Judge Heyburn and Professor McGovern’s discussion of the Judicial Panel on Multidistrict Litigation in their article “Evaluating and Improving the MDL Process” provides an insightful analysis of how the process works, why it is needed, and what needs to be done to improve it. Through their alternating dialogue, the authors present a balanced approach. Professor McGovern’s synopses of the surveyed lawyers’ diverse opinions provide appropriate context for Judge Heyburn’s explanations of the MDL panel’s procedures and approaches to the lawyers’ concerns.
Over my more than a quarter of a century on the U.S. district court bench in Chicago, I have been both an MDL transferor and transferee judge. It is crystal clear to me that the need to centralize and thus economize the pretrial aspects of related civil cases filed across the country has never been greater. That need comes down to two words, “pretrial discovery.” Because almost all discovery in today’s litigation involves electronically stored information, the potential costs of discovery, unless monitored and controlled, are astronomical. E-discovery issues are not going away, so we judges and lawyers who participate in pretrial litigation need to rein in the burden and expense of e-discovery wherever possible.
Without the centralized control of an MDL transferee judge, the cost of duplicative discovery and e-discovery in each case consolidated as an MDL action for pretrial purposes would be a significant detriment to each case’s litigants and justice in America as a whole. Considering the costs of such potential duplication absent MDL panel consolidation through transfer allows one to assess the palpable benefit the MDL system provides.
Of course, as the article concedes, “centralization does not benefit all parties equally.” One size rarely fits all, but when considering the chaos that would ensue without coordination by the MDL panel, one size is fairly comfortable for most.
The breadth of MDL cases reflects a cross-section of litigation in our country. In the past year alone, I have handled MDL cases involving antitrust issues (In re Sulphuric Acid Antitrust Litigation, MDL No. 1535), consumer fraud (In re Kentucky Grilled Chicken Coupon Marketing and Sales Litigation, MDL No. 2103), products liability (In re Aqua Dots Products Liability Litigation, MDL No. 1940), and patent infringement (Innovatio IP Venture LLC Patent Litigation, MDL No. 2302). In each MDL case, the pretrial dynamic among counsel and the need for tailored treatment of the discovery are different. For a federal district judge, however, that is one of the challenges and one of the rewards of being selected as a transferee judge by the panel. Working with highly competent counsel of record in MDL cases is one of the joys.
All institutional systems have room for improvement, but the U.S. Judicial Panel on Multidistrict Litigation provides justice admirably.
I thank and applaud Judge Heyburn, who currently chairs the panel, and all judges who serve and have served for taking on their responsibilities with open minds and critical self-analysis.
America is better for it.