have on its objections. relation to the been impacted by GoDaddy’s acquisition or proposed intended acquisition and to Namecheap’s Position: Same as acquisition of Neustar, understand whether ICANN has with Request No. 3. from the date upon taken sufficient measures to avoid which these capture by a self-interested party or ICANN’s Response: Contrary to communications forces with narrow interests. what Namecheap stated in Annex commenced through the 25, ICANN did not “agree[] to the date of ICANN’s Access to these documents is also production for those documents response to this Request. relevant to understand ICANN’s between (i) the start of negotiations

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views on the competitive to the 2019 Registry Agreements for implications of vertical integration .org, .info and .biz and (ii) 18 between wholesalers and retailers November 2019.”84 Instead, ICANN in the DNS registration markets. In explained that it “will produce turn, this is relevant to the documents regarding the transition competitive implications of a of the .ORG, .BIZ, and .INFO removal of price caps for the Registry Agreements to the Base concerned TLD. Registry Agreement in June 2019, within the parameters set forth in The request for these documents is ICANN’s Response [to sufficiently clear and reasonable. Namecheap’s Request for Indeed, one may expect that Production]. To the extent that ICANN has this information ICANN considered any ‘actual or readily available, as it relates to its potential changes of control’ in core obligations towards ICANN’s reaching the decision to transition main contracting parties and to the .ORG, .BIZ, and .INFO Registry ICANN’s primary mission to Agreements to the Base Registry coordinate ‘the allocation and Agreement in June 2019, those assignment of names in the root documents should be encompassed zone of the Domain Name by ICANN’s proposed collection.”85 System’.83 Namecheap has failed to demonstrate the relevance of the additional documents it has requested and, thus, ICANN stands on its objections.

83 Bylaws, Article I(1)(a)(i) (RM 2). 84 See Annex 25, at Request Nos. 3, 4. 85 Annex 27, at p. 6. 113

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Panel’s Ruling:

4.d All communications Access to these documents is ICANN incorporates by At issue. between ICANN staff in relevant and material to reference its objections to relation to the understand how ICANN’s decision Request No. 4 above. ICANN’s Position: ICANN stands acquisition or proposed to remove the price caps may have on its objections. acquisition of Neustar, been impacted by GoDaddy’s from the date upon intended acquisition and to Namecheap’s Position: Same as which these understand whether ICANN has with Request No. 3. communications taken sufficient measures to avoid commenced through the capture by a self-interested party or ICANN’s Response: Contrary to date of ICANN’s forces with narrow interests. what Namecheap stated in Annex response to this Request. 25, ICANN did not “agree[] to the

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Access to these documents is also production for those documents relevant to understand ICANN’s between (i) the start of negotiations views on the competitive to the 2019 Registry Agreements for implications of vertical integration .org, .info and .biz and (ii) 18 between wholesalers and retailers November 2019.”87 Instead, ICANN in the DNS registration markets. In explained that it “will produce turn, this is relevant to the documents regarding the transition competitive implications of a of the .ORG, .BIZ, and .INFO removal of price caps for the Registry Agreements to the Base concerned TLD. Registry Agreement in June 2019, within the parameters set forth in The request for these documents is ICANN’s Response [to sufficiently clear and reasonable. Namecheap’s Request for Indeed, one may expect that Production]. To the extent that ICANN has this information ICANN considered any ‘actual or readily available, as it relates to its potential changes of control’ in core obligations towards ICANN’s reaching the decision to transition main contracting parties and to the .ORG, .BIZ, and .INFO Registry ICANN’s primary mission to Agreements to the Base Registry coordinate ‘the allocation and Agreement in June 2019, those assignment of names in the root documents should be encompassed zone of the Domain Name by ICANN’s proposed collection.”88 System’.86 Namecheap has failed to demonstrate the relevance of the additional documents it has

86 Bylaws, Article I(1)(a)(i) (RM 2). 87 See Annex 25, at Request Nos. 3, 4. 88 Annex 27, at p. 6. 115

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requested and, thus, ICANN stands on its objections.

Panel’s Ruling:

4.e All communications Access to these documents is ICANN incorporates by At issue. between ICANN Board relevant and material to reference its objections to members in relation to understand how ICANN’s decision Request No. 4 above. ICANN’s Position: ICANN stands the acquisition or to remove the price caps may have on its objections. proposed acquisition of been impacted by GoDaddy’s Neustar, from the date intended acquisition and to Namecheap’s Position: Same as upon which these understand whether ICANN has with Request No. 3. communications taken sufficient measures to avoid commenced through the

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# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

date of ICANN’s capture by a self-interested party or ICANN’s Response: Contrary to response to this Request. forces with narrow interests. what Namecheap stated in Annex 25, ICANN did not “agree[] to the Access to these documents is also production for those documents relevant to understand ICANN’s between (i) the start of negotiations views on the competitive to the 2019 Registry Agreements for implications of vertical integration .org, .info and .biz and (ii) 18 between wholesalers and retailers November 2019.”90 Instead, ICANN in the DNS registration markets. In explained that it “will produce turn, this is relevant to the documents regarding the transition competitive implications of a of the .ORG, .BIZ, and .INFO removal of price caps for the Registry Agreements to the Base concerned TLD. Registry Agreement in June 2019, within the parameters set forth in The request for these documents is ICANN’s Response [to sufficiently clear and reasonable. Namecheap’s Request for Indeed, one may expect that Production]. To the extent that ICANN has this information ICANN considered any ‘actual or readily available, as it relates to its potential changes of control’ in core obligations towards ICANN’s reaching the decision to transition main contracting parties and to the .ORG, .BIZ, and .INFO Registry ICANN’s primary mission to Agreements to the Base Registry coordinate ‘the allocation and Agreement in June 2019, those assignment of names in the root documents should be encompassed by ICANN’s proposed collection.”91 Namecheap has failed to

90 See Annex 25, at Request Nos. 3, 4. 91 Annex 27, at p. 6. 117

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

zone of the Domain Name demonstrate the relevance of the System’.89 additional documents it has requested and, thus, ICANN stands on its objections.

Panel’s Ruling:

89 Bylaws, Article I(1)(a)(i) (RM 2). 118

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4.f All communications Access to these documents is ICANN incorporates by At issue. between ICANN staff or relevant and material to reference its objections to ICANN Board members understand how ICANN’s decision Request No. 4 above. ICANN’s Position: ICANN stands and any person or to remove the price caps may have on its objections. organisation other than been impacted by GoDaddy’s ICANN staff or ICANN intended acquisition and to Namecheap’s Position: Same as Board member in understand whether ICANN has with Request No. 3. relation to the taken sufficient measures to avoid acquisition or proposed capture by a self-interested party or ICANN’s Response: Contrary to acquisition of Neustar, forces with narrow interests. what Namecheap stated in Annex from the date upon 25, ICANN did not “agree[] to the which these Access to these documents is also production for those documents communications relevant to understand ICANN’s between (i) the start of negotiations commenced through the views on the competitive to the 2019 Registry Agreements for date of ICANN’s implications of vertical integration .org, .info and .biz and (ii) 18 response to this Request. between wholesalers and retailers November 2019.”93 Instead, ICANN in the DNS registration markets. In explained that it “will produce turn, this is relevant to the documents regarding the transition competitive implications of a of the .ORG, .BIZ, and .INFO removal of price caps for the Registry Agreements to the Base concerned TLD. Registry Agreement in June 2019, within the parameters set forth in The request for these documents is ICANN’s Response [to sufficiently clear and reasonable. Namecheap’s Request for Indeed, one may expect that Production]. To the extent that ICANN has this information ICANN considered any ‘actual or readily available, as it relates to its potential changes of control’ in

93 See Annex 25, at Request Nos. 3, 4. 119

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core obligations towards ICANN’s reaching the decision to transition main contracting parties and to the .ORG, .BIZ, and .INFO Registry ICANN’s primary mission to Agreements to the Base Registry coordinate ‘the allocation and Agreement in June 2019, those assignment of names in the root documents should be encompassed zone of the Domain Name by ICANN’s proposed collection.”94 System’.92 Namecheap has failed to demonstrate the relevance of the additional documents it has requested and, thus, ICANN stands on its objections.

Panel’s Ruling:

92 Bylaws, Article I(1)(a)(i) (RM 2). 94 Annex 27, at p. 6. 120

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the scope of the search. This request is otherwise denied.

5 All documents directly Access to these documents is ICANN objects that the At issue. and indirectly95 relating relevant and material to documents sought by this to the acquisition or understand how ICANN’s decision Request, and each subpart, are ICANN’s Position: ICANN stands proposed acquisition of to remove the price caps may have not relevant or material to the on its objections. a registry operator for been impacted by a party’s outcome of this dispute. .ORG, .BIZ and/or intended acquisition of a legacy Namecheap’s claims relate to Namecheap’s Position: Same as .INFO, including: registry operator and to the narrow issue of ICANN’s with Request No. 3. understand whether ICANN has removal of the price control taken sufficient measures to avoid provisions in the 2019 .ORG, ICANN’s Response: Contrary to capture by a self-interested party or .BIZ, and .INFO Registry what Namecheap stated in Annex forces with narrow interests. Agreements. This request does 25, ICANN did not “agree[] to the not seek any documents related production for those documents Access to these documents is also to ICANN’s decision to remove between (i) the start of negotiations relevant and material to the price control provisions; to the 2019 Registry Agreements for understand ICANN’s views on instead, it seeks documents .org, .info and .biz and (ii) 18 competitive implications of such regarding proposed November 2019.”97 Instead, ICANN acquisitions. acquisitions of the .ORG, .BIZ, explained that it “will produce and .INFO registry operators, documents regarding the transition which are transactions between of the .ORG, .BIZ, and .INFO The request for these documents is third parties. Registry Agreements to the Base sufficiently clear and reasonable. Registry Agreement in June 2019,

95 By ‘indirectly’, Namecheap refers to the narrow and specific requests as detailed in the subsections 5.a to 5.f of Request No. 5. 97 See Annex 25, at Request Nos. 3, 5. 121

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Indeed, one may expect that To the extent this Request seeks within the parameters set forth in ICANN has this information readily documents regarding the ICANN’s Response [to available, as it relates to its core change of control request, Namecheap’s Request for obligations towards ICANN’s main ICANN incorporates by Production]. To the extent that contracting parties and to ICANN’s reference its objections to ICANN considered any ‘actual or primary mission to coordinate ‘the Request No. 3 and each subpart. potential changes of control’ in allocation and assignment of names reaching the decision to transition in the root zone of the Domain Namecheap claims that the .ORG, .BIZ, and .INFO Registry Name System’.96 The documents “[a]ccess to these documents is Agreements to the Base Registry requested under this Section 5 relevant and material to Agreement in June 2019, those (including Section 5.a to Section 5.f) understand how ICANN’s documents should be encompassed are thus assumed to be in ICANN’s decision to remove the price by ICANN’s proposed collection.”98 possession, custody or control. caps may have been impacted Namecheap has failed to by a party’s intended demonstrate the relevance of the acquisition of a legacy registry additional documents it has The requested documents under operator and to understand requested and, thus, ICANN stands this Section 4 (including Section 5.a whether ICANN has taken on its objections. to Section 5.f) are not in the sufficient measures to avoid Claimant’s possession, custody or capture by a self-interested Panel’s Ruling: control, as the Claimant was not party or forces with narrow part of discussions related to the interests.” Documents As noted by ICANN, documents acquisition or proposed acquisition regarding the overlap (if any) regarding the overlap (if any) of a registry operator for .ORG, between ICANN’s decision to between ICANN’s decision to .BIZ and/or .INFO. remove the price control remove the price control provisions

provisions and any proposed and any proposed acquisition acquisition, would naturally be should be encompassed by the

96 Bylaws, Article I(1)(a)(i) (RM 2). 98 Annex 27, at p. 6. 122

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encompassed by the documents documents ICANN produced in ICANN agreed to produce in response to Request No. 1. The ESI response to Request No. 1, and search protocol shall be designed therefore this Request is to reasonably assure that such duplicative of Request No. 1. documents, if any exist, are within the scope of the search. This Namecheap also claims that request is otherwise denied. these documents are relevant to understanding “ICANN’s views of the competitive implications of such acquisitions.” But none of Namecheap’s claims relate to the competitive implications of any such acquisitions, or even the competitive implications of removal of the price control provisions. Pursuant to Rule 6 of the Interim Supplementary Procedures, a Claimant’s Request for IRP “shall include all claims that give rise to a particular dispute,” along with “[a]ll necessary and available evidence in support of the CLAIMANT’S claim(s).” Hence, requests for documents that are not based on an existing claim cannot be material to the

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outcome of the case, as required by Rule 8 of the Interim Supplementary Procedures and Article 3 of the IBA Rules.

ICANN objects that this Request is vague, ambiguous, and overbroad in that it seeks documents “directly and indirectly” relating to the acquisition or proposed acquisition of the .ORG, .BIZ, and .INFO registry operators. The burden on ICANN of searching for documents that may “indirectly relate” to the proposed acquisitions substantially outweighs any benefit that Namecheap plausibly could expect to obtain.

124

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among its officers and staff for any document regarding the proposed acquisitions. The burden of conducting such a search substantially outweighs any legitimate benefit Namecheap plausibly could expect from the results of such a search.

ICANN also objects to this Request to the extent it seeks documents protected by the attorney-client privilege, work product doctrine, or any other applicable privilege. ICANN

125

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will not produce privileged documents.

Based on these objections, ICANN does not agree to produce documents responsive to this Request.

ICANN will not repeat these objections in response to each subpart, but expressly incorporates these objections therein.

5.a All correspondence Access to these documents is ICANN incorporates by At issue. between ICANN and a relevant and material to reference its objections to registry operator for understand how ICANN’s decision Request No. 5 above. ICANN’s Position: ICANN stands .ORG, .BIZ and/or to remove the price caps may have on its objections. .INFO c.q. a proposed been impacted by a party’s acquirer, their intended acquisition of a legacy Namecheap’s Position: Same as representatives, their registry operator and to with Request No. 3. related companies and understand whether ICANN has organisations relating to taken sufficient measures to avoid ICANN’s Response: Contrary to the acquisition or capture by a self-interested party or what Namecheap stated in Annex proposed acquisition the forces with narrow interests. 25, ICANN did not “agree[] to the registry operator, from production for those documents the date upon which Access to these documents is also between (i) the start of negotiations these communications relevant and material to to the 2019 Registry Agreements for commenced through the understand ICANN’s views on .org, .info and .biz and (ii) 18

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date of ICANN’s competitive implications of such November 2019.”100 Instead, response to this Request. acquisitions. ICANN explained that it “will produce documents regarding the The request for these documents is transition of the .ORG, .BIZ, and sufficiently clear and reasonable. .INFO Registry Agreements to the Indeed, one may expect that Base Registry Agreement in June ICANN has this information 2019, within the parameters set forth readily available, as it relates to its in ICANN’s Response [to core obligations towards ICANN’s Namecheap’s Request for main contracting parties and to Production]. To the extent that ICANN’s primary mission to ICANN considered any ‘actual or coordinate ‘the allocation and potential changes of control’ in assignment of names in the root reaching the decision to transition zone of the Domain Name the .ORG, .BIZ, and .INFO Registry System’.99 Agreements to the Base Registry Agreement in June 2019, those documents should be encompassed by ICANN’s proposed collection.”101 Namecheap has failed to demonstrate the relevance of the additional documents it has requested and, thus, ICANN stands on its objections.

Panel’s Ruling:

99 Bylaws, Article I(1)(a)(i) (RM 2). 100 See Annex 25, at Request Nos. 3, 5. 101 Annex 27, at p. 6. 127

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As noted by ICANN, documents regarding the overlap (if any) between ICANN’s decision to remove the price control provisions and any proposed acquisition should be encompassed by the documents ICANN produced in response to Request No. 1. The ESI search protocol shall be designed to reasonably assure that such documents, if any exist, are within the scope of the search. This request is otherwise denied.

5.b All communications Access to these documents is ICANN incorporates by At issue. between ICANN staff relevant and material to reference its objections to and the Board in understand how ICANN’s decision Request No. 5 above. ICANN’s Position: ICANN stands relation to the to remove the price caps may have on its objections. acquisition or proposed been impacted by a party’s acquisition of a registry intended acquisition of a legacy Namecheap’s Position: Same as operator for .ORG, .BIZ registry operator and to with Request No. 3. and/or .INFO, from the understand whether ICANN has date upon which these taken sufficient measures to avoid ICANN’s Response: Contrary to communications capture by a self-interested party or what Namecheap stated in Annex commenced through the forces with narrow interests. 25, ICANN did not “agree[] to the date of ICANN’s production for those documents response to this Request. Access to these documents is also between (i) the start of negotiations relevant and material to to the 2019 Registry Agreements for

128

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understand ICANN’s views on .org, .info and .biz and (ii) 18 competitive implications of such November 2019.”103 Instead, acquisitions. ICANN explained that it “will produce documents regarding the The request for these documents is transition of the .ORG, .BIZ, and sufficiently clear and reasonable. .INFO Registry Agreements to the Indeed, one may expect that Base Registry Agreement in June ICANN has this information 2019, within the parameters set forth readily available, as it relates to its in ICANN’s Response [to core obligations towards ICANN’s Namecheap’s Request for main contracting parties and to Production]. To the extent that ICANN’s primary mission to ICANN considered any ‘actual or coordinate ‘the allocation and potential changes of control’ in assignment of names in the root reaching the decision to transition zone of the Domain Name the .ORG, .BIZ, and .INFO Registry System’.102 Agreements to the Base Registry Agreement in June 2019, those documents should be encompassed by ICANN’s proposed collection.”104 Namecheap has failed to demonstrate the relevance of the additional documents it has requested and, thus, ICANN stands on its objections.

102 Bylaws, Article I(1)(a)(i) (RM 2). 103 See Annex 25, at Request Nos. 3, 5. 104 Annex 27, at p. 6. 129

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Panel’s Ruling:

5.c All communications Access to these documents is ICANN incorporates by At issue. between ICANN staff relevant and material to reference its objections to and individual ICANN understand how ICANN’s decision Request No. 5 above. ICANN’s Position: ICANN stands Board members in to remove the price caps may have on its objections. relation to the been impacted by a party’s acquisition or proposed intended acquisition of a legacy Namecheap’s Position: Same as acquisition of a registry registry operator and to with Request No. 3. operator for .ORG, .BIZ understand whether ICANN has and/or .INFO, from the taken sufficient measures to avoid ICANN’s Response: Contrary to date upon which these capture by a self-interested party or what Namecheap stated in Annex communications forces with narrow interests. 25, ICANN did not “agree[] to the commenced through the production for those documents between (i) the start of negotiations

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date of ICANN’s Access to these documents is also to the 2019 Registry Agreements for response to this Request. relevant and material to .org, .info and .biz and (ii) 18 understand ICANN’s views on November 2019.”106 Instead, competitive implications of such ICANN explained that it “will acquisitions. produce documents regarding the transition of the .ORG, .BIZ, and The request for these documents is .INFO Registry Agreements to the sufficiently clear and reasonable. Base Registry Agreement in June Indeed, one may expect that 2019, within the parameters set forth ICANN has this information in ICANN’s Response [to readily available, as it relates to its Namecheap’s Request for core obligations towards ICANN’s Production]. To the extent that main contracting parties and to ICANN considered any ‘actual or ICANN’s primary mission to potential changes of control’ in coordinate ‘the allocation and reaching the decision to transition assignment of names in the root the .ORG, .BIZ, and .INFO Registry zone of the Domain Name Agreements to the Base Registry System’.105 Agreement in June 2019, those documents should be encompassed by ICANN’s proposed collection.”107 Namecheap has failed to demonstrate the relevance of the additional documents it has requested and, thus, ICANN stands on its objections.

105 Bylaws, Article I(1)(a)(i) (RM 2). 106 See Annex 25, at Request Nos. 3, 5. 107 Annex 27, at p. 6. 131

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Panel’s Ruling:

5.d All communications Access to these documents is ICANN incorporates by At issue. between ICANN staff in relevant and material to reference its objections to relation to the understand how ICANN’s decision Request No. 5 above. ICANN’s Position: ICANN stands acquisition or proposed to remove the price caps may have on its objections. acquisition of a registry been impacted by a party’s operator for .ORG, .BIZ intended acquisition of a legacy Namecheap’s Position: Same as and/or .INFO, from the registry operator and to with Request No. 3. date upon which these understand whether ICANN has communications taken sufficient measures to avoid ICANN’s Response: Contrary to commenced through the capture by a self-interested party or what Namecheap stated in Annex date of ICANN’s forces with narrow interests. 25, ICANN did not “agree[] to the response to this Request. production for those documents

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Access to these documents is also between (i) the start of negotiations relevant and material to to the 2019 Registry Agreements for understand ICANN’s views on .org, .info and .biz and (ii) 18 competitive implications of such November 2019.”109 Instead, acquisitions. ICANN explained that it “will produce documents regarding the The request for these documents is transition of the .ORG, .BIZ, and sufficiently clear and reasonable. .INFO Registry Agreements to the Indeed, one may expect that Base Registry Agreement in June ICANN has this information 2019, within the parameters set forth readily available, as it relates to its in ICANN’s Response [to core obligations towards ICANN’s Namecheap’s Request for main contracting parties and to Production]. To the extent that ICANN’s primary mission to ICANN considered any ‘actual or coordinate ‘the allocation and potential changes of control’ in assignment of names in the root reaching the decision to transition zone of the Domain Name the .ORG, .BIZ, and .INFO Registry System’.108 Agreements to the Base Registry Agreement in June 2019, those documents should be encompassed by ICANN’s proposed collection.”110 Namecheap has failed to demonstrate the relevance of the additional documents it has

108 Bylaws, Article I(1)(a)(i) (RM 2). 109 See Annex 25, at Request Nos. 3, 5. 110 Annex 27, at p. 6. 133

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requested and, thus, ICANN stands on its objections.

Panel’s Ruling:

5.e All communications Access to these documents is ICANN incorporates by At issue. between ICANN Board relevant and material to reference its objections to members in relation to understand how ICANN’s decision Request No. 5 above. ICANN’s Position: ICANN stands the acquisition or to remove the price caps may have on its objections. proposed acquisition of been impacted by a party’s a registry operator for intended acquisition of a legacy Namecheap’s Position: Same as .ORG, .BIZ and/or registry operator and to with Request No. 3. .INFO, from the date understand whether ICANN has upon which these taken sufficient measures to avoid ICANN’s Response: Contrary to communications what Namecheap stated in Annex

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# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

commenced through the capture by a self-interested party or 25, ICANN did not “agree[] to the date of ICANN’s forces with narrow interests. production for those documents response to this Request. between (i) the start of negotiations Access to these documents is also to the 2019 Registry Agreements for relevant and material to .org, .info and .biz and (ii) 18 understand ICANN’s views on November 2019.”112 Instead, competitive implications of such ICANN explained that it “will acquisitions. produce documents regarding the transition of the .ORG, .BIZ, and The request for these documents is .INFO Registry Agreements to the sufficiently clear and reasonable. Base Registry Agreement in June Indeed, one may expect that 2019, within the parameters set forth ICANN has this information in ICANN’s Response [to readily available, as it relates to its Namecheap’s Request for core obligations towards ICANN’s Production]. To the extent that main contracting parties and to ICANN considered any ‘actual or ICANN’s primary mission to potential changes of control’ in coordinate ‘the allocation and reaching the decision to transition assignment of names in the root the .ORG, .BIZ, and .INFO Registry zone of the Domain Name Agreements to the Base Registry System’.111 Agreement in June 2019, those documents should be encompassed by ICANN’s proposed collection.”113 Namecheap has failed to demonstrate the relevance of the

111 Bylaws, Article I(1)(a)(i) (RM 2). 112 See Annex 25, at Request Nos. 3, 5. 113 Annex 27, at p. 6. 135

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additional documents it has requested and, thus, ICANN stands on its objections.

Panel’s Ruling:

5.f All communications Access to these documents is ICANN incorporates by At issue. between ICANN staff or relevant and material to reference its objections to ICANN Board members understand how ICANN’s decision Request No. 5 above. ICANN’s Position: ICANN stands and any person or to remove the price caps may have on its objections. organisation other than been impacted by a party’s ICANN staff or ICANN intended acquisition of a legacy Namecheap’s Position: Same as Board member in registry operator and to with Request No. 3. relation to the understand whether ICANN has acquisition or proposed taken sufficient measures to avoid

136

# Documents or Category Namecheap’s Position Regarding ICANN’s Responses and Status/Panel Ruling of Documents Relevance and Materiality to the Objections Requested Dispute (Pre-Meet-and-Confer)

acquisition of a registry capture by a self-interested party or ICANN’s Response: Contrary to operator for .ORG, .BIZ forces with narrow interests. what Namecheap stated in Annex and/or .INFO, from the 25, ICANN did not “agree[] to the date upon which these Access to these documents is also production for those documents communications relevant and material to between (i) the start of negotiations commenced through the understand ICANN’s views on to the 2019 Registry Agreements for date of ICANN’s competitive implications of such .org, .info and .biz and (ii) 18 response to this Request. acquisitions. November 2019.”115 Instead, ICANN explained that it “will The request for these documents is produce documents regarding the sufficiently clear and reasonable. transition of the .ORG, .BIZ, and Indeed, one may expect that .INFO Registry Agreements to the ICANN has this information Base Registry Agreement in June readily available, as it relates to its 2019, within the parameters set forth core obligations towards ICANN’s in ICANN’s Response [to main contracting parties and to Namecheap’s Request for ICANN’s primary mission to Production]. To the extent that coordinate ‘the allocation and ICANN considered any ‘actual or assignment of names in the root potential changes of control’ in zone of the Domain Name reaching the decision to transition System’.114 the .ORG, .BIZ, and .INFO Registry Agreements to the Base Registry Agreement in June 2019, those documents should be encompassed

114 Bylaws, Article I(1)(a)(i) (RM 2). 115 See Annex 25, at Request Nos. 3, 5. 137

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by ICANN’s proposed collection.”116 Namecheap has failed to demonstrate the relevance of the additional documents it has requested and, thus, ICANN stands on its objections.

Panel’s Ruling:

116 Annex 27, at p. 6.

138