Effective December 1, 2025, the Federal Rules of Civil Procedure added new Rule 16.1, “Multidistrict Litigation,” and amended Rules 16 and 26. The takeaway is straightforward: Rule 16.1 provides valuable structure for the opening steps in multidistrict litigation (MDL), while amended Rule 26(f) and Rule 16(b) encourage that privilege-handling procedures be addressed earlier in the discovery plan and scheduling order.
Rule 16.1 provides the “on-ramp”
In an MDL, once actions are transferred for coordinated or consolidated pretrial proceedings under 28 U.S.C. § 1407, Rule 16.1 lays out an early sequence the MDL court should follow:
(1) Schedule an initial management conference;
(2) Direct the parties to meet and submit a pre-conference report; and
(3) Enter an initial management order addressing the matters raised.
The rule is framed as “should,” not “must,” which provides consistent structure while still allowing the transferee court flexibility to tailor case management to the needs of a particular MDL.
Rule 26 and Rule 16 drive once the MDL is moving
Rule 26(f) now calls out privilege issues in the discovery plan, including the timing and method for complying with Rule 26(b)(5)(A) (the rule governing privilege and work-product description obligations), and, if the parties agree on a post-production privilege procedure, whether to ask the court to include that agreement in an order under Federal Rule of Evidence 502. Rule 16(b) also expressly contemplates addressing these same mechanics in the scheduling order. This matters in complex cases because privilege workflows can drive costs and delays; addressing the “how and when” earlier can reduce later disruption from privilege-log timing disputes or from having to retrofit tracking information after review is underway.
What your outside counsel will ask for early (a week-one checklist)
Because Rule 16.1 is designed to move MDL organization to the front end, and amended Rule 26(f) and Rule 16(b) support earlier attention to privilege-handling mechanics tied to Rule 26(b)(5)(A), it helps to have a basic “who/what/when/where/how” package ready early:
- Who: Identify a business point person for facts, a point person for documents/IT issues, and who will make the privilege calls.
- What: Identify the key systems likely to hold relevant information and the general categories of communications most likely to be privileged.
- When: Confirm whether litigation holds are in place, when collection can begin, and when privilege-tracking fields will be captured during review (the earlier the better).
- Where: Note where relevant data lives, such as email, chat, shared drives, important business platforms, and where key custodians are located.
- How: Outline, at a high level, how the company preserves and collects data, how privilege will be tracked during review to support later compliance, and how inadvertent production will be addressed if it occurs.
From a business perspective, early information-gathering is a quiet advantage. Rule 16.1 is designed to get MDLs organized sooner and amended Rule 26(f) and Rule 16(b) pull privilege-handling mechanics into earlier case planning. Companies that can quickly answer the basic “who/what/when/where/how” questions are better positioned to keep early case-management tasks moving and avoid unnecessary churn.
That readiness can reduce avoidable process disputes, prevent last-minute rework during discovery, and help in-house teams make faster internal decisions about resourcing and risk. Early preparation won’t decide the merits, but it can make an MDL less expensive and less disruptive, which is a practical win.
