Use of multi-district-litigation (“MDLs”) to jointly manage discovery in toxic tort and product liability suits involving the same subject matter but filed in disparate jurisdictions is ever increasing. At present there are hundreds of MDLs consolidating many thousands of such claims. However, there remains no formal rule in the Federal Rules of Civil Procedure (“FRCP”) to uniformly govern practice and procedure in the MDL setting.

Recently, the Advisory Committee on Civil Rules, a committee of federal and state judges, attorneys, and legal scholars (the “Advisory Committee”) has proposed the first FRCP to specifically govern MDLs, Proposed New Rule 16.1. The United States Supreme Court promulgates the FRCP with Congress’ consent. In turn, the Judicial Conference of the United States (the “Judicial Conference”) recommends FRCP changes to the Supreme Court. The Advisory Committee is a subcommittee of the Judicial Conference’s Committee on Rules of Practice and Procedure. The Advisory Committee studies the FRCP and proposes changes to them. Since 2017, the Advisory Committee has been considering the appropriate way for the FRCP to address MDL proceedings.

As described by the Advisory Committee, Proposed New Rule 16.1 provides a framework for the initial management of MDL proceedings. Whereas FRCP 16 governs pre-trial conferences, scheduling, and case management in regular civil lawsuits, FRCP 16.1 would govern such issues in a manner specific to the needs of the MDL setting:

• After creation of the MDL, the court in which the MDL is pending “should” schedule an initial management conference (the “initial MDL management conference”)
• The court should order the parties to meet and confer to prepare and submit a report for this initial MDL management conference addressing matter that the court requests, including:
  • How and when the parties will exchange information about the factual bases for their claims and defenses (Subsection (c)(4))
  • A proposed discovery plan
  • If leadership counsel should be appointed and, if so, its composition, role, limits, and compensation
  • The principal factual and legal issues likely to be presented in the MDL
  • If consolidated pleadings should be prepared
  • The potential for court-assisted alternative dispute resolution
  • If matters should be referred to a magistrate or master; and
  • Other issues, including identification and modification/vacatur of pre-existing scheduling and other orders from the individual actions, likely pretrial motions, a schedule for further conferences, how to manage new filings, and if related actions have been filed or are anticipated to be and the possibility of coordination with those related actions
• The court may designate coordinating counsel for the purpose of assisting the court with the initial MDL management conference by working with all parties to prepare for the conference and prepare the foregoing report
• After the initial MDL management conference, the court should enter an initial MDL management order addressing these matters that will control the course of the MDL proceedings

The frequent use of “should” is unusual for the FRCP and, according to the Advisory Committee, intended to provide the parties and court in MDL proceedings the flexibility to address that no two MDLs are the same.

Subsection (c)(4) responds to concerns of MDL defendants and their counsel that MDLs permit a high volume of unexamined and unsupportable claims to linger for extended periods. An order directing exchange of factual information pursuant to Subsection (c)(4), such as by “facts sheets” detailing the evidence of exposure and injury, would force claimants to conduct earlier due diligence and support efforts to weed out un-meritorious claims more quickly. The Advisory Committee’s proposed FRCP 16.1 will now enter a public comment period. Thereafter, the proposal must be accepted by the Judicial Conference’s Committee on Rules of Practice and Procedure, the Judicial Conference, and ultimately the Supreme Court.