More than half of the federal docket is composed of cases wrapped up in multidistrict litigation. While practitioners have a statute, 28 U.S.C. § 1407, and case law to help them navigate MDL proceedings, there exists no procedural rule. That may change soon.
The Advisory Committee on Civil Rules has proposed a new rule, Rule 16.1, to guide courts and MDL practitioners. While the rule still has some hurdles to clear before adoption, the framework of the proposal has largely been established after public comment and multiple revisions.
The proposed rule contains three principal sections. The first suggests that a transferee court “should” schedule an initial management conference. Similarly, the second section recommends the transferee court “should” order the parties to draft and submit a report for that initial management conference. And the third section states that the court “should” issue a case management order. With its use of discretionary language, the proposed rule serves more as a set of guidelines than a hard-and-fast set of rules.
That being said, once the court exercises its discretion to order the parties to submit to a report, certain mandatory rules kick in. For example, the report “must” address topics such as leadership counsel, scheduling, and the administration of subsequently filed related actions. The report also requires the parties to give their initial views on the issues in the case, discovery, and pretrial motions. Perhaps most interestingly, it requires parties to discuss “how and when they will exchange information about the factual bases for their claims and defenses.” The committee notes discuss the use of “fact sheets” or a “census” to survey the claims and defenses presented by the parties. The topic of fact sheets and census-taking has been controversial in some cases, and so the proposed rule potentially brings an important early issue to the fore.
On the whole, however, the proposed rule as written bears strong similarities to the MDL guidelines set forth in the Manual for Complex Litigation. Commentators question whether it will significantly alter current practices. Regardless, the proposed rule, if adopted, would provide the clearest form of procedural guidance thus far for courts and practitioners, and so litigators should keep an eye on its movement through the approval process in the coming year.
