The Parties’ Positions. The claimants said that the aim of the cptpp’s e-commerce provisions (collec- tively) is ‘to protect and entrench current technological giants, shutting out those who, like Māori, continue to build capacity in this area’.20 They saw the scope of the cptpp e-commerce rules as extending ‘beyond trade to cover key areas of Internet governance’.21 By contrast, the Crown’s position was that ‘[t]he e-commerce elements of the cptpp are a small and peripheral part of the way government actions and deci- sions interact, or could interact, with Māori data.’22
q.1.3.1.1 The claimants
q.1.3.1.1 digital governance and ‘segment, privatise, commodify and commercialise the integrated whole of the digital ecosystem and destroy its mauri’.24 In a published article placed on our Record of Inquiry, Xxxxxxxxx Xxxxxx con- textualised the cptpp rules as part of a wider trade rules-based response to a ‘4th industrial revolution’ being driven by digital technologies. She wrote: Trade rules on ‘electronic commerce’, more recently termed ‘digital trade’, are at the forefront of the new issues being promoted in the international trade arena. The first comprehensive legal text, concluded in 2015, was chapter 14 of the Trans-Pacific Partnership Agreement (tppa) The scope of the rules extends beyond any trad- itional conception of trade or commerce to the regulation of digital technologies and data, as well as internet governance.25 By way of example, the paper goes on to cite the rules which prevent a Party to the cptpp from requiring data to be localised within their territorial jurisdic- tion, and those that prevent requirements on overseas providers of digital ser- vices to disclose the source codes and algorithms of their software.26 Xxxxxxxxx Xxxxxx described the difficulty created by these particular categories of rules for regulators: the three most likely points of conflict between innovative regulation and the digi- tal trade rules being negotiated in bilateral, regional and potentially multilateral are- nas: the right of transnational digital firms not to have any local presence in a country where they operate and to choose their preferred legal form if they do; corporate con- trol over data, especially the jurisdiction where it is held; and right to keep the source codes and algorithms that drive the software apps and platforms secret.27 Throughout their evidence, the claimants expressed similar concerns about the breadth of the tppa /cptpp e-commerce rules, and their extens...
The Parties’ Positions. The position articulated by Comtide in the memorandum in support of its motion is also straightforward. It notes that the privilege log entry prepared for these documents does not show that anyone who prepared either the email or the attachment is an attorney. Rather, these documents appear to have been authored by, and exchanged between, business people. Relying on decisions such as United States x. Xxxxxx, 243 Fed. Appx. 621, 623-24 (2d Cir. June 18, 2007), Comtide asserts that a document which was not privileged when created does not become so just because it is later sent to an attorney. Thus, Xxxxxxx’s motion essentially challenges Booth Creek to justify its privilege claim if it wishes to get the documents back. In its response, Booth Creek does not deny that no attorney created or sent these documents. However, it claims that, as a factual matter, earlier on the day the email was sent, Booth Creek learned that Comtide was making a claim for a commission on the transaction at issue in this case. Booth Creek then began to prepare for a conversation with its lawyers, Winston & Xxxxxx, about the matter. To get ready, Xx. Xxxxx, who is Booth Creek’s executive vice president, sent the attachment (which Booth Creek describes as “a description of some basis facts and strategic concerns pertaining to potential litigation with Comtide”) to Xx. Xxxxxxx’x assistant and asked her to print it for Xx. Xxxxxxx to read. Booth Creek also claims that Xx. Xxxxx actually talked to the Winston & Xxxxxx attorneys about this matter that same day. Because, in Booth Creek’s view, the documents were an integral part of a communication with counsel and were prepared precisely in order to allow it to communicate effectively with counsel, these documents fall within the scope of the attorney-client privilege. Booth Creek relies upon decisions such as United States v. ChevronTexaco Corp., 241 F.Supp. 2d 1065, 1077 (N.D. Cal. 2002) as support for this legal position, and it cites numerous additional cases which adopt the same reasoning. In its reply, Comtide does not really take issue with the legal principles upon which Booth Creek relies. Rather, it attacks the foundation of Booth Creek’s claim of attorney-client privilege. It accurately notes that Booth Creek’s response was not accompanied by an affidavit, declaration under penalty of perjury, or other sworn evidence supporting the facts which Booth Creek claims to be true. In fact, the only attachment to Booth Creek’s memorand...
The Parties’ Positions this line of authority, and in view of the offender's rehabilitative progress and the importance of counselling continuity, the defence urges a global sentence served in the community by way of a lengthy conditional sentence for the first of the four offences and suspended sentences for the remaining three, to be followed by a period of probation.
The Parties’ Positions. 1. WTC disputes that a class would be manageable or that common issues predominate over individual ones, and further denies that a litigation class properly could be certified on the claims asserted in this Action. However, solely for purposes of avoiding the expense and inconvenience of further litigation, WTC does not oppose certification—for settlement purposes only—of the Settlement Class. Preliminary certification of the Settlement Class for settlement purposes shall not be deemed a concession that certification of a litigation class is appropriate, nor would WTC be precluded from challenging class certification in further proceedings in this Action or in any other action if the Settlement is not finalized or finally approved. If the Settlement is not finally approved by the Court for any reason whatsoever, the certification of the Settlement Class will be void, and no doctrine of waiver, estoppel, or preclusion will be asserted in any litigated certification proceedings in this Action. No agreements made by or entered into by WTC in connection with the Settlement may be used by Plaintiff, any person in the Settlement Class or any other person to establish any of the elements of class certification in any litigated certification proceedings, whether in this Action or any other judicial proceeding.
2. Plaintiff believes that the claims asserted in this Action have merit and that the evidence developed to date supports those claims. This Agreement shall in no event be construed or deemed to be evidence of or an admission or concession on the part of the Plaintiff that there is any infirmity in the claims asserted by Plaintiff, or that there is any merit whatsoever to any of the contentions and defenses that WTC has asserted.
3. Plaintiff recognizes and acknowledges, however, the expense and amount of time which would be required to continue to pursue this Action against WTC, as well as the uncertainty, risk, and difficulties of proof inherent in prosecuting such claims on behalf of the Settlement Class. Plaintiff has concluded that it is desirable that this Action and any Released Claims be fully and finally settled and released as set forth in this Agreement. Plaintiff and Class Counsel believe that the terms set forth in this Agreement confer substantial benefits upon the Settlement Class, and that it is in the best interests of the Class to settle as described herein.
The Parties’ Positions. 3. The Respondent claims that Xx. Xxxxxxx has not responded to the Respondent’s efforts to contact him regarding the Hearing. The Respondent claims that Xx. Xxxxxxx will probably not attend the Hearing due to the corruption investigation initiated against him by México’s Office of the Attorney General. The Respondent argues that it has no authority to interfere in criminal matters. It appears that Xx. Xxxxxxx has decided to withdraw his participation in all matters involving the Mexican government. The Respondent argues that Xx. Xxxxxxx’x failure to appear at the Hearing is, in the present case, justified and that there are exceptional circumstances that warrant keeping Xx. Xxxxxxx’x witness statements on the record. The Respondent emphasizes that separate evidence – already on the record – supports Xx. Xxxxxxx’x statements.
4. The Claimants argue that the present circumstances do not justify Xx. Xxxxxxx’x absence from the Hearing. If Xx. Xxxxxxx has effectively chosen to withdraw his participation in all matters involving the Mexican government, then, according to the Claimants, the Respondent would lack his consent to continue to use his witness statements in this proceeding. The Claimants understand that allowing the witness statements to remain on the record would violate Claimants’ due process rights, in the sense of making it impossible for them to cross-examine a key witness presented by the Respondent at the Hearing.
