TRANSCRIPT OF PROCEEDINGS 

HERITAGE REPORTING CORPORATION

Official Reporters

1220 L Street, N.W., Suite 206 

Washington, D.C. 20005 

(202) 628-4888 

contracts@hrccourtreporters.com 

IN THE MATTER OF: ) 

 ) 

HEARING OF THE ADVISORY ) 

COMMITTEE ON CIVIL RULES ) 

 

 

Pages: 1 through 252 

Place: Washington, D.C. 

Date: January 16, 2024 
1 

 Heritage Reporting Corporation 

 (202) 628-4888 

 ADMINISTRATIVE OFFICE OF THE U.S. COURTS 

IN THE MATTER OF: ) 

 ) 

HEARING OF THE ADVISORY ) 

COMMITTEE ON CIVIL RULES ) 

Remote Meeting 

Suite 206 

Heritage Reporting Corporation 

1220 L Street, N.W. 

Washington, D.C. 

Tuesday, 

January 16, 2024 

The parties met remotely, pursuant to the notice, 

at 10:00 a.m. 

 

COMMITTEE MEMBERS AND STAFF: 

HON. ROBIN L. ROSENBERG, Committee Chair 

PROF. RICHARD L. MARCUS, Committee Reporter 

PROF. ANDREW D. BRADT, Committee Associate 

 Reporter 

HON. JOHN D. BATES 

PROF. CATHERINE T. STRUVE 

H. THOMAS BYRON III, ESQ. 

ALLISON A. BRUFF, ESQ. 

HON. KENT A. JORDAN 

HON. R. DAVID PROCTOR 

JOSEPH M. SELLERS, ESQ. 

HELEN E. WITT, ESQ. 

PROF. EDWARD H. COOPER 

CARMELITA R. SHINN, ESQ. 

WITNESSES TESTIFYING: 

JEANNINE KENNEY 

LORI ANDRUS 

MARK CHALOS 

TOBI MILLROOD 

ALYSON OLIVER 

JOSE ROJAS 
2 

 Heritage Reporting Corporation 

 (202) 628-4888 

WITNESSES: (Cont'd.) 

JAMES BILSBORROW 

DIANDRA DEBROSSE 

JOHN RABIEJ 

DENA SHARP 

FREDERICK LONGER 

JENNIFER HOEKSTRA 

PATRICK LUFF 

EMILY ACOSTA 

A.J. de BARTOLOMEO 

LEE MICKUS 

SCOTT PARTRIDGE 

CAROLYN MCGLAMRY 

LISA ANN GORSHE 

RACHEL HAMPTON 

ALAN ROTHMAN 

DAVID COHEN 

JENNIFER SCULLION 

NORMAN SIEGEL 

JAYNE CONROY 

TOYJA KELLEY 

CHAD ROBERTS 

ANDREW MYERS 
 3 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 P R O C E E D I N G S 

2 (10:00 a.m.) 

3 CHAIR ROSENBERG: Good morning, everyone. 

4 Welcome and thank you to all the Committee members, 

5 the witnesses and observers who are joining us on 

6 Teams for this public hearing on the proposed 

7 amendments to the Federal Rules of Civil Procedure. 

8 The current published proposals out for public comment 

9 include the proposed privilege log amendments, Rules 

10 16 and 26, and the proposed new rule on MDL 

11 proceedings, Rule 16.1. 

12 Today’s hearing is the second of three 

13 hearings on these proposals. The first hearing was 

14 held in Washington, D.C., in October and the Committee 

15 heard from 22 witnesses. Today, we will hear from 30 

16 witnesses. The third and final hearing will be held 

17 virtually on February 6 and we anticipate hearing from 

18 35 witnesses. 

19 We appreciate all who have already testified 

20 or submitted public comments and those who plan to do 

21 so before the end of the public comment period on 

22 February 16. Your input is a vital part of the 

23 rulemaking process. Today’s witnesses, we look 

24 forward to hearing from your testimony, to those of 

25 you who are testifying today. 
 4 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 Each witness today will have 10 minutes. We 

2 ask that you keep your introductory remarks to two to 

3 three minutes so that the Committee members have ample 

4 time to ask questions. I have asked Allison Bruff, 

5 counsel to the Civil Rules Committee, to note the 

6 three-minute mark during your introductory testimony. 

7 We ask that you conclude all comments within 10 

8 minutes so that we may continue with the next witness. 

9 Allison and I will be keeping time and will remind 

10 witnesses as needed. 

11 Finally, please note that the times on the 

12 schedule are approximate and will be adjusted as 

13 needed. If we get behind schedule, we will adjust the 

14 scheduled morning, lunch, and afternoon breaks. And I 

15 do understand, due to weather conditions, we may have 

16 lost two of our witnesses today, so that may bring our 

17 witnesses from 30 to 28. 

18 As for the witnesses, please leave your 

19 video off and microphones muted until you are called 

20 on to make your formal presentation. As to our 

21 Committee members, we welcome Committee members to 

22 have their videos on throughout the hearing if desired 

23 and to have their audio muted when not speaking. We 

24 ask that you use the Raise Hand feature or physically 

25 raise your hand in the video frame to indicate a 
 5 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 desire to comment or to ask questions. 

2 The hearing is being recorded and a 

3 transcript will be made available publicly on the U.S. 

4 Courts website. If you do get disconnected, use the 

5 original Teams link to rejoin or use the conference 

6 bridge number located at the bottom of the meeting 

7 invite to join by phone. 

8 With that, we’ll call our first witness, 

9 Jeannine Kenney. 

10 MS. KENNEY: Thank you, Judge Rosenberg. I 

11 appreciate the opportunity to testify today and I 

12 understand you have a long list of witnesses ahead of 

13 you. I’ll try to be as brief as possible. I 

14 submitted extensive written comments, and I’ll just 

15 try to hit the highlights here this morning. 

16 With respect to the amendments to Rule 16 

17 and Rule 26, as my comments reflect, I strongly 

18 support the Committee’s approach. I think it is a 

19 balanced means of addressing the concerns that the 

20 Committee heard through the initial comment period 

21 regarding -- from both receiving parties and producing 

22 parties regarding some of the concerns regarding 

23 privilege logs. 

24 In my experience in the cases I prosecute, 

25 we always have this discussion early in the case so 
 6 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 that we can identify any areas of disagreement 

2 regarding the form and expected content of privilege 

3 logs, resolve those early, and then, when we get the 

4 privilege logs, we’re not fighting about what the 

5 privilege logs should contain but rather whether the 

6 documents identified are privileged themselves, and 

7 that really focuses the parties. 

8 You know, we certainly leave a safety net 

9 should a party wish to modify the privilege log 

10 protocol. That can always be done by a member of the 

11 parties or by order of the court. And so the concerns 

12 that have been expressed that the parties may not know 

13 everything about the case early on, I think, is 

14 mitigated by provisions like that, and courts are 

15 always amenable to adjust to these types of protocols 

16 as the case progresses. 

17 With respect to the Committee note, I 

18 strongly support some of the content that’s in there. 

19 I think the emphasis on producing rolling logs is 

20 really important. I know there are concerns that 

21 rolling logs might, you know, provide quality issues 

22 for those early logs, but I can tell you that in my 

23 experience we don’t get any better quality privilege 

24 log when it’s produced after all discovery has 

25 basically closed than we do when we get them on a 
 7 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 rolling basis. And if you do get them on a rolling 

2 basis, it does allow the parties to flag issues early. 

3 You know, a party can give direction that this is 

4 business advice, this is public relations advice, this 

5 is not, you know, a qualified attorney/client 

6 communication providing legal advice. And that’s 

7 really helpful. Those documents then won’t be logged 

8 going forward, hopefully, if the party takes the cue 

9 from the court, and that can save a lot of time, 

10 money, and burden with respect to later logs. 

11 I also appreciate the Committee’s 

12 recognition that there is no one size fits all, and, 

13 you know, we certainly take into account differences 

14 in cases when we’re negotiating protocol for privilege 

15 logs early in the case. And there are some times when 

16 we can make, you know, exceptions to what we might 

17 normally want to see because of the nature of a case, 

18 and it’s really important that that be recognized, 

19 particularly with respect to the discussion regarding 

20 exclusions from the logging obligation entirely. That 

21 really depends upon the nature of the case, and, in 

22 some cases, you know, we can create fairly wide 

23 exclusions. In other cases, we can’t. And I provided 

24 some examples of why that is in my written comments. 

25 I do have some concerns that the note itself 
 8 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 focuses on just one of the concerns that the Committee 

2 heard during the initial comment period, which is the 

3 cost and burden of logging, and does not reflect 

4 something that is really critical, I think, for the 

5 Committee to express, which is there is a reason this 

6 rule exists and that reason is that there is, you 

7 know, I think in my view, an epidemic of 

8 overwithholding. We see it in our cases all the time 

9 that it is the rule, not the exception, where 

10 substantial quantities of documents are withheld and 

11 then ultimately produced following challenges or 

12 formal motion practice. 

13 And I don’t see anything reflected in the 

14 commentary about the importance of compliance with the 

15 rule or any discussion about what might constitute 

16 undue burden. I think that would be helpful to courts 

17 as they’re evaluating challenges. In my view, a 

18 burden with respect to privilege logs is undue only 

19 when the log requires more than is necessary for the 

20 receiving party to assess the problem. And many of 

21 the alternative approaches that those on the other 

22 side we advocate often do not permit that assessment, 

23 and I think you probably received more than enough 

24 comments on that in the initial comment period, so I 

25 don’t need to reiterate them. I did also -- 
 9 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 MS. BRUFF: Ms. Kenney, I apologize. 

2 MS. KENNEY: Sure. 

3 MS. BRUFF: I am so sorry. I apologize for 

4 interrupting, but I would like, in the interest of 

5 time and to give ample opportunity for Committee 

6 members to ask questions, to ask you to briefly 

7 summarize and then I’ll turn it over to Judge 

8 Rosenberg so she can ask questions. 

9 MS. KENNEY: Sure. I mean, that’s really -- 

10 CHAIR ROSENBERG: Did you want to say 

11 anything on 16.1? 

12 MS. KENNEY: I think I’m happy to answer 

13 questions on 16.1. My comments were pretty extensive. 

14 I think the principal concern with 16.1 is its 

15 application to class action MDLs, I think, is very 

16 problematic. And I guess the only overarching comment 

17 I would make is that particularly in class action 

18 MDLs, it is very often our opposing counsel who do not 

19 want to have these discussions prior to appointment of 

20 lead counsel, of interim lead counsel, because they’re 

21 having discussions and maybe negotiating away 

22 provisions or, you know, positions with those who may 

23 not have ultimate authority to guide the case and to 

24 decide what happens in the case because only lead 

25 counsel has that authority. But I’m happy to answer 
 10 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 any questions you might have about how class action 

2 MDLs proceed because it is primarily our practice. 

3 CHAIR ROSENBERG: Thank you so much. So let 

4 me first ask if any of our reporters have any 

5 questions for our first witness, Ms. Kenney. 

6 PROFESSOR MARCUS: Judge? 

7 CHAIR ROSENBERG: Yes. 

8 PROFESSOR MARCUS: I’d like to call 

9 attention to page 10 of your submission, which 

10 addresses Rule 26(b)(5). One of the things that has 

11 been urged on us is a cross-reference there. You 

12 raised concerns. If the Rule only says 26(f) applies, 

13 is that a problem? 

14 MS. KENNEY: I don’t know that that would be 

15 a problem, like, off the top because I don’t know that 

16 it’s necessary since 26(f) applies. So I’m not sure 

17 what the reference would be. I mean, my principal 

18 concern with those proposals is that, you know, many 

19 judges, almost every judge I practice in front of, has 

20 standing policies and procedures and they may depart 

21 from those policies and procedures if the parties make 

22 a good case for it. But I don’t think the rules 

23 should preclude a court from having, you know, a 

24 particular judge from having a preference in its 

25 policies and procedures based on its own experience 
 11 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 for how privilege issues should proceed, just as they 

2 do with so many other discovery matters. 

3 PROFESSOR MARCUS: So, if I'm correct in 

4 understanding, you’re saying you’re willing that our 

5 rule would tell judges they cannot enter orders in 

6 individual cases as they see fit? 

7 MS. KENNEY: I think the concern is that the 

8 proposal, at least one of the proposals I saw, is that 

9 the court -- the rule should require that this be a 

10 case-by-case determination, and I would read that then 

11 as precluding a court from having a standing 

12 preference for a form of privilege log. Yeah, I think 

13 that would be a concern. 

14 CHAIR ROSENBERG: Rick, I think you should 

15 turn your audio off afterwards because I do think 

16 there are issues on your end that we’re going to try 

17 to help you with the echo that you indicated. 

18 Certainly, if you have any further questions, turn the 

19 audio back on, but, otherwise, we’ll have it off so it 

20 doesn’t interfere. 

21 Anything else from Andrew or Ed? No. 

22 And then any of our Committee members, do 

23 any of our Committee members have any questions either 

24 regarding the privilege log comments or the MDL rule 

25 comments for Ms. Kenney? 
 12 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 JUDGE PROCTOR: I do. 

2 CHAIR ROSENBERG: Judge Proctor, yeah. 

3 JUDGE PROCTOR: Yes. So how would 

4 you -- how do you think the rule should apply when you 

5 have competing class actions? I think your concern 

6 is, if someone has filed a class action and 

7 showed -- and is centralized before a transferee judge 

8 and then we have Rule 16.1 in place and there’s 

9 preparation for a management conference heading into 

10 that conference. In Blue Cross Blue Shield, for 

11 example, I had I can’t even remember how many, 30 or 

12 40 class actions filed, and, you know, I had to 

13 ultimately designate who lead counsel was going to be 

14 among the class counsel in the various cases. So 

15 we're trying, obviously, as you’ve already indicated, 

16 we’re trying to develop a one-size rule that doesn’t 

17 apply to one-size cases. So how would you give us 

18 guidance about how that should be tweaked? 

19 MS. KENNEY: Well, I mean, I think the 

20 principal distinction is -- I mean, there are 

21 certainly like Blue Cross, which my firm was involved 

22 in, there are certainly class actions where you have 

23 multiple classes proceeding, you know, as was the case 

24 in Blue Cross, proceeding simultaneously. They each 

25 have their own class counsel. Discovery is 
 13 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 coordinated, you know, it's certainly coordinated 

2 among the plaintiff’s counsel, approved by, you know, 

3 the lead counsel, and so you don’t have duplicative 

4 discovery. 

5 But I think that even in a case like that, 

6 maybe you have, you know, five, six, I can’t remember, 

7 Judge Proctor, how many actual classes there were in 

8 Blue Cross, but even in the generics MDL, which is one 

9 of the most complex MDLs, I think you have five 

10 classes. You have some individual opt-out plaintiffs, 

11 large corporations who are suing on their own behalf, 

12 and then you have the states, and you still only have 

13 a handful -- really a handful of actions by comparison 

14 to a very large mass tort with thousands of individual 

15 proceedings that proceed individually. 

16 And so I think the rule could be improved, 

17 one, by distinguishing between the different nature of 

18 class -- of MDLs and how they are different and the 

19 different management concerns they might implicate 

20 because some of the commentary I think is just really 

21 confusing. I mean, censuses, you know, generally just 

22 don’t apply, even in a class action where you’ve got, 

23 you know, five different classes proceeding, you know, 

24 simultaneously because the claims and facts are all 

25 laid out in the class action complaint. I mean, 
 14 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 that’s effectively the census for that class. 

2 And so I think the commentary, it’s very 

3 confusing because it makes a distinction between MDLs 

4 and class actions when, in fact, class actions can and 

5 usually, you know, and often are MDLs. So I think 

6 just identifying the different management issues that 

7 might be implicated in a class action versus a mass 

8 tort MDL, which I think is what is animating the 

9 concern, most of our class actions proceed -- even 

10 after MDL proceed in a pretty orderly fashion and 

11 almost as any other consolidated -- you know, related 

12 matters consolidated under Rule 42 would. I don’t 

13 know if that answers your question. Sort of a long14 winded answer. 

15 CHAIR ROSENBERG: Thank you. Well, if there 

16 are -- oh, Professor Bradt has a question. 

17 PROFESSOR BRADT: Thank you. This is very 

18 helpful. I wonder whether or not, though, the real 

19 distinction that you’re concerned about in MDLs is not 

20 so much class action versus non-class action because, 

21 of course, MDLs and mass torts often feature class 

22 actions at the outset. Whether or not they get 

23 certified or not is a question going forward and 

24 sometimes they culminate in class action in settlement 

25 classes. 
 15 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 So is the problem really less about class 

2 action versus non-class action MDL and established 

3 practices in certain subject matters of MDL, like 

4 securities and antitrust? And if that’s so, wouldn’t 

5 judges be more likely to continue following the well6 worn path in those kinds of MDLs, even if some aspects 

7 of 16.1, like a case census, don’t apply to them? 

8 MS. KENNEY: I think in answer to your first 

9 question, I don’t think it’s really -- I don’t think 

10 that’s the distinction. I don’t think it’s a subject 

11 matter distinction. I just think that the actions are 

12 very different animals. Leadership has a different 

13 role in a mass tort. Settlement is different in a 

14 mass tort. Discovery is different in a mass tort. 

15 And, sure, often mass torts culminate in a 

16 class action settlement because you have different 

17 certification rules, you know, at settlement than 

18 might apply in a litigation sense, but I don’t think 

19 that’s the distinction. I think the distinction is 

20 that we just don’t have the same complex -- there 

21 are -- there usually is not a need for a bellwether in 

22 a class action, so referring to bellwethers could be 

23 confusing. 

24 Courts generally, you know, as a matter of 

25 course will issue an initial practices and procedure 
 16 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 order after they get a class action MDL just laying 

2 out without any input of parties, just laying out the 

3 administrative issues in the case in terms of 

4 directing the court to do X, Y, and Z, how, you, know, 

5 people should apply for admission to the court and so 

6 on. It’s just a much more -- certainly, there are, 

7 you know, pretty complex class action MDLs, auto 

8 parts, Blue Cross, generics, but they implicate 

9 different issues. You know, all of the claims are the 

10 same. You don’t need a census for the different 

11 claims. They’re all going to be, you know, tried 

12 based on the complaint and the discovery obtained. 

13 They’re going to rise or fall on summary judgment 

14 applicable to that class action, so you don’t usually 

15 have these issues. 

16 Sometimes there are dispositive legal issues 

17 that will arise in a class action, but you usually 

18 don’t need the court’s assistance in that because it’s 

19 the defendant who’s going to say, hey, I’m going to 

20 move, you know, because I have immunity under the 

21 statute, and that might be the first issue to that. 

22 That happens. But it isn’t something that requires a 

23 complex inquiry into all of the different thousands of 

24 individual cases. 

25 CHAIR ROSENBERG: Okay. Seeing no other 
 17 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 hands, thank you so much, Ms. Kenney. We really 

2 appreciate your written comments and your oral 

3 testimony here today. Thank you. 

4 MS. KENNEY: Thank you so much. I 

5 appreciate it. 

6 CHAIR ROSENBERG: Okay. Lori Andrus. 

7 MS. ANDRUS: Good morning, everyone, and 

8 thank you so much for the opportunity to address 

9 privilege logs today. By way of introduction, 

10 although I’ve met many of you, I am president elect of 

11 the American Association for Justice. I’ve been a 

12 plaintiffs' lawyer for 25 years now. I have my own 

13 small, two-woman law firm based in San Francisco, but 

14 I practice all over the country, often in federal 

15 court. I do complex litigation almost exclusively, 

16 and that includes all types of class actions and mass 

17 torts, so I have a good deal of experience with 

18 privilege logs in federal court. 

19 And I am here to speak in support of the 

20 rule as it is drafted. At the end of my remarks, I’ll 

21 give one or two suggestions that could, in my view, 

22 perfect the rule. But I think that the Committee has 

23 captured the most important elements of a Federal 

24 Rule, which is flexibility and balance, so two of the 

25 most important things, I suppose I should say. 
 18 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 I think judges need to be paying attention 

2 to this issue early. Certainly, litigants need to be 

3 paying attention to this issue early. I always do. I 

4 make a point of it because I don’t want to find out at 

5 the end of discovery that we have disagreements about 

6 the format of the privilege log or how it will be 

7 produced. 

8 Ideally, privilege logs are produced on a 

9 rolling basis. I know I’ve seen in some of the other 

10 testimony that will be presented today that the 

11 preference might be from a defense perspective to 

12 produce a privilege log at the end of discovery so 

13 that the defendant can focus on producing documents. 

14 I think that’s inappropriate for a number of reasons, 

15 but, really, from a practical perspective, the 

16 defendant then has to review each of those documents 

17 twice, and it just doesn’t make sense, especially if 

18 they are hoping to save money or be efficient in the 

19 creation of a privilege log. It’s best to do it as 

20 the documents are being produced, and that’s typically 

21 on a rolling basis. 

22 Of course, not all cases in federal court 

23 are the same. A trucking case involving two parties 

24 is managed differently than a large antitrust matter 

25 with multiple defendants and multinational 
 19 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 corporations. I’ve worked on both kinds of cases and 

2 I can tell you from experience that privilege logs in 

3 these massive cases require more attention from the 

4 court, and a tailored approach is best. 

5 I’ve also seen in some of the other 

6 testimony a concern that there can be abuse on the 

7 plaintiff’s side and that we sometimes are just trying 

8 to drive up the cost of the case. In my many years of 

9 experience, I've never found that to be true. In 

10 fact, it’s the opposite. Plaintiffs are always trying 

11 to simplify, get to trial as quickly and efficiently 

12 as possible and keep costs down in the case. It’s in 

13 our blood because of the way we get paid. It’s 

14 important for us to do things efficiently. And I can 

15 assure you that I would much rather get a privilege 

16 log with 5,000 documents on it that were carefully 

17 reviewed and laid out with clear explanations of why 

18 they’re privileged than to get 90,000 lines on a 

19 privilege log, as we did in the Avandia case, where 

20 there was clear overdesignation, and I don’t know if 

21 it was sloppiness. It might have been inadvertent, 

22 but after multiple rounds of challenges, we were able 

23 to retrieve the documents that never should have been 

24 withheld in the first place. 

25 That case was a long time ago, but I raise 
 20 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 it just because it’s a strong example, I think, of the 

2 power that a privilege log has to disguise or withhold 

3 documents improperly. And so plaintiffs are always 

4 fighting against that tide, and determining what 

5 exactly needs to go in a privilege log at the 

6 beginning allows both parties to more clearly 

7 understand their obligations and for a judge to 

8 evaluate ultimately whether a privilege applies to any 

9 particular document. 

10 MS. BRUFF: Ms. Andrus, I’m sorry to 

11 interrupt. I’m going to turn it back over to Judge 

12 Rosenberg to invite questions. 

13 MS. ANDRUS: Okay. No problem. 

14 CHAIR ROSENBERG: I think you said you had 

15 one or two suggestions. Do you want to quickly give 

16 those, and then we’ll see if there are any comments? 

17 MS. ANDRUS: Yes, I would appreciate that 

18 opportunity. Thank you, Judge Rosenberg. 

19 If we’re looking at the first paragraph of 

20 the Committee note on Rule 26, there’s a sentence, 

21 "Compliance with Rule 26(b)(5)(A) can involve very 

22 large costs, often including a document-by-document 

23 privilege log." I recommend striking that entire 

24 sentence. You know, technological advances have made 

25 privilege logs much easier and less expensive to 
 21 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 generate, and those costs will continue to go down as 

2 our reliance on technology continues to go up, so that 

3 sentence isn’t even necessarily accurate today and I 

4 doubt it will be in the future. 

5 And then the one other suggestion I had in 

6 terms of language in the note -- oh, yes. Let’s see. 

7 It’s the sentence about "Overdesignation may be the 

8 result of a failure of the parties to communicate 

9 meaningfully," and that’s in the last paragraph of the 

10 draft Committee note. It’s the second sentence. 

11 First, it mentions overdesignated responsive materials 

12 and then it says, "Such concerns may arise in part due 

13 to the failure of the parties to communicate 

14 meaningfully about the nature of privileges and the 

15 materials involved in the given case." 

16 It’s never been my experience that 

17 overdesignation is a result of my failure to 

18 communicate. So overdesignation is its own beast, and 

19 I don’t think that is a basis to include that sentence 

20 in the note. I’m happy to take questions. 

21 CHAIR ROSENBERG: Okay. Thank you so much. 

22 Questions from our reporters? 

23 PROFESSOR MARCUS: Two questions. I’ve got 

24 one related to something we just heard from -- 

25 CHAIR ROSENBERG: Rick, Rick, can you turn 
 22 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 your volume up just a tad? 

2 PROFESSOR MARCUS: -- the previous witness. 

3 Does that work? 

4 CHAIR ROSENBERG: Yeah, yeah, it seems a 

5 little low. 

6 PROFESSOR MARCUS: Okay. I don’t know if I 

7 can turn it up, but I can turn up my volume. 

8 CHAIR ROSENBERG: Okay. 

9 PROFESSOR MARCUS: And one is, do you see 

10 this proposal as written as restricting judges' 

11 latitude in handling privilege log issues, and the 

12 other, which I already raised, is, do you see any 

13 problem with adding a cross-reference to 26(b)(5)(A) 

14 pointing out that there is now a provision in 26(f) 

15 calling for early discussion and reporting to the 

16 judge on privilege log issues? 

17 MS. ANDRUS: I have no problem with either 

18 of those things, Professor Marcus. I think this rule 

19 as written does make clear that a court has discretion 

20 over privilege logs and to assist the parties in 

21 tailoring them as is needed for each case, and I would 

22 have no problem with a reference to 26(f) either. 

23 I would support the suggestion of Doug 

24 McNamara. He testified at the October 16 Rules 

25 Committee hearing and he suggested that the rule even 
 23 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 go farther and specific language be added to the 

2 Committee note explaining what should be in a 

3 privilege log. I’m in support of his suggestion as 

4 well. 

5 PROFESSOR MARCUS: Well, wouldn't, if one 

6 tried to do that, wouldn’t that be tied to current 

7 technology and otherwise perhaps become passé pretty 

8 soon? 

9 MS. ANDRUS: No, because we’re talking about 

10 the substance of the description of, you know, how one 

11 justifies withholding a privilege document. 

12 CHAIR ROSENBERG: Any other questions? And 

13 from our Committee members? Yes, Helen. 

14 MS. WITT: Good morning. Have you had any 

15 success in early discussions with opposing counsel in 

16 coming up with a proposal or a schematic for 

17 categorical privilege logs, or is that not something 

18 that you have found either negotiable or workable? 

19 MS. ANDRUS: I actually find that I 

20 frequently agree to, through discussions with counsel, 

21 certain categories of documents not being on a 

22 privilege log at all. I have not ever found that 

23 categorization in terms of things like memos or 

24 agendas would be appropriate because such a large 

25 grouping would make it difficult or impossible really 
 24 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 to evaluate the privilege. And I think there’s good 

2 case law that requires a certain level of detail that 

3 such a categorization is in conflict with that. 

4 But there can be categories, like, for 

5 example, communications with litigation counsel post6 filing of the complaint, that is typically something 

7 that I do not require to be on a privilege log and it 

8 saves the other side a ton of work. So sometimes. 

9 Every case is different. 

10 CHAIR ROSENBERG: Okay. Any further 

11 questions? 

12 MS. ANDRUS: Thank you very much. 

13 CHAIR ROSENBERG: Okay. Seeing none, thank 

14 you so much, Ms. Andrus. We appreciate your testimony 

15 here today. 

16 And next we’ll hear from Mr. Mark Chalos, 

17 who will speak on 16.1. 

18 MR. CHALOS: Yes. Good morning, Judge -- 

19 CHAIR ROSENBERG: Good morning. 

20 MR. CHALOS: -- and good morning, members of 

21 the Committee. Yes, I’m here speaking to the issues 

22 of proposed Rule 16.1. First of all, I appreciate the 

23 Committee’s work over the past several years on this. 

24 I know it’s a long time in the making and I appreciate 

25 all the listening and input that the Committee has 
 25 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 taken great pains to receive. 

2 I have addressed in my comments three areas 

3 primarily. The first is that the rule must be 

4 flexible, which I think it largely goes -- it largely 

5 makes that clear that it must be flexibly applied. I 

6 had two fairly modest suggestions in that regard 

7 related to the Committee note. 

8 Secondly, I addressed the issue of the 

9 coordinating counsel, and after much discussion over 

10 many years and various formulations of this concept, 

11 my suggestion here is slightly less immodest or 

12 slightly less modest and, unfortunately, I’ve come to 

13 the view that I think 16.1(b) is probably not a 

14 workable solution in the context of Rule 16.1. 

15 And, thirdly, I have addressed the interplay 

16 between and among Rules 16, 16.1, and 26(f) and I have 

17 made a fairly modest suggestion there in addition to 

18 the Committee note making clear that the conference 

19 under 16.1 would satisfy the requirements of 26(f) and 

20 thereby either trigger the deadlines that are 

21 triggered automatically by 26(f) or would be addressed 

22 in the court’s order that comes out of the 16.1 order, 

23 conferencing order. 

24 So that’s a brief summary of my comments, 

25 and I’m happy to answer any questions. 
 26 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 CHAIR ROSENBERG: Okay. Thank you so much. 

2 Let me first turn to our reporters. 

3 Rick, it looks like you have a question. 

4 PROFESSOR MARCUS: Well, I had the 

5 impression that particularly when there are many cases 

6 that are tag-alongs and what have you that 26(f) 

7 really very rarely is followed in those cases and all 

8 of those kinds of things are dealt with in the MDL 

9 transferee court. Am I wrong about that? I’m 

10 addressing your concern that there might be some kind 

11 of tension or overlap and I’m asking for 

12 clarification. 

13 MR. CHALOS: Yeah, Professor. I think it -- 

14 the short answer is I think it depends. My concern 

15 and the concern that I was trying to address is that 

16 there are deadlines that are triggered automatically 

17 by the ordinary course of Rule 16 and the conference 

18 that’s held there, and I’m thinking particularly of 

19 discovery opening, as well as the mandatory initial 

20 disclosures. 

21 My suggestion is not to make a one-size22 fits-all rule as part of 16.1 but rather to in the 

23 note encourage the court to address that, to say 

24 whether -- 

25 PROFESSOR MARCUS: One of the things the 
 27 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 rule says a judge can ask the parties to report on is 

2 whether there are extant in any of the transferred 

3 cases the kinds of orders you’re talking about that 

4 might need to be modified. Doesn’t that address what 

5 you’re talking about? 

6 MR. CHALOS: It addresses part of it. I’m 

7 also looking forward. And my concern is that I could 

8 imagine a scenario where we would have after the 16.1 

9 conference some ambiguity as to whether, for example, 

10 discovery is open or whether there’s a deadline now 

11 automatically for the mandatory initial disclosures 

12 under (a)(1)(A). 

13 So my suggestion is not to make a one-size14 fits-all rule but rather to, as I mentioned, encourage 

15 the judge in the notes to address that because I don’t 

16 think anywhere in the text of the rule currently or in 

17 the Committee note there’s any reference to Rule 26(f) 

18 and how it interplays with Rule 16.1. 

19 There is in Rule 16 express references and 

20 vice versa with Rule 26(f), but there currently exists 

21 no reference in 26(f)(16) -- I’m sorry -- or 16.1 to 

22 either of those other two concepts. 

23 CHAIR ROSENBERG: Okay. Andrew? 

24 PROFESSOR BRADT: Thank you. 

25 Is it your experience that judges don’t do 
 28 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 that as a matter of course in the MDLs you participate 

2 in? I understand 16.1 doesn’t exist in our world, but 

3 aren’t judges in those cases keeping an eye on how 

4 discovery works with tag-alongs and follow-on actions 

5 that come into the MDL, or is it your perspective that 

6 under the current framework judges aren’t considering 

7 that at all and you’re left without sufficient 

8 guidance? 

9 MR. CHALOS: I think, currently, judges 

10 address it, but it’s explicit in Rule 16. It is not 

11 explicit in proposed Rule 16.1, so that’s my concern 

12 is that if we are now going to be in MDLs operating 

13 under this new formulation of 16.1, Rule 16 no longer 

14 applies or applies in some limited form in MDLs, then 

15 I think we have to address, well, what happens to the 

16 interplay between 26(f) and the case management rule, 

17 whether 16 or 16.1. 

18 PROFESSOR BRADT: Can I shift gears for a 

19 second to the coordinating counsel question? I guess 

20 the question I’d ask you is, you know, what in your 

21 view is the greatest mischief that having coordinating 

22 counsel could cause and why does that not exist in the 

23 way that the parties organize themselves at the outset 

24 of an MDL now? I guess, in other words, why is having 

25 this in the rules significantly worse than the status 
 29 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 quo? 

2 MR. CHALOS: Sure. That’s a great question. 

3 Short answer is repeat player, and the reason I say 

4 that is right now, as it stands, whether it’s a mass 

5 tort MDL, which I am in the leadership fairly 

6 frequently of, or class action MDLs, which I’m also 

7 frequently involved in, right now, there’s no formal 

8 designation. So we on the plaintiff side generally 

9 self-organize or we make it pretty clear, you know, 

10 it's pretty clear to the court that we were unable to 

11 self-organize, at which point the court would then 

12 implement some sort of process whereby the court 

13 receives information about the various applicants or 

14 the various potential either co-leads or steering 

15 committee members or what have you. 

16 And that enables the judge to gather 

17 information to meet people the judge may never have 

18 encountered before, to think about diverse candidates, 

19 and when I say "diverse," I mean all sorts of 

20 diversity, whereas if we were to shift to a situation 

21 where judges are encouraged or may take from its 

22 inclusion in the text of the rule that they are being 

23 encouraged to appoint coordinating counsel, my concern 

24 is the judge has no information on which to make that 

25 selection other than I know this person, they’ve been 
 30 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 in my court before or my colleagues speak highly of 

2 this person, all of which go to this repeat player 

3 issue. 

4 I would love a world where coordinating 

5 counsel has no stickiness to it in terms of ultimately 

6 being appointed to lead the litigation. But I think, 

7 in reality, the way that will play out is the early 

8 leaders will have a chance to audition for leadership. 

9 And I think most of the lawyers at least that I work 

10 with will do a very good job and will have 

11 demonstrated they can lead, which I think inevitably, 

12 at least in some or many cases, will lead to the 

13 coordinating counsel being lead counsel or something 

14 like that. 

15 So I think we’re creating a pipeline that 

16 reinforces the repeat player issue, whereas the way 

17 things work now, I think they generally work fine. 

18 The period of inception of the MDL through appointment 

19 of formal leadership, you know, it’s occasionally a 

20 little bit messy, but it gets sorted out. It gets 

21 sorted out fairly quickly and usually within, you 

22 know, weeks or a month we have formally appointed 

23 leadership that was appointed through a process where 

24 the judge received fairly robust information at least 

25 in many instances. They may interview individual 
 31 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 candidates, and that’s becoming something we’re seeing 

2 a lot more of. 

3 CHAIR ROSENBERG: Okay. Thank you. 

4 Anything from any of our other Committee members on 

5 this issue? 

6 Okay. Well, thank you, Mr. Chalos. We 

7 appreciate your comments and your testimony here 

8 today. 

9 MR. CHALOS: All right. Thank you, Judge. 

10 CHAIR ROSENBERG: Okay. Next is Tobi 

11 Millrood on 16.1. 

12 MR. MILLROOD: Good morning. 

13 CHAIR ROSENBERG: Good morning. 

14 MR. MILLROOD: Thank you. Good morning. 

15 Thank you to the Committee members for your time 

16 today. My name is Tobi Millrood and I’m from the law 

17 firm of Kline & Specter in Philadelphia where I’m 

18 chair of the Mass Torts Division. 

19 Today, I’m offering testimony on behalf of 

20 the American Association for Justice of which I served 

21 as president from 2020 to 2021. As I’ve been involved 

22 with this discussion from the earliest formation, 

23 including with Judge Dow and Judge Rosenberg and Judge 

24 Proctor and, of course, with Professor Marcus all 

25 along, I just want to commend the Committee for its 
 32 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 continued diligence and dedication to this issue and 

2 to the recognition of the important role that MDL 

3 cases play in our legal infrastructure. 

4 This morning, I want to offer a few 

5 additional remarks to my prepared testimony that was 

6 submitted to this Committee. In particular, I want to 

7 briefly comment on three topics: first, the temporal 

8 association of the proposed rule as it relates to MDL 

9 litigation; second, some cautionary concerns related 

10 to the introduction of a coordinating counsel 

11 position; and lastly, the misguided emphasis by LCJ 

12 and the defense bar on "unsupported claims." 

13 First, it’s axiomatic in rules construction 

14 that each word of a rule has meaning. That is to say, 

15 it’s not superfluous and, further, that the wording 

16 aids the application of the rule. 

17 Here, really, as a fundamental matter, I 

18 want to emphasize that as drafted, proposed Rule 16.1 

19 refers to an initial MDL management conference, and as 

20 such, what is contemplated by this rule is quite 

21 ambitious for an initial conference. My long 

22 experience in at least product liability MDLs is that 

23 for the first few conferences in an MDL, much of the 

24 discussion is relatively shape-of-the-table 

25 discussion. After all, at the initial juncture, no 
 33 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 master pleading has been filed, and in many MDLs, 

2 there isn’t even a real assessment as to the full 

3 scope of the types of injuries involved at the initial 

4 stage. For that reason, the Committee is urged to 

5 either replace "initial" with "early" and/or reduce 

6 the number of topics that cannot be discussed 

7 intelligibly with confidence and in substance at an 

8 initial conference. 

9 Second, this speaks to the serious concerns 

10 with "coordinating counsel." Here, the question is 

11 asked what’s in a name, and our answer is a lot. When 

12 you anoint with the imprimatur of a rule a title of 

13 coordinating counsel, there is so much potential for 

14 unintended consequences. To the question just raised 

15 by Professor Bradt, the mischief could be jockeying 

16 for supposed future leadership, confusion as to what 

17 falls under the roof of coordinating counsel, later 

18 gotcha moments from defendants who claim that 

19 plaintiffs are stuck with the representations of 

20 coordinating counsel when different appointed 

21 leadership counsel decides the approach must be 

22 different down the road. And for what benefit? 

23 If the goal is to take me to your leader so 

24 that the court can have a fulsome discussion, that’s 

25 all the more reason to shift the rule to an early 
 34 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 management conference after the appointment of 

2 permanent leadership. 

3 Finally, I want to address the increasing 

4 drumbeat from LCJ and the defense bar about utilizing 

5 this rule and the initial MDL management conference to 

6 confront what they describe as "unsupported claims." 

7 We can save for another day or even week our response 

8 to the outsized myth of unsupported claims. But what 

9 I want to emphasize for this Committee is that to the 

10 extent that an MDL court where the parties are 

11 jousting about claims and whether they’re supported, 

12 the best way of addressing it is through empowerment 

13 of plaintiffs' leadership in early orders. They are 

14 the best -- that is, plaintiffs' leadership are in the 

15 best position to screen cases, confer with fellow 

16 plaintiffs' counsel, and help shepherd for filing 

17 those claims that properly belong in litigation. 

18 When I served as co-lead counsel in the 

19 Zofran Products liability MDL, we asked Judge Saylor 

20 for an early order that would permit plaintiffs' lead 

21 counsel to collect information privately from 

22 plaintiffs' counsel that would, in turn, allow us to 

23 screen cases. Judge Saylor granted that order, and 

24 what could have been an MDL of thousands of cases 

25 became an MDL of hundreds of cases. This kind of 
 35 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 salutary goal can be accomplished through comment to 

2 the rule rather than a prescription that suggests that 

3 each MDL claim must be limited at the outset. 

4 Those are my remarks this morning and I’m 

5 available for your questions now. And, again, I thank 

6 the Committee for their attention to this issue. 

7 CHAIR ROSENBERG: Okay. Thank you, Mr. 

8 Millrood. 

9 Okay. First, from our reporters, Rick, do 

10 you have a question? 

11 PROFESSOR MARCUS: Well, I think so, 

12 following up on what you just said. You can hear me? 

13 CHAIR ROSENBERG: Yes, thank you. 

14 PROFESSOR MARCUS: Good. And thank you very 

15 much for all the help you’ve given us over the years. 

16 With regard to coordinating counsel, you may 

17 recall that in 2003 Rule 23(g) introduced a notion of 

18 interim counsel and I was involved in that and I think 

19 that’s now well established. As far as that’s 

20 concerned, that’s a new title also. Did that cause 

21 any problems you’re aware of? 

22 And separately, with regard to your 

23 experience in the litigation you mentioned, my 

24 recollection early on is that quite a few on the 

25 plaintiffs' side were concerned about claims that 
 36 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 shouldn’t be there, and what you described, I think, 

2 is a manner of dealing with that concern. And in 

3 terms of what the rule says, it says there’s a whole 

4 bunch of topics that ought to be considered, one the 

5 judge may -- have to be considered. One is whether to 

6 have additional management conferences. I think that 

7 it's initial means this is not the only one buy many, 

8 as opposed to early. And another is, how and when to 

9 do what you just described. I don’t understand where 

10 the problem is in the rule as proposed. So I’m asking 

11 for an explanation. 

12 MR. MILLROOD: Thank you, Professor Marcus, 

13 for both those questions. I’ll actually take them in 

14 the reverse order. And I do think that the concern 

15 here relates to (c)(4), how and when the parties will 

16 exchange information about the factual bases for their 

17 claims and defenses. 

18 My anticipation is that what we will face in 

19 that is because it is in the rule, the defense bar 

20 coming in and trying to move the goal line, as they 

21 often do in these product liability litigations, for 

22 the proof of the cases early on. 

23 My experience in many product liability MDLs 

24 is that when we really get into the cases, both 

25 parties learn a lot more about the case as it goes on. 
 37 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 It’s not unusual even to reform a fact sheet in 

2 product liability MDLs because we just don’t know 

3 everything at the outset. And so I think the concern 

4 is, yes, how the parties will exchange information, I 

5 think, you know, that’s fine. I think the concern is 

6 that the when is -- my anticipation, like I said, is 

7 the defense counsel are going to say, we need to know 

8 right now the factual basis for the claims, and, yes, 

9 the discretion there rests with the court. I just 

10 think there is also the potential to use the word 

11 again "potential for mischief" in that sub-paragraph. 

12 As to your first question, I confess I can’t 

13 speak with great experience to the class action 

14 experience of an interim counsel title in Rule 23, but 

15 my expectation is that the architecture of class 

16 action cases, the landscape of how many counsel are 

17 involved is much, much different. The jockeying that 

18 occurs. I know there’s jockeying in class cases, but 

19 I think it is a world apart from the steering 

20 committees of 20, 25, 30 plaintiffs' counsel, all that 

21 will be jockeying for that title that they think will 

22 carry so much weight if they get that title of 

23 coordinating counsel. I think it really could have 

24 very serious unintended consequences that then becomes 

25 a headache for the court. 
 38 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 PROFESSOR MARCUS: Can I just follow up on 

2 the first thing you were speaking about? The rule 

3 proposal says how and when the parties will exchange. 

4 Now it sounds like you think that means how and when 

5 that will happen before anything else happens. The 

6 rule doesn’t say that. 

7 MR. MILLROOD: Yeah, I understand. I think 

8 organically, I don't -- just sometimes I think that we 

9 put language in a rule that could, again, unintendedly 

10 have a superfluous result because we always are going 

11 to have to find out in any MDL, whether it’s a product 

12 liability case or securities case or an antitrust 

13 case, it’s part and parcel of the litigation to find 

14 out the claims and the defenses in the case. Why are 

15 we putting in the rule when eventually there’s going 

16 to be a when and there’s always going to be a how. 

17 Why is it that we need to put in the rule that at the 

18 initial status conference we need to now turn that 

19 into a potential weapon of the parties? That would be 

20 our comment. 

21 CHAIR ROSENBERG: And Andrew. 

22 MR. MILLROOD: I don’t know if Professor 

23 Bradt has a -- 

24 CHAIR ROSENBERG: Yeah, Andrew has a 

25 question. 
 39 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 PROFESSOR BRADT: Yes, thank you. Two 

2 questions. The first, this is a question that I asked 

3 of several of the witnesses in the first hearing, is, 

4 are you aware of any empirical evidence that supports 

5 the question of how many unvetted or how many non6 meritorious claims we’re likely to see in mass tort 

7 MDLs. We’ve asked that of the defense side and also 

8 plaintiffs' side and so I’m interested if you can shed 

9 any light on that. 

10 Second, we heard at the hearing in the fall 

11 that the parties in mass tort MDLs do not typically 

12 follow Rule 26(a) with respect to mandatory 

13 disclosures, and I’m wondering if that’s your 

14 experience also and, if so, would you be worried that 

15 the rule would change the practice as it has 

16 customarily evolved? 

17 MR. MILLROOD: Thank you for those 

18 questions. As to the first, I know that I’ve attended 

19 numerous conferences where my colleagues in the 

20 defense bar like to offer up statistics of empirical 

21 evidence of the number of unvetted or claims or the 

22 outsized proportion of all MDL litigation that are 

23 product liability claims. 

24 I think it’s a really nebulous topic to 

25 drill down to because, first of all, we have to 
 40 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 understand what is a claim after all. You know, 

2 again, I’ve been in multiple MDLs where what is an 

3 actual injury claim reshapes. You know, there are 

4 some MDLs where there are two or three injuries at the 

5 outset, but once we get into the science, at the end, 

6 there might be only one injury at the end. 

7 There would be no way of knowing at the 

8 outset before we got into the science that so many of 

9 those claims were "unsupported" or they were 

10 supported. So I think what becomes a supported or 

11 unsupported claim changes as the case goes on. 

12 I do think -- you know, I don’t want to get 

13 off on a tangent, but I think there are a lot -- I’ve 

14 had -- I've been on a number of panels where this 

15 issue has been addressed as how do we get to the 

16 question of claims that have to be filed potentially 

17 to address a statute of limitations. There’s still 

18 things that we don’t know about the litigation and yet 

19 the burden that can be put on the court or the defense 

20 about all these flood of claims being filed, there are 

21 different novel approaches. 

22 There are concepts of inactive docket. 

23 There are tolling measures. I know Judge Rosenberg 

24 has employed, for example, the census measure. There 

25 are a lot of different measures that can be applied 
 41 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 here, but I think that’s all the more reason that it’s 

2 not a one size fits all. And I think the MDL court 

3 has to be armed with the flexibility to address it 

4 based on the facts of the case. 

5 As to the second question -- and I hope that 

6 helped to address your first question. As to the 

7 second question on mandatory disclosures, yes, my 

8 experience is that most of the MDL courts, either at 

9 the behest of the parties or not, waive off that 

10 requirement because, at the outset of the case, 

11 there’s little that really can be disclosed until the 

12 shape of the case takes form. If anything, there are 

13 some disclosures that are made on the defense side 

14 where they might put in, you know, the initial FDA 

15 submission file things that are almost a public 

16 record, the design history file in a device case, but 

17 mostly there are very few mandatory disclosures that 

18 are made. 

19 On the plaintiffs' side, ultimately, that 

20 takes shape oftentimes in a profile form, an initial 

21 profile form. But, again, I think this speaks to 

22 leaving to the MDL court the flexibility of management 

23 over the case as to how those disclosures should be 

24 made for the given case. 

25 CHAIR ROSENBERG: Okay. Thank you. There 
 42 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 are no other questions or comments. Thank you so much 

2 for your time. 

3 We’ll go to our next witness, Alyson Oliver, 

4 who will speak to 16.1. 

5 MS. OLIVER: Good morning. 

6 CHAIR ROSENBERG: Good morning. 

7 MS. OLIVER: My point here is fairly simple, 

8 I think, and it goes directly to the efficiency 

9 concept as it relates to the idea of coordinating 

10 counsel. 

11 My thought is, is that if the court is going 

12 to appoint coordinating counsel in any litigation, 

13 first of all, it should, I think, in my opinion, be 

14 somebody who is involved with the litigation to begin 

15 with, who has many cases or a substantial stake in the 

16 litigation. But the rule doesn’t state that, and it 

17 doesn’t have any instruction as it relates to that. 

18 I think the problem could become, if the 

19 court is not familiar with the lawyers in the 

20 litigation but, yet, is familiar with lawyers in their 

21 jurisdictions generally, the appointment may be made 

22 to somebody that the court is familiar with and 

23 comfortable with and trusts, which makes sense. 

24 But, on the other hand, if that person 

25 doesn’t have any stake in the litigation and doesn’t 
 43 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 know the case, there’s going to be a learning curve 

2 involved for that coordinating counsel not only with 

3 the substantive issues of the case and deploying their 

4 responsibilities under the new 16.1 rule if it is 

5 passed in the format that it's suggested here but also 

6 with the lawyers involved. 

7 So, in order to come up with the initial 

8 requirements of 16.1, there’s going to need to be 

9 familiarity not only with the litigation itself but 

10 with the lawyers involved and being able to coordinate 

11 those lawyers and get the job done. 

12 What I’m saying is I think, if this person 

13 isn’t familiar with the litigation and the 

14 participants, there’s going to be a learning curve for 

15 that person and that learning curve is going to be 

16 paid for by the litigants at the end of the day, you 

17 know, through the common benefit assessments and the 

18 awards. 

19 It seems to me that the person who’s 

20 appointed should be vetted for the purposes of, you 

21 know, ensuring that that person doesn’t have a huge 

22 learning curve where somebody who could more 

23 efficiently step into that role because of their 

24 familiarity with the litigation and the lawyers could 

25 do it a lot more efficiently. 
 44 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 But then, you know, to me, it becomes a 

2 natural thought that, well, you know, maybe we’ll vet 

3 the coordinating counsel to ensure that there isn’t 

4 this large learning curve and that they do have the 

5 familiarity to be able to discharge their duties 

6 efficiently. 

7 But, if the court is going to partake in a 

8 vetting process for that person, then, to me, it seems 

9 duplicative. It seems that, you know, if we’re going 

10 to vet people, why not just vet the leadership team 

11 instead of having that extra step in between. So 

12 that’s my thought process as it relates to 

13 coordinating counsel and why I think it might not be 

14 the most efficient way to handle the beginning stages 

15 of the litigation. 

16 CHAIR ROSENBERG: Okay. Thank you so much. 

17 Any questions from our reporters? 

18 PROFESSOR MARCUS: Well, can I offer a 

19 reaction that is not just to this presentation but to 

20 other things we received? One reaction on the 

21 coordinating counsel idea is maybe some on the 

22 plaintiffs' side are saying, let us run this show, 

23 don’t tell us what to do, judge. And, frankly, going 

24 back to when judicial management of litigation was 

25 first introduced, there was a lot of push-back. 
 45 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 I’m wondering if you can address that 

2 reaction that has occurred to me that the basic point 

3 many are making, and maybe you are, is let us run the 

4 show and don’t you get involved, judge, this isn’t 

5 your problem; this is ours. And at least the 23(g) 

6 interim counsel idea suggests that maybe sometimes it 

7 is valuable for the judge to make some kind of early 

8 call on that score. What are your thoughts on that? 

9 MS. OLIVER: Well, you know, I can’t speak 

10 to others' motives in regards to their comments, but, 

11 you know, as it relates to my comments, I’m certainly 

12 not suggesting in any form or fashion that the judge 

13 isn’t in control of the litigation. I mean, that’s 

14 who we look to at the end of the day to manage and 

15 control the litigation and that’s who should be in 

16 that position, not any plaintiffs' attorney. 

17 My point really goes to efficiency. 

18 Currently, I’m serving as the sole time and expense 

19 committee for the Phillips CPAP litigation in 

20 Pittsburgh, and, you know, through that appointment, 

21 I’ve been able to see, you know, a lot of what does 

22 work efficiently and a lot of wasted time and 

23 unnecessary expense that seems to be built into the 

24 process. 

25 So, yeah, my comments, if they do seem to 
 46 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 suggest that we don’t want the judge involved, that’s 

2 certainly not my position. I just think that this 

3 process without any instruction, you know, as to the 

4 contrary might invite added expense and, at the end of 

5 the day, a lack of efficiency, which kind of defeats 

6 the purpose of the rules under which we’re doing these 

7 consolidated actions to begin with. 

8 CHAIR ROSENBERG: Yes, Andrew. 

9 PROFESSOR BRADT: Thank you so much. My 

10 question is similar to one that I asked of an earlier 

11 witness, but you have a slightly different perspective 

12 that you’ve presented as somebody who’s worked up the 

13 cases and then the MDL happens. 

14 My question is, in the status quo, how do 

15 you deal with that problem when leadership teams are 

16 getting put together? You’ve worked up cases. Then 

17 the MDL happens someplace else. My question is, how 

18 do you address that now? And is the only reason that 

19 coordinating counsel is worse is that it adds another 

20 step, or do you view your position as getting worse 

21 materially with the addition of the coordinating 

22 counsel idea? 

23 MS. OLIVER: I think it just adds another 

24 step and another layer of the possibility of 

25 inefficiency as opposed to the goal of efficiency. 
 47 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 Once leadership has been put in place, yes, there’s 

2 sometimes where things aren’t done as efficiently as 

3 they should be even then at that point. And I have 

4 ideas in regards to how to resolve those issues, but I 

5 don’t know that that’s the topic of Rule 16.1. My 

6 point is simply that this, to me, seems to invite 

7 another layer of inefficiency in a system that we’re 

8 already struggling to make efficient. 

9 PROFESSOR BRADT: So the main concern that 

10 you have right now is efficiency. It’s not that you 

11 feel like that your voice is heard now and then would 

12 be heard less in a world where coordinating counsel 

13 exists? 

14 MS. OLIVER: Correct. 

15 PROFESSOR BRADT: Thank you. 

16 MS. OLIVER: Thank you. 

17 CHAIR ROSENBERG: Any other questions or 

18 comments? No? 

19 Okay. Well, thank you so much, Ms. Oliver, 

20 for your time and your comments. 

21 MS. OLIVER: Thank you, Judge. 

22 CHAIR ROSENBERG: Okay. Thank you. 

23 And we’ll have our next witness, who will 

24 speak on 16.1, Jose Rojas. 

25 MR. ROJAS: Good morning. I appreciate the 
 48 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 Committee having me at this testimony this morning. 

2 My name is Jose Rojas. I think I come here with a 

3 little bit of a unique perspective. I was appointed 

4 as a co-lead in MDL 3026, which is the infant formula 

5 litigation, despite not having had any prior 

6 experience in MDLs at all, and so I think that really 

7 provided me with a different path, a different 

8 experience that I think is worth sharing. 

9 It has been mentioned briefly by other folks 

10 today there is in the world of MDLs a bit of a 

11 revolving door problem or repeat player, however we 

12 want to call it. I believe that the creation of this 

13 new rule, which the Committee's worked so hard on and 

14 which is very much appreciated, really provides an 

15 opportunity to address some of these issues. 

16 My particular thoughts are that there is 

17 traditionally what I consider to be perhaps an 

18 exaggerated emphasis on prior MDL experience in the 

19 selection of leadership. That is not to say that 

20 that’s not a hugely important criterion but rather 

21 that it perhaps becomes somewhat exaggerated. And the 

22 unintended consequence of that exaggerated emphasis is 

23 perhaps an overcreation of the repeat players, which 

24 we've discussed, an absence of diversity, and a rather 

25 homogenous leadership structure. 
 49 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 And so my thoughts here when I first saw the 

2 proposal is that it really presented an opportunity to 

3 include language where these other really important 

4 criteria could be considered and actually empower a 

5 judge to specifically consider them, namely, diversity 

6 of background and experience, expertise in the subject 

7 matter of the litigation as opposed to expertise in 

8 generalized MDL work, and the role that was played in 

9 bringing the litigation to bear in the first instance. 

10 My firm started the infant formula 

11 litigation. We litigated it alone for two years, 

12 filed all the original cases, and I was lucky enough 

13 to get appointed. But it’s my understanding that that 

14 is oftentimes a hurdle, and it should not be in my 

15 opinion. So I will not continue to go on too deeply 

16 into that. 

17 I do think there’s an opportunity for 

18 language in the new rule that addresses some of these 

19 things. I also commented in my testimony, written 

20 testimony, that the coordinating counsel rule may add 

21 to that concern, and that’s already been spoken about 

22 today, so I won’t spend additional time there unless 

23 there are questions. I’d be happy to take any 

24 questions. 

25 CHAIR ROSENBERG: Okay. From our reporters. 
 50 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 Rick? 

2 PROFESSOR MARCUS: One question in your 

3 proposed revision to the language, you urge the use 

4 more than once, I think, of the word "diversity." It 

5 might be that that is a term that some are not 

6 entirely comfortable with. I wonder, do you think 

7 using that word is important to conveying that 

8 message? We do try to emphasize in the note that a 

9 variety of experiences, backgrounds, and so on is 

10 important to consider. My question is just about that 

11 particular word. Does that really add much? 

12 MR. ROJAS: I understand the point, 

13 Professor, and it’s well taken. I think, for one 

14 thing, I think a de-emphasizing of prior MDL 

15 experience will actually have the effect of creating 

16 diversity in its own right. 

17 Oftentimes, particularly with product 

18 liability torts, the aggrieved persons, the harmed 

19 persons, are people of color in disproportionate ways. 

20 And so, by making sure that we include the lawyers and 

21 the firms that originated the litigation, that fought 

22 it from the beginning, I think it’s going to have the 

23 additional impact of bringing both diversity of race, 

24 ethnicity, but also of background and experience, 

25 which I think is crucially important. 
 51 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 I understand the concern. I don’t think 

2 diversity should be avoided in the language, but to 

3 the degree there is concern in the Committee, I think 

4 what is more important is to emphasize those other 

5 levels of experience because I think they will 

6 naturally bring some of the other advantages as well. 

7 CHAIR ROSENBERG: Thank you. 

8 Andrew? 

9 PROFESSOR BRADT: Yeah, I’ll ask the same 

10 question I’ve been asking of others who were skeptical 

11 of coordinating counsel, but maybe I’ll ask it in a 

12 slightly different way from your perspective as 

13 somebody who, like Ms. Oliver, would be somebody who 

14 had worked up the cases in the beginning and then the 

15 MDL comes in. 

16 I guess my question is, wouldn’t the 

17 institution of a coordinating counsel step potentially 

18 be better than the status quo because you’re able to 

19 come in with a lot of expertise that many of the 

20 lawyers who might otherwise be vying for leadership 

21 wouldn’t have, and so wouldn’t your experience with 

22 the cases actually create an opportunity for more 

23 influence in the leadership, rather than a world that 

24 we have now, where it seems that you’re describing 

25 that you’re often left out of leadership discussions 
 52 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 entirely? Isn’t there a likelihood that coordinating 

2 counsel will make things better for people or 

3 attorneys in that situation? 

4 MR. ROJAS: My concern is that because, in 

5 the world of MDLs, the typical persons that are being 

6 considered for those types of roles are usually people 

7 that (a) know the judge; (b) have this prior MDL 

8 experience; and (c) are very familiar with a lot of 

9 the players that are already in the MDL, and that’s 

10 where the lawyer that works the case up is oftentimes 

11 not in that position. We neither know the judge or 

12 the players and oftentimes lack the MDL experience. 

13 And look, to some degree, I’ll confess this 

14 is a little bit of guesswork. My guesswork here would 

15 be that the type of person that would be appointed to 

16 that role is more likely to fit within the group of 

17 players that actually leads to -- you know, oftentimes 

18 these leadership teams are formed by consensus and 

19 maybe even some negotiation. And so I’m not sure that 

20 a coordinating counsel would be -- especially if that 

21 coordinating counsel is vying for a position on 

22 leadership herself, I’m not sure that that would be a 

23 beneficial thing. 

24 CHAIR ROSENBERG: Okay. Any other questions 

25 or comments? 
 53 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 Seeing none, okay, thank you so much, 

2 Mr. Rojas. 

3 MR. ROJAS: Thank you. 

4 CHAIR ROSENBERG: Mr. Bilsborrow will now 

5 speak on 16.1. 

6 MR. BILSBORROW: Thank you for providing an 

7 opportunity for public comment on proposed Federal 

8 Rule of Civil Procedure 16.1. My name is James 

9 Bilsborrow and I’m co-chair of the environmental and 

10 toxic tort practice at Weitz & Luxenberg. In that 

11 role, I oversee and participate in litigation 

12 involving mass torts and environmental harms, so my 

13 perspective here is shaped by MDLs that often involve 

14 diverse claims and diverse claimants, claims raised by 

15 businesses, municipalities, and individuals that have 

16 been impacted by environmental contamination or toxic 

17 exposure. 

18 In my remarks, I’d first like to encourage 

19 the Committee to maintain the flex -- 

20 CHAIR ROSENBERG: We lost you. I don’t know 

21 if you pressed a button. 

22 MR. BILSBORROW: Can you hear me now? 

23 CHAIR ROSENBERG: Yeah. Now we can. 

24 MR. BILSBORROW: Okay. I’m sorry. I’d 

25 first like to encourage the Committee to maintain the 
 54 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 flexibility that’s embodied in current Rule 16.1. 

2 Again, I litigate environmental and toxic tort cases, 

3 and all of those cases involve diverse claims pursued 

4 by a range of people and entities. Not all MDLs 

5 involve pharmaceutical injuries, and a rule that 

6 applies to all MDLs should be flexible enough to deal 

7 with the diverse claims and claimants involved in non8 pharmaceutical MDL cases. 

9 I remain concerned, however, that proposed 

10 Rule 16.1(b) encourages the transferee court to 

11 designate a coordinating counsel prior to the initial 

12 case management conference. The rule provides no 

13 parameters for this appointment, and given the early 

14 stage of the litigation, this means that the 

15 appointment will likely go to an attorney familiar to 

16 the transferee court rather than counsel that is most 

17 familiar with the case and best positioned to 

18 successfully litigate it. 

19 Professor Marcus has raised a couple of 

20 times Rule 23(g) and indicated that it helped the 

21 court organize class action proceedings through the 

22 appointment of interim class counsel. The difference 

23 here is that in my experience, interim class counsel 

24 is an individual with a client and an individual that 

25 has a case on file. 
 55 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 Under current proposed Rule 16.1(b), 

2 coordinating counsel does not need to represent any 

3 clients and may have had no involvement in the case 

4 prior to centralization in the home jurisdiction. 

5 Other counsel are going to appropriately view 

6 coordinating counsel as de facto lead, which may or 

7 may not be beneficial to the case. And so I would 

8 recommend that 16.(b) be removed and a suggestion be 

9 maintained in the Committee note. 

10 Finally, even if the Committee maintains the 

11 preference for appointment of coordinating counsel, 

12 the rule should ensure that substantive decisions that 

13 will affect the course of the litigation will not be 

14 made until appointment of lead counsel and a steering 

15 committee if one is used in the case. 

16 Again, coordinating counsel may or may not 

17 be well versed in the subject matter of the 

18 litigation, and thus, substantive negotiations 

19 regarding the conduct of the MDL, discovery 

20 procedures, how to deal with "unsupported claims," 

21 whether a census should occur, those decisions should 

22 be negotiated by counsel that will be leading the case 

23 throughout the litigation. 

24 And in cases with an environmental or toxic 

25 pollution component, because the claims and claimants 
 56 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 will be diverse, it’s important that a committee be 

2 making those substantive decisions, a committee that 

3 represents all of the diverse interests. 

4 So, thus, I encourage the Committee to 

5 reject proposals by some that would require Rule 16.1 

6 to implement a procedure for dealing with unsupported 

7 claims or implementing a census. Thank you. 

8 CHAIR ROSENBERG: Thank you. 

9 And from our reporters. Rick? 

10 PROFESSOR MARCUS: I’d like to go a little 

11 further on what you were saying about coordinating 

12 counsel. I am not clear on why that would interfere 

13 with things or present a serious risk that you just 

14 mentioned. That is, the objective is to obtain a 

15 report for the court so that the court has something 

16 to absorb and understand right at the beginning of 

17 management. The first thing on the list is how 

18 leadership should be selected. There are a number of 

19 other things on which the parties may make 

20 presentations and so on. The rule also says that the 

21 judge should adapt as time goes by, particularly if 

22 the initial order is entered before leadership is 

23 appointed. 

24 So it seems to me the risk of having things 

25 locked down is quite small, and I’m wondering why you 
 57 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 think it’s significant. 

2 MR. BILSBORROW: Well, I guess, from my 

3 perspective, how is coordinating counsel going to make 

4 any of those recommendations, especially in a 

5 situation where -- 

6 PROFESSOR MARCUS: I thought the 

7 coordinating counsel assists the parties in putting 

8 together their report. There are topics in the 

9 report. Do you read that to say coordinating counsel 

10 all by herself does that or is a conveyance? 

11 MR. BILSBORROW: Not necessarily, but in 

12 cases where a court has appointed a coordinating 

13 counsel or a liaison counsel for purposes of 

14 organization, the plaintiffs' counsel will, I think, 

15 appropriately treat that individual as de facto lead 

16 at least for purposes of organizing the case, and so 

17 counsel are going to try to curry favor with the 

18 coordinating counsel, and coordinating counsel will 

19 take recommendations from some and probably not take 

20 recommendations from others because there’ll be a lot 

21 of jockeying for position. And I think -- 

22 PROFESSOR MARCUS: In your East Palestine 

23 case, was there jockeying? Mightn't that happen 

24 anyway and should the judge have no role in regard to 

25 it? 
 58 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 MR. BILSBORROW: That’s not what I’m 

2 suggesting, and, yes, there was jockeying in East 

3 Palestine. But I think, when you have a coordinating 

4 counsel that’s been blessed by the court and that is 

5 overseeing submission of a report under 16.1(c), 

6 you’re much more likely to have all of the 

7 organization suggestions filter through the 

8 coordinating counsel rather than seeing what you see 

9 in some MDLs, where counsel can’t coordinate with one 

10 another or a group can’t coordinate with maybe the 

11 primary group. You see competing proposals or 

12 competing reports submitted to the court, and I don’t 

13 see a problem with that. I see that as good for the 

14 transferee judge because then the judge has multiple 

15 options to choose from rather than a single report 

16 that may be overly controlled by one group of lawyers 

17 at the expense of another. And I think this is 

18 especially important in a case like the environmental 

19 cases I participate in because the claims can be so 

20 different and the claimants can be so different, and 

21 it’s important that the interests of all of those 

22 claimants be presented to the judge at the outset so 

23 the case can be organized most efficiently. 

24 CHAIR ROSENBERG: The note does make clear 

25 that the -- it says it should be a single report, but 
 59 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 it "may reflect the parties' divergent views on these 

2 matters." And then the rule itself speaks to the 

3 transferee court should order the parties to meet and 

4 prepare the report. So it seems that the way the rule 

5 is drafted is empowering the parties to do that, and 

6 when the mention of coordinating counsel appears in 

7 the rule, it’s to help organize, to facilitate the 

8 organization and management, like the logistics of do 

9 you have a Zoom, what’s the Zoom link, and, you know, 

10 when are we going to meet, and when am I going to get 

11 the, you know, other organizational aspects of it. 

12 What are your thoughts on how the note addresses some 

13 of the points you’ve brought up? 

14 MR. BILSBORROW: Well, I think, in practice, 

15 again, just based on experience where courts have 

16 appointed an early liaison or a position similar to 

17 coordinating counsel, the parties are going to treat 

18 that as de facto lead at least for the outset of the 

19 case. And I think that stifles rather than encourages 

20 divergent viewpoints. I think lawyers will be less 

21 likely to speak up because they may feel that the 

22 court has blessed this particular individual and that 

23 individual is likely to have a role in the ultimate 

24 leadership. 

25 CHAIR ROSENBERG: Okay. Any 
 60 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 other -- Andrew? 

2 PROFESSOR BRADT: My question just follows 

3 up on that. Is it worse than the status quo? I mean, 

4 it seems to me that the coordinating counsel report 

5 gives an opportunity for the judge to understand that 

6 there may be divergent views that might not come out 

7 in the status quo process for leadership selection. 

8 So I’m still struggling with how coordinating counsel 

9 makes the situation worse on the metrics you 

10 described. 

11 MR. BILSBORROW: Sure. I think it is worse 

12 than the status quo because it will stifle the 

13 divergent views. I recognize that in some cases the 

14 divergent views are stifled anyway, but I was involved 

15 in the Dicamba herbicide MDL. There was a primary 

16 group that was advocating for leadership and 

17 organization of the case in a certain way, but we 

18 could not coordinate with another group that was 

19 advocating that the court sort of -- the initial order 

20 embraced an antitrust track and focused on antitrust 

21 considerations. They submitted their own report at 

22 the initial case management conference, and the court 

23 said that’s a good idea and combined the proposals and 

24 created a tort claim track and an antitrust track. If 

25 only one proposal had been submitted, there would not 
 61 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 have been an antitrust track included in the case. 

2 CHAIR ROSENBERG: Ed? 

3 PROFESSOR COOPER: Okay. I’m not muted now. 

4 Sure. A minor and then an almost perverse question. 

5 Minor is just as a matter of experience. How often 

6 has it happened in your experience or do you know of 

7 others who have experienced that there is an early on 

8 appointment, whether it is something like this 

9 coordinating rule as envisioned or at least initial 

10 lead, where someone who has had no cases, no initial 

11 stake in this kind of litigation? 

12 And then the perverse suggestion, could that 

13 be an advantage in some cases? You suggest, well, in 

14 environmental litigation, we may have municipal 

15 entities as plaintiffs, business entities with rather 

16 different sorts of interests, individuals affected by 

17 it in various ways, property, personal injury and so 

18 on, a plethora of quite divergent issues and 

19 interests. 

20 And if you have someone who can at the 

21 outset talk to all of them without having a stake in 

22 any of those diverse divergent concerns, that are able 

23 to get a grasp on the complexity of the whole 

24 conjuries of problems and as an initial matter -- and 

25 that’s the focus here -- help organize and present 
 62 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 clearly to the judge what may be a single proposal but 

2 more likely to be a multi-track care under the 

3 divergent problems, here are how we should proceed to 

4 try to get a handle on them as we go forward, could 

5 that not happen? 

6 MR. BILSBORROW: So let me try to answer the 

7 first question regarding frequency. I don’t know how 

8 often that happens that someone without any connection 

9 to the cases is appointed. I will say that I know in 

10 the Camp LeJeune case, which is not an MDL, the court 

11 appointed -- well, there’s four judges. It’s, again, 

12 not a traditional MDL, but the court appointed 

13 multiple local lawyers that had no experience in mass 

14 tort litigation. I’m not saying that’s a good or bad 

15 thing, but it does happen and one can foresee that in 

16 certain MDLs where the transferee judge has no 

17 experience with mass tort lawyers that they may 

18 appoint a lawyer that they know, all other things 

19 being equal, right. 

20 To your second question, whether it’s an 

21 advantage, I think maybe it could be. It really 

22 depends on the personality and the strengths of the 

23 coordinating counsel in organizing a diverse group of 

24 lawyers. But there’s really no parameters to the 

25 appointment of coordinating counsel, so coordinating 
 63 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 counsel could not have those strengths, not have an 

2 interest in organizing all of the diverse interests 

3 and instead be interested in forming some kind of 

4 alliance with a smaller number of lawyers that would 

5 not represent the diverse interests and the diverse 

6 number of clients that could be at issue in the case. 

7 And so I think, in my experience, when you 

8 take a big MDL like opioids or the BP oil spill, the 

9 lawyers that have significant clients or represent 

10 significant client interests, even if they don’t get 

11 along with one another, they may do what’s best for 

12 purposes of organizing the case because they know, 

13 hey, this person over here represents all the oyster 

14 fishermen and the court is going to think it’s 

15 important that the oyster fishermen’s interests are 

16 protected. And so I think, when you have actual 

17 clients, you can come to the negotiating table with 

18 actual leverage to say this is why I should be on the 

19 leadership, because it’s important to the case. 

20 CHAIR ROSENBERG: Dave, did you have a 

21 question? 

22 JUDGE PROCTOR: I do real quick. 

23 CHAIR ROSENBERG: Okay. 

24 JUDGE PROCTOR: So it seems the premise of 

25 your assertion about this is that the counsel who’s 
 64 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 designated by the court to coordinate will in some way 

2 put the thumb on the scale and not present a report 

3 that the rule contemplates. 

4 So, if I were a transferee judge and I 

5 appointed you to be the coordinating counsel, do you 

6 really think you’d do that, that you would bring to me 

7 a report that did not reflect the various issues in 

8 the case from everybody’s perspective? I’m struggling 

9 with that whole concept. It seems like you’re 

10 immediately going to the worst common denominator of 

11 human nature and not really presenting this argument 

12 in the context of you're now the court’s 

13 representative in the room, virtual or otherwise, that 

14 gives us a report about what the issues in this case 

15 are and what we need to discuss at this management 

16 conference upcoming. Help me understand that. 

17 MR. BILSBORROW: Well, I guess I’m not 

18 saying it would be purposeful. I’m not saying anyone 

19 who’s appointed to a position is going to attempt to 

20 deceive the court or certainly not in any purposeful 

21 way. But, if an individual is appointed that has no 

22 experience in the litigation, has no clients, maybe 

23 wasn’t even involved in the case prior to the 

24 appointment, but the judge knows him or her and so 

25 that’s where the appointment draws from, how are they 
 65 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 going to compile the report or assist the counsel in 

2 compiling the report? They are going to have to 

3 listen to the lawyers that are jockeying for 

4 leadership, and sometimes, by listening to those 

5 lawyers, they may have a stilted view of what’s 

6 important in the case. 

7 And so I’m really worried about -- I am 

8 worried about worst-case scenarios. I’m also worried 

9 about, you know, diverse viewpoints being cut off even 

10 if it’s not necessary and not intentional. 

11 CHAIR ROSENBERG: Okay. Any other comments 

12 or questions? 

13 Seeing none, okay. Thank you so much. 

14 MR. BILSBORROW: Thank you. 

15 CHAIR ROSENBERG: We appreciate your time. 

16 Yeah. 

17 And Diandra Debrosse. This is our final 

18 witness before our first break this morning. 

19 MS. DEBROSSE: Good afternoon. 

20 CHAIR ROSENBERG: Good afternoon. 

21 MS. DEBROSSE: Diandra Debrosse for Dicello 

22 Levitt. Thank you to the Committee for all of your 

23 work and for allowing me to testify here today. 

24 I am co-chair of the mass tort practice at 

25 Dicello Levitt and co-lead the hair relaxer MDL and 
 66 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 the In Re: Abbott MDL, in addition to holding 

2 leadership seats in a number of MDLs where I represent 

3 the interests of individuals and also the interests of 

4 public entities. 

5 I came here today to talk about two 

6 significant issues, and despite my best judgment, 

7 after hearing Judge Proctor’s comments, I will 

8 volunteer some thoughts on coordinating counsel 

9 nonetheless given the length of the discussion and I 

10 think it’s an important discussion. 

11 The first issue I’d like to address is 

12 really DRI and LCJ’s strong recommendations on a fixed 

13 rule as it relates to addressing product use early in 

14 the litigation and framing it incorrectly as a 

15 standing issue and also framing it in this realm of 

16 unexamined claims as if we don’t have a responsibility 

17 to vet our cases, to file in good faith. We have our 

18 own ethical obligations. And to be clear, it is not 

19 in our best interests to advance unexamined cases in 

20 litigation that is extraordinarily challenging, 

21 extraordinarily taxing, and extraordinarily risky for 

22 the families of our plaintiffs and of our plaintiffs. 

23 The recommendation that somehow proof of use 

24 is this uniform concept that must be established as a 

25 threshold matter is really belied by the reality of 
 67 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 how complex establishing proof of use can be. And so 

2 one, you know, real-life example, real-life person is, 

3 you know, In Re: Abbott. There are plaintiffs who 

4 defendants asserted -- defendant asserted did not 

5 establish proof of use. They said early, but it was 

6 later in the litigation. 

7 In the medical records, there was no 

8 documentation for these individuals for whatever 

9 reason of the exact baby formula that was used for 

10 that baby within a short time window in which that 

11 baby developed necrotizing enterocolitis, which can be 

12 a deadly disease that kills the intestine and, in many 

13 of our cases, kills the baby. 

14 In that case, in weighing in on the issue, 

15 Judge Pallmeyer found that the defendants were 

16 concealing information from a product ID standpoint 

17 that would satisfy the court for purposes of Rule 

18 20(b)(6) challenge. 

19 So let me talk about what that means. This 

20 was after a year of asking the defendants for evidence 

21 in their possession about contracts that were held 

22 with those respective hospitals that established that 

23 that specific formula was used in the NICU at the time 

24 that our babies were there. 

25 Similarly, in the hair relaxer litigation, 
 68 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 as it relates to product use, months later, Honorable 

2 Judge Rowland similarly had to instruct the defendants 

3 multiple times to provide product identification 

4 information in response to very organized narrow 

5 discovery that we served. 

6 And so, while we understand it’s framed as a 

7 standing issue (a) it is not and (b) we need discovery 

8 often to identify the products to which our plaintiffs 

9 have been exposed to and suffered harm. 

10 The second topic I would like to address is 

11 16.1(c)(1) and I believe Professor asked earlier 

12 whether the word "diversity" was necessary. I think 

13 the language as proposed now recommends that the court 

14 keep in mind the benefits of different experiences, 

15 skill, knowledge, geographic distributions, and 

16 backgrounds. And while I think that’s a sufficient 

17 language, I think what is much stronger is to 

18 explicitly state the role of diversity or that 

19 diversity, true diversity, should be contemplated in 

20 terms of the appointment of leadership. 

21 I believe it was 2022 -- I’m getting old, I 

22 can’t track time -- I believe I was the first black 

23 woman to be appointed co-lead of an MDL on the 

24 plaintiffs' side. I hope we don’t have many firsts 

25 left and that is something that is long behind us. I 
 69 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 did have prior leadership experience, and that was a 

2 challenging path to be able to be seen and to come 

3 forward and to get those positions. 

4 I do believe having served in MDLs and 

5 serving in many MDLs currently in a high-level 

6 leadership position that diversity in a real way 

7 impacts the manners in which we organize the case, 

8 strategize, and litigate the case. It’s a really big 

9 deal for our clients in complex cases that impact so 

10 many people. 

11 And that leads me to my comment which I did 

12 not anticipate making, which applies to coordinating 

13 counsel. And I truly understand -- well, I don’t 

14 understand because I’ve never been a judge, but I can 

15 imagine the complexities from the bench of 

16 contemplating how is this case going to be organized 

17 and who are these lawyers who are appearing in front 

18 of me and what I’ve heard about the status quo, and I 

19 want to say a few things about that. 

20 I am not the status quo. And while it was a 

21 difficult path to get here, there are also some 

22 sweeping comments made about plaintiff firms who have 

23 been here for quite some time that may be unfair. 

24 Those doors are open to discussion about new players. 

25 Those doors are open to the negotiation over who can 
 70 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 participate in the litigation and how. 

2 I think what my colleagues have expressed is 

3 a concern that not that the person who is appointed as 

4 coordinating counsel has some ill intent or already 

5 comes to the table with firms that they want to work 

6 with but that that person will hold so much power in 

7 being able to communicate to the judge that any rising 

8 tide of a plaintiff lawyer's faction may impact the 

9 organization of the case in a way that is less 

10 desirable than how we often seek to organize the case, 

11 which sometimes isn’t pretty. 

12 And I heard a question asked earlier about, 

13 did you have conflict in your case. We do, and I 

14 don’t think that’s a bad thing to get in a room and to 

15 get on calls and to talk about divergent interests and 

16 what is best for our clients in advancing the 

17 litigation and assisting the court in efficiently 

18 moving the litigation through the court. 

19 So I’m pretty sure I went past five minutes. 

20 I’m sorry about that, and I’m happy to answer any 

21 questions to the extent I can. 

22 CHAIR ROSENBERG: Okay. Thank you so much. 

23 Rick and then Andrew. 

24 PROFESSOR MARCUS: I have one question that 

25 I think builds on what you just said. You mentioned 
 71 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 DRI and other submissions concerning what they 

2 sometimes convey and your concern about product use. 

3 It seems to me that the rule we propose with its note 

4 don’t say the things they’re saying and, indeed, in 

5 these hearings, people who feel that way have told us 

6 what we are doing is not enough. 

7 Do you see what we are doing as proposed as 

8 creating the risks that you think their proposals 

9 would create, or do we have a reasonable balance in 

10 terms of whether and when anything of that sort ought 

11 to be required in a given MDL? 

12 MS. DEBROSSE: Thank you, Professor. So (a) 

13 thank you that we are not considering DRI or LCJ’s 

14 proposals. Most grateful to hear that. 

15 Secondarily, I do think that while the rule 

16 appears rather neutral on its face that I share the 

17 concerns of my colleagues that the rule just allow the 

18 court to have as much flexibility as the court has 

19 right now in being able to consider, you know, all 

20 sorts of factors in terms of what should be determined 

21 at the early stages, what should be discussed at the 

22 first CNC. And my colleague, Mr. Bilsborrow’s, 

23 comments are well taken, and I don’t have to say this 

24 to all the jurists on this Teams. But often the case 

25 and the subject matter of the case really governs what 
 72 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 do we have to establish at the earlier stages. And 

2 so, you know, I agree with you. I don’t think on its 

3 face it’s extraordinarily dangerous, but I do think 

4 that we need a lot of flexibility and we ask the 

5 courts to have flexibility in terms of how the 

6 litigation is organized in the early stages and what 

7 is expected specifically from the plaintiffs. 

8 CHAIR ROSENBERG: Andrew? 

9 PROFESSOR BRADT: Thank you very much. This 

10 is a question I asked of Mr. Chalos a little bit 

11 earlier, but I’ll ask it from you, I'll ask it of you 

12 as well. Is it your experience that Rule 26(a) on 

13 mandatory disclosure is not typically followed in the 

14 MDLs that you’re involved in? And if the answer to 

15 that question is no, do you think it would be better 

16 if that rule were observed and parties were not able 

17 to easily stipulate their way out of it? 

18 MS. DEBROSSE: Generally, I have not seen 

19 that applied and I think the practice is proper as it 

20 is, which I believe my colleagues have stated as well. 

21 PROFESSOR BRADT: I guess my follow-up then 

22 is, why should, in an MDL case involving a lot of 

23 individual tort or product liability claims, why 

24 should 26(a) not be followed on both sides? 

25 MS. DEBROSSE: Well, I think that there are 
 73 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 additional considerations as it relates to plaintiffs. 

2 When we talk about, you know, you asked the defendant 

3 to produce copies of documents and other items 

4 required under 26(a), we’re often representing, you 

5 know, thousands of individuals who have been impacted 

6 and these are issues in terms of disclosures that we 

7 address often later in the process through the fact 

8 sheet process in certain cases. 

9 I guess I’m not sure why that would not be 

10 sufficient moving forward, but, generally, we have not 

11 seen those disclosures early in the process, whether 

12 it’s in the In Re: Abbott litigation or in the hair 

13 litigation, and I don’t believe in the other 

14 litigations in which I sit. 

15 CHAIR ROSENBERG: Okay. All right. Well, 

16 thank you so much. We appreciate your comments. 

17 And I think that brings us to our morning 

18 break. We are a little behind but not too much, so 

19 we’re going to narrow the break down from the 

20 originally contemplated 15 minutes to 10 minutes. So 

21 it’s 11:40. We’ll be on a break for 10 minutes until 

22 11:50 and then we’ll pick up with John Rabiej, who 

23 will address 16.1. Okay. 

24 (Whereupon, a brief recess was taken.) 

25 CHAIR ROSENBERG: Our next guess is John 
 74 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 Rabiej. I turn it over to you. 

2 MR. RABIEJ: Thank you and good morning. 

3 CHAIR ROSENBERG: Good morning. 

4 MR. RABIEJ: Thank you for the opportunity 

5 to testify on proposed Rule 16.1. I commend the 

6 Committee for moving forward with this new rule which 

7 is long overdue and timely as the number of new annual 

8 MDL filings continues to rise and stands at more than 

9 80,000 in 2023. I speak on my behalf only. Let me 

10 address my specific items. 

11 First, more than 97 percent of actions 

12 pending in MDLs were filed in a total of only 20 big 

13 MDLs. To a large extent, Rule 16.1 codifies the 

14 orders in these big MDLs. They reflect the collective 

15 wisdom of the bench and Bar in addressing the unique 

16 case management problems raised when large numbers of 

17 law firms are involved. These orders are themselves 

18 based on orders issued in 1992 by Judge Sam Pointer, 

19 former chair of this Committee, and refined in 2005 in 

20 Vioxx by Judge Eldon Fallon, recognized as the 

21 judiciary’s MDL godfather. 

22 The initial management conference orders in 

23 these big MDLs are remarkably similar, and most refer 

24 to topics listed in the Manual for Complex Litigation

25 as the agenda for the conference. 
 75 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 Now Rule 16.1 correctly provides discretion 

2 to address any topic in addition to those listed in 

3 the rule for discussion. But, as noted by many, the 

4 rule will become the default, with the unfortunate 

5 consequence of inexperienced judges and lawyers 

6 unaware of topics not listed in the rule which might 

7 be important in their MDL. 

8 Substantive Suggestion No. 8 alerts the 

9 bench and Bar that there are many other topics found 

10 in other sources that are often raised at these 

11 conferences that might be especially useful in their 

12 MDL. Suggestion Nos. 8 and 9 also emphasize that many 

13 of the rule provisions are likely to be more useful in 

14 big MDLs, a point that likely needs to be strengthened 

15 in light of comments from other witnesses particularly 

16 regarding class actions. 

17 Second, the interplay between Rules 16 and 

18 16.1 is not clear. Both cover pretrial conferences. 

19 For example, Rule 16(d) says, "After any conference 

20 under this rule, the court should issue an order 

21 reciting the action taken." Now this language is 

22 better than Rule 16.1(d), which contains a reader’s 

23 mis-cue as I raised in Substantive Suggestion No. 3. 

24 Third, good data on the viability of tag25 along actions filed at MDLs is hard to come by. 
 76 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 Several defense witnesses promise to provide such 

2 data. I would urge the Committee to make this data 

3 public as soon as possible. 

4 In addition, I suggest the Committee request 

5 today’s plaintiff witnesses to ask their claims 

6 administrators whom they hire to disclose the number 

7 of claims that are determined to be ineligible for 

8 payments and the reasons. Claims administrators have 

9 this information, but because they cannot risk 

10 offending their plaintiff clients, they will not 

11 disclose it. This information will help us understand 

12 the true extent of the so-called meritless filings 

13 problem, if any. 

14 Fourth, I encourage the Committee to revise 

15 its public notice procedures and instructions on the 

16 AO web page. They are not user-friendly, and I 

17 personally found it difficult to navigate the AO and 

18 particularly the regulations government web page. 

19 I also suggest that the Committee consider 

20 publishing hard copies of the proposed amendments, 

21 circulating them to the 10,000 in the judiciary, other 

22 judicial organizations, and interested individuals, as 

23 was done in the past. The small number of 16 written 

24 comments is disturbing. No judge submitted a comment, 

25 which raises red flags. The Committee has always 
 77 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 promoted public comments, making the process as simple 

2 and easy to ensure the rulemaking legitimacy because 

3 it has the force of law requiring the input of all 

4 three branches. 

5 Fifth and finally, the Committee style 

6 consultants, Joe Kimball and Bryan Gardner, are 

7 national treasures not only because of their expertise 

8 but almost as importantly for their institutional 

9 knowledge of consistent word usage. I encourage the 

10 Committee to ask the style consultants to edit the 

11 reporters' Committee notes. Of course, the reporters 

12 can accept or reject any suggestion. 

13 And with that, I’d be happy to answer any 

14 questions. I do have three specific suggestions 

15 regarding coordinating counsel because that seems to 

16 be a topic that’s been raised up, which I just came up 

17 with now. Thank you. 

18 CHAIR ROSENBERG: Okay. Thank you. 

19 Well, I will just say that the stylists have 

20 reviewed the rule and the note and also the Committee 

21 has received abundant input from judges through 

22 surveys and through the transferee conference that is 

23 held each year, and they’ve had the advantage and 

24 we’ve had the benefit of getting extensive input, 

25 particularly over the last two years that the 
 78 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 conference has been held. 

2 With that, though, let me turn it over to 

3 see if our reporters have any questions. How about 

4 Rick, then Andrew. 

5 PROFESSOR MARCUS: Well, John, good to see 

6 you. We’ve been working together on these things for 

7 a long, long time in various ways. 

8 Just one. Am I wrong to understand that 

9 quite a few of the things you are saying are not about 

10 our Rule 16.1 but about the process by which public 

11 comment is solicited and tag-along data? I don’t 

12 think our rule says anything one way or another or 

13 that the rules process is the place to collect data of 

14 the sort that would be valuable to have. 

15 So I guess my question really is, in terms 

16 of the rule, if you are worried that it unduly narrows 

17 the range of topics that sometimes matter, are you 

18 saying that we shouldn’t go forward with this rule and 

19 instead should just let things stay as they are? 

20 MR. RABIEJ: No, just on the contrary. The 

21 rule, the problem with the rule as drafted right now 

22 is the tail wagging the dog. It is trying to provide 

23 advice for all different types of cases. What we’re 

24 really looking at is only these 20 cases and that’s 

25 what the rule really is modeled on, and for that, 
 79 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 there are 40 or 50 topics that are mentioned in the 

2 Manual for Complex Litigation. The Committee made a 

3 decision to identify 10 or 13 of those. It’s 

4 important -- I see this conference. This conference 

5 is done within 15 to 30 days of centralization. 

6 This conference, the purpose in my eyes is 

7 to alert the judge of any problems, you know, serious 

8 problems, that may be on the horizon. The judge has 

9 got to do hundreds of matters and take actions within 

10 this first 30 to 40 days. So the judge needs to get 

11 as much information as possible not necessarily to 

12 start making decisions but to prepare, prepare 

13 themselves. 

14 Now what’s interesting about this rule is 

15 that, of course, and my suggestion kind of hones in on 

16 it, a lot of judges, Judge Campbell, Judge Fallon, all 

17 need this rule. This rule really should be targeting 

18 the inexperienced judges and the inexperienced 

19 lawyers. They need to be aware that it’s not just the 

20 eight topics that the Committee picked in this rule, 

21 but there are a lot of other ones that are out there 

22 that in their particular case may be much more 

23 important than what’s in the rule right now. And it’s 

24 important for them to be at -- so, for me, it’s just a 

25 matter of emphasis. There’s probably more in the 
 80 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 Committee note that needs to be emphasized that, of 

2 course, there’s many other topics here that should, 

3 that could be addressed. 

4 PROFESSOR BRADT: Two questions from me, and 

5 thank you very much for your extensive written 

6 comments. They’re very helpful. 

7 One question is you’re certainly correct 

8 that there are many issues that an MDL judge could 

9 consider other than the ones that are on the list, but 

10 the rule tends to provide for that by allowing the 

11 parties to raise any issues in Rule 16 or issues that 

12 are not in either rule as part of the report, and so I 

13 wonder why that’s not sufficient. 

14 Second, you sort of suggest that, well, 

15 these will become the most important things and judges 

16 won’t know how to augment or pick and choose. But 

17 we’ve got 40 years of experience with plain old 

18 Rule 16 and it doesn’t strike me that that problem has 

19 manifested with respect to that rule, and so I’m not 

20 entirely sure why we should expect it to exist with 

21 this rule, or would you disagree that Rule 16 has led 

22 to that kind of distortion? Thanks. 

23 MR. RABIEJ: Well, when you look at the 

24 history of these mass tort MDLs and of the rules, you 

25 have Judge Pointer’s MDL order. After that, all the 
 81 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 other judges kind of copied the language and referred 

2 to the items and the agenda items in that order. And 

3 for inexperienced judges, like Judge Chhabria, he 

4 copied the standard order. He was unaware of this 

5 other topic. 

6 Now you’re right, of course, that, you know, 

7 the judge should be looking at others or the attorney 

8 should have raised this and blah, blah, blah, but the 

9 point is you have a Committee note. The suggestion 

10 that I have is just adding three sentences to the 

11 Committee note highlighting, in effect, that you’re 

12 really not really -- that the eight or nine topics 

13 that you’ve suggested are necessarily the ones, you 

14 know, the key ones. I mean, in the note, the reasons, 

15 the explanation you picked those nine is because you 

16 talked to other lawyers and they said that these are 

17 important ones. 

18 Well, important what? You’ve heard from 

19 other lawyers here that most of this stuff does not 

20 apply to the 150 MDLs that are out there. This really 

21 only applies to the 20 or 30, 40 of the larger MDLs, 

22 where case management is a problem because of all the 

23 law firms involved. Now that’s the key. It isn't the 

24 subject matter of the litigation; it’s all these law 

25 firms and you’ve got to handle them. That’s what 
 82 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 makes it a different animal. That’s why you have this 

2 rule and that’s why it has to be flexible, because you 

3 have some judges extremely who are experienced, don’t 

4 need it, and the other ones that do need it. But they 

5 need to be aware that the rule is very flexible and 

6 there is other items that you need to consider. And 

7 that’s what my suggestion is trying do, is try to make 

8 this as flexible as possible. 

9 I do want to just one point that Judge 

10 Rosenberg when you initially said that you spoke with 

11 judges and there was a lot of input, I have no doubt 

12 about that, but the rulemaking process is a 

13 transparent process. It’s very important for the 

14 legitimacy of the rule to know what kind of comments 

15 are coming into this system so that we all have an 

16 opportunity to understand where the rule is coming 

17 from, because a lot of this is going to be used as 

18 legislative history as well. 

19 And so the more you get it in writing, which 

20 we did in the past from judges on comments and my fear 

21 is that judges are not submitting written comments, as 

22 well as other lawyers, because of how difficult it is. 

23 And what I’m suggesting, it won’t take much, but you 

24 need to spoon-feed this to the public and to me 

25 because it was very difficult to me, and I need step-
 83 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 by-step kind of instructions, which I think would 

2 improve the system. 

3 CHAIR ROSENBERG: Thank you. 

4 Any other questions or comments from our 

5 Committee members? 

6 Seeing none, okay. Thank you so much. Good 

7 to see you. 

8 MR. RABIEJ: Thank you, Judge. 

9 CHAIR ROSENBERG: All righty. 

10 Next witness is Dena Sharp, who has her 

11 video on. Thank you. Welcome. 

12 MS. SHARP: Good morning -- or good 

13 afternoon. Thank you. My name is Dena Sharp. I’m a 

14 partner with Girard Sharp, LLP. We represent 

15 plaintiffs in class actions and other complex cases. 

16 I’ve had the opportunity to serve as co-lead counsel 

17 in the In Re: Jewell MDL recently, as well as several 

18 other complex antitrust and consumer MDLs. 

19 Let me begin by thanking the Committee for 

20 the opportunity to be heard today and for the 

21 considerable effort that has obviously been undertaken 

22 and devoted to the important objective of creating a 

23 flexible toolkit for judicial management of MDLs. 

24 The modest amendments that I have suggested 

25 aim to underscore the rule’s flexibility, round out 
 84 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 the transferee court’s toolkit, particularly in 

2 matters with a class action component, and address the 

3 important subject of sequencing in the early stages of 

4 an MDL. 

5 First, I’d suggest the Committee may wish to 

6 consider clarifying that certain Rule 16.1(c) topics 

7 may be addressed at the initial conference on a 

8 preliminary basis or deferred to later case management 

9 conferences. As we all well know, even in the best of 

10 circumstances, there is only so much the parties and 

11 court can cover in an initial conference or any one 

12 status conference. The topics identified in 16.1(c) 

13 are thus often best addressed on an iterative basis 

14 over a series of case management conferences in what 

15 amounts to an ongoing conversation between the court 

16 and counsel on both sides of the V. 

17 Express language along the lines I have 

18 proposed clarifying that the initial MDL management 

19 conference is likely not the last will leave less 

20 margin for error in reading of the rule and will 

21 hopefully help organize how best to handle 16.1(c) 

22 topics in relation to what the parties are able to 

23 productively, if preliminarily, cover before 

24 leadership appointments. 

25 My second suggestion also as a matter of 
 85 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 early case management sequencing is toward front2 loading leadership appointments and encouraging the 

3 transferee court to set expectations about that 

4 process that will help shorten the pre-leadership 

5 appointment phase and address concerns about setting 

6 an overly ambitious Rule 16.1(c) agenda. 

7 In short, early leadership appointments 

8 allow the parties and the court to reach the merits of 

9 the claims as soon as possible and may alleviate many 

10 of the concerns that have been discussed today. Early 

11 guidance from the transferee court on its preferences 

12 in regard to leadership will streamline the process 

13 and again allow applicants to tailor their efforts. 

14 I would point the Committee as an example to 

15 Pretrial Order No. 1 from the Jewell MDL, which I 

16 attached as Exhibit 1 to my letter, in which Judge 

17 Orrick invited the parties to consider leadership 

18 issues before the conference, made clear what the 

19 court would consider in that regard, and then pointed 

20 to the Manual for Complex Litigation and several 

21 topics therein as a tentative agenda for the 

22 conference, invited further input from the parties 

23 even if only on a preliminary basis in that initial 

24 conference. 

25 As a third topic, a separate but related 
 86 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 concept that has gotten a lot of air time today and I 

2 understand in general in these hearings is the concept 

3 of designation of coordinating counsel. Since this 

4 topic has been addressed exhaustively, I’ll keep my 

5 comments brief. My suggestion in this regard has been 

6 picked up by Professor Marcus in today’s hearing as 

7 well, which is to consider using nomenclature in an 

8 approach that has already been followed by some MDL 

9 judges to describe a temporary, limited, impermanent 

10 role in the MDL sort of to bridge the gap. 

11 Coordinating counsel is one concept that has been 

12 used. Another term that has been used in the Jewell 

13 MDL in the CPAP MDL was "interim counsel." 

14 Now, to be clear, Professor Marcus referred 

15 to Rule 23(g), which I’ll discuss briefly in a moment, 

16 but the interim counsel moniker here that would be 

17 applied would be different in the sense that it 

18 wouldn’t create the obligations that Rule 23(g) 

19 creates for class counsel unless it was warranted in 

20 the circumstances of that MDL in part or in whole. 

21 Finally, I’ve made a couple sets of textual 

22 amendment suggestions that I would propose would aim 

23 to better reflect the range of matters that fall 

24 within the ambit of Section 1407. They fit into two 

25 categories. The first again relates to Rule 23(g) in 
 87 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 this context as it relates to leadership proceedings 

2 addressed in the proposed rule. 

3 From my perspective, the note and the rule 

4 would benefit from explicit cross-references to 

5 Rule 23(g), along with a handful of other revisions 

6 that will provide the transferee court with important 

7 perspective on unique aspects related to class 

8 actions. 

9 Of course, in a mass tort MDL, lead counsel 

10 represents or presides over claims brought by 

11 individuals or entities who have retained other 

12 lawyers. In contrast, in a class action, under 

13 Rule 23(g), class counsel is vested not just with the 

14 authority but with the obligation to prosecute the 

15 class's claims in the best interests of the class, 

16 which, of course, vests that counsel with different 

17 primary obligations. 

18 Finally, as to the question of consolidated 

19 pleadings, that too raises issues specific to class 

20 actions. In particular, the key question raised by 

21 that issue is whether a pleading is "meant to be a 

22 pleading with legal effect," as the Supreme Court put 

23 it in the Gelboim versus Bank of America case cited in 

24 the note. 

25 A consolidated complaint in a class action 
 88 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 serves just that legal effect and the critical purpose 

2 of aggregating all the class's claims into a single 

3 pleading that effectively has preclusive legal effect 

4 for the class through judgment. A master complaint in 

5 a mass tort generally serves the distinct purpose of 

6 providing a single vehicle defendants may move against 

7 through omnibus or cross-cutting motions but does not 

8 have the same binding legal effect. As a consequence, 

9 some explicit language in the rule relating to 

10 consolidated pleadings may help focus the judge’s 

11 efforts in the first instance as well. 

12 Again, I appreciate the opportunity the 

13 Committee has provided for me to testify today, and 

14 I’d be pleased to answer any questions if I can. 

15 CHAIR ROSENBERG: Okay. Thank you so much. 

16 And we’ll turn to our reporters first. 

17 Rick? 

18 PROFESSOR MARCUS: I think I’d like to 

19 follow up on your -- if I’m understanding correctly, 

20 your -- in relation to Rule 23(g) and interim counsel, 

21 it strikes me that "coordinating counsel" as a term 

22 recognizes that this position if used is different. 

23 Now, in our district, I think, for example, 

24 Judge Alsop says he won’t consider a pre-certification 

25 settlement unless he has appointed interim counsel. 
 89 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 The Committee note in 2003 says interim counsel owes 

2 the same obligations to the class as full class 

3 counsel. 

4 Do you read our "coordinating counsel" as 

5 having similar ideas, invoking similar authority for 

6 this person, and, if not, then maybe saying "interim" 

7 would actually confuse or mislead people compared to 

8 the 23(g) situation. 

9 MS. SHARP: Thank you, Professor Marcus. I 

10 went through exactly the same thought process and the 

11 question really is, is using the word "interim" in 

12 this setting more confusing or less. By my lights, it 

13 appears that the position of coordinating counsel, 

14 aside from sort of providing the possibility that one 

15 group of lawyers or a single lawyer might get a leg up 

16 in the early days of the MDL, does raise a host of 

17 questions about repeat players and other important 

18 considerations. 

19 As it relates to the nomenclature itself, 

20 though, as I pointed out, judges like Judge Orrick and 

21 Judge Flowers Conti in the Phillips CPAP MDL used the 

22 term "interim counsel," explicitly did not reference a 

23 Rule 23(g) kind of scenario there, and said interim 

24 counsel is just that, I want you to get going with 

25 some discovery issues, without imbuing that counsel 
 90 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 with any further obligations or authority, as Rule 

2 23(g)(3) would do. 

3 So there’s certainly the propensity or the 

4 possibility for further confusion. On the other side 

5 of the ledger, I think there has been perhaps some 

6 angst created by the idea of creating yet another 

7 counsel position in these MDLs which now so often have 

8 liaison counsel and local counsel and coordinating 

9 counsel and a variety of types of counsel. So long as 

10 the rule and the order are clear whether interim 

11 counsel is used in a capacity that’s associated with 

12 the obligations incumbent on class counsel or 

13 separately in the mass tort setting, where, of course, 

14 there are no such obligations because there’s not a 

15 class in the first instance, I feel that the confusion 

16 that may be created by use of that language, on the 

17 other hand, may become a useful sort of tool for the 

18 MDL court to the extent it may be faced in a hybrid 

19 MDL with both class counsel and a mass tort type of 

20 scenario in which it is looking for some lead counsel. 

21 So I’m not suggesting that it’s a perfect 

22 solution, but I’m only suggesting that it’s something 

23 that’s been used in other MDLs without the confusion 

24 that you’ve so correctly pointed out could otherwise 

25 exist, Professor. 
 91 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 CHAIR ROSENBERG: Okay. If nothing from 

2 Andrew, any of our Committee members? 

3 Okay. All right. Thank you so much, Ms. 

4 Sharp. We appreciate your comments. 

5 MS. SHARP: Thank you very much. 

6 CHAIR ROSENBERG: All right. And 

7 Mr. Longer, who will address 16.1. 

8 MR. LONGER: Good afternoon. Can you all 

9 hear me? 

10 CHAIR ROSENBERG: We can. 

11 MR. LONGER: I want to thank the Committee 

12 for affording me the opportunity to present my 

13 comments on the proposed Rule 16.1. My name is Fred 

14 Longer. I’m a partner in a Philadelphia law firm, 

15 Levin Sedran & Berman. I appreciate the Committee’s 

16 efforts to craft a rule that meaningfully addresses 

17 the many concerns the judiciary is facing in the 

18 context of Multi-District Litigation. And as I was 

19 preparing yesterday to testify today, I was reflecting 

20 on the legacy of the late Reverend King and apropos to 

21 where we are now, Dr. King once said, "We may have all 

22 come on different ships, but we’re in the same boat 

23 now." So recognizing that we’re all trying to paddle 

24 the same canoe and time is short, I just have a few 

25 points that I’d like to raise today, basically, three 
 92 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 points. 

2 One, personally, I don’t think we need this 

3 rule because an MDL rule already exists. 

4 The second point, the proposal's 

5 coordinating counsel adds more procedure when less is 

6 needed, and appointment of lead counsel should be 

7 front and center, and I think that the coordinating 

8 counsel adds this layer of process that is 

9 unnecessary. 

10 And my last point is that adding guidance to 

11 the early hearings is helpful, but requiring it to be 

12 the initial conference and having everything crammed 

13 into that initial conference may be misplaced. And I 

14 appreciate what Dena Sharp was saying just a moment 

15 ago. I think that she captured that point quite well. 

16 So, as to my first point, you know, I raised 

17 this in my comments which were filed at the end of 

18 last year, an MDL rule already exists. Congress has 

19 already spoken. It issued Section 1407, which broadly 

20 allowed for consolidated proceedings subject only to 

21 the limitation on procedures that are "not 

22 inconsistent with the Federal Rules of Civil 

23 Procedure." And what I tell you is that Rule 83(b) is 

24 your MDL rule. Rule 83(b) already provides for 

25 procedures when there is no controlling law, and it 
 93 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 says a judge may regularly practice in any manner 

2 consistent with federal law rules adopted under 

3 Sections 2007.2 and 2007.5 and the district’s local 

4 rules. So no new rule is necessary. 

5 And as we heard Mr. Rabiej say just a moment 

6 ago, MDL courts need flexibility. It’s hard to 

7 shoehorn any complex case into a one-size-fits-all 

8 rule and that’s for good reason. There’s different 

9 claims. There’s different counsel. There’s different 

10 personalities. There’s different issues. It’s just a 

11 panoply of differences. 

12 And so to have an MDL rule where you think 

13 that you can cram everything into one, it’s going to 

14 be very complicated, and that’s because there’s not 

15 just product liability claims, but there are antitrust 

16 claims, there’s data breach cases, there are security 

17 fraud cases. There’s just a whole number of MDL 

18 disciplines, if you will, categories. And this rule, 

19 as I appreciate it, was really designed -- and I keep 

20 hearing this -- it seems like it was really designed 

21 to address mass torts or product liability claims 

22 involving pharmaceuticals, and it’s really not as well 

23 focused on these other types of MDLs. 

24 So my second point, trying to brief here, is 

25 that I do not believe that "coordinating counsel" is 
 94 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 an appropriate moniker. There’s no detail in the rule 

2 or the comments on the issue. To me, what’s the 

3 hurry? I’ve heard that said in other comments. 

4 The most important thing in my mind for the 

5 transferee court to do is to select counsel. That 

6 should be pretty much the first thing on their mind, 

7 front and center, is let’s see who I’m going to be 

8 working with in terms of operating this new 

9 litigation. So you need to get the plaintiffs' house 

10 in order and then things can proceed. 

11 You know, as Hamlet said, the play is the 

12 thing. Let’s get to the meat of things rather than 

13 have this process of a coordinating counsel who is in 

14 between getting to the play. And I heard Professor 

15 Marcus mention the interim counsel concept and he just 

16 went over that with Ms. Sharp, but not every MDL is a 

17 class action and not every class action is an MDL. 

18 So, if I were to file a one-off class action 

19 complain that I never intend to have in a MDL, I am 

20 taking on a fiduciary duty to the class immediately by 

21 filing that complaint. And for the court to recognize 

22 me to speak on behalf of the class, that’s why Rule 23 

23 has that interim appointment. I think it’s not a fair 

24 analog to apply that to the MDL process. There’s very 

25 different types of organizations in MDLs, and that’s 
 95 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 where I am on that. 

2 MS. BRUFF: Mr. Longer, I apologize for 

3 interrupting. If I might ask you to summarize your 

4 initial testimony and then we can move to questions. 

5 MR. LONGER: Right. So the only last thing 

6 that I’d say -- and I appreciate that, Ms. 

7 Bruff -- I’m a little bit concerned about the 

8 nomenclature of an initial conference. I think that 

9 an early conference is appropriate. You can only eat 

10 an elephant one bite at a time, and so to try to cram 

11 everything into that first report and have everything 

12 done at the "initial conference," put that in quotes, 

13 it just seems to me perhaps overambitious, and I would 

14 suggest that that phrasing be pulled back a little bit 

15 along the lines of what I heard Ms. Sharp saying. 

16 And with that, I’m ready to speak to and 

17 address any questions you may have. 

18 CHAIR ROSENBERG: All right. Thank you, Mr. 

19 Longer. We’ll hear from our reporters first. 

20 PROFESSOR MARCUS: Mr. Longer, I want to 

21 pick up on your last point, the word "initial" that we 

22 used to modify "management conference." To my mind, 

23 "initial" suggests this isn’t the only one, and the 

24 Committee note to Rule 16(d) on the subsequent order 

25 emphasizes that there’s no requirement that any of the 
 96 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 scheduling matters included in the report must be 

2 acted upon right after that conference. The court 

3 must be open to modifying. 

4 What I’m getting at is it sounds to me like 

5 what we’ve got now is pretty much what you would like 

6 to see using the word "early," but "early" might be 

7 like what Rule 16 says must happen early, which is a 

8 scheduling order set somewhat in stone. That’s 

9 distinguished in the Committee note to our 16.1(d). 

10 So I’m wondering, aren’t we basically on the same page 

11 already? 

12 MR. LONGER: Professor Marcus, I think we 

13 are. My concern is initial -- when I hear "initial," 

14 I hear 'premier." I hear the first conference. And 

15 what you describe in the proposed rule is, at the 

16 first conference, you should cover these points, not 

17 that you can cover some now and some later at a 

18 subsequent hearing. And what I am suggesting is that 

19 you should build in this notion that the initial 

20 conference need not capture all of the concepts at 

21 once. You can’t eat an elephant all at once. You 

22 have to do it in bites. 

23 And so that being the case, to have all of 

24 these conditions or criteria described in the initial 

25 report so that everything is done at the initial 
 97 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 conference is overambitious. And I just am saying 

2 going back to what I’ve heard a number of comments 

3 made is flexibility is what we are suggesting. You 

4 know, I’m not a proponent of the rule, but if you’re 

5 going to have it, I think that the most important 

6 thing is to recognize that the district court is 

7 taking on an awesome responsibility and we are just 

8 mere mortals. 

9 So we need to recognize that maybe not 

10 everything at once. Let’s do it as we go along. And 

11 if you follow through on that, I think we are on the 

12 same page, but I think it’s just how you’re 

13 describing. 

14 CHAIR ROSENBERG: I think I’ll jump in and 

15 probably Rick or Andrew would point this out. In 

16 subsection (c), it says, "The report must address any 

17 matter designated by the court which may include any 

18 matter addressed in the list below or in Rule 16." So 

19 I don’t think it was ever contemplated, nor does the 

20 language of the rule suggest, that all issues must be 

21 addressed. 

22 Andrew, did you have a comment or question? 

23 PROFESSOR BRADT: My only follow-up to that 

24 is the question that I attempted to ask Mr. Rabiej a 

25 little while ago. We have 40 years' worth of 
 98 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 experience with Rule 16, which is constructed in the 

2 same way. Judges may consider something on that list 

3 at a pretrial conference or defer it to later. 

4 It seems to me that while everybody here 

5 would agree that there’s something special about MDLs, 

6 judges are pretty good at knowing what issues need to 

7 be addressed today and what can be addressed tomorrow, 

8 and so, given the experience with Rule 16, I’m 

9 struggling with how 16.1 makes anything worse. 

10 MR. LONGER: So, to both of your comments, I 

11 don’t know about making it worse. I’m just suggesting 

12 that, you know, there are best practices guides and 

13 judges are smart and they do know what process they 

14 are looking for and they’re certainly capable of 

15 ordering things in the sequences that they like. 

16 And to your point, Judge, yes, the rule does 

17 say "may." I’m not suggesting that it says anything 

18 other than what it says. But my point is, is that 

19 when you see it in writing, counsel, courts, others, 

20 those that follow the rule are going to read "may" as 

21 "really should consider" and that they’re going to 

22 prioritize these issues and they may not need to be in 

23 that priority -- or in that schedule, that order all 

24 at the initial conference. That’s all that I’m really 

25 pointing out. 
 99 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 I think that there is a lot of agreement 

2 here. It’s not the end-of-the-world kind of a thing, 

3 like hair-on-fire kind of an issue, but it is that 

4 type of language that once it’s sort of stamped in a 

5 rule it takes on a life of its own and it creates more 

6 importance than it may deserve, and that’s my point. 

7 CHAIR ROSENBERG: Thank you. 

8 Joe? 

9 MR. SELLERS: Thanks. 

10 Mr. Longer, I’m wondering. We heard earlier 

11 today a suggestion with respect to these topics that 

12 an addition in some fashion that says some of these 

13 topics may be addressed later may be useful. I’m 

14 wondering if that addresses the concern you’re 

15 raising? 

16 MR. LONGER: I think it does. I think that 

17 you have to recognize that there’s only so many hours 

18 in a day and there’s only so much that can be done 

19 initially at the beginning of what could be 

20 years -- multi-year-long litigation. 

21 And that being the case, I think that, you 

22 know, to Professor Bradt’s point, you know, you have 

23 smart judges who already looking at this and they’re 

24 going to know what they can and can’t accomplish. But 

25 I think the absence of that language is a problem, and 
 100 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 I think adding that language and making it very clear 

2 that things can be done in sequences, not everything 

3 has to be done at once, my point being it would be 

4 very wise to appoint leadership up front. You know, 

5 the court, the MDL court, is creating a law firm and 

6 it needs to have the plaintiffs' side in place in 

7 order to have both sides of the litigation properly 

8 before the court, speaking for all the parties in that 

9 litigation. 

10 You know, the defense side is pretty much 

11 self-organized. You know, it would be nice if the 

12 rule said that the court could appoint defense counsel 

13 because I’d like to have a say in that, but that’s not 

14 going to happen anytime soon. And so, you know, it’s 

15 just that kind of a point, which is I’d like to know 

16 who’s leading the case. If I’m going to lead it, I 

17 want to know that I’m leading it. If John Finbrannon 

18 is going to lead the case, I’d like to know that John 

19 is doing it because I may have my own views about his 

20 leadership capacity. 

21 And so I think, from everyone’s perspective, 

22 it’s very wise to get that up front, which is why the 

23 coordinating counsel adds a layer of complexity and 

24 process which I think interferes with that initial 

25 appointment. And so, yeah, other things can be done 
 101 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 later on, and I think that expressing that would be 

2 wise to have that at least in a comment, if not in the 

3 rule itself. 

4 CHAIR ROSENBERG: Okay. Thank you so much. 

5 If there’s no further comments or questions, we’ll 

6 move on to Jennifer -- 

7 MR. LONGER: Thank you all. 

8 CHAIR ROSENBERG: -- thank you -- Jennifer 

9 Hoekstra, who will address 16.1. 

10 MS. HOEKSTRA: Thank you. Good afternoon, 

11 everyone. My name is Jennifer Hoekstra and I’m a 

12 partner with Aylstock, Witkin, Kreis & Overholtz in 

13 Pensacola, Florida. My partners and I combined have 

14 several hundred years of experience in MDL litigation, 

15 most recently, as lead counsel in the 3M Combat Arms 

16 litigation. In addition to my work on the 3M MDL, one 

17 of the largest in history, I’m currently appointed to 

18 the Plaintiffs' Executive Committee in both the hair 

19 relaxer and proton pump inhibitor MDLs. 

20 As outlined in my written testimony, I do 

21 not believe that there’s an urgent need for the 

22 provisions of Rule 16.1 as drafted. My main concerns 

23 relate to the provisions of 16.1(b) and the role of 

24 coordinating counsel, which interfere with the court’s 

25 flexibility in the appointments of special masters to 
 102 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 assist in running complex litigation. To the extent 

2 the provisions are enacted, coordination counsel is 

3 not necessary, and there are already mechanisms in 

4 place for MDL judges to address this need. 

5 Each MDL has distinct and unique claims, 

6 injurious products and parties involved. Therefore, 

7 it would be limiting and unreasonable to expect that 

8 each litigation that is deemed complex followed the 

9 same exact trajectory. There’s no magic formula or 

10 recipe for handling any MDL. Every one is unique, has 

11 its own unique challenges, and the approaches that may 

12 work in one may not work in another. 

13 Coordinating counsel appointment appears 

14 duplicative of the purpose of the magistrate or the 

15 special master in supporting the court. Inserting the 

16 role of coordinating counsel at a time when many MDL 

17 judges are already appointing magistrates, special 

18 masters, and leadership committees for counsel, while 

19 also setting a schedule for ongoing case management 

20 conference and deadlines in relation to the pretrial 

21 discovery that they’ve been appointed to address, is a 

22 role where coordinating counsel is often not needed. 

23 Over the past few decades, I’ve learned that 

24 the first day orders or the framework of an MDL may 

25 not vary widely from one to another but that the time 
 103 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 it takes for all counsel, both plaintiffs and defense, 

2 and the court to get up to speed on the unique issues 

3 of that MDL is specific to the injuries involved and 

4 is not something that could be assisted by 

5 coordinating counsel. 

6 After spending the past five years managing 

7 the 3M MDL, I see a very limited place in the 

8 litigation or discovery process for coordination 

9 counsel. I don’t see any opportunity or location 

10 where anything was delayed in the progress of that MDL 

11 in relation to where a benefit would come from the 

12 appointment of coordination counsel. 

13 In my experience, MDL judges appoint 

14 magistrates and special masters in a variety of roles, 

15 often in advance of any initial or preliminary 

16 conference, based on the complexity of the injuries 

17 and the products involved in the litigation. 

18 Thank you all for your time today, and I’m 

19 happy to address any questions you may have. 

20 CHAIR ROSENBERG: Thank you so much. 

21 Our reporters. 

22 PROFESSOR MARCUS: Well, thank you very 

23 much. I think I’m going to follow up on something 

24 that Andrew has asked others, maybe he was thinking of 

25 asking it. 
 104 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 With regard to the 3M earplugs litigation, 

2 just in reading newspapers I’ve seen some assertions 

3 about whether a significant proportion of the very, 

4 very many claims in those cases have, shall I say, 

5 panned out or not panned out, I’m wondering in regard 

6 to what some call unsupportable or other claims, which 

7 you address in your submission, what you could tell us 

8 about, say, the statistics that you think one could 

9 take away from the 3M litigation on this subject. 

10 MS. HOEKSTRA: I think that, quite frankly, 

11 given the volume of the earplugs that were procured or 

12 for sale that were given to the military, more than 

13 500,000 pairs that we’re aware of within a 10-year 

14 period, although they were sold for 15 years total, 

15 that at the highest point of filed cases there were 

16 about 300,000 cases that were filed. But, when we 

17 opened the settlement program, around 290,000 

18 claimants registered for the settlement program. We 

19 are 10 days out from the registration deadline for 

20 participation in the settlement by which you have to 

21 register and file a release, and, at this point, 82 

22 percent of those 290,000 claimants have either signed 

23 a release or have failed to meet the court obligations 

24 to prove that they were injured and have been 

25 dismissed. 
 105 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 We are very, very positive that we will 

2 reach 98 percent threshold in that settlement and are 

3 honestly expecting close to 230,000 individuals to 

4 participate. It may seem -- sorry to assert that 

5 there were, you know, 70,000 who fell out as 

6 unmeritorious, but, instead, what it seems to be is 

7 that there was overlap or duplication between 

8 representation, which, quite frankly, happens in these 

9 sort of larger litigations when individuals follow up 

10 with more than one attorney at the outset. 

11 CHAIR ROSENBERG: Andrew, did you have a 

12 question? 

13 PROFESSOR BRADT: Thank you. I’m intrigued 

14 by your reference to the appointment of masters and 

15 magistrate judges as arguably duplicative of 

16 coordinating counsel. I wonder if you could elaborate 

17 a little bit on that because my initial reaction would 

18 be that if I were an MDL transferee judge and sought 

19 the assistance of a magistrate judge or special 

20 master, I would still want the benefit of the kind of 

21 hearing and report that the rule contemplates. And if 

22 I were a magistrate judge, I’d perhaps benefit from 

23 that as much, if not more, as the district judge. 

24 So I’m curious as to why you think that the 

25 appointment of a magistrate judge or a master is 
 106 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 duplicative of the role the coordinating counsel would 

2 play. 

3 MS. HOEKSTRA: Oftentimes, special masters 

4 or magistrates are appointed for a specific purpose or 

5 a limited purpose. It’s very rare in mass torts that 

6 they’re appointed broadly for the entirety of a 

7 litigation. I’ve been involved in multiple 

8 litigations where individuals were appointed as 

9 special masters for the purpose merely of assisting 

10 the judge in appointing counsel, merely for the 

11 purpose of coordinating with interim counsel until 

12 that leadership structure was established, and then 

13 their positions were vacated or they were reappointed 

14 as something else. Three of those, one of those 

15 examples were Judge Rogers put together a panel of 

16 neutrals to help her establish the framework orders, 

17 the first day hearing, and to interview the dozens of 

18 candidates who applied for leadership positions while 

19 giving her the benefit of their knowledge and 

20 expertise in a variety of areas when putting together, 

21 I believe, as one of my colleagues referred, you know, 

22 a plaintiff side, you know, law firm to litigate the 

23 litigation. That’s not the only litigation I’ve been 

24 involved with where that has happened or a very 

25 specific purpose was put in place. 
 107 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 In the Actos litigation that I worked on 10 

2 years ago or so, the judge put in place a special 

3 master purely for law and briefing purposes to work 

4 with the parties at the early, early stages before 

5 leadership was even appointed to outline any, you 

6 know, specific legal disputes or arguments, including 

7 preemption, that may come up so that those were 

8 specifically addressed not just from a discovery 

9 viewpoint but from the legal implications of them at 

10 the first day conference. 

11 For that reason, I do believe that there are 

12 specialized knowledge that could be appointed that may 

13 overlap or interfere depending on what the 

14 coordinating counsel’s role is as defined in Rule 16.1 

15 as drafted. 

16 PROFESSOR BRADT: But the rule doesn’t 

17 prohibit any of that innovation were a judge to decide 

18 that it would be useful in a particular case? 

19 MS. HOEKSTRA: Earlier today, someone 

20 referred to, you know, the coordinating counsel as 

21 taking on a special master type of role. If the 

22 special master type of role that would be existing has 

23 already been filled by the judge, what is the purpose 

24 of coordinating counsel? I believe it takes away some 

25 of the flexibility an MDL judge has in determining who 
 108 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 that person may be and how they may assist moving 

2 forward in the litigation, not merely just for the 

3 initial conference purposes. 

4 PROFESSOR BRADT: But the rule doesn’t 

5 require the judge to appoint coordinating counsel, so 

6 if the judge were to decide that one of these other 

7 frameworks that you suggest would be better, there’s 

8 nothing in the rule that prevents her from doing that, 

9 correct? 

10 MS. HOEKSTRA: Agreed. I do think that 

11 there’s a push in the comments that associated with 

12 the rule that there’s an expectation that a judge may 

13 do so, especially one who’s less experienced or who's 

14 never faced an MDL before. 

15 PROFESSOR BRADT: Thank you. 

16 CHAIR ROSENBERG: Judge Proctor, I think you 

17 had your hand up. 

18 JUDGE PROCTOR: Yes, thank you. 

19 So do I understand your primary position to 

20 be we just don’t need a Rule 16.1, it’s not going to 

21 be helpful to the judges in getting these cases 

22 started? 

23 MS. HOEKSTRA: No, I believe that there’s a 

24 framework in 16.1 that is helpful in terms of the 

25 overall formation of it. I do believe that 16.1 
 109 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 restricts some of the flexibility that MDL judges are 

2 used to having in relation to the rules for complex 

3 litigation or other procedures that have been followed 

4 in the formation and use of our practice over the 

5 past, you know, few decades. 

6 I don’t believe that the size of an MDL has 

7 an impact on whether formality of the rule is 

8 necessary. There were arguments or comments made 

9 that, you know, the volume and the size of MDLs is 

10 what’s driving the need for this rule. I don’t 

11 believe there’s a need for the rule, although the 

12 overall provisions are already essentially put in 

13 place by general practice and procedure by most MDL 

14 judges. 

15 JUDGE PROCTOR: What would you say to the 

16 point, though, that at two straight breakers 

17 conferences where this draft rule or something like 

18 it's been presented to transferee judges from across 

19 the country, they uniformly and almost unanimously, I 

20 believe, told us that this would be helpful to them? 

21 MS. HOEKSTRA: I believe the definition then 

22 needs to be perhaps modified to make it clear what the 

23 distinct role and scope is for coordinating counsel 

24 beyond the initial conference. There seems to be some 

25 vagueness in terms of what the extent of the role 
 110 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 might be or what the appointment would require 

2 separate from anything relating to liaison counsel, 

3 you know, leadership counsel. It seems like it’s just 

4 one more position that will take away from any 

5 recovery for claimants at the end of the day. 

6 JUDGE PROCTOR: And to be clear -- I’m sorry 

7 that I was confusing to you -- I wasn’t saying 

8 specifically the coordinating counsel provision, 

9 although we’ve not had push-back from our judges on 

10 that. I’m just talking about the framework of the 

11 rule and the presentation of the menu. 

12 MS. HOEKSTRA: No, I believe the framework 

13 of the rule, other than the few places where it’s in 

14 conflict, as I discussed, with actual practice and 

15 procedure in certain MDLs, it could be useful overall. 

16 I think the main concern, and I think that’s been 

17 reiterated by several of my colleagues today in terms 

18 of their comments, is with the provisions relating to 

19 coordinating counsel specifically. 

20 I do believe that MDLs have existed for 

21 decades without the lack of, you know, formalization 

22 that is present in 16.1, but I don’t believe it’s in 

23 conflict with any of the other Federal Rules. I don’t 

24 believe MDLs have been in conflict with any, you know, 

25 aspect of the Federal Rules' application. So whether 
 111 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 or not there’s a need for this is an open question, 

2 but I don’t believe any of the actual language is 

3 concerning. 

4 CHAIR ROSENBERG: Okay. All righty. Thank 

5 you so much for your comments. We appreciate it. 

6 Let’s hear now from Mr. Luff, Rule 16.1. 

7 MR. LUFF: Thank you, and it’s an honor to 

8 address the Committee today. My name is Patrick Luff, 

9 and I hope to offer a somewhat unique perspective as a 

10 former professor of civil procedure, a researcher on 

11 the role of litigation in the United States with an 

12 emphasis on collective actions, and as an active 

13 practitioner and the founding partner of the Luff Law 

14 Firm, which regularly represents injured parties in 

15 multi-district litigation. 

16 I also have the honor to be a former student 

17 of Professor Cooper, although any deficiencies in my 

18 testimony should be attributed to my shortcomings as a 

19 student and not to his as a teacher. 

20 So what I’d like to do is offer a brief 

21 comment on the proposed rule and then a separate 

22 proposal, possibly a bit provocative, for the 

23 Committee’s consideration. I won’t dwell long on the 

24 well-discussed concerns that others, including members 

25 of this Committee, have raised regarding the proposed 
 112 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 rule, but I would underscore the reality that there is 

2 no single method that is best for all MDL proceedings 

3 because there is no single type of MDL proceeding. 

4 The length and breadth of the current iteration of the 

5 Manual for Complex Litigation is a testament to the 

6 variety of MDL case types and the procedures that are 

7 best suited to these differences. 

8 This observation leads to the concern of 

9 mission creep. If early management merits rulemaking, 

10 so too do any number of other topics common in multi11 district litigation, and quickly we have a set of MDL 

12 procedures whose length rivals the Manual for Complex 

13 Litigation. 

14 For those who doubt this concern, consider 

15 the number of comments asking this Committee to 

16 discuss and issue rules on claim insufficiency, 

17 despite the apparently narrow temporal scope of the 

18 actual rule under consideration. I would therefore 

19 spend some time addressing the issue or the potential 

20 issue of claim sufficiency, and I will assume for the 

21 sake of argument that the criticisms are accurate 

22 that, for example, "a protracted PFS process that 

23 operates as a multi-step discovery dispute is a 

24 wasteful and expensive distraction" and that what 

25 these critics truly want to focus on is the resolution 
 113 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 of meritorious claims. 

2 An amendment of Rule 23, perhaps by relaxing 

3 the predominance requirement of subpart (b)(3), would, 

4 I argue, solve many of these concerns, although 

5 perhaps with some possible modifications, such as an 

6 opt-in as opposed to an opt-out structure. Let us 

7 consider the amount of time and the expense of filing 

8 thousands or tens of thousands of complaints, as well 

9 as the burden on courts’ resources in processing them 

10 and of defendants in reviewing and answering them. 

11 Let us consider the PFS process described by 

12 Bayer in his comments as that wasteful and expensive 

13 distraction. The need for protracted conferral 

14 between plaintiffs and defendants’ counsel, often with 

15 the court or a special master's involvement, would be 

16 obviated. Similarly, defendants would be relieved of 

17 what I can only imagine are staggering legal bills 

18 that they incur so that their counsel can review each 

19 and every fact sheet, prepare a list of alleged 

20 deficiencies, and then engage in a lengthy back-and21 forth on these deficiencies. 

22 We can likely say the same thing about short 

23 form complaints, bellwether selection process, 

24 remands, and other matters that are common in multi25 district litigation. And to be sure, insufficient 
 114 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 claims would still be filed, but they would be 

2 resolved in he claims administration and resolution 

3 process, which require far fewer court resources. 

4 Resolving mass torts involving personal 

5 injury and consumer protection claims as classes would 

6 dispose of much of the unnecessary make work that 

7 currently occurs throughout the course of an MDL. It 

8 would allow the court and the parties to focus on the 

9 merits of the dispute, and it would further the goals 

10 enshrined in Rule 1 of a more just, speedy, and 

11 inexpensive resolution of claims. 

12 So, with those remarks made, I would welcome 

13 the Committee’s comments or questions. 

14 CHAIR ROSENBERG: Thank you so much. 

15 Questions from our reporters? 

16 PROFESSOR MARCUS: Hello, Patrick. Good to 

17 see you. 

18 MR. LUFF: Hello, Professor Marcus. 

19 PROFESSOR MARCUS: Having lived through 

20 three episodes of Rule 23 amendments, I’m prepared to 

21 guess -- in the first place, that’s not what we’re 

22 talking about here today, but I’m prepared to guess 

23 that the people we’ve been hearing from in favor of 

24 vetting or whatever you want to call it in MDLs would 

25 not be enthusiastic about relaxing the predominance 
 115 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 requirement, and I don’t think that’s going to happen 

2 anytime soon. Could be wrong. 

3 So, given that, is there a harm to going 

4 forward with 16.1, you say, that may become an 

5 unwieldy Leviathan that could -- maybe you’ve 

6 explained why that might be true, but we are where we 

7 are and we’re probably not going where you recommend. 

8 So should we simply desist or try to refine what we’ve 

9 done? 

10 MR. LUFF: Thank you, Professor Marcus. And 

11 I would dare to say your comment of having gone 

12 through three iterations of the Rule 23 amendments may 

13 be instructive. Having not been present at any of 

14 those personally, I suspect that there were always 

15 concerns about the exact same sort of mission creep 

16 about the repeated necessity of amendment to deal with 

17 more and more issues relating to Rule 23, and my 

18 concern is twofold. 

19 Number one is the simplistic case that the 

20 Committee is always asked to do more and more as to 

21 particular issues that come up in multi-district 

22 litigations and that you do have this repeated 

23 rulemaking process just as you describe for Rule 23. 

24 But perhaps even more problematic is the law 

25 of unintended consequences that I think invariably 
 116 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 comes up with rulemaking, particularly when, as I’ve 

2 said in my comments and my testimony, you have such a 

3 variety of types of cases and types of procedures that 

4 are most appropriate to each one. 

5 CHAIR ROSENBERG: Any other comments or 

6 questions? No? 

7 Okay. All right. Well, thank you so much. 

8 We appreciate your comments, Mr. Luff. 

9 MR. LUFF: Thank you. 

10 CHAIR ROSENBERG: And next, we’ll hear from 

11 Emily Acosta on Rule 16.1. 

12 MS. ACOSTA: Hi. Good afternoon. My name 

13 is Emily Acosta. I’m senior counsel at Wagstaff Law 

14 Firm. Though we are a Denver-based law firm, like 

15 many of my colleagues, we represent folks, victims, in 

16 federal and state courts around the country. 

17 My personal experience relates to the 

18 preparation of and trial of complex products cases. 

19 My testimony focused on three sort of subsections that 

20 I found problematic: subsection (b) that related to 

21 coordinating counsel, (c) that addressed certain 

22 topics at the initial management conference, and I 

23 also spent some time addressing unsupportable claims. 

24 Of course, I’m happy to answer questions on 

25 any of those topics, but I’d like to focus my 
 117 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 testimony on unsupportable claims and give you 

2 specific examples in my practice that lead me to 

3 believe that using the term "unsupportable claims" is 

4 somewhat misleading in terms of the experience of 

5 practitioners. 

6 I think my colleague, Mr. Brose -- 

7 PROFESSOR MARCUS: I'm sorry to interrupt, 

8 but where do we say that? 

9 MS. ACOSTA: I’m sorry, Professor Marcus, 

10 you cut out a moment for me. Could you repeat your 

11 question? 

12 PROFESSOR MARCUS: Oh, my question is, I 

13 don’t remember where "unsupportable claims" appears in 

14 our proposal, so I’m asking you to tell me where it 

15 is. 

16 MS. ACOSTA: Oh, you’re correct, sir. It 

17 doesn’t appear. However, many of the comments, as I’m 

18 sure you’re familiar -- 

19 PROFESSOR MARCUS: So what you’re talking 

20 about is whether we should -- whether we might choose 

21 to say something that other people are urging us to 

22 say, not about what we actually did say? 

23 MS. ACOSTA: Yes, correct. I just wanted 

24 to -- obviously, unsupportable claims were raised and 

25 proposed solutions were raised in many comments. I 
 118 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 wanted to give you some real-world perspective and 

2 sort of insight on why it is that I think the current 

3 rule strikes the correct balance and, you know, why 

4 some of the proposed solutions would not indeed be 

5 solutions at all. 

6 So one of my colleagues addressed product 

7 identification. Essentially, this unsupportable 

8 claims falls into three buckets, right? So a person 

9 that didn’t actually use the product, a person that’s 

10 not hurt in, let’s say, the right way where the 

11 mechanism of injury is such that you can’t believe 

12 that the defendant would be liable for that injury, 

13 or, third, where the claim is time-barred. 

14 Mr. Brose, I think, shed some light into 

15 what is I think a relatively rare situation where 

16 product identification and having an understanding of 

17 whether or not a client used a product is somewhat 

18 opaque because, in that situation, it’s given to a 

19 child at a hospital and, you know, when hospital 

20 records are lacking, there’s a lack of clarity about 

21 whether a product was used. Most of the time, that 

22 issue of whether a client used a product or didn’t is 

23 fairly clear. 

24 My concern relates to the other two buckets, 

25 so to speak. The first is adverse consequences and 
 119 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 whether or not those can be attributable to the 

2 defendant and their product, and the second is time3 barred. I’ll take time-barred first because I think, 

4 in many senses, it’s easier. 

5 Oftentimes, that is heavily litigated both, 

6 you know, in bellwether cases and in remanded cases 

7 after an MDL. The facts are highly specific often. 

8 You know, for example, I’ve litigated this in IVC 

9 filter in transvaginal mesh cases. A patient will 

10 often report to the ER with generalized abdominal 

11 pain. The question of whether or not that starts the 

12 clock on their statute of limitations depends on a lot 

13 of very highly specific factors, like what they were 

14 diagnosed with when they left the hospital, what 

15 conversations they had with the physician, and, you 

16 know, any number of individual factors. It’s 

17 therefore, I think, very misleading to suggest that 

18 before you know all that information you could know 

19 that the claim was time-barred, so that’s one example. 

20 As it relates to suffering particular 

21 adverse consequences, I think the Prodaxa litigation 

22 and the state court coordination that followed are 

23 instructive on this point. The Prodaxa MDL started 

24 and the focus of that MDL was GI bleeds, 

25 gastrointestinal bleeds. Later, after the MDL had 
 120 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 been resolved, there was a second iteration of that 

2 litigation which was coordinated in the State of 

3 Connecticut. While there were cases that revolved 

4 around GI bleeds there, there was also a renewed focus 

5 on sub-populations like women, people with diabetes, 

6 and people with other GI issues that made them pre7 disposed to develop an injury after using the drug. 

8 It’s important to note that the science that 

9 form the basis for those claims had not come out yet 

10 and so I think you’re seeing both in -- you know, 

11 there was a conversation about reciprocal disclosures 

12 and why it’s difficult to do those out of the gate. 

13 You know, part of what a defendant looks for in a 

14 plaintiff fact sheet, for example, is the data points 

15 to assess the injury. The science is often evolving 

16 on that and so getting your arms around the 

17 appropriate data points there is sometimes difficult. 

18 So that’s another example, and, you know, I’m happy to 

19 take any questions that you might have. 

20 CHAIR ROSENBERG: Okay. From our reporters, 

21 any questions, further questions? 

22 PROFESSOR MARCUS: Well, if I could ask a 

23 further question about something somewhat different, 

24 on page 4 of your submission, you seem to say that it 

25 would be undesirable -- it is undesirable that we 
 121 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 presently say before the initial management conference 

2 the parties must deliver a written report to the judge 

3 and you say instead they must be prepared to discuss 

4 certain things. 

5 And I’m wondering what your reaction is to a 

6 reaction which is, gee, shouldn’t the judge have some 

7 advance notice about what’s going to be coming up, or 

8 does the judge just have to wing it? A formal written 

9 report probably is very helpful to the judge. I’m not 

10 clear on why it would be undesirable. Perhaps you 

11 could explain. 

12 MS. ACOSTA: Sure. That suggestion is, I 

13 would say, primarily a reaction to the concern that I 

14 think has been expressed by others in that once a 

15 coordinating counsel is appointed, that I think likely 

16 will have the effect of stifling other viewpoints. 

17 Additionally, I think some of the things 

18 that are discussed in subsection (c), like settlement, 

19 for example, the discussion of those things is sort of 

20 premature, and I think, in many senses, talking about 

21 them early frustrates the overall purpose of resolving 

22 an MDL. 

23 And so, while, certainly, it’s the case that 

24 everyone should be able to discuss intelligibly those 

25 conversations at an initial management conference, I 
 122 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 worry that committing them to writing and appointing a 

2 particular person to be tasked with putting that 

3 together before there is a leadership group that’s 

4 coalesced around a particular viewpoint of how the 

5 tort ought to be run and what the important issues 

6 are, that you essentially have a duplication of work 

7 that I think is unwieldy. 

8 I mean, like Mr. Millrood mentioned earlier 

9 today, if the point is take me to your leader and 

10 let’s have productive conversations, it seems really 

11 difficult to be able to do that when there is not an 

12 individual or individuals, frankly, that have 

13 authority to negotiate on both sides. 

14 CHAIR ROSENBERG: Andrew? 

15 PROFESSOR BRADT: Thanks. I’m going to 

16 follow up just on that point about the question of 

17 settlement discussions and when they take place. As 

18 has been mentioned, there’s already a provision in 

19 Rule 16 for considering whether settlement should be 

20 facilitated. And so my question continues to be, why 

21 does this make things worse than the existing rule? 

22 It seems to me the existing rule gives people the 

23 opportunity to say it’s too early for settlement, and 

24 there’s nothing in Rule 16.1 that suggests that judges 

25 should push settlement if the parties aren’t prepared 
 123 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 to consider it. And I think it would be a little bit 

2 of willful blindness to suggest that we shouldn’t talk 

3 about settlement when it seems fairly clear that 

4 settlement activities often have gotten going at the 

5 time of the initial conference. 

6 So I guess I’m trying to understand where 

7 the harm is in adding that into 16.1. 

8 MS. ACOSTA: Well, so with respect to 

9 settlement, I think that talking about it too soon 

10 does do a significant amount of harm sometimes. So I 

11 think that’s one thing. 

12 To your question more philosophically of, 

13 you know, how does it make it worse, I think in two 

14 ways. One is that we’re adding another step, right? 

15 And then the second is that I think it adds 

16 uncertainty because we don’t have a clear -- if you’re 

17 a defense attorney, there is a defense team in 

18 place -- you know, assume a single defendant, right? 

19 There’s a defense team in place and they almost always 

20 have a lead trial counsel. There is someone that is 

21 captaining the ship on that side of the V, right? 

22 By contrast, you will have a number of 

23 plaintiffs’ attorneys, even assuming a small number, 

24 like five or 10, different people with different 

25 ideas, different skillsets, frankly. Not all of them 
 124 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 will be able to have, like, a lead trial attorney, you 

2 know, that can sort of command the ship, so to speak. 

3 And what you’ve added is, instead of, you know, having 

4 two clear people that are able to negotiate, you have 

5 one clear person that’s able to negotiate and this 

6 amorphous group of other people that can’t or at least 

7 they can’t bind the group. 

8 And so, to me, the better solution is to say 

9 let’s appoint lead counsel as soon as possible because 

10 then there’s someone that has authority to bind the 

11 group and decision-making authority, whereas I think, 

12 if you add another step, it simply sort of clouds that 

13 issue, kicks the can, and I don’t know what we’ve 

14 accomplished in its place. 

15 PROFESSOR BRADT: I guess a point of genuine 

16 curiosity then is, how does leadership counsel bind 

17 the group? Like, what are you talking about there in 

18 a way that leadership counsel can bind the group? 

19 Obviously, if it’s not a class action, everybody's got 

20 their own lawyer. Everybody’s got to make the 

21 decision for themselves whether to opt into the 

22 settlement, assuming it’s not a class. What do you 

23 mean by that? 

24 MS. ACOSTA: Sure. So, for example, one of 

25 the things that’s listed in subsection (c) is what are 
 125 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 the important legal issues and how should -- in broad 

2 strokes, what are the important legal issues and how 

3 should discovery proceed. 

4 If you have a different idea about what the 

5 important claims are, you might structure discovery in 

6 one way. If another lawyer has a different idea about 

7 what the important claims are and what the important 

8 defenses are, they might structure discovery and how 

9 it proceeds in a different way. 

10 And so, at a minimum, you’ve got maybe a 

11 couple different competing proposals, which I think is 

12 largely inefficient when the alternative is that you 

13 could move forward with appointing coordinating 

14 counsel quickly and then have someone that really can 

15 actually make a binding decision about what are the 

16 important claims, how should discovery proceed, you 

17 know, and things sort of of this nature. 

18 PROFESSOR BRADT: But not with respect to 

19 settlement. You’re concerned about, like, the process 

20 of litigation. You’re not suggesting that 

21 coordinating counsel will be able to bind anybody with 

22 respect to settlement? 

23 MS. ACOSTA: Yes, yes. Of course not, no. 

24 You know, I mean, but my point is only -- 

25 PROFESSOR BRADT: Or lead counsel for that 
 126 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 matter. 

2 MS. ACOSTA: Yeah, sure. My point is only 

3 just that sometimes going through discussions of 

4 settlement before either party has enough sense of 

5 what a good case looks like from their perspective is 

6 sometimes counterproductive because it sort of tends 

7 to increase frustrations without a corresponding 

8 benefit that, you know, moves you forward. 

9 PROFESSOR BRADT: So my last question on 

10 this is, is it your experience that with the current 

11 provision of Rule 16 that allows judges to broach 

12 settlement very early on, do you find it to be 

13 problematic to say to the judge in one of those cases, 

14 we’re not ready yet to talk about settlement, it’s too 

15 early? 

16 MS. ACOSTA: I think sometimes it can be. 

17 But, again, I don’t know that putting it in the rule 

18 is necessarily necessary, right? I don’t think 

19 anyone's going to forget that resolution needs to 

20 eventually occur. And so, you know -- 

21 PROFESSOR BRADT: There must be harm, I 

22 guess. I mean, if it -- you know -- 

23 MS. ACOSTA: I mean, I think the harm is 

24 that it force -- 

25 PROFESSOR BRADT: -- if they know, why not 
 127 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 have it in the rule? 

2 MS. ACOSTA: I mean, I think the harm is 

3 that it forces you into a premature -- you know, I 

4 think it’s sort of like mandatory arbitrations or 

5 things like that. I think sometimes they’re 

6 incredibly helpful, and I think sometimes they’re 

7 difficult and sort of thwart the overall process, 

8 right? So the benefit of putting it, you know, in the 

9 rule I think is minimal, and I think the chances that 

10 someone forgets about it is almost non-existent, 

11 right? Like, surely everyone knows the point is to 

12 resolve the matter. 

13 PROFESSOR BRADT: Thank you. 

14 CHAIR ROSENBERG: Okay. Any more comments 

15 or -- yeah, Rick? 

16 PROFESSOR MARCUS: Your commentary about 

17 settlement being too soon reminds me of something we 

18 heard a lot about several years ago from the defense 

19 side, that MDL transferee judges were holding them 

20 hostage, preventing appellate review in order to 

21 coerce a settlement, and I think we’ve heard some 

22 resistance to any reference to settlement in our 

23 proposal from the defense side. I’m wondering, are 

24 you in agreement with them that it should -- with the 

25 defense side folks that it’s just we don’t want 
 128 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 anybody thinking about that right up front, only think 

2 about that later? I’m a little bit surprised. 

3 MS. ACOSTA: No, no. I think there’s a big 

4 difference between do you address it at the first 

5 settlement conference versus do you never address it, 

6 right? I think it could be appropriate to address, 

7 you know, at the tenth settlement conference. 

8 And the idea too that, you know, I think 

9 there are very few examples where a legal defense or 

10 appellate review actually assists in resolving an MDL. 

11 So, you know, much in the same way that I think every 

12 defendant says they have a preemption defense and 

13 anyone that’s practiced in this space knows that very 

14 rarely is a mass tort disposed of in the, you know, 

15 medical device/drug arena using that defense. 

16 So simply because they believe they have a 

17 legal defense, that shouldn’t be a mechanism for 

18 holding up settlement, but, again, I think there’s a 

19 very big distinction between does it have to be 

20 addressed on day one, minute one or should it be 

21 addressed when the parties have more information. 

22 CHAIR ROSENBERG: Okay. Thank you so much, 

23 Ms. Acosta. We appreciate it. 

24 MS. ACOSTA: Thank you. 

25 CHAIR ROSENBERG: All right. And our final 
 129 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 witness before our lunch break is A.J. Bartolomeo. If 

2 you could join us and speak about Rule 16.1. 

3 MS. de BARTOLOMEO: Good afternoon, 

4 Committee. First of all, I’d like to thank you all 

5 for your hard work and years of dedication on this 

6 rule. It’s obvious from the discussion we’ve had this 

7 morning how really extensive the work has been. 

8 Yes. My name is A.J. de Bartolomeo. I’m a 

9 partner at Tadler Law, and we practice in the complex 

10 litigation area, so many times our cases are in MDLs. 

11 I’ve submitted a written comment, and 

12 there’s really two areas that I’d like to touch upon 

13 briefly here, many of which have been discussed at 

14 length this morning. 

15 The first has to do with really clarity as 

16 to the coordinating counsel’s role, responsibility. 

17 There doesn’t seem to be any mention of credentials or 

18 qualifications, and, actually, it’s a little unclear 

19 as to on whose behalf the coordinating counsel is 

20 acting. In the comments, they speak about the 

21 coordination with the plaintiffs or the defendants. 

22 The rule makes it clear it’s to assist the judge. 

23 That’s very good. But where my comment really is 

24 concerned is I was just not sure exactly what 

25 coordinating counsel was intended to do. At one 
 130 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 point, I thought maybe it was more like liaison 

2 counsel and thought that some of the guidance from the 

3 Manual on Complex Litigation may help with the rule in 

4 an editorial manner. I know people have discussed 

5 interim counsel, although there is a real distinction 

6 between 23(g) interim counsel and when the term is 

7 just used in some other cases. 

8 And then Judge Cooper, I believe, asked a 

9 question earlier on that was very interesting about 

10 what if that coordinating counsel has no stake and 

11 they’re real neutral. And that raised the question in 

12 my mind, did the Committee have a thought that maybe 

13 it is something more akin to a special counsel to 

14 assist the judge and work neutrally with both sides? 

15 I am just not sure, which is why my comment 

16 essentially asks for a bit of clarity on that role. 

17 The second point of my comment really has to 

18 do with adjustment of the timing for the meet-and19 confer but prior to the initial conference. And other 

20 people this morning have touched upon this in that 

21 before you have lead counsel organize for the 

22 plaintiffs, they’re really somewhat at a disadvantage 

23 to be able to have a well-informed conversation on 

24 behalf of all of the plaintiffs. 

25 And, obviously, many times the defendants 
 131 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 are more organized when they walk in. They have 

2 their client and they know who’s representing them. 

3 The plaintiffs are not quite at that level yet, and so 

4 my textual edit for the rule was that we should have 

5 an early conference and then a second early 

6 conference, but it should be before the appointment of 

7 lead counsel and organization of counsel for the 

8 plaintiffs and then after. 

9 And one real-life example that made this 

10 kind of clear to me, and I know I mentioned it in the 

11 comment, in a data breach class action, the In Re: 

12 Marriott, which was before Judge Grimm, he’s since 

13 retired, but he had the initial conference and there 

14 were multiple plaintiff tracks. So, if there had been 

15 like you would be looking for one person to speak on 

16 behalf of them, that would not have worked at the 

17 initial conference, and Judge Grimm set up the 

18 leadership and liaison for each of those five tracks 

19 at the initial conference, including a discovery 

20 liaison to work between and among them all. And then, 

21 at the 26(f) conference and the next status 

22 conference, which wasn’t long after that, each of 

23 those tracks was able to actually have a very well24 informed and well-prepared meet-and-confer with 

25 defendants on the issues unique to their track, like 
 132 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 financial track, consumer track, that type of thing. 

2 And the other point that I wanted to 

3 make -- and I’ll make it briefly because I’m the one 

4 keeping everyone from lunch right now -- is that the 

5 points raised in (c)(1) through (c)(12), while valid 

6 points and the Committee note makes it clear that 

7 they’re not a limitation, there can be additional 

8 discussion points that the parties feel are necessary 

9 to bring up to the court or the court thinks are 

10 necessary, it just seems that those topics would be 

11 better discussed at the second conference when 

12 leadership has been appointed because, as others have 

13 mentioned, one size does not fit all. Sometimes those 

14 will be sequenced or organized or quantified depending 

15 upon the legal issues and defenses in the case, and 

16 you want to allow the parties to meet and confer and 

17 discuss those issues, to present that to the court in 

18 the most organized and efficient manner. 

19 And if anybody has any questions, I’ll be 

20 happy to try to answer them. 

21 CHAIR ROSENBERG: Okay. Thank you so much. 

22 From our reporters? 

23 PROFESSOR MARCUS: Thank you. I see that 

24 you propose adding an (e) if we go forward, and I 

25 guess what I’m suggesting now is that looks an awful 
 133 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 lot to me like what we say in the Committee note to 

2 our 16.1(d) on the order the court ought to enter 

3 after the initial management conference. We 

4 contemplate further management conferences and invite 

5 even setting a schedule for that. 

6 The Committee note says the court should be 

7 open to modifying its initial management order. This 

8 isn't -- I’m paraphrasing -- this isn’t a schedule 

9 like a Rule 16 scheduling order, which is somewhat 

10 graven in stone, and it may be particularly 

11 appropriate to revise if leadership counsel was 

12 appointed after the initial management conference. 

13 It sounds to me like your proposed (e) is 

14 saying those same things. Am I missing something, or 

15 are you just seeking to move what we have in a 

16 Committee note up into the rule so that it’s more 

17 prominent? 

18 MS. de BARTOLOMEO: Yes, Professor, that’s 

19 exactly it. I really wanted to make the distinction 

20 between allowing the court to set leadership counsel 

21 and then have another time where leadership counsel 

22 would have a good opportunity to meet and confer with 

23 defense counsel and then present, again, a well24 informed and prepared discussion for the court on what 

25 was agreed to and perhaps what wasn’t agreed to. 
 134 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 CHAIR ROSENBERG: Andrew? No? Okay. 

2 Any other comments or questions from our 

3 Committee? 

4 Okay. Well, thank you so much for your -- 

5 MS. de BARTOLOMEO: Thank you. 

6 CHAIR ROSENBERG: -- time and your comments. 

7 That brings us to the lunch hour. It’s 

8 about 1:12 and we’re scheduled to resume at 2 with Lee 

9 Mickus as our first witness, and so we’re going to 

10 stick with that schedule. So the lunch is just going 

11 to be condensed a bit, but, hopefully, that'll be 

12 enough, 45 minutes for everybody. You can feel free 

13 to leave your -- stay tuned into the Teams and just 

14 turn your video and your audio off. 

15 (Whereupon, at 1:15 p.m., the meeting in the 

16 above-entitled matter recessed, to reconvene at 2:00 

17 p.m. this same day, Tuesday, January 16, 2024.) 

18 // 

19 // 

20 // 

21 // 

22 // 

23 // 

24 // 

25 // 
 135 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 A F T E R N O O N S E S S I O N 

2 (2:00 p.m.) 

3 CHAIR ROSENBERG: Okay. We’ll get started 

4 again and we can have our next witness, Lee -- is it 

5 Mickus? 

6 MR. MICKUS: Mickus, Your Honor. 

7 CHAIR ROSENBERG: Mickus. Okay. I said 

8 that the first time before we broke and I questioned 

9 myself, so I apologize. 

10 Okay. We’re pleased to see you, and you’re 

11 here to address 16.1. 

12 MR. MICKUS: Thank you, Your Honor, and 

13 thank you to the members of the Committee for the 

14 opportunity to express my views on this proposed rule. 

15 I am a partner at the Denver law firm of 

16 Evans Fears & Schuttert. I’m involved on the defense 

17 side in a number of MDL matters, particularly those 

18 involving product liability and mass torts. 

19 I’m here today to encourage you to modify 

20 Rule 16.1(c)(4) to make that more specific and more 

21 focused with regard to the basic disclosures to show 

22 that each plaintiff has a viable claim, and I’m also 

23 here to encourage you to drop the references, I think 

24 there are 12 in all, to settlement in (c)(1), (c)(9), 

25 and in the proposed note. 
 136 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 Turning to (c)(4), the most useful thing 

2 that an MDL rule would do is establish an expectation 

3 and a procedure that unsupportable claims would be 

4 weeded out early in the process so they can’t bog the 

5 parties down during case workups, interfere with the 

6 bellwether selections, and create the other problems 

7 that have been observed. 

8 To the anticipated question, I can’t point 

9 you to any empirical data that has been gathered 

10 across multiple MDLs about unsupportable claims, but I 

11 do note that experienced MDL judges, such as Judge 

12 Land in the In Re: Mentor matter and Judge Robreno in 

13 the In Re: Asbestos case, observed that it was a 

14 problem for them and that -- and I can speak to my 

15 experience, it’s been a problem in my cases. 

16 But I will also note that the request, 

17 Professor Bradt, has been noted by the defense bar and 

18 observed loud and clear. We’ll do our best to get 

19 back to you with that. 

20 I would also note that any rule to address 

21 this issue needs to be direct and specific to indicate 

22 that each plaintiff will need to present basic facts 

23 demonstrating that there’s a prima facie and 

24 fundamentally viable case that fits within the defined 

25 MDL. The timing can be discretionary, even 
 137 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 potentially staged depending on the nature of the case 

2 and the issues involved in a particular MDL, but the 

3 occurrence needs to happen. 

4 (c)(4), as presently drafted, simply doesn’t 

5 accomplish this, and I would suggest that to be 

6 effective and to be meaningful, this provision should 

7 be revised along the lines of what LCJ proposed in its 

8 September comment. 

9 Shifting gears to the settlement references 

10 in (c)(1), (c)(9), and the proposed note, anticipating 

11 a couple of different questions there, in particular 

12 one that Professor Marcus asked to Professor -- or to 

13 Ms. Acosta a few moments ago, from my perspective, it 

14 does seem that both the plaintiff and the defendants 

15 are aligned that neither side wants to see references 

16 to settlements in the proposed rule, maybe for 

17 different reasons, but it does seem that there is 

18 alignment on the ultimate conclusion of that. And I 

19 note with a smile Tobi Millrood’s comment for AAJ and 

20 his footnote indicating that when you see AAJ and LCJ 

21 in alignment, that’s probably an indication of 

22 something that is noteworthy. 

23 To anticipate another question on this 

24 front, why not? What’s the harm in putting a 

25 settlement reference in the rule and in the note? Why 
 138 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 not just leave it there and let the parties ignore it 

2 if they want to? For a number of reasons. 

3 First off, to echo what we heard from 

4 Ms. Acosta, it's premature. At the early stages in 

5 the MDL proceeding, the parties are just beginning to 

6 understand the factual issues involved and where the 

7 real fighting ground is going to be with respect to 

8 the claims and defenses, and until these are 

9 developed, the parties have limited ability to assess 

10 and place a value on the claims. 

11 Second, it’s counterproductive. Signaling 

12 that the court at the very outset is interested in 

13 settlement, is motivated to pursue settlement 

14 perpetuates the suggestion that’s prevalent in some 

15 quarters that the MDL procedure is about a resolution 

16 mechanism. It’s not about developing the pretrial 

17 matters for furtherance of the litigation. And when 

18 that signal is sent, that tends to incentivize and 

19 flesh out more of the unsupportable claims. That’s 

20 when people who are looking to get on the gravy train 

21 are likely to make that move. 

22 Further, and, again, Ms. Acosta touched on 

23 this, it’s distracting to the parties. When the court 

24 raises the issue of settlement as, if it’s put in the 

25 rule, the court is likely to and the litigants are 
 139 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 probably going to make sure that that discussion takes 

2 place, the attention is not focused on developing the 

3 litigation. It’s focused down a different pathway, 

4 and going down that cul-de-sac takes parties’ eye off 

5 the ball with respect to things that actually will be 

6 productive toward developing the case to get to a 

7 point where the information necessary to identify what 

8 a resolution matrix may look like can ultimately be 

9 achieved. It takes the attention away from matters 

10 where an MDL is most productive. 

11 And then, finally, it’s unnecessary. 

12 Productive settlement activities usually occur 

13 organically. All of the lawyers that you’ve heard 

14 from today are very experienced and they understand 

15 where things are likely to go. If there is a turning 

16 point in a case, a development of a data point that is 

17 useful towards discussion, then that is going to 

18 happen. 

19 So, for all of those reasons, I don’t think 

20 including discussion of settlement within the rule and 

21 within the note is useful. In fact, it’s 

22 counterproductive and would not be helpful. 

23 With that, I’d be happy to answer any 

24 questions. I see you, Professor Bradt. 

25 CHAIR ROSENBERG: Yeah, from our reporters. 
 140 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 PROFESSOR MARCUS: Can I go first? 

2 PROFESSOR BRADT: I’m happy to defer to 

3 Rick. 

4 PROFESSOR MARCUS: Well, I’d like to pick up 

5 on one thing you mentioned about our (c)(4). Can you 

6 hear me? 

7 MR. MICKUS: Yes. Yes, I can. It's a 

8 little faint. 

9 CHAIR ROSENBERG: Well, actually, is there 

10 anything you can do to -- I heard you over the break 

11 working with Shelley, but I think some of our members 

12 are having a hard time. 

13 PROFESSOR MARCUS: Well, how is that? 

14 CHAIR ROSENBERG: I hate to have you scream. 

15 There’s nothing on the volume that can -- 

16 PROFESSOR MARCUS: I think I’ve messed with 

17 all of those things. 

18 CHAIR ROSENBERG: Okay. All right. Well, 

19 we’ll make do. 

20 PROFESSOR MARCUS: Okay. Well, sorry. 

21 With regard to (c)(4), that says how and 

22 when the parties will exchange information about the 

23 factual bases, okay? And you noted that there must be 

24 some flexibility in timing and so on because cases are 

25 not all the same. Is there any reason why that 
 141 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 provision we presently have would prevent you from 

2 persuading a judge that what you think should happen 

3 when you’re representing the defense should happen, 

4 and if something more specific in the rule might be 

5 substituted, are you saying it would be good to 

6 prevent the judge from doing what the judge thinks is 

7 the best idea? I’m a little uncertain why (c)(4) 

8 fails your test. 

9 MR. MICKUS: So (c)(4) as it’s currently 

10 drafted is somewhat ambiguous as to what exactly it is 

11 requiring. And my point is what has been identified 

12 consistently as a problem is the notion of these 

13 unsupportable claims that get filed in some percentage 

14 in MDLs. And making this specific that that is what 

15 (c)(4) is designed to flesh out, to establish not just 

16 basic discovery about the case but basic viability of 

17 each individual claim is, I think, a useful goal here 

18 for (c)(4). 

19 Now, if your point is can I use (c)(4) as 

20 presently drafted as a vehicle to go and argue to the 

21 court that we should establish some sort of case22 specific structure for doing so, I suppose I could, 

23 but the issue is now the judge is having to be 

24 persuaded to do such a thing when it should be part 

25 and parcel of the MDL process given the experience 
 142 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 that we’ve had with MDLs and the repeated problem that 

2 has been observed with these kinds of unsupportable 

3 claims. 

4 CHAIR ROSENBERG: Andrew? 

5 PROFESSOR BRADT: Thanks, and thank you for 

6 acknowledging our hunt for empirical data. So far, 

7 we’ve heard anecdotes from both sides but not hearing 

8 a lot of testable data. 

9 Setting that aside, I want to focus on your 

10 points about settlement, and I’ll ask a species of the 

11 question that I’ve been asking before, noting that 

12 efforts to facilitate settlement are within the 

13 judge’s prerogative under Rule 16 as it already 

14 exists. Is it your position that if we did not put a 

15 reference to settlement in this rule, judges at the 

16 initial status conference would not raise it? 

17 MR. MICKUS: No, no, that’s not what I’m 

18 saying. I mean, the court is going to do what the 

19 court is going to do. 

20 My point is the repeated emphasis within 

21 16.1, both in the rule and I think there were 10 

22 different references in the note, just as a matter of 

23 emphasis are going to, I think, encourage just through 

24 the process, because we’re going to tick through all 

25 the different subparts, we’re going to raise all of 
 143 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 the different issues, the multiple references are a 

2 signal to the court and to the litigants that this is 

3 something that needs to be front and center in the 

4 early discussions. 

5 I generally agree with the direction of what 

6 we heard from Ms. Acosta. The parties are in a great 

7 position to understand when the timing is right, and 

8 the parties can raise this with the court when that 

9 timing is right. To push the issue from the very 

10 outset, I think, sends the wrong signal about what 

11 MDLs are all about. It creates an emphasis that is 

12 not productive, in fact, is counterproductive and is 

13 distracting to the real purpose of what we’re trying 

14 to achieve early in the case. 

15 PROFESSOR BRADT: I guess it just raises the 

16 question that, again, settlement is part of Rule 16 as 

17 it exists now. 

18 MR. MICKUS: Sure. 

19 PROFESSOR BRADT: So are you perceiving that 

20 problem in all of your non-MDL cases, that courts are 

21 overly emphasizing settlement when the parties may not 

22 yet be ready? 

23 MR. MICKUS: Not necessarily, but what I am 

24 saying is, as we’ve seen from a number of judges that 

25 after the fact have commented on their MDL 
 144 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 experiences, again, Judge Land, Judge Robreno, about 

2 how that process works, when the emphasis is suggested 

3 that the MDL is being used and should be considered as 

4 a resolution mechanism, that is nudging expectations 

5 in the wrong direction and instead is taking the focus 

6 of the litigants and taking the focus off of the 

7 courts in a direction that’s not productive toward 

8 moving the case forward to a position where they 

9 actually will have the information that may drive 

10 development of a matrix or whatever else is going to 

11 be useful for getting to a resolution point. 

12 PROFESSOR BRADT: Thank you. 

13 CHAIR ROSENBERG: I guess I have a question. 

14 How does including settlement in subsection (9) drive 

15 the litigation when it’s only one of 12 points? All 

16 of the other points are about driving the litigation. 

17 In fact, it’s the smallest. It’s one. And even at 

18 that, it says, "whether the court should consider 

19 measures to facilitate the settlement." 

20 Doesn’t that give the parties the ability to 

21 say, Judge, it’s too early or -- as opposed to a judge 

22 maybe going too far because it’s not mentioned and the 

23 parties don’t want the judge to do that? Isn’t this 

24 the very opportunity for the parties to say 

25 collectively if they agree it’s not the time and, 
 145 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 rather, we should be focusing in on identifying the 

2 other scheduling orders and the principal factual and 

3 legal issues and whether we should have consolidated 

4 pleadings, all things that drive the litigation? 

5 MR. MICKUS: Sure. Again, I think it’s 

6 sending the wrong message about what an MDL is all 

7 about. If the parties understand and based on their 

8 perspective see that the settlement timing is right or 

9 the timing is right to start discussing settlement at 

10 that point either through Rule 16 or simply through 

11 the organic processes of counsel interacting, it’s 

12 going to happen. 

13 But building into the rule the suggestion 

14 that the MDL consolidation is in meaningful part about 

15 driving settlement, again, takes this in a 

16 counterproductive direction and sends an improper 

17 signal about what MDLs are intended to accomplish. 

18 PROFESSOR BRADT: I guess my question is, is 

19 that why is including it in the rule any different 

20 than including it in Rule 16, which applies to all 

21 cases? Why is it worse in 16.1? 

22 MR. MICKUS: It’s worse in 16.1 because MDLs 

23 have a perception in certain quarters that the whole 

24 purpose of it is as a resolution mechanism. And 

25 furthering that by raising it in the rule, raising it 
 146 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 multiple times in the note perpetuates that 

2 perspective rather than the MDL is a tool of 

3 efficiency for developing the pre-litigation models. 

4 Of course, through Rule 16 or through any 

5 other mechanism, the parties can discuss settlement, 

6 and in the vast majority of cases, that ultimately 

7 will be the outcome. And that’s sort of to my point 

8 that you don’t need it in the rule for that to be 

9 recognized among the parties, but by putting it in the 

10 rule, it sends the wrong signal about what an MDL is 

11 intending to accomplish. 

12 CHAIR ROSENBERG: Okay. If there are -- any 

13 comments from our other Committee members or 

14 questions? Seeing none, okay. 

15 Well, thank you so much, Mr. Mickus, and we 

16 appreciate your comments. 

17 We’ll now turn to Mr. Partridge, who will 

18 also speak on 16.1. 

19 MR. PARTRIDGE: Great. Thank you, Judge 

20 Rosenberg, and thank you to the Committee. 

21 By way of background so you all can 

22 appreciate my perspective here, I spent 27 years in 

23 private practice, the latter part of that handling 

24 mass torts, class actions, and MDLs. I joined 

25 Monsanto Company as Deputy General Counsel in 2006 and 
 147 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 I assumed the duties of head of litigation and then 

2 took on the role of Chief Deputy. 

3 After five years in those roles, I was asked 

4 to move to a business role, a new corporate strategy 

5 role, leading a team to coordinate the effort to 

6 resolve disputes and avoid conflicts. I led that 

7 initiative for seven years, resolving Monsanto’s most 

8 significant litigations. My final act at Monsanto was 

9 I participated in the negotiation for the sale of 

10 Monsanto to Bayer. That was closed in 2018, and after 

11 that transaction closed, I was asked by Bayer to serve 

12 as its U.S. General Counsel, which I did for four 

13 years, leaving Bayer at the end of 2022 to form my own 

14 firm, Partridge, LLC, to assist both plaintiffs and 

15 defendants in resolving disputes. In my role, my 

16 various roles, both outside, inside, and as a business 

17 lead for more than four decades, I participated in the 

18 settlement of over hundreds of thousands of claims, 

19 many of them in MDLs. 

20 What I wanted to do was to offer to the 

21 Committee a perspective and share information that I 

22 think is relevant to what MDL judges need to know 

23 about how decisions are made by defendants, 

24 particularly corporate defendants and particularly 

25 publicly traded corporate defendants. 
 148 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 You’ve not heard from many sitting general 

2 counsel or head of litigation, and that’s 

3 understandable. When I was sitting as GC, I didn’t 

4 participate and provide the type of information that 

5 I’m going to share with you now. It’s very difficult 

6 for a sitting GC to talk about boardroom discussions 

7 involving current or recent MDLs and to discuss really 

8 the decision-making process, but it’s critical for MDL 

9 judges to understand what that process is. 

10 Regarding the perspective that I will share, 

11 I’m not representing any party or speaking on behalf 

12 of any present or former client or employer. These 

13 are my thoughts, my perspectives that are forged from 

14 over 40-plus years of handling complex litigation, 

15 including MDLs. 

16 So, as we just discussed, the Advisory 

17 Committee is proposing to put settlement issues 

18 prominently in the rule. You know, as we know, most 

19 MDLs ultimately do settle, but they usually take many, 

20 many years to get to that point. 

21 In my experience, the accumulation of 

22 unexamined and meritless claims, what we're I think 

23 calling unsupported claims, in an MDL can delay and 

24 will often prevent advancing the dispute to settlement 

25 by a corporate defendant. The existence of unexamined 
 149 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 claims in MDLs is not disputed. I know that there’s 

2 much discussion about the size of that percentage. In 

3 my experience, I believe the percentage of unsupported 

4 claims is in the range of 25 to 30 percent. And I 

5 know that Professor Bradt is looking for empirical 

6 data and I understand there’s a group that’s working 

7 to advance that. I hope we’re able to provide you 

8 with that data in a meaningful fashion. 

9 In MDLs presenting a significant number of 

10 claims -- that present a significant number of claims, 

11 the potential exposure to the defendant can be 

12 enormous. In examining a potential settlement path, 

13 the publicly traded defendant faces a myriad of issues 

14 which aren’t transparent to the MDL judge, and given 

15 the huge number of unexamined claims, this problem and 

16 these issues are exacerbated. Many of those issues 

17 involve, frankly, avoiding secondary exposures and 

18 liabilities. So let me explain some of the complex 

19 issues that are discussed by corporate executive teams 

20 and in the boardroom. 

21 Let’s assume you have a significant MDL with 

22 25 to 30 percent unsupported claims. Make it 100,000 

23 total claims and we know that only 75 -- 70 to 75,000 

24 of those will ever advance to a settlement. What 

25 should be reported in the quarterly and annual 
 150 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 Securities and Exchange Commission filings? The claim 

2 number of cases, including the 30 percent unsupported, 

3 or an estimation of the compensable claims and, hence, 

4 that financial exposure. Under-reporting or 

5 exaggerating financial information can lead not only 

6 to regulator action but can also lead to shareholder 

7 litigation. 

8 What numbers should be shared with the 

9 financial analysts, the market analysts that love to 

10 opine about the health of a publicly traded company? 

11 What's shared with shareholders? How is it shared? 

12 What numbers and dollars are reported to insurers, the 

13 inflated number, which will potentially affect risk 

14 calculations for future coverage premiums, or an 

15 estimate which removes the percentage of unsupported 

16 claims? What warranties and representations are those 

17 insurers going to look for regarding unsupported 

18 claims? What communications are provided to 

19 employees, most of whom will own shares of the U.S. 

20 publicly traded company? For a product still in the 

21 marketplace with or without modification, what 

22 information about the volume and nature of claims is 

23 provided to customers in the industry? Importantly, 

24 what dollars, what dollar numbers does the company 

25 post as a financial reserve, the dollars that are 
 151 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 extrapolated from a hundred percent, including the 

2 inflation, or the 70 percent that is an estimate of 

3 what will be compensable? In the event a settlement 

4 is advanced and funds are needed to be borrowed, what 

5 numbers will form the basis of those loans and what 

6 interest rate and what representations and warranties 

7 will lenders require? 

8 These are just some of the issues that 

9 aren’t transparent to MDL judges, but they need to 

10 understand the effect of unsupported claims and how 

11 complex it can make the decision-making process. 

12 In my experience, the existing of 

13 significant numbers of unsupported claims in an MDL 

14 can slow the settlement process because of the 

15 secondary liability issues. They’re critical issues 

16 to companies. They can’t be ignored. 

17 Often, it takes years -- 

18 MS. BRUFF: Mr. Partridge, I apologize for 

19 interrupting. I might turn it over to Judge Rosenberg 

20 in case she wants to initiate the question phase. 

21 MR. PARTRIDGE: Sure. 

22 MS. BRUFF: I would hate to take too much 

23 time from the Committee members to ask questions. 

24 MR. PARTRIDGE: Oh, that’s fine. Please do. 

25 I think I’ve framed enough of the issues. What I’m 
 152 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 suggesting is we need a rule that requires sufficient 

2 basic information from each plaintiff be provided to 

3 establish standing and the facts necessary to state a 

4 claim. This sort of rule will not only assist the MDL 

5 court in advancing a structure that will help the case 

6 move to settlement, but it will also promote good 

7 management of the litigation. 

8 CHAIR ROSENBERG: So -- 

9 MR. PARTRIDGE: I’ll answer any questions. 

10 CHAIR ROSENBERG: Yeah. So your focus, it 

11 sounds like, is on (c)(4) -- 

12 MR. PARTRIDGE: Yes. 

13 CHAIR ROSENBERG: -- with respect to 

14 fleshing out the factual and legal issues earlier 

15 rather than later. So let me -- 

16 MR. PARTRIDGE: That's a great summary. 

17 Thank you, Judge Rosenberg. That’s exactly what I was 

18 focused on. 

19 CHAIR ROSENBERG: And I assume that 

20 everything else is highly satisfactory to you? 

21 MR. PARTRIDGE: I don’t have enough time to 

22 flesh out the rest of it, but the key focus here is 

23 unsupported claims, absolutely. 

24 CHAIR ROSENBERG: Yeah. Okay. Let’s see if 

25 our reporters have any questions. Rick? 
 153 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 PROFESSOR MARCUS: Mr. Partridge, this is 

2 Rick Marcus if you can hear me. Basically, the same 

3 question I asked the previous witness. Is there any 

4 reason why under (c)(4) you can’t explain to a judge 

5 or the defendant can’t explain to a judge why we need 

6 what we need soon, and, if that’s true, then, if it 

7 can be done, then why isn’t it exactly what you want 

8 instead of something that is a straitjacket maybe for 

9 judges who have cases that don’t fit the mold of some 

10 of the other cases? 

11 MR. PARTRIDGE: Well, I view really (c)(4) 

12 more as a discovery mechanism, the sharing of 

13 information. While I don’t think in order to advance 

14 a claim, whether it’s a standalone independent claim 

15 or an MDL, it’s not a straitjacket, I'd say, 

16 Professor, to require a basic statement of the nature 

17 of the claim, the product involved, and a compensable 

18 injury. 

19 CHAIR ROSENBERG: Why is it viewed more as a 

20 discovery? Subsection (6) speaks about a proposed 

21 plan for discovery. Subsection (4) doesn’t speak 

22 about discovery; it speaks about exchanging 

23 information. You usually don’t talk about exchange 

24 information in the context of discussing discovery. 

25 Subsection (6) is discovery, a plan for discovery. So 
 154 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 why is there confusion over that? 

2 MR. PARTRIDGE: Well, I guess I view 

3 exchanging information more of in the frame of a 

4 discovery obligation than I do the obligation to 

5 actually state a 12(b)(6) claim. I think there should 

6 be an obligation if you’re going to advance a claim to 

7 actually state the basis of the claim, identify the 

8 product used, and identify a compensable injury. 

9 CHAIR ROSENBERG: Okay. Let’s see. Who 

10 else had a question or comment? 

11 MR. PARTRIDGE: And this is not to 

12 handcuff plaintiffs. This is -- what I wanted to 

13 share with you all is how complicated the decision14 making process is for a corporate defendant when there 

15 are a large number of unsupported claims and the 

16 existence of those claims delays and can frustrate 

17 settlement. That’s my point. 

18 CHAIR ROSENBERG: Okay. Thank you. 

19 Judge Proctor? Yeah. 

20 JUDGE PROCTOR: Yeah. This is Proctor. Let 

21 me first thank you for the substantial contributions 

22 you've made in this area for years now. I always 

23 appreciate you speaking and feel like I always take 

24 something helpful away from it. 

25 MR. PARTRIDGE: Thank you, Judge. 
 155 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 JUDGE PROCTOR: I wanted to start there. 

2 Second, I don’t think I’ll surprise you by 

3 asking this question. MDLs are supposed to focus on 

4 global issues, not individual issues. There’s many 

5 things that plaintiffs don’t like about that approach. 

6 Their clients don’t get individual attention with 

7 respect to certain specific, discrete, unique claims 

8 or theories they may present. 

9 How do we navigate a path where we can focus 

10 in on these unsupportable claims, unsupported claims, 

11 but not grind things to a halt in terms of the 

12 transferee judge handling these cases? And I know 

13 you’ve given thought about it. I’ll just be glad to 

14 hear you out on that. 

15 MR. PARTRIDGE: Yeah, I think it is not very 

16 complicated. And, actually, unsupported claims 

17 eventually do get handled in the system. They’re 

18 unfortunately years and years down the road. And I 

19 will tell you having worked for companies and 

20 represented companies that wished to settle MDLs, I 

21 have not represented a single company that once a 

22 decision is made to try to settle an MDL wants it to 

23 be dragged out. They want it to move as quickly as 

24 possible. 

25 So requiring a rule that each individual 
 156 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 claimant needs to state a claim upon which relief can 

2 be granted I don’t think is too significant a burden. 

3 I would rather see it done at an earlier stage in the 

4 case rather than at a later stage in the case. I 

5 think it would save all the parties time, save the 

6 court a heck of a lot of time and management 

7 headaches, and I think, frankly, it would help promote 

8 swift and efficient settlements. That’s my 

9 experience. 

10 CHAIR ROSENBERG: Andrew? 

11 PROFESSOR BRADT: Perhaps I’m belaboring the 

12 obvious, but stating a claim is not the same as 

13 supporting a claim. 

14 MR. PARTRIDGE: Well -- 

15 PROFESSOR BRADT: What’s required is to 

16 state the claim and then the support of the claim 

17 generally comes later in the process. And so I guess 

18 my question for you is, why should we impose an 

19 additional burden on plaintiffs simply because they 

20 may have had the misfortune of being injured in the 

21 same way or allegedly injured in the same way as many 

22 other people that’s not imposed on plaintiffs in one23 off litigation? 

24 MR. PARTRIDGE: You’re not imposing any 

25 burden on MDL plaintiffs that the Federal Rules don’t 
 157 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 already impose on every plaintiff joining a lawsuit. 

2 PROFESSOR BRADT: Is it your experience that 

3 Rule 26(a) on mandatory disclosures are not followed 

4 in these kinds of cases on the plaintiff side and the 

5 defense side? I guess one question is 26(a) seems to 

6 be lost in the shuffle here. And in your many decades 

7 of litigating, I guess I’m wondering the prevalence 

8 with which both plaintiffs and defendants 

9 automatically disclose the kind of information 

10 mandated in 26(a) in MDLs. 

11 MR. PARTRIDGE: You know, my greatest fear 

12 in joining this session today was that I was going to 

13 get a Federal Rule specific question. I would defer 

14 more to my outside counsel to help me answer that 

15 question. I, frankly, have been out of touch with 

16 that level of detail for quite some time. 

17 PROFESSOR BRADT: That’s fine. I’m just 

18 trying to understand in terms of this vetting 

19 situation the degree to which MDLs are/ought to be 

20 treated differently from other kinds of litigation. 

21 And I appreciate your points because I think the 

22 questions you asked and we're discussing in your 

23 testimony are very important to understanding why 

24 there would be a problem with unsupported claims, as 

25 you’ve described it, being parked in the litigation, 
 158 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 even if they’re not ultimately paid out as part of 

2 settlement, that there’s an array of concerns. I’m 

3 just trying to figure out the best way to think about 

4 that. And so I didn’t mean to ambush you with respect 

5 to the rules. 

6 MR. PARTRIDGE: No, that’s okay. If Rule 26 

7 provides a vehicle to solve the problem that I’m 

8 concerned about, it hasn’t been employed correctly 

9 then because it hasn’t solved the problem. 

10 PROFESSOR BRADT: Okay. Thank you. 

11 CHAIR ROSENBERG: Okay. All right. Well, 

12 if there’s anything further -- if there’s nothing 

13 further, thank you, Mr. Partridge. Thank you for 

14 braving the civil procedure world and subjecting 

15 yourself to professorial questions like that. 

16 MR. PARTRIDGE: Thank you. I appreciate 

17 your time. Thank you, Judge. 

18 CHAIR ROSENBERG: Okay. Thank you. 

19 I believe Erin Copeland is not with us. 

20 Just to confirm that, I’ll wait a second. Yeah, I 

21 think due to some weather issues. And I understand 

22 Michael McGlamry is not with us, but Carolyn McGlamry 

23 is with us. 

24 MS. MCGLAMRY: Yes, that’s correct. 

25 CHAIR ROSENBERG: Okay. Great. Okay. Good 
 159 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 to see you. Yeah. 

2 MS. MCGLAMRY: Nice to see you as well. And 

3 thank you all. I know this is a bit unconventional, 

4 but my law partner and my father, Mike McGlamry, was 

5 admitted into the hospital last night and he’s still 

6 there. So, as of this morning, I was asked to present 

7 his comments on his behalf, so I will do my best to do 

8 those justice. 

9 CHAIR ROSENBERG: Well, thank you for doing 

10 that, and we’re sorry to hear about your father. We 

11 hope he’s okay. 

12 MS. MCGLAMRY: Thank you. 

13 So Mike has been with Pope McGlamry in 

14 Atlanta practicing primarily in class action and mass 

15 torts for the last 25 years. He served in MDL 

16 leadership roles and has been appointed as class 

17 counsel over 50 times. His comments and the 

18 information he submitted was directed largely at the 

19 issue of selection of plaintiffs' leadership counsel 

20 in the context of the proposed rule. 

21 So defendants come into the MDL with their 

22 chosen counsel in place and courts do not and 

23 shouldn’t dictate who represents the defendants. And 

24 even though plaintiffs have individual counsel going 

25 into a consolidation, the court has to appoint a 
 160 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 permanent leadership group if that’s going to happen 

2 because, obviously, there’s too many counsel to 

3 represent everyone in those situations. 

4 Potential leadership differ in skill, 

5 history, their, you know, connections or relationships 

6 with opposing counsel, their caseload, you know, 

7 political involvement, reputation, kind of all of 

8 those aspects. And since MDLs typically last a very 

9 long time, several years, you know, it is important to 

10 spend a little bit of time on the front end to put 

11 together a complete, you know, diverse and appropriate 

12 plaintiffs' leadership team. You know, I can’t really 

13 imagine anyone who has served in a permanent MDL 

14 leadership position who, you know, suggest or 

15 recommend that you do it any other way. You’ve got to 

16 put some thought obviously into who’s going to take on 

17 such a role. 

18 Some of the practical problems, until you 

19 have permanent leadership in place, there’s constant 

20 and intense pressure, manipulation, you know, 

21 negotiations, kind of alliance-building that goes on 

22 both in public and behind the scenes. Some of this, 

23 you know, I’ve tried to catch as many other speakers 

24 today as possible and I know some of these things have 

25 been raised before. And so it can create a conflict 
 161 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 and how can you adequately represent the interests of 

2 all plaintiffs if your decisions can affect whether, 

3 you know, you’re selected for permanent leadership 

4 and, you know, do you create, you know, kind of a 

5 dichotomy that’s created there. 

6 An interim position requires the same time, 

7 effort, and expertise as a permanent position yet 

8 requires that lawyer to also lobby and negotiate for a 

9 permanent position at the same time. It also involves 

10 a limited number of people, whereas a permanent 

11 leadership team usually encompasses a larger number of 

12 attorneys, and those individuals eventually appointed 

13 to permanent leadership who are not part of -- you 

14 know, who are not the initial leadership or part of a 

15 smaller initial leadership coordinating or interim 

16 counsel don’t have the benefit of having been 

17 involved, knowing what all has gone on behind the 

18 scenes, what took place, what decisions were made and 

19 why, and that can lead to ultimate disagreement and 

20 kind of lack of consistency in the leadership as the 

21 litigation moves forward. 

22 You have to have permanent leadership on the 

23 front end really if you want the rule to be fair. The 

24 rule contemplates that the court may designate 

25 coordinating counsel before appointing permanent 
 162 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 counsel to assist in preparing a report to the court 

2 before the conference and assist at the conference, 

3 and (c), you know, (1) through (12) and Rule 16 set 

4 out the potential issues to be addressed and/or 

5 decided and, you know, include some of the most 

6 critical decision-making for the litigation. 

7 And I realize that the rule doesn’t require 

8 that all these issues be addressed in the report, but, 

9 obviously, the expectations are that they will or 

10 likely will. Otherwise, there wouldn’t be a need to 

11 identify or address them in the proposed rule. 

12 The other fairness issue, most of (c)(1) 

13 through (12) should involve permanent counsel, but 

14 some issues really demand it. To me, Mike, (c)(6) in 

15 particular addresses a proposed plan of discovery, and 

16 that’s undoubtedly, at least on the plaintiffs' side, 

17 one of the most critical decisions in an MDL. A 

18 proposed plan of discovery can include a lot of 

19 decisions about scope of discovery, bifurcation, 

20 bellwether selection, you know, timing, sequencing of 

21 discovery, scheduling, use of special masters, kind of 

22 all of those pieces, and to do that prior to having 

23 the permanent leadership in place can create issues 

24 with the consistency of leadership over the course of 

25 the litigation. 
 163 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 In every MDL that Mike has been engaged in, 

2 any discovery plan takes months to envision, develop, 

3 put together, organize, you know, get the buy-in and 

4 to obtain that buy-in from the plaintiffs' leadership 

5 and obviously coordinate it with defense counsel and 

6 so, you know, the fairness to plaintiffs in the MDL or 

7 plaintiffs' leadership in empowering coordinating 

8 counsel with the authority to set in place or kind of 

9 dictate that plan of discovery because there’s really 

10 no going back once it’s in place. 

11 And so this is kind of of equal concern for 

12 (c)(5) and (7) for consolidated pleadings and pretrial 

13 motions, which are critical issues that can and should 

14 take, you know, months of leadership to kind of 

15 envision, discuss, draft, negotiate between the 

16 parties. And the same is also true for (c)(9) in 

17 addressing settlement, which I know that’s been a 

18 topic of conversation for the last several people, 

19 and, you know, there is no -- 

20 MS. BRUFF: Ms. McGlamry, I’m sorry to 

21 interrupt. I’m so sorry to interrupt, and I want to 

22 reiterate what Judge Rosenberg said earlier. Thank 

23 you so much for being here. If it’s okay with you, 

24 I’m going to check with her and see if she’d like to 

25 open the floor for questions. 
 164 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 MS. MCGLAMRY: Okay. 

2 CHAIR ROSENBERG: As long as you’ve covered 

3 substantively the topics and, of course, we’ve read 

4 the comments in the proposed summary of the testimony. 

5 So let me see if any of our reporters have 

6 any questions for you. Let’s see. Rick doesn’t and 

7 Andrew doesn’t. Okay. And then any Committee 

8 members? Okay. So why don’t we give you back a 

9 minute or two to make any final remarks and make sure 

10 you’ve been able to cover everything. 

11 MS. MCGLAMRY: All right. Thank you. I 

12 appreciate that. I would, of course, try and answer 

13 any questions as best I could, but I can’t guarantee 

14 that I would have all of his knowledge. 

15 CHAIR ROSENBERG: I’m sure you would do just 

16 fine. No worries about that. 

17 MS. MCGLAMRY: Maybe. 

18 So I guess, to kind of wrap it all up, you 

19 know, whether a case is ripe to begin settlement 

20 discussions, you know, the act and kind of art of 

21 settlement, you know, there are a lot of nuanced, 

22 complicated kind of decisions that go into that and, 

23 of course, have heard what you all said, that it’s 

24 really just whether those discussions can happen and 

25 that’s obviously just one of 12 points. But I think 
 165 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 it’s just kind of the general issue of, if it goes too 

2 far down that path without involving permanent 

3 leadership counsel for plaintiffs, that that’s a 

4 disadvantage of not having permanent leadership in 

5 place. 

6 And so, to sum it all up, you know, agree 

7 that it’s proper and makes sense to have a framework 

8 for an MDL transferee court in managing an MDL. It’s 

9 a long process, it deserves that. But, you know, 

10 there are some of the aspects of this rule that, you 

11 know, could create issues on the plaintiffs' side with 

12 having interim counsel go too far with some of the 

13 items, you know, espoused in 16.1. 

14 So thank you for letting me make the comment 

15 on Mike’s behalf. I do appreciate it and the lack of 

16 too many questions that I may or may not be able to 

17 answer, thank you. 

18 CHAIR ROSENBERG: Well, we’re very 

19 appreciative that you stood in for your father, and 

20 please do again convey our best wishes to him. So 

21 thank you so much for your helpful comments. 

22 MS. MCGLAMRY: Thank you so much. 

23 CHAIR ROSENBERG: Okay. So we’re going to 

24 hear next from Ms. Gorshe on 16.1 as well. 

25 MS. GORSHE: Good afternoon. I’d like to 
 166 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 thank the Committee for this opportunity to be heard 

2 on Rule 16.1. I do support the proposed rule as a 

3 method to provide guidance to the courts and the 

4 parties, and I appreciate the considerable effort by 

5 the Committee to improve the MDL process through the 

6 implementation of a rule. 

7 By way of background, I’ve been practicing 

8 for 25 years, of which just over 20 of those years 

9 have been primarily in the mass tort arena related to 

10 pharmaceuticals and medical device litigation. Over 

11 the course of those years, I’ve relied on the Manual 

12 for Complex Litigation or in most recent years in the 

13 annotated manual that’s published. 

14 During this time frame, I’ve had the 

15 opportunity to participate at varying leadership or 

16 non-leadership levels in consolidated mass torts. 

17 Most recently, I was appointed by Judge Conte as part 

18 of the three-member settlement committee holding the 

19 title of Vice Chair. 

20 First, I wholeheartedly agree that an 

21 initial MDL management conference should be scheduled 

22 in the transferee court as soon as practicable. 

23 However, Rule 16.1(b) contemplates designating a 

24 coordinating counsel in order to jump-start the 

25 litigation. The coordinating counsel is to prepare an 
 167 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 initial report for the court with coordination with 

2 the defense counsel. 

3 However, as the comment reflects, the 

4 contemplation of a coordinating counsel is a 

5 plaintiff-side issue and thus is creating a two-step 

6 approach to the leadership of the mass tort. The 

7 interim coordinating counsel may not be appointed to 

8 the final leadership. We saw that in the CPAP 

9 litigation. Only one member of the interim counsel 

10 was on the final leadership in a lead counsel role, 

11 although not all members of the interim counsel were 

12 appointed to the overall leadership group. 

13 Leadership in the mass tort arena is 

14 important and it’s best served when there exists a 

15 continuity related to who is tasked with the overall 

16 representation of the plaintiffs. There’s strategic 

17 planning that often is occurring by coordinating 

18 plaintiff groups in order to advance the litigation. 

19 We want the initial rules and orders that are 

20 implemented not to have to be revisited later after 

21 final leadership is approved. The rule 

22 contemplates -- or the comments provide the court with 

23 great guidance on how leadership pay be appointed. 

24 However, when it comes to coordinating counsel, it 

25 lacks that same instruction. 
 168 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 When plaintiffs are consolidated in a mass 

2 tort, the leadership may be formed in a number of 

3 manners. The court can chose a structure that they 

4 find most advantageous and efficient for the 

5 particular litigation. Consolidations may have tens 

6 of thousands of plaintiffs involved or just several 

7 hundred. Conversely, that means there could be 

8 hundreds of law firms in one litigation and, in the 

9 next litigation, it is a small number of law firms 

10 that are participating. 

11 Going on with the contemplation of the 

12 coordinating counsel, in this context, they are 

13 working with defense counsel to develop what is 

14 initially going to be presented to the court. Rule 16 

15 has a number of items for that initial conference that 

16 would be addressed, which include discovery, 

17 settlement, as well as the schedule for pretrial 

18 motions, consolidated pleadings. Many of those items 

19 are best addressed once final leadership is appointed 

20 by the court so that there is that continuity of the 

21 case that is progressing. 

22 Further, part of that first report also 

23 contemplates how the leadership is set up. I dare say 

24 that there’s an implication that defense counsel has 

25 the opportunity to speak how the leadership structure 
 169 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 is set up. As a plaintiff’s counsel, I do not have 

2 the opportunity to tell a defendant whom represents 

3 them. Likewise, I would prefer that defense counsel, 

4 although I do get along with a number of defense 

5 counsel, I would rather they not have a say in who is 

6 in leadership. I’d rather have that be determined by 

7 the judge as presented who is involved in the case and 

8 familiar with the litigations and the nuances of the 

9 litigation and quite perhaps who represents the 

10 greater numbers of plaintiffs within that litigation. 

11 The rule also contemplates these are all 

12 front-end items for that first status conference. 

13 Just like an individual case, because I do also 

14 represent individual cases, there are a number of 

15 pretrial orders that -- or I shouldn’t say pretrial 

16 orders -- status conferences during those individual 

17 cases as the case develops where we apprise the court. 

18 That also happens in an MDL. Litigation flows and 

19 changes over the course of the litigation and there 

20 needs to be, when leadership counsel is appointed on 

21 the plaintiffs' side and they’re able to coordinate 

22 throughout the litigation with defense counsel, there 

23 is a continuity so that later on those matters, such 

24 as discovery, that have been thought out can be 

25 addressed at a second or third CMC before the court. 
 170 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 MS. BRUFF: Ms. Gorshe, I apologize for 

2 interrupting. It might be a good time to, if you can 

3 summarize the rest of your testimony, we can give it 

4 back to Judge Rosenberg for questions. 

5 MS. GORSHE: In summary, I agree that the 

6 rule is important and there are pieces of the rule, 

7 but some of the pieces are just a little premature 

8 prior to leadership counsel being addressed. 

9 CHAIR ROSENBERG: Okay. All right. Thank 

10 you so much. 

11 From our reporters? 

12 PROFESSOR MARCUS: Thank you. I want to 

13 follow up on something we just heard from, I’ll call 

14 it, the defense side. You’re on the plaintiffs' side 

15 in mass tort litigation. I’m guessing that you gather 

16 information regarding your clients as you are 

17 preparing to file suit. I’m wondering, would that put 

18 you in a position to provide the kind of information 

19 that Mr. Partridge wants? And what are the reasons 

20 why you would argue you shouldn’t have to provide that 

21 to him? (c)(4) says the judge can direct how to 

22 handle these things. What are the reasons you might 

23 offer to a judge on why you shouldn’t provide it to 

24 the other side, assuming you’ve gathered it before 

25 filing your lawsuit? 
 171 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 MS. GORSHE: Okay. First, let 

2 me -- hopefully, I get all these addressed, Mr. 

3 Marcus. I do investigate a claim before I file it. 

4 At times, there are times that I do need to file a 

5 case prior to obtaining medical records on behalf of a 

6 plaintiff because of a impending statute and I don’t 

7 want to run afoul of the statute of limitations in a 

8 particular state. So I will file based on the 

9 plaintiff’s representations to me early on in the 

10 litigation while I’m still collecting. 

11 And let’s be clear, I do collect medical 

12 records early on, but not always is there a response 

13 from a pharmacy or a doctor’s office in the manner 

14 that I would like them to produce to me so that I can 

15 have all of that at the time the complaint is filed. 

16 Addressing that, as soon as an MDL is formed 

17 is not always efficient because oftentimes an MDL is 

18 formed very expeditiously by the JPML and records may 

19 still be collected. I believe it’s important to come 

20 up with a process for sharing that information and I 

21 support developing a process for that information, but 

22 need it be addressed at the first case management 

23 conference? I don’t think so. I think it could wait 

24 until leadership is appointed because there’s a 

25 multitude of ways that it can be shared with the 
 172 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 defendant. Does that answer your question? 

2 PROFESSOR MARCUS: Yes, thank you. 

3 CHAIR ROSENBERG: Any other comments or 

4 questions? From any of our members? 

5 Okay. All right. Well, thank you so much 

6 for your time and for your comments. 

7 MS. GORSHE: Thank you. 

8 CHAIR ROSENBERG: We will next hear from Ms. 

9 Hampton regarding 16.1. 

10 MS. HAMPTON: Thank you, Judge Rosenberg, 

11 and thank you to the Committee. My name is Rachel 

12 Hampton. I’m an associate at Sidley Austin. I’m here 

13 to talk about the proposed Rule 16.1. 

14 I’m offering my perspective as someone who’s 

15 more junior in their career and as someone who’s less 

16 experienced with MDLs. I became a member of the Bar 

17 in 2017. I clerked for a federal district court judge 

18 and an appellate judge, and then I joined Sidley full 

19 time in 2019. 

20 Nonetheless, I’ve had the opportunity to 

21 study MDLs and work on MDLs both for my corporate 

22 clients and through my participation in LCJ. And, you 

23 know, the chance to participate today with the 

24 Advisory Committee for a civil procedure nerd like 

25 myself is just a dream, so I appreciate the 
 173 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 opportunity to speak here today. 

2 I’d like to make two points. First is the 

3 importance of rules particularly to new litigants and 

4 then second is how a junior attorney may read the 

5 proposed Rule 16.1. So turning to my first point, the 

6 importance of rules particularly to new litigants, 

7 this is probably an obvious point. We all understand 

8 that the Federal Rules guide litigation and govern the 

9 profession, but we may forget or undervalue the 

10 importance of rules to new litigants. 

11 You know, I remember learning in my first 

12 year of law school the way in which civil rules work, 

13 and that knowledge has empowered me to really jump 

14 into my cases and manage my caseload from the get-go 

15 because it sets the expectations and helps me predict 

16 what could happen in cases. 

17 So I’ve been surprised as I learn more and 

18 get more exposure to MDLs that this sort of road map 

19 in the rules does not exist and, it’s only been 

20 through practice and for me through my work with Alan 

21 Rothman, who is testifying next, that I’ve learned 

22 really anything about MDLs, and so I do think the work 

23 of this Committee is important for that reason. 

24 But that does bring me to my next point, 

25 which is how a junior attorney may read the proposed 
 174 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 Rule 16.1. And before I do that, I’ll just say, you 

2 know, in reading the proposed rule and hearing members 

3 of the Bar express concern over some of the enumerated 

4 sub-topics, I do think the Committee should exercise 

5 some caution in its use of "may" and including sub6 topics that the Bar does not agree with, you know, I 

7 think, for example, in highlighting settlement because 

8 I think including certain enumerated topics will mean 

9 those issues work their way into more cases than 

10 intended and, indeed, become the practice in all MDLs. 

11 And I think, in reviewing the transcripts 

12 and comments, one thing that stuck out to me is there 

13 seems to be a sort of suggestion from the Committee 

14 and those submitting comments that, again, these are 

15 all suggestions and the parties can sort of contract 

16 around enumerated topics as they litigate cases. But 

17 my perspective is that this codifies insider baseball 

18 into the rules and that, again, including certain 

19 enumerated topics in the rule will mean those topics 

20 become the practice. And so this is where I think the 

21 junior attorney experience comes in. 

22 So, as a junior attorney, if I had to look 

23 at the rule and be the first-round drafter on a status 

24 report, for example, I might go down the list and 

25 draft something on each topic. And a more informed 
 175 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 practitioner might stop me and say, you know, no, we 

2 don’t want to get into this topic for X, Y, Z reasons, 

3 strategic or otherwise. But, for me, if it’s in the 

4 rule and for someone who doesn’t know better, I think 

5 there’s going to be a temptation to include it for the 

6 sake of including it, right? We’re taught in law 

7 school to be thorough and check all boxes. 

8 You know, similarly, I clerked for a federal 

9 judge in the district court, and if I’m a law clerk 

10 and I’m helping the court as to what to do during the 

11 initial conference and assuming we’re both new to 

12 MDLs, I might say, you know, Judge, there’s 16.1 and 

13 the parties didn’t address everything in the rule, so 

14 you should ask them about it, and that might force the 

15 parties to get into something they might not want to, 

16 and so you can see how these sort of clues aren’t 

17 going to be just guideposts. They might push the 

18 practice in that direction. So I think put 

19 differently, it'll put parties on the defensive to 

20 explain why not to do something the way the rule 

21 prescribes. So, again, why I think the rules are 

22 important, I think it would also be important to 

23 include a very carefully prescribed set of topics. 

24 Last point I’ll say is, you know, similarly, 

25 my colleagues have expressed concerns about early 
 176 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 vetting, and I do think it should give the Committee 

2 some pause if the rule doesn’t address something that 

3 should be addressed because I think similarly, if it’s 

4 not in the rule, it won’t get addressed or the same 

5 attention because, in that situation, the thumb's put 

6 on the scale in a different direction and it’s going 

7 to require you as the attorney to go on the offensive 

8 there. 

9 So, with that, I welcome the Committee’s 

10 questions, and I really thank you for your time. 

11 CHAIR ROSENBERG: Well, thank you, 

12 Ms. Hampton. It was very helpful, and we often have 

13 asked the question when we have been drafting the rule 

14 what would a new attorney say or what would a new 

15 judge say, so hearing from someone who has less 

16 experience, although you were very articulate and well 

17 versed, is most appreciated. So thank you. 

18 Andrew? 

19 PROFESSOR BRADT: Thank you very much. And 

20 as somebody who was a law firm associate not too long 

21 ago and who remains a civil procedure nerd, I both 

22 empathize and appreciate your perspective here, so 

23 thank you for being here. 

24 I guess my question is a broad one, and that 

25 is, you know, you referred to MDL being a kind of area 
 177 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 where the Federal Rules don’t provide the sort of road 

2 map that you would like to see or that you think the 

3 Federal Rules provide in non-MDL cases. 

4 I guess my question, though, is that even if 

5 the rule is somewhat overinclusive with respect to 

6 some cases, doesn’t the rule go some direction towards 

7 taking what you called as inside baseball and making 

8 it a little more apparent? Absent the rule, you’re 

9 kind of left even more at sea to look at the manual or 

10 find best practices guides. For somebody who’s a 

11 young or mid-level associate, isn’t the existence of 

12 this rule and the list of what’s in it an improvement 

13 with respect to giving you some sense of 

14 predictability? 

15 MS. HAMPTON: I agree with you, Professor 

16 Bradt, and I think, you know, with one caveat and I 

17 think, again, that having the road map is super 

18 helpful. I think, again, what has struck me in 

19 reading the comments and listening to the transcripts 

20 is there’s sort of -- you know, I view you all as the 

21 insider baseball and, you know, sort of carving out 

22 exceptions as we speak like, oh, maybe this language, 

23 you know, doesn’t quite say that, but can’t you argue 

24 that. 

25 And so, you know, those little, you know, 
 178 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 trade-offs and discussions I think aren’t 

2 getting -- or to the extent they’re not codified in 

3 the rule themselves, I think that’s where I’m just 

4 identifying, you know, that'll be lost to a new 

5 litigant. But I agree, having a road map is helpful. 

6 CHAIR ROSENBERG: And Rick? 

7 PROFESSOR MARCUS: I think this is in 

8 keeping with what Andrew just said, but as you speak 

9 of the rule -- and this is a long-term interest of 

10 mine -- do you read the Committee note as well, and in 

11 this instance, does it provide context and refinement 

12 that seems to you to help the new initiate figure out 

13 what to do under the rule? 

14 MS. HAMPTON: I think, for better or worse, 

15 the Committee notes get somewhat disregarded, right, 

16 when you’re looking right off the bat at the rule. 

17 The text of the rule -- 

18 CHAIR ROSENBERG: Oh, that is terrible news 

19 for Professor Marcus. You might want to dial that 

20 back. 

21 MS. HAMPTON: Well, I will say, of course, 

22 you know, to the extent we’re debating, you know, 

23 certain provisions and then trying to carve out 

24 exceptions, you know, the guidance that’s provided can 

25 be helpful. But, again, and I’m, you know, trying to 
 179 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 think of an example, but, you know, I think these 

2 discussions we’re having through these hearings, you 

3 know, not all those discussions are apparent in these 

4 Committee notes. And so, again, while the Committee 

5 notes definitely provide context and exceptions and 

6 ways to think through the issues, you know, I think 

7 it’s definitely helpful to make sure they’re thorough 

8 on all aspects. 

9 CHAIR ROSENBERG: Anyone else? Okay. Thank 

10 you so much, Ms. Hampton. We really appreciate your 

11 perspective. 

12 MS. HAMPTON: Thank you. 

13 CHAIR ROSENBERG: Thank you. 

14 And from the same firm, I guess that was 

15 coincidental in terms of how we organized everybody, 

16 but you’re going back to back. Alan Rothman, who will 

17 also speak on 16.1. 

18 MR. ROTHMAN: Thank you, Your Honor. And I 

19 want to thank the Committee for the opportunity for 

20 this discussion today and for all its work. I think I 

21 would begin with wholeheartedly endorsing Judge 

22 Rosenberg’s view of Ms. Hampton as both articulate and 

23 well versed. She’s extremely modest as well. 

24 But my name is Alan Rothman. I’m a partner 

25 at Sidley Austin. I’ve had the experience over the 
 180 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 past two decades and maybe a privilege to be involved 

2 in more than two dozen MDL proceedings and a wide 

3 variety of industries for the defense. My remarks 

4 today will focus, as Judge Rosenberg mentioned, on 

5 16.1(c)(4), but, again, specifically, as has been 

6 addressed by some others, I think I can say this this 

7 afternoon for those on this time zone is addressing 

8 the prompt for MDL judges with respect to the basic 

9 information that should be addressed at the outset of 

10 an MDL proceeding in (c)(4). 

11 I want to be mindful and try not to rehash 

12 the comments that have been said before. I want to 

13 try to be reactive. I have over the course literally 

14 over the last hour or two tried to organize my remarks 

15 to helpfully be responsive and reactive to what I view 

16 as six categories of questions. Professor Marcus 

17 asked why is an exchange of information in the 

18 proposed rule not sufficient, to which Judge Rosenberg 

19 also commented why is it different than -- it is 

20 different than subsection (6) or should be regarded as 

21 different. Judge Proctor mentioned making sure that 

22 litigation should not grind to a halt. Professor 

23 Bradt asked the civil procedure question with respect 

24 to Rule 26 and also why is this different than one-off 

25 litigation. 
 181 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 We’ve also discussed over the course of the 

2 day and throughout how do we justify a rule in a 

3 limited number of cases, why is use of information 

4 about use and injury insufficient, and, finally, the 

5 ultimate question Professor Bradt which has mentioned 

6 about empirical data relevance to MDL proceedings that 

7 would frame it. 

8 Just to try to frame this, and I’ve been 

9 thinking long and hard over the past few weeks, what 

10 can I add to the discourse that hasn’t already been 

11 addressed. My only analogy that I could hopefully 

12 turn to was baseball. I know we talked a little bit 

13 in the last colloquy about baseball. I am not going 

14 to talk about Field of Dreams and about, if you build 

15 it, they will come. The agenda books are replete from 

16 the very almost outset with that reference. 

17 But I want to try to frame what we’re really 

18 talking about when we talk about exchange of 

19 information, why it’s critical to state what exactly 

20 does that mean in the rule. What comes to mind and, 

21 again, this may be a little bit of yesteryear of 

22 baseball, but thinking about the new season is how 

23 people would gain entry into a stadium. There was a 

24 ticket. There were two basic pieces of information. 

25 Not a QSR code, a hard-copy ticket that had two basic 
 182 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 pieces of information: are you at the right stadium 

2 and do you have the right, believe it or not, home 

3 game number, which was actually on if this is -- if 

4 it’s April, so it probably says in those days, I guess 

5 it was one, two, three, four, five, depending where it 

6 was. 

7 People would wait online for a member of the 

8 stadium personnel at the turnstile to actually look at 

9 that ticket with only making sure that that basic 

10 information was there, stadium, game number. I don’t 

11 care where you’re sitting. Are you sitting in a box 

12 seat in Section 110, in Seat 22? That’s not what’s 

13 there. Once you have satisfied that limited 

14 information, you come into the stadium, you then 

15 figure out with the usher where am I supposed to sit, 

16 do I get to sit up front, do I get to move along, 

17 where will I move around within the game. 

18 I think it’s an apt analogy because what 

19 we’re talking about here is (c)(4), and at the outset 

20 of an MDL proceeding, that could have tens of 

21 thousands of individuals, is do you have that basic 

22 information that’s in the possession of plaintiffs, 

23 product used, product exposed to, that’s one, exposure 

24 use we'll call one, and a subsequent injury. That’s 

25 it. Limited exchanged information. When were you 
 183 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 injured? Was it possibly caused by the product 

2 exactly? Is there an SOL issue? That you’ll deal 

3 with in PFS discovery as you move along. That’s why 

4 it’s there. 

5 I know my time is nearing its close, so I 

6 want to try to address as many of the issues I flagged 

7 early on in these remarks, but certainly welcome 

8 questions from the Committee or if the Committee wants 

9 to address those or any others. 

10 I think the most important point to keep in 

11 mind is Professor Bradt’s point about how is this 

12 different than one-off litigation. I would submit, as 

13 the Supreme Court made clear in Gelboim, you really 

14 have to view an MDL as individual actions and those 

15 individual actions, how would I litigate an individual 

16 action. Most likely at the outset you will know 

17 whether the product was used by the plaintiff, whether 

18 the plaintiff sustained a subsequent injury. 

19 Again, I want to be mindful if the Committee 

20 would prefer that I go through some of those questions 

21 or the Committee has other questions, happy to defer 

22 to the Committee. 

23 CHAIR ROSENBERG: Okay. Thank you. Let me 

24 turn it over to our reporters. I’m just going to 

25 clarify. So Andrew’s last name is Bradt, so it’s 
 184 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 Professor Bradt. 

2 MR. ROTHMAN: Professor Bradt. 

3 CHAIR ROSENBERG: Yeah. So just so 

4 everybody knows that. 

5 MR. ROTHMAN: I apologize, Andrew. 

6 CHAIR ROSENBERG: So Professor Marcus. 

7 PROFESSOR MARCUS: Let me follow up on where 

8 you end -- can you hear me? 

9 MR. ROTHMAN: Yes, I can. 

10 PROFESSOR MARCUS: Okay. I’m following up 

11 on where you ended. In an individual action, you 

12 would know those things right up front. They’re not 

13 in the complaint, right? We don’t require that 

14 medical records or other things of that character be 

15 attached to a complaint, so when and how would you get 

16 them in an individual action? And this goes back to 

17 Andrew’s question in part about initial disclosure 

18 under Rule 26(a)(1). That’s the pull-a-rule-out-of19 your-pocket example because it doesn’t sound to me 

20 from what I know about individual litigation that 

21 you’ve got to put that right in the hopper at the 

22 beginning. And I’m wondering, MDLs are different 

23 because there are a whole lot of them or a whole lot 

24 of claimants or in MDLs, we should make those -- we 

25 make everybody put that in the hopper, even though we 
 185 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 don’t in individual litigation. 

2 MR. ROTHMAN: Yes, Professor Marcus, the 

3 suggestion is not that it go into the complaint, no 

4 different than any other litigation, but that at a 

5 reasonable time in looking at the Committee’s proposed 

6 Rule (c)(4), the how and when, that’s discretionary. 

7 Is it 60 days, is it 70 days, is it two months, but it 

8 should be at the beginning. 

9 But the focus is the exchange of information 

10 because, in a one-off case, I can pose the question to 

11 counsel right up front on a one-to-one basis and say, 

12 you really want to pursue this case, you have to show 

13 me a chit, an insurance record, something that shows 

14 that the individual took the product. Not asking for 

15 it in the complaint. Show me an insurance record, a 

16 doctor note, something that sustained an injury. It 

17 would make no sense to proceed, but because there are 

18 so many cases, that’s where this issue has become, 

19 well, exactly when do you provide it, but we have to 

20 come back to the Gelboim model, and to answer it, I 

21 apologize again, Professor Bradt, is the Rule 26 

22 question. What happens in an MDL? In my experience, 

23 those are either waived by the parties, dispensed of, 

24 or dealt with in a PFS in most of my experience. 

25 CHAIR ROSENBERG: Andrew? 
 186 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 PROFESSOR BRADT: Thank you for addressing 

2 this question. And thank you for your -- I'm a -- as 

3 a self-described civil procedure nerd, I also 

4 appreciate your efforts on a word from the panel. 

5 MR. ROTHMAN: Thank you. 

6 PROFESSOR BRADT: Setting that aside, 

7 though, I’ve heard a lot of complaints from folks 

8 typically on the defense side that plaintiffs are not 

9 exchanging information early. I’ve not heard anybody 

10 say that defendants in these cases are engaging in 

11 pretrial disclosure under Rule 26(a), and I’ve been 

12 led to understand that one reason for that is the 

13 defendants would prefer to wait until the discovery 

14 process to reveal the information that’s going to 

15 ultimately become relevant in the litigation. 

16 And so I guess the question is, is what’s 

17 good for the goose good for the gander here and are 

18 defendants participating in the exchange of 

19 information contemplated in a one-off litigation, or 

20 are they too able to hold back in MDL cases? 

21 MR. ROTHMAN: So thank you for that question 

22 and I appreciate that. I think the answer to that 

23 question is there is different timing, and let me 

24 explain why the timing is different, because what 

25 we’re talking again in (c)(4) is this early very, very 
 187 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 limited information that will inform the parties as to 

2 whether or not this case can proceed further. Will it 

3 backlog the system that was discussed earlier today if 

4 there are too many plaintiffs and some, even a few, do 

5 not have the basic information. That creates a chain 

6 reaction in the system because there’s a bellwether 

7 process whereby bellwethers need to be selected. And 

8 if this individual did not even ingest the product or 

9 did not sustain a subsequent injury, at that point, it 

10 has to come out of the system because the other 10,000 

11 who are trying to find out if they’re going to be in 

12 the box seat or in the mezzanine or some other section 

13 will not have their opportunity. 

14 Will defendants provide that information 

15 about claims in the form of a defense fact sheet, 

16 which is commonly employed in an MDL? That is in the 

17 bucket of discovery because (c)(4) again -- I know it 

18 sounds one-sided because I will be candid with the 

19 Committee, it has to be one-sided to address this 

20 basic issue of we'll call it unsupportable claims, 

21 claim sufficiency, what is bottlenecking the system so 

22 that it imposes costs on clerks of the court, that 

23 they have to deal with complaints, with notices. It 

24 clutters email boxes when someone files a case because 

25 there are notices of appearance. There are withdrawal 
 188 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 of counsel. There are Rule 25 suggestions, again, all 

2 of it civil procedure harbors. So that’s my answer. 

3 There’s a time and place, but that’s not the -- 

4 PROFESSOR BRADT: Have you ever been in an 

5 MDL where a case was selected for a bellwether that 

6 the plaintiff had fell into this category of never 

7 having taken -- never having used the product or 

8 something like that? 

9 MR. ROTHMAN: Never having been exposed to a 

10 product where there’s no evidence as it moves along 

11 that it was a particular defendant’s product, that has 

12 happened. Sometimes it happens in the context of 

13 generic versus brand name MDLs. It could happen. 

14 PROFESSOR BRADT: But those aren’t the kinds 

15 of cases that we’re talking about where the person has 

16 just never taken the product and is showing up because 

17 there’s an MDL? 

18 MR. ROTHMAN: No. Correct. But there are 

19 some cases where that will happen where, again, maybe 

20 it was the issue dealt -- I believe it was addressed 

21 this afternoon where plaintiffs' counsel files a case 

22 and, yes, the time of the complaint to avoid, whether 

23 it’s an SOL or otherwise, doesn’t have that piece of 

24 information. But remember, under the JPML process, it 

25 takes at least 45 to 60 days from the time that MDL 
 189 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 petition is filed until an MDL is created, there’s 

2 plenty of time to get that basic information about 

3 whether it’s there, and sometimes it turns out that, 

4 yes, and, again, defense bar is trying to assemble 

5 some figures and some empirical data. But, yes, the 

6 plaintiff simply just did not ingest the defendant’s 

7 product and was not exposed to the defendant’s 

8 product. That does happen in my experience. 

9 CHAIR ROSENBERG: Any further comments or 

10 questions? 

11 Okay. Thank you so much, Mr. Rothman. 

12 MR. ROTHMAN: Thank you. 

13 CHAIR ROSENBERG: We will here now from 

14 Mr. Cohen, and he is going to address privilege logs. 

15 MR. COHEN: Thank you. My name is Dave 

16 Cohen. I’m a partner in the firm Reed Smith, and I’ll 

17 give you a little bit of background about myself and 

18 then quickly get to the issues. 

19 I’ve had the privilege of practicing law for 

20 40 years now since I graduated from law school in 1983 

21 and I’ve been a litigator that whole time, so I’ve 

22 seen great metamorphosis in discovery. When I was a 

23 young associate, I was working on cases looking at 

24 hard-copy paper documents and there was no such thing 

25 as email. And I watched the age of e-discovery coming 
 190 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 along. In 2005, I co-founded an e-discovery practice 

2 group at K&L Gates. It’s now K&L Gates. And since 

3 2012, I’ve been running an e-discovery practice group 

4 at Reed Smith. We currently have 80 attorneys, of 

5 whom about 60 work full time on discovery in terms of 

6 document review and preparing privilege logs. And 

7 I’ve been doing this for a while now, mostly focusing 

8 on e-discovery, so I have a lot of experience with 

9 privilege logs. 

10 Three main points that I want to emphasize 

11 today, one is that for big cases, the existing system 

12 does not work very well. We spend a small 

13 fortune -- I should say waste a small fortune -- in 

14 creating privilege logs in large document cases. It 

15 costs our clients a lot of money. My back-of-the16 envelope estimate is that we probably spent over $4 

17 million last year or charged clients over $4 million 

18 for privilege log preparation, and none of that 

19 advanced the resolution of any of the matters that our 

20 clients had worked on, so the system's broken. And 

21 I’ll get into more detail on all three of these 

22 points, but that’s point one. 

23 Point two is that here are alternatives to 

24 the present means of privilege logging which could 

25 save a lot of money without hurting the administration 
 191 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 of justice at all. In fact, it would improve the 

2 administration of justice. 

3 And my third point is that the world is 

4 changing technologically with artificial intelligence 

5 and the ability of AI to help identify privilege 

6 documents, and we need to be prepared for that change. 

7 I think all three of these points support 

8 the amendment that is being considered, but I would 

9 say, if anything, it does not go far enough. I was 

10 pleased when the 1993 amendments came along and the 

11 rules comment to the new amendments made the point 

12 that while privilege logs might be appropriate in 

13 cases with only a few documents, in larger cases, they 

14 may be unduly burdensome. That was 1993, and yet 

15 judges completely ignore that, and the working 

16 assumption going into any big case is that the 

17 withholding party will prepare document-by-document 

18 privilege logs regardless of the fact that that costs 

19 a small fortune in particular cases and doesn’t really 

20 advance resolutions. 

21 And I know I’ve seen a lot of the comments 

22 that have been submitted by members of the plaintiffs 

23 bar or usually the requesting parties. They don’t 

24 really see this burden. They don’t see how much money 

25 we’re spending because, under the existing system, 
 192 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 it’s always the producing party that spends the money. 

2 But these detailed logs that we’re spending 

3 all this money preparing don’t really help. In some 

4 ways, they make the problem worse. I am aware that 

5 sometimes clients overdesignate privileged documents, 

6 and one reason for that is there’s so many of them and 

7 there’s so much time that goes into it, we have to go 

8 out and hire temp attorneys to go through 50 documents 

9 an hour on relevance and privilege and they make quick 

10 decisions. They’re not the most highly trained 

11 attorneys. The idea is, oh, we’ve got to get this 

12 done. We’ve got to make these privilege 

13 determinations. We’ve got to get the log out. That’s 

14 where the money is spent instead of focusing on what’s 

15 really important, which is really making sure that the 

16 decisions are made accurately, and most of those 

17 decisions can be made at a category level. 

18 There’s little to be gained in logging 

19 documents that are already being produced in redacted 

20 form because parties are already getting that 

21 information. There’s little to be gained in trying to 

22 write individualized descriptions for every document 

23 when metadata logs which can be prepared for close to 

24 free give the other side lots of bases for looking at 

25 documents. And there’s little to be gained in making 
 193 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 repetitive entries of email chains or these days Teams 

2 messages. That’s a lot of wasted time and effort. 

3 And having more communication between the 

4 parties, earlier communication, and looking at 

5 creative alternatives to traditional logs is really 

6 the way to go, so we applaud the proposed amendment 

7 and, if anything, maybe it doesn’t go far enough. 

8 So let me stop there just in case anybody 

9 has any time or any questions that I can address. 

10 CHAIR ROSENBERG: Rick? 

11 PROFESSOR MARCUS: I’d like to follow up 

12 with something that invites you with your very 

13 extensive experience to reflect on things we’ve been 

14 hearing. Some of them are from your, I’ll call it 

15 your side that there is a huge amount of effort spent 

16 to very little effectiveness. Part of the reaction 

17 one might have is, well, there’s two tasks. Task 

18 number one, identify the items among responsive items 

19 that can arguably be withheld on grounds of privilege, 

20 and then task number two is make a list or a log of 

21 them in one way or another. And is it true that task 

22 number one is a snap and task number two is the big 

23 problem? 

24 From the other side, often there are 

25 assertions that some on defense companies CC: 
 194 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 somebody, the assistant general counsel, on every 

2 communication and so there is what you might call on 

3 both sides mud-slinging in the sense that some on the 

4 defense side say, oh, the plaintiffs are just using 

5 this as a club to make us pay up and settle a case for 

6 big bucks. How should we approach this since we’re 

7 sitting here without inside information on either 

8 side, inside baseball or anything else? 

9 MR. COHEN: Right. So, yeah, it's certainly 

10 not true that all the time goes into privilege logs. 

11 More time goes into making the privilege 

12 determinations. In today’s world, we have to look at 

13 them on a document-by-document basis. But then, once 

14 you’ve made a privilege determination, a logging 

15 process could be almost free if we were allowed to 

16 rely on metadata logs in the first instance. And that 

17 doesn’t stop the other side from discovering if calls 

18 have been made improperly. You know, I think that in 

19 exchange for not having to prepare more detailed logs 

20 than metadata logs that the producing party should be 

21 willing to sit down with the opposing party, pick some 

22 documents off the log. Let’s pull them out, talk 

23 about them in detail. Let’s make sure that we’re 

24 making these decisions correctly, make sure you have 

25 confidence in that. 
 195 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 You know, we know with the magic of sampling 

2 large populations of documents you don’t have to 

3 sample that many to determine if these judgments have 

4 been made properly or not. You know, I took some 

5 statistics courses and have used some statistical 

6 experts, and even with an infinite population, if 

7 you get -- 

8 PROFESSOR MARCUS: Can I interrupt -- 

9 MR. COHEN: I’m sorry? 

10 PROFESSOR MARCUS: -- you with that point? 

11 Can I interrupt just with a follow-up question? 

12 MR. COHEN: Sure. Yeah. 

13 PROFESSOR MARCUS: So it sounds to me like 

14 you're in favor of some kind of rolling process of 

15 interaction concerning designations that have occurred 

16 so that you can build on that information as you move 

17 forward through completing discovery. Does that sound 

18 like a good idea? 

19 MR. COHEN: It sounds like a good idea to 

20 me. I like the early and continuing attention to 

21 privilege issues because you don’t want to get to the 

22 end of the road and find out that there’s been some 

23 issue that requires you now to go back and redo 

24 everything. 

25 But I don’t think it needs to start with one 
 196 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 party being put under a huge burden of doing document2 by-document privilege log beyond a metadata log. You 

3 can start with a metadata log. Not have to log 

4 redacted documents or every document in the chain and 

5 then let the other side come to you if they have some 

6 issues with some things or talk about the systemic 

7 issues. Was this individual, this in-house counsel 

8 acting with his corporate hat on or his lawyer hat on 

9 or when was litigation anticipated so that we can 

10 decide when it’s appropriate to start claiming work 

11 product. 

12 So there’s some big issues that could be 

13 discussed like that up front and then -- and I think, 

14 you know, I agree with some of the plaintiffs' counsel 

15 that existing procedures don’t work for them either, 

16 that these logs alone do not stop some improper 

17 withholding. So I think really stopping the waste of 

18 money on individual doc-by-doc logs rather than 

19 metadata logs and putting a small part of that 

20 investment into better ways of assessing privilege and 

21 discussing privilege would be a big improvement. 

22 CHAIR ROSENBERG: Any other questions or 

23 comments? It looks like Joe has a question. 

24 MR. SELLERS: Yeah. So, Mr. Cohen, you 

25 sound like a very reasonable guy with respect to this 
 197 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 process. I’m wondering why -- whether the rule as at 

2 least I think it's currently proposed has an 

3 interactive discussion that’s contemplated to start as 

4 early as possible and be ongoing between the parties. 

5 Wouldn’t that address the kind of concerns that you 

6 raised? It sounds like there are concerns, as you 

7 say, on both sides of the V here about the 

8 inefficiencies of some kind of privilege logs and the 

9 burden for both sides that, you know, is costly to 

10 review, as well as to produce. 

11 MR. COHEN: I think it’s an excellent start. 

12 I think the problem is the same problem we saw with 

13 the ‘93 comments, will people really -- will that 

14 really change anything. And I think, as we saw with 

15 proportionality amendments in 2015, proportionality 

16 had been in the rules for years, but people didn’t 

17 start paying attention to it, judges didn’t start 

18 paying attention to it until the Rules Committee 

19 emphasized it more in comments. 

20 So I think that the message needs to be said 

21 loud and clear. It’s not business as usual. We’re 

22 not going to start with the assumption that you have 

23 to do a detailed document-by-document log. We’re 

24 serious about relooking at this to reduce burden, 

25 bringing back proportionality and being more effective 
 198 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 about it. 

2 So that’s why I say I think the rule is good 

3 but maybe doesn’t go far enough. I think we really 

4 need to push judges because, otherwise, we just keep 

5 getting back to the same thing where the expectation 

6 is a traditional detailed individual doc-by-doc 

7 privilege log. That’s sort of being viewed by judges 

8 as the gold standard and they always fall back on it 

9 even though prior rules have said, you know, be more 

10 tailored and more creative. 

11 PROFESSOR MARCUS: Can I ask one more 

12 question, Judge Rosenberg? 

13 CHAIR ROSENBERG: Yes. Yeah, yeah. Of 

14 course. 

15 PROFESSOR MARCUS: Just a follow-up I forgot 

16 to ask. Some have suggested we should put some kind 

17 of cross-reference in 26(b)(5)(A). And, by the way, 

18 that, I think, is where the Committee note you’re 

19 talking about from 1993 appeared. 

20 MR. COHEN: Exactly. 

21 PROFESSOR MARCUS: Just to call attention to 

22 what is now proposed to be put into 26(f) and then 

23 Rule 16(b), my question to you is, will that be 

24 helpful and, if so, why? 

25 MR. COHEN: Yeah, I think it will. I mean, 
 199 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 I think we need to -- both sides need the ammunition 

2 to point judges to to say, you know, this is not 

3 the -- this should not always be the fall-back to do 

4 privilege logs the old way. The Committee has looked 

5 at this and is really interested in enforcing that 

6 comment from ‘93 and looking at new and more efficient 

7 ways that don’t waste resources and that help us get 

8 to the result that we’re looking for. So I think that 

9 kind of cross-reference to 26(b)(5)(A) would be 

10 helpful. 

11 CHAIR ROSENBERG: Okay. Anybody else? 

12 Seeing no other comments or questions, thank 

13 you so much, Mr. Cohen. We appreciate it. 

14 MR. COHEN: Thank you very much for your 

15 time. I appreciate it. 

16 CHAIR ROSENBERG: Okay. All right. So that 

17 brings us to our mid-afternoon break, and we will take 

18 a break and resume again at 3:40 with Jennifer 

19 Scullion, who will address Rule 16.1 and privilege 

20 logs at 3:40. 

21 (Whereupon, a brief recess was taken.) 

22 MS. SCULLION: Good afternoon. 

23 CHAIR ROSENBERG: Okay. Good afternoon, Ms. 

24 Scullion. You may take it from here. 

25 MS. SCULLION: Thanks very much. So good 
 200 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 afternoon. I’m Jennifer Scullion. I’m a partner at 

2 Seeger Weiss in Ridgefield Park, New Jersey. I’m 

3 going to apologize in advance for I will inevitably 

4 mess up somebody’s title because I’m meeting most of 

5 you for the very first time and I’m sufficiently 

6 nervous about that part, okay? 

7 CHAIR ROSENBERG: It’s okay. I’ve already 

8 messed up people’s names, so don’t worry about it at 

9 all. You can point if you need to. 

10 MS. SCULLION: I’ll definitely try not to 

11 point. My comments are mostly directed to draft Rule 

12 16.1, but I’m also happy to comment on privilege log 

13 issues. 

14 Just by way of background, Seeger Weiss, we 

15 are a national law firm representing plaintiffs in 

16 complex litigation, including class actions and mass 

17 tort cases. I’m currently working or I have worked 

18 with leadership in MDLs in a variety of areas, 

19 including antitrust, consumer protection, public 

20 nuisance, and product liability. I’m highlighting the 

21 variety of areas of MDL experience because I think it 

22 does illustrate the need for flexibility in rules 

23 concerning MDL management in order to suit the needs 

24 of the particular case. 

25 One of the hallmarks of MDL practice even in 
 201 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 its variety is, in my experience, you have lawyers 

2 from all sides, as well as the court, really using 

3 their best ideas and wisdom to get their arms around 

4 how to best manage that particular MDL. MDLs are 

5 complex by nature but in many, many different ways. 

6 I am not going to repeat everything that’s 

7 in my written testimony. I did want to emphasize, I 

8 think, my main point, which is greatly appreciate the 

9 effort to try to codify a rule with respect to at 

10 least initial MDL organization and management. My 

11 concern is that it may try to do too much too soon, 

12 and that is with respect to how much is suggested to 

13 potentially be done in this preliminary conference, 

14 the initial conference. So a number of strategic and 

15 important issues for the overall shape of litigation 

16 are contemplated, so much so that there is then the 

17 idea of having coordinating counsel to help put this 

18 report together. 

19 And, to me, that’s an indication that too 

20 much is trying to be done in this very first 

21 conference. And one of the reasons I was thinking 

22 about this was, okay, in an antitrust MDL, I 

23 frequently see that folks are coming in when they are 

24 even applying for leadership for the MDL and 

25 explaining their very different views of what the 
 202 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 theory of that case should be, and that can impact, 

2 you know, who then does get selected for leadership. 

3 So, if we have an initial conference as the 

4 draft rule seems to contemplate where you’re dealing 

5 both with the question of how should leadership be 

6 selected, as well as a number of substantive, 

7 strategic issues, what are the fact and legal issues 

8 in the case, leadership is going to have to decide 

9 what that is in a case, what settlement process makes 

10 sense. Completely an issue in which you want the 

11 folks who are going to be leading the case to have 

12 given it thought and give their input. 

13 And it’s not that the rule obviously 

14 precludes those issues from being discussed further 

15 after leadership is selected and, again, whether it’s 

16 MDL leadership in terms of co-leads and executive 

17 committee or interim class counsel. It’s not that the 

18 rule says you can’t revisit those issues, but it is a 

19 bit -- there’s a strangeness of having this 

20 coordinating counsel in this report opining on these 

21 issues potentially before leadership is in place, so 

22 it does feel like it’s a bit of the cart before the 

23 horse. 

24 Very quickly, just on privilege logs, again, 

25 I didn’t put in written testimony on this, but the 
 203 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 principal concern of privilege logs seems to be, 

2 again, sort of the idea of the burden of preparing 

3 those. I’d respectfully disagree in terms of how 

4 simple and useful a metadata log is. What I’ve seen 

5 be much more useful is a metadata plus, so most of the 

6 information is automated but then with some additional 

7 information to really tell you what that particular 

8 document may have been about. 

9 But my bigger comment is that I don’t think 

10 enough is being made of the use of Rule 502(d) to give 

11 more breathing room to the logging process but also, 

12 and in conjunction with 502(d), the idea of what I 

13 have used in the past of a quick peek approach to 

14 certain privileged documents. I had the benefit of 

15 having worked more than a decade on the defense side 

16 doing antitrust and other litigation, and I’ve done 

17 this and it took some doing with clients to say, look, 

18 here’s this case, the main issue is over here and we 

19 have some core privileged materials over there. We’ll 

20 focus on that, but here’s a bunch of stuff that is 

21 old, virtually irrelevant. I couldn’t tell the other 

22 side it's irrelevant, but it’s not really core to the 

23 case, but, you know, technically, it falls within 

24 privilege. Maybe it’s drafts back and forth of 

25 contracts that in the end aren’t all that core. And I 
 204 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 managed to get the client to say, let’s put those in a 

2 room, invite counsel to come in on a no waiver basis, 

3 look at them, and tell us, do you genuinely, you know, 

4 dispute the privilege nature of any of this and, by 

5 the way, do you even care about any of it. That took 

6 care of, you know, thousands and thousands of pages of 

7 privilege. 

8 I don’t see this sort of creative practical 

9 approach to privilege issues being used enough, and I 

10 think those should be emphasized in terms of trying to 

11 alleviate burdens. So I’m going to stop there and see 

12 if I can answer any questions. 

13 CHAIR ROSENBERG: I have one question before 

14 I turn it over to the reporters. Do you think it 

15 would help the court in appointing leadership to 

16 understand some of the issues that are set forth in 

17 subsection (c) of 16.1 to have a better understanding 

18 of the way that discovery will be conducted, the 

19 principal facts and legal issues, the exchange of 

20 information so, when considering whether it’s 

21 applicants or a slate for leadership, the court 

22 approaches it with a better understanding of the case? 

23 MS. SCULLION: Judge Rosenberg, I do, and 

24 that frequently is the case in terms of the leadership 

25 process, is it becomes a learning process in itself 
 205 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 and so frequently written applications are put in, and 

2 whether it’s individuals or slates will comment on 

3 their view of the case, how it should be shaped, how 

4 it should be managed, what will make sense here. And 

5 then, whether it’s through an interview process or, 

6 you know, appearing for a beauty contest, if you will, 

7 it’s also a chance for the court to explore those 

8 issues in more depth with the applicants. 

9 And not only does it give the court a chance 

10 to sort of get its head around what potentially are 

11 the most important pivotal issues in that MDL that are 

12 going to make and break everyone’s lives the next 

13 couple of years but also to hear, you know, directly 

14 from counsel on these substantive issues, what is 

15 their thinking on this, where are they drawing on, 

16 because, again, these are the folks that are going to 

17 be entrusted with the claims and financial resources 

18 of a lot of folks, as well as, very importantly, the 

19 court’s time. 

20 So I think it actually is very useful to 

21 take some of those items and in a leadership 

22 application process to say, I’d like to hear your 

23 thoughts on these specific issues. 

24 CHAIR ROSENBERG: Okay. Thank you. 

25 From our reporters, Rick and Andrew? 
 206 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 PROFESSOR MARCUS: Can I go first, I guess? 

2 I think I do have a privilege log question, but that’s 

3 not what you addressed in your written submission. 

4 MS. SCULLION: Right. 

5 PROFESSOR MARCUS: And in terms of getting 

6 too much too soon, I’m struck that you find our (c)(2) 

7 concerning scheduling orders already entered in cases 

8 to be something that it shouldn’t be on the front 

9 burner. It seems to me that if judges who have had 

10 these cases before have set deadlines for doing 

11 things, that would be really important to deal with 

12 right up front so that more generally I’m unclear what 

13 the downside you worry about is for additional things 

14 to at least come to the judge’s attention. I think 

15 Judge Rosenberg is suggesting that some orientation 

16 may be very valuable there. And then, if you have 

17 time, totally different and not what you submitted, in 

18 terms of privilege logs, it sounds to me like our rule 

19 proposal that you’ve got to talk to each other is 

20 actually something you would like, but I’m mainly 

21 interested in your submission on our 16.1. 

22 MS. SCULLION: Sure. And I appreciate the 

23 question very much, and I tried to be a little more 

24 nuanced in my written comments. I was unsuccessful. 

25 My suggestion is just that the focus beyond are there 
 207 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 immediate dates that need to be addressed, as opposed 

2 to wholesale, let’s take the scheduling orders and tee 

3 them up, again, at this very initial conference. 

4 Completely agree with you that if there are immediate 

5 things coming up, that the court should look at those 

6 and address them if need be, for example, to stay 

7 certain dates that may be coming up. 

8 So that was the intent, was to say let’s 

9 again take only as much as is practically necessary 

10 before leadership is appointed. And, to be clear, I’m 

11 very much in favor of having a very practical but 

12 efficient and quick leadership appointment process. 

13 It is important to get leadership in place relatively 

14 quickly to start working on the larger management 

15 issues, you know, with opposing counsel and with the 

16 court. 

17 So my comment was just meant to say there’s 

18 no need to, as a default, take in the scheduling 

19 orders and think you need to revisit all of them. 

20 There will be certain dates that will need to be 

21 addressed and others that will not. 

22 On privilege logs, yes, agree. Talk more 

23 and that there are more practical solutions to -- I 

24 would think about it as adding more breathing room 

25 into the logging process. I heard Mr. Cohen, for 
 208 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 example, and I understand he’s saying, you know, we 

2 need to get every bit of the log right, except that’s 

3 not quite right with 502(d), right. There’s breathing 

4 room there. 

5 And, like I said, I think quick look can and 

6 should be used more. You know, again, in my 

7 experience, there are a substantial number of 

8 documents which, again, are technically privileged, 

9 technically responsive and relevant, but that in the 

10 end neither side really particularly cares about, and 

11 if you can do a 502(d) and a quick look stipulation, 

12 you’ve saved yourself maybe a million dollars’ worth 

13 of time to not have to log that. 

14 CHAIR ROSENBERG: Andrew, did you have a 

15 question or comment? No. 

16 And, Joe, did you have a question or 

17 comment? No. 

18 Okay. Anybody else? All right. Seeing no 

19 hands -- 

20 MS. SCULLION: Thank you very much. 

21 CHAIR ROSENBERG: -- thank you so much. 

22 MS. SCULLION: Take care. 

23 CHAIR ROSENBERG: And we’ll next hear from 

24 Norman Siegel on 16.1. 

25 MR. SIEGEL: Good afternoon. Thank you for 
 209 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 allowing me this time to address the Committee. My 

2 name is Norman Siegel and I’m a partner at Stueve 

3 Siegel Hanson in Kansas City. My practice involves a 

4 significant amount of work in class actions, including 

5 serving as court-appointed class counsel on several of 

6 the larger class actions that have been recently 

7 centralized by the JPML in recent years. 

8 As summarized in my written submission, my 

9 primary concern regarding draft Rule 16.1 is the 

10 interplay between what is designated as coordinating 

11 counsel and leadership counsel on the one hand in the 

12 proposed rule and the well-established rules governing 

13 appointment of interim class counsel under Rule 23(g). 

14 As all of you know, in class action MDLs, 

15 there’s an established practice grounded in Rule 23(g) 

16 and the manual for the appointment of interim class 

17 counsel at the outset of an MDL that centralizes class 

18 actions. For example, Rule 23(g) provides the express 

19 criteria the transferee court "must consider" in 

20 making such appointments, including the obligation to 

21 appoint counsel "best able to represent the interests 

22 of the class" where there are multiple applicants, 

23 which is the case in most class action MDLs. 

24 This is important because interim class 

25 counsel is typically appointed for the entire case, 
 210 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 from the filing of an operative or superseding 

2 complaint through settlement or trial, and, of course, 

3 interim class counsel is also empowered to represent 

4 all absent class members during the pendency of the 

5 case. 

6 The manual makes clear that such appointment 

7 of interim class counsel at the outset of a case is 

8 important because interim class counsel will be able 

9 to speak for the proposed class on pretrial matters, 

10 including the very type of pretrial matters identified 

11 in the draft Rule 16.1(c), things like identifying the 

12 principal factual and legal issues, how and when the 

13 parties will exchange information, a discovery plan, 

14 likely motion practice, and, of course, how settlement 

15 should be approached, all very substantive matters 

16 that interim class counsel in the class action context 

17 is typically responsible for under Rule 23 in the 

18 manual. 

19 To proactively address something Judge 

20 Rosenberg asked the last witness, I do think all of 

21 these issues that are identified in Rule 16 can be 

22 part of the Rule 23(g) process, the application 

23 process. Indeed, Judge Burroughs in the MOVEit MDL 

24 asked applicants to submit a traditional Rule 23(g) 

25 application and why you should be lead counsel in the 
 211 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 MOVEit data breach but also asked applicants to say 

2 how you would approach litigation. Should there be 

3 bellwethers in this class case? Should there be 

4 different tracks of cases? 

5 And so I do think there’s some lessons that 

6 can be taken from the draft rule but respectfully 

7 suggest that in the class action context, the draft 

8 rule is perhaps not applicable, perhaps conflicting 

9 with existing process that we undertake in class 

10 actions centralized by the panel and, therefore, would 

11 at least ask the Committee to consider excluding class 

12 actions centralized from the rule or making it clear 

13 how the interplay between these different counsel 

14 designations should apply in class actions, where we 

15 already have the application of Rule 23. 

16 With that, I will defer to questions. 

17 CHAIR ROSENBERG: Okay. We’ll have Rick, 

18 then Andrew. Thank you. 

19 PROFESSOR MARCUS: Well, thank you. I 

20 suspect it’s just an observation. If we say excluding 

21 class actions, then that means, if any one of a 

22 thousand cases that the panel wants to combine is a 

23 proposed class action, then this rule does not apply. 

24 That could be a problematical thing. I’m not pushing 

25 that point. 
 212 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 But the 23(g) comparison strikes me as worth 

2 considering. Two parts. Number one, as I look at 

3 23(g), it doesn’t in 23(g)(4) offer any standards for 

4 picking interim class counsel therefore. After 

5 certification, 23(g)(1) does have considerations and I 

6 remember laboring over those a whole lot 20-plus years 

7 ago. 

8 So my question to you is, do you think with 

9 interim class counsel that the rule provides guidance? 

10 And in your experience with leadership in MDL 

11 proceedings, leadership in MDL proceedings, have you 

12 found that there is a set of criteria that ought to be 

13 written into a rule that maybe we should be 

14 considering? My basic reaction is we’ve been moving 

15 along without criteria. Now people, maybe not you, 

16 are saying, oh, you must write criteria into a rule. 

17 I’m not understanding why that’s true. 

18 MR. SIEGEL: Yes. Thank you for the 

19 question, Professor Marcus. Two things. First, as I 

20 mentioned in my written submission, I think, in the 

21 instances where you have a hybrid MDL, where you have 

22 some class component, it should be expressed that 

23 management of the Rule 23 class components of that MDL 

24 should defer to Rule 23 and the rules applicable 

25 therein, including the appointment of interim class 
 213 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 counsel. 

2 With respect to your second question, it is 

3 the overwhelming practice, universal in my 20-plus 

4 years' experience doing plaintiffs’ work in class 

5 actions, that since the adoption of Rule 23(g)(1), 

6 those are the very criteria that are being applied 

7 when courts consider interim class counsel at the 

8 outset of a case. So whether the intent of the 

9 Committee was that those four factors that the court 

10 "must consider" are applied only at the certification 

11 stage, that is not what’s happening. What’s happening 

12 is, in the applications at the start of class action 

13 MDLs, courts are considering those exact factors under 

14 Rule 23(g)(1)(A), which I know you carefully 

15 considered, that’s what courts are considering when 

16 they appoint interim class counsel. It’s the same 

17 exact standard as the rule currently provides under 

18 that rubric. 

19 So I don’t think we need more rules for 

20 class action. I think we have a well-established rule 

21 that in conjunction with the manual has given 

22 sufficient guidance to transferee courts handling 

23 class actions. I hope that addressed your question, 

24 Professor. 

25 PROFESSOR MARCUS: Well, I think it did and 
 214 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 I submit to you that to some extent the coordinating 

2 counsel is not the same as interim counsel. We’ve 

3 covered that already today. But the criteria for 

4 picking someone who would be appropriate presumably 

5 would be affected. 

6 RECORDING: To end this recording, hang up, 

7 or press 1 for more options. 

8 PROFESSOR MARCUS: I want more options. 

9 That was a reference to what we just heard. 

10 It seems to me that you could expect that in 

11 a different way, coordinating counsel would be 

12 selected with an eye to what matters in the litigation 

13 and not recruiting people off the street. Would you 

14 agree with me that probably will happen if this rule 

15 goes through? 

16 MR. SIEGEL: I don’t disagree, and I have 

17 no -- I don’t take a position in the product liability 

18 mass tort world because I don’t primarily practice 

19 there. What I’m just trying to communicate from the 

20 class action bar on the plaintiffs' side is that we’ve 

21 been operating under these well-established rules in 

22 MDLs that happens in centralized class actions. And I 

23 think it’s fair to characterize this rule being 

24 animated by something very different, which are 

25 product liability cases. And so I would just ask the 
 215 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 Committee to consider. 

2 Now the tried and true practice under Rule 

3 23 under the manual for the appointment of interim 

4 class counsel and how the rule and the comments, 

5 Professor, would overlay that. The comment to 16.1(c) 

6 in that second paragraph has sort of other criteria 

7 the court should consider and whether that supplements 

8 what’s already contained in 23(g)(1)(A), you know, 

9 that’s where I think there’s going to be some 

10 confusion, and I would just submit the existing 

11 process in class actions, and I’m talking about 

12 exclusively class actions, is running rather smoothly 

13 under the existing rules. 

14 PROFESSOR BRADT: If it’s okay, I’d like to 

15 drill down a little bit more on that because I 

16 continue to try to figure out why this rule would make 

17 the world worse. It strikes me that anytime that 

18 there’s an MDL it means there are multiple cases, 

19 meaning there are multiple class actions and 

20 presumably multiple interim counsel. And once the MDL 

21 gets created, there must be some mechanism through 

22 which there’s coordination, whether it’s done by 

23 yourselves or initiated by the judge or what. 

24 And so I guess I want to understand better 

25 what is the process of coordinating multiple 
 216 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 attorneys, some of whom may represent overlapping 

2 classes. I assume there may also be opt-out actions 

3 for those who have already decided to opt out of one 

4 putative class or another. There must be some kind of 

5 coordination among those lawyers within the MDL once 

6 it’s established, and I want to understand better what 

7 it is about 16.1 that would disrupt that process. 

8 MR. SIEGEL: Sure, Professor. So thanks for 

9 the question. I think, again, let’s start with the 

10 situation where you have exclusively class actions. 

11 So we’ll put the hybrid ones off to the side where you 

12 may have an opt-out. So the cases I’m talking about 

13 would include the Equifax data breach MDL that I was 

14 co-lead counsel in, T-Mobile data breach, Capital One 

15 data breach, all cases I’ve led. Those cases all 

16 started with those cases being centralized by the JPML 

17 and the first order of business by all those judges 

18 was to set forth a process by which applicants would 

19 submit submissions under Rule 23(g) to be interim 

20 class counsel. 

21 Some judges say, explain to me how you 

22 think, you know, the case should be run once we’re up 

23 and running. But the concept that interim class 

24 counsel should be speaking for the putative class out 

25 of the gate is the core concept here because, unlike 
 217 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 mass torts, it’s very often that all of those 

2 individual lawyers representing -- in the nationwide 

3 Equifax class of 150 million people are representing 

4 the same people. And it’s the court’s obligation to 

5 appoint the counsel that is best suited based on 

6 factors they must consider to represent that class, 

7 and that’s from the jump. 

8 And so it’s that designated interim class 

9 counsel that’s going to engage, Professor, with the 

10 very items that are identified currently in Rule 16. 

11 How is the case going to be litigated? And I think 

12 the prior witness was speaking to this, that that’s 

13 the lawyer who should be empowered to speak on behalf 

14 of the putative class to the defendant, to the court, 

15 about these pretrial matters. 

16 PROFESSOR BRADT: But isn’t Judge Rosenberg 

17 right that the coordination report and hearing 

18 envisioned by the rule would assist the judge in 

19 figuring out whom to appoint as interim counsel when 

20 you have multiple class actions that have been 

21 centralized into a single MDL? I mean, won’t this 

22 assist the court in figuring out how to decide whom to 

23 empower from what you call "the jump"? 

24 MR. SIEGEL: Yeah. So I think there’s some 

25 ministerial tasks that can be done by, you know, 
 218 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 whatever coordinating counsel is appointed, 

2 identifying all the cases, if there’s parallel cases 

3 in state court, you know, case census orders that had 

4 been entered in transferor courts prior to transfer. 

5 Those are all ministerial tasks that I think are fine 

6 and I think they can help guide the court on getting 

7 their arms around a centralized class case. 

8 I think the concern is that there are 

9 substantive topics baked into paragraph (c) there that 

10 really it’s interim class counsel, and if you go 

11 through the manual and some of the sections I cited in 

12 my written submission, the manual talks about the idea 

13 that it should be interim class counsel that is 

14 undertaking to address those substantive issues. 

15 Things like discovery plan are among the more 

16 substantive things you take on in a case. That’s 

17 something that should be in the hands of designated 

18 interim class counsel under a rule that already exists 

19 under 23(g). I hope that addressed your question. 

20 PROFESSOR BRADT: What do you do now? What 

21 do you do now? So you have multiple lawyers -- 

22 MR. SIEGEL: Yeah. 

23 PROFESSOR BRADT: -- some of whom may have 

24 been named interim class counsel already prior to the 

25 transfer of the case in the MDL. What do you do now 
 219 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 to assist the judge to figure out who to appoint as 

2 leadership in that kind of an MDL? 

3 MR. SIEGEL: So I’ll give you a current 

4 example in the MOVEit data breach litigation. There 

5 was disparate class cases. I was appointed lead 

6 counsel in the Milliman litigation in the Eastern 

7 District of Virginia. There was an intra-district 

8 central, you know, rocket docket consolidation of six 

9 or seven cases filed there. There was an appointment 

10 order. Then the MDL happened. There was one other 

11 appointment order in one other case. They all went to 

12 Judge Burroughs in Boston, and I think it was clear 

13 she was starting over. 

14 And so I think her view was everyone's going 

15 to resubmit applications for lead counsel. There’s 

16 now scores of lawyers in here seeking to be lead 

17 counsel over this litigation. And the first order of 

18 business is appointing counsel based on the criteria 

19 in 23(g)(1)(A), and, as part of that, she asked again 

20 for the separate submission is, how do you envision 

21 grouping these cases; what is the sequence that we 

22 should take on these things; what does a potential 

23 discovery plan look like. And so that’s a real-life 

24 example. But I think that’s actually an outlier case. 

25 In the typical case, in the Equifax case 
 220 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 before Judge Thrash, for example, in the Capital One 

2 case before Judge Trenga, in the T-Mobile case before 

3 Judge Wimes in the Western District of Missouri, all 

4 of these judges, first order of business is there 

5 needs to be a process by which the lawyers who filed 

6 cases and had cases transferred to the MDL are 

7 applying for lead counsel, I’m going to appoint lead 

8 counsel and then we’re going to go through, we’re 

9 going to have our substantive case management 

10 conference to address how we’re going to handle the 

11 litigation. 

12 CHAIR ROSENBERG: If the judge did not have 

13 interviews for the leadership appointments but rather 

14 asked for this various information in their 

15 applications, how do you envision the case proceeding, 

16 what’s your plan for discovery, and, for whatever 

17 reason, the judge wasn’t going to have interviews, 

18 then there wouldn’t be an opportunity for the judge to 

19 really engage with anyone to fully understand the 

20 issues to be able to make proper appointment. 

21 Wouldn’t the initial conference with this 

22 report that’s submitted that isn’t final in any way, 

23 it’s initial and it also represents potentially 

24 aligned and more likely divergent views, but at least 

25 that begins the educational process for the judge so 
 221 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 that when she decides to conduct interviews or maybe 

2 just to have applications and seeks this information, 

3 at least she comes to the process with the background 

4 and an open conference where she’s had the ability to 

5 ask questions and engage. I think there’s this notion 

6 out there that this initial conference is like a final 

7 conference, that this initial report is like a final 

8 report, that the plan for discovery needs to be 

9 buttoned up from A to Z with every deadline for 

10 exchange of experts and things of that. 

11 If one looked at it more generally like 

12 what’s the general idea about discovery, in other 

13 words, are you ready to submit a proposal to the court 

14 on discovery or do you need to have a certain motion 

15 heard, if you were to look at it through that lens as 

16 educational, as not binding, as not definitive, as not 

17 the authoritative guide but the initial kickoff, get 

18 the case rolling, get the judge informed, get the 

19 parties before the court, might you not see it as a 

20 beneficial way to begin an MDL? As most everyone 

21 says, the best thing one can do with an MDL is to get 

22 it going right away and not let it linger. 

23 MR. SIEGEL: For sure, Judge. And with all 

24 the caveats that you put in your question, I don’t 

25 disagree. But I think the concern is that the concept 
 222 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 of a coordinating counsel taking on substantive topics 

2 and being designated or appointed to interact with 

3 defense counsel, for example, creates a friction with 

4 what has been the established practice, which is, you 

5 know, the defense lawyers want a counter-party that 

6 has the imprimatur of the court, somebody that’s been 

7 appointed by the court, so they can actually 

8 substantively engage in, okay, this is actually how 

9 this case is going to be litigated, versus talking to 

10 somebody who is either powerless or talking to a 

11 hundred different class action lawyers that filed the 

12 same case. 

13 And so that’s why I think what’s happened 

14 over time is a real front-loading, appropriately in my 

15 view, of disappointment. That doesn’t mean the court 

16 can’t -- I don’t think you need coordinating counsel. 

17 I think the court can have a hearing where the court 

18 solicits submissions from whomever wants to submit one 

19 or if they can be combined, great, about how they see 

20 the scope of the case, what are the key discovery 

21 issues. 

22 I think all of that can happen in a case 

23 where the court wants it, but I think the currently 

24 framed rule, which suggests to empower coordinating 

25 counsel with this role on very substantive issues, I 
 223 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 think is what’s causing the concern that I and a few 

2 other colleagues in the plaintiffs' bar have raised. 

3 CHAIR ROSENBERG: Okay. Any other comments 

4 or questions? Okay. Thank you, Mr. Siegel. Very 

5 helpful. We appreciate it. 

6 MR. SIEGEL: Thank you for the time. Thank 

7 you all and appreciate all your hard work. 

8 CHAIR ROSENBERG: Thank you for your time. 

9 Thank you for your time. 

10 Okay. Ms. Conroy. 

11 MS. CONROY: Good afternoon, everybody. Can 

12 everyone hear me okay? 

13 CHAIR ROSENBERG: We can. 

14 MS. CONROY: Great. Thank you. 

15 I’m a partner at Simmons Hanly Conroy. 

16 We’re a plaintiffs’ firm, national plaintiffs’ firm. 

17 And for many decades, I’ve been a mass tort and class 

18 action plaintiffs’ lawyer with several MDL 

19 appointments and committee appointments and things 

20 like that. 

21 I’m currently a co-lead in the opioid MDL 

22 before Judge Polster. I’m sure you’re all aware 

23 that’s a very sweeping litigation. It’s a testament 

24 to very obsessive attention to organizational 

25 structure. So I really appreciate and thank you for 
 224 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 the work that you’re doing and have done over the 

2 years because structure is what is so important, and 

3 that becomes an efficient way for us to achieve 

4 justice for our clients. 

5 I’m going to address coordinating counsel 

6 and the list of topics that would be intended for the 

7 Rule 16.1(c) conference. I’ll start with coordinating 

8 counsel, which I will state at the outset I’m opposed 

9 to the concept because I think it adds a layer to the 

10 early process of an MDL that is potentially 

11 detrimental to both parties. 

12 In the cases that I’ve been involved with, 

13 the newly appointed MDL judge has taken pains to 

14 acquaint themselves with the plaintiff counsel who are 

15 applying for leadership, and adding a coordinating 

16 counsel to me seems to be adding a whole other layer 

17 to that process and it would, to me, seem to dilute 

18 the judge’s, the MDL judge’s, evaluation of leadership 

19 and who should be appointed. The counsel at the very 

20 start of a case could in no way know more than what 

21 the counsel who are seeking leadership could know or 

22 could share in an interview or in a written submission 

23 to the MDL court. 

24 But I think what is most -- what’s closest 

25 to my heart about the issue with coordinating counsel 
 225 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 is the potential step backwards for the diversity in 

2 the appointment of leadership by MDL judges. It’s a 

3 whole other layer, as I said, and it’s human nature 

4 that coordinating counsel will look to the lawyers 

5 that he or she ultimately will recognize and 

6 potentially provide that perspective to the MDL judge. 

7 I know from my years in the Bar that it 

8 has -- I know from personal experience it has been the 

9 MDL judges that have been the champions for diversity. 

10 That is what effectuated change. We tried all sorts 

11 of different ways to be heard and to make sure that 

12 our leadership reflected our clients, and it was not 

13 until the MDL judges took that to heart and really 

14 pushed diversity that we are beginning to see that 

15 over and over again. I’m concerned that if we have a 

16 coordinating counsel, we’re again buffering that 

17 ability for the MDL judge to really deal directly with 

18 the diversity issue. 

19 And, secondarily, I’m concerned that a 

20 coordinating counsel can potentially make 

21 representations or somehow impact my clients' rights 

22 because they don’t represent my clients. There’s a 

23 little bit of a difference between what Mr. Siegel was 

24 just talking about with interim class counsel that 

25 potentially represents very similar classes. When 
 226 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 you’re talking about an MDL, you’re talking about 

2 different types of clients. And so I’m concerned in 

3 those early weeks and months of an MDL that a 

4 coordinating counsel who is really not, you know, 

5 appointed other than by the judge is not really going 

6 to make the type of representations or take the 

7 positions that leadership would endorse. 

8 And that brings me to the problems 

9 that -- and I think Ms. Scullion was talking about the 

10 cart before the horse -- but the problems that I have 

11 with the 16.1(c) issue. The topics that are listed 

12 there would take place and would be discussed again by 

13 coordinating counsel before leadership is appointed, 

14 and I don’t believe that’s appropriate. I think what 

15 is appropriate -- I think the topics are fine. 

16 They’re just very premature in having someone other 

17 than leadership that is working to develop the trust 

18 of the plaintiffs’ bar and of all of the clients that 

19 leadership must represent, it’s creating a potential 

20 problem by having coordinating counsel taking 

21 positions, discussing discovery strategies, any of the 

22 topics there. 

23 And I take the point that it’s early in the 

24 litigation and, you know, things are not set in stone 

25 at that point, but that first conference is 
 227 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 extraordinarily important. It is the beginning 

2 conference that starts the development of trust 

3 between all the plaintiff counsel and the leadership 

4 that is entrusted with their cases, and to sort of add 

5 that additional issue of a coordinating counsel to 

6 that process seems to me very difficult. 

7 And so I think I’m available to answer any 

8 questions. One sort of side note that I would make 

9 for Rule 16.1(c) is there’s so much that the MDL judge 

10 can do to empower leadership to try to get their arms 

11 around and harness the cases that they will be 

12 responsible for. Practically speaking, when you’re 

13 appointed into leadership, the only tool that you have 

14 is the docket to try to figure out who the plaintiff 

15 counsel are and what the cases look like, and it can 

16 be a very laborious task to try to figure out what 

17 diseases, if it’s a product defect or, you know, 

18 whatever, to try to figure out from the docket or 

19 looking over complaints what it is that leadership has 

20 to deal with. 

21 And so there’s so much that an MDL judge can 

22 do at the very beginning of a case to provide 

23 leadership with the ability to get more information 

24 from plaintiffs’ counsel across the country on what 

25 the cases look like and their discovery strategies and 
 228 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 bellwether strategies and the like. 

2 So those are really my comments, and I’m 

3 available for questions. 

4 CHAIR ROSENBERG: Thank you, Ms. Conroy. 

5 From our reporters? Nothing from Rick and 

6 Andrew? No. 

7 And our Committee members? Judge Proctor, 

8 are you raising your hand? I couldn’t tell. No, yes? 

9 No. 

10 JUDGE PROCTOR: No. 

11 CHAIR ROSENBERG: Did you have a -- no, you 

12 didn’t. Okay. 

13 All right. I guess you’ve said it all, 

14 Ms. Conroy. 

15 MS. CONROY: Great. Thank you so much. 

16 CHAIR ROSENBERG: You’ve left them 

17 speechless. Okay. Thank you so much. 

18 Okay. Next is -- so I believe Anita Modak 

19 is not coming because of weather issues, so Toyja 

20 Kelley on 16.1. 

21 MR. KELLEY: Yes. Good afternoon. Can you 

22 hear me? 

23 CHAIR ROSENBERG: We can. Good afternoon. 

24 MR. KELLEY: Okay. Thank you for the 

25 opportunity to address the Committee regarding its 
 229 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 proposed Rule 16.1. I’m a partner in the litigation 

2 department of Locke Lord, LLP. I’m here today in my 

3 individual capacity, but in full disclosure, I’m a 

4 past president of DRI and also a past president of the 

5 Center for Law and Public Policy, and I’m currently 

6 chairing its proposed MDL rules subcommittee. 

7 As you can imagine, I wholeheartedly support 

8 the positions taken by DRI and the Center for Law and 

9 Public Policy in their written comments regarding 

10 proposed Rule 16.1. And as has been the case with my 

11 previous testimony given concerning other proposed 

12 rule changes, my comments today are informed by the 

13 fact that my practice today involves a substantial 

14 amount of commercial litigation in which I often find 

15 myself on both sides of the V in litigation, and I 

16 consider proposed rules through the prism of both a 

17 plaintiff and defendant in litigation. 

18 Today, I’m here specifically to speak in 

19 support of revising the proposed language of Rule 

20 16.1(c)(4) with a clear rules-based approach to 

21 address the problems of unsupportable claims. And to 

22 be clear, earlier today there was some discussion 

23 about what is meant by "unsupportable claims." When I 

24 use that term, I mean those claims that fail the 

25 Article III standing requirement. 
 230 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 I would encourage the Committee to expressly 

2 require that the report called for in 16.1(c)(4) 

3 include a mandatory proposal for addressing the 

4 supportability of claims pending or transferred into 

5 the MDL. It is my belief by including this 

6 requirement it discourages the filing of unsupportable 

7 claims before they even become part of the MDL and, 

8 when they are filed, creating an avenue of disposing 

9 them as a more ministerial task rather than extensive 

10 motion practice. 

11 To be clear, this suggestion could be met by 

12 requiring plaintiffs' counsel to state in its 

13 preliminary report subject to Rule 11 that each 

14 individual claimant is asserting a claim that does not 

15 suffer from the issues of these types of unsupportable 

16 claims. This approach would not already add to the 

17 overflowing plate of judges involved with the MDL 

18 process. 

19 My view on this issue is informed by 

20 experience that I had a number of years ago involving 

21 a TCPA case. Several Maryland cases were filed by a 

22 former attorney as a pro se plaintiff. He filed a 

23 number of them stating claims under the federal TCPA 

24 which all became part of an ongoing MDL. He 

25 subsequently filed a state TCPA case because he wasn’t 
 231 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 satisfied with how things were moving in the MDL with 

2 the exact same operative facts. The only change he 

3 made was he did not include the federal TCPA. He 

4 based the claim under the Maryland TCPA, which was 

5 nearly identical to the federal act. That case was 

6 resolved summarily in Maryland’s lowest trial court 

7 for a fraction of the time and a fraction of the cost 

8 as the cases that were proceeding MDL. 

9 I recognize that my experience is anecdotal, 

10 but there is a real concern that these types of claims 

11 make up a substantial if not majority of the claims in 

12 the MDL. Whatever the desired benefit of an MDL 

13 proceeding, appropriately filed cases that are caught 

14 up in the noise of these unsupportable claims could 

15 never receive the treatment for which the MDL 

16 proceeding is designed to benefit in the first place. 

17 Unless there any questions, I'll conclude my 

18 statements by stating that this rule-based approach at 

19 addressing these pervasive problems in an MDL would 

20 benefit all of the relevant stakeholders, the courts, 

21 the plaintiffs, and the defendants. Thank you. 

22 CHAIR ROSENBERG: Thank you. Thank you very 

23 much. 

24 From our reporters? 

25 PROFESSOR MARCUS: Thank you. Thank you for 
 232 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 moving and standing front and center because that 

2 prompts a question from me. You mentioned Rule 11. 

3 Am I correct in understanding that if some lawyer 

4 violates Rule 11 and makes allegations in a complaint 

5 that my client took your drug and then got sick in the 

6 way that the litigation claims is caused by the drugs, 

7 so the allegations are there. Maybe the lawyer didn’t 

8 investigate properly or made things up. Is that a 

9 standing problem? 

10 MR. KELLEY: Well, my approach -- in that 

11 specific example, it may not be a standing issue, and 

12 I was trying to -- as I was sitting there listening to 

13 some of the prior questions and responses to this 

14 issue, I was trying to sort of to the best I could 

15 articulate what I in my mind consider to be the 

16 issues. And in my real-world example, it really was a 

17 standing issue as opposed to anything else. And in 

18 your hypothetical, perhaps it’s a standing issue, 

19 perhaps it’s not. But, in any event, you know, it 

20 would involve a claim that should not be part of the 

21 MDL process in my view. 

22 And I think requiring a confirmation at the 

23 beginning of the case that I’ve done the minimal due 

24 diligence required to bring this case forward I think 

25 is something that would benefit, you know, the MDL 
 233 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 process, and now is the time to do that as we’re 

2 thinking about how to make this process better than 

3 what we’re dealing with currently. 

4 CHAIR ROSENBERG: Andrew? 

5 PROFESSOR BRADT: I guess Rick’s question, 

6 though, is, doesn’t Rule 11 serve that purpose 

7 already? What would be the benefit of repeating the 

8 same Rule 11 requirement that applies to all papers in 

9 16.1? I mean, I think we’re all in agreement that the 

10 Federal Rules of Civil Procedure apply to MDL, despite 

11 loose talk otherwise, so I don’t understand why we 

12 should repeat Rule 11 here. 

13 MR. KELLEY: Well, it’s not so much about 

14 repeating Rule 11. I mean, I agree that the rules 

15 apply, and I think you asked one of the other folks 

16 earlier about, you know, if this was a stand-alone 

17 case, is it any different than a case in an MDL, and 

18 on a fundamental level, the answer is no, but we know 

19 that there is a problem. I know you had raised a 

20 question of how big of a problem it is, but we know 

21 that there is a problem, and if it’s a problem, that 

22 suggests to me that relying solely on Rule 11 in a 

23 different context is not getting it done. 

24 And I think here’s an opportunity that I 

25 think could address the problem because it will on 
 234 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 some level, in my view, minimize the filing of what I 

2 consider to be unsupportable claims. 

3 PROFESSOR BRADT: Thanks. 

4 CHAIR ROSENBERG: David? 

5 JUDGE PROCTOR: Yes, thank you. This 

6 question's been asked a number of times in 

7 various -- in the last hearing or broached in this 

8 hearing, addressed as we led up to the drafting of 

9 Rule 16.1, but I haven’t heard your perspective on it. 

10 Is your position that we should include language that 

11 there’s a mandatory disclosure in all MDL cases along 

12 the lines you’re discussing here? 

13 MR. KELLEY: That would be my suggestion, 

14 yes. 

15 JUDGE PROCTOR: How does that fit in a 

16 patent MDL antitrust with just two competing class 

17 actions? How does that fit when you’re dealing with 

18 just simply what I would call more of your garden 

19 variety MDL that doesn’t deal with mass tort issues? 

20 And wouldn’t that cause just substantial confusion 

21 with our transferee judges when they have a case where 

22 there’s not a need for some type of vetting or census 

23 or assessment of individual-by-individual claims? And 

24 I take it your answer would be, yeah, I don’t intend 

25 those things -- that rule to apply in those cases. 
 235 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 Well, how would we draft language other than 

2 what we’ve done here that gives the transferee judge 

3 the opportunity to say here’s going to be the plan in 

4 this litigation on this issue? And I’ll listen to 

5 you. Thank you. 

6 MR. KELLEY: Sure. I mean, I think you put 

7 your nail on the head of the issue overall with trying 

8 to craft some rule that really addresses sort of 

9 divergent sort of, you know, types of cases. I mean, 

10 I’ve had a little bit of experience in MDLs on some 

11 pharmaceutical litigation. As I said, much of my 

12 experience has been on some Consumer Protection Act 

13 litigation. Obviously, there’s some similarities as 

14 it relates to the MDL process. There are some 

15 differences. 

16 And, you know, I’ve really gone back and 

17 forth on exactly how I come out on that, but I think 

18 my answer today, subject to change, is you create the 

19 rule -- I mean, so, fundamentally, my view is, is 

20 that, you know, you require this Rule 11-type, you 

21 know, affirmation. And in the patent litigation case, 

22 they comply with it, with the understanding that 

23 that’s a different type of case and the specific 

24 issues that are germane to patent litigation in an MDL 

25 may necessitate, you know, as you go forward and as 
 236 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 you learn more about the case a different sort of 

2 analysis of, you know, what went into making that 

3 affirmation at the beginning of the litigation. 

4 But, in a case like the one that I gave as 

5 an example, I mean, that was an attorney sort of 

6 understood fundamentally on some level the minimal 

7 threshold requirements for stating a claim under that 

8 Act. Why shouldn’t we, if that requirement exists in 

9 a stand-alone case, why shouldn’t we insist that that 

10 requirement should be a part of the MDL process? 

11 I don’t know if that exactly addresses your 

12 issue, but, I mean, it’s always -- I guess it’s always 

13 a problem of trying to craft a rule that applies to 

14 all various types of litigation, and, you know, my 

15 view of it is, is that that’s such a fundamental 

16 threshold question that I think it can apply in all of 

17 these types of cases with the understanding that maybe 

18 its impact, maybe its significance is different in a 

19 different type of case, but that goes for any type of 

20 civil litigation. 

21 JUDGE PROCTOR: Let me ask you one follow-up 

22 question then and I asked this of some of your friends 

23 at the first live hearing. Let’s say hypothetically 

24 you have a case where there’s a big question about 

25 preemption or general causation that could lead to an 
 237 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 early dispositive motion that would be a TKO on 

2 substantial portions and not all the litigation. Do 

3 you think your clients would want to fund kind of the 

4 tree-by-tree analysis of the claims prior to those 

5 issues being resolved? 

6 MR. KELLEY: I would say, in my experience 

7 with the cases that I’ve been involved in in MDL, it’s 

8 less of an issue than, say, the pharmaceutical 

9 litigation, where the numbers and the cost associated 

10 with is different. But, again, I think I go back to 

11 my prior comments. I think, you know, what I would 

12 tell my clients is we are better off knowing that 

13 someone is stating a viable claim against us sooner 

14 rather than later overall, even if getting to the 

15 sooner is going to cost some money because I think the 

16 later is going to cost a lot more money. 

17 CHAIR ROSENBERG: Okay. And -- oh, another 

18 question? 

19 JUDGE PROCTOR: Thank you. 

20 CHAIR ROSENBERG: Oh, okay. Any other 

21 comments or questions? Seeing none. Okay, thank you 

22 so much, Mr. Kelley. 

23 MR. KELLEY: Thank you. 

24 CHAIR ROSENBERG: And Mr. Roberts is on, and 

25 we’ll hear from you on privilege logs. 
 238 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 MR. ROBERTS: Thank you very much. How is 

2 my connectivity with you today? 

3 CHAIR ROSENBERG: Perfect. 

4 MR. ROBERTS: Thank you. I’ll be brief. I 

5 know it’s been a long day for the Committee. 

6 My name is Chad Roberts. My firm is 

7 eDiscovery CoCounsel, PLLC. I’ve been a trial lawyer 

8 for a little over 30 years primarily representing 

9 individual plaintiffs in complex litigation, including 

10 MDLs and mass torts. For about the last 10 years, my 

11 practice has been exclusively focused on the conduct 

12 of electronic discovery in civil litigation and 

13 specifically the use of technology to support the 

14 conduct of electronic discovery in civil litigation. 

15 The summary of my commentary is that the 

16 existing proposed amendments and commentary about 

17 privilege logging strike a pitch-perfect degree of 

18 appropriateness and that any attempt to embellish 

19 these proposed amendments with additional substantive 

20 content would not be wise, and the reason I think it 

21 would not be wise is that I cannot think of a subject 

22 matter of the civil rules that is more likely to have 

23 its fundamental assumptions altered by emerging 

24 technologies in the very near future than is the 

25 subject matter of privilege logging. 
 239 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 As the Committee is aware, privilege logging 

2 includes two essential tasks, and the first is to 

3 identify those items that are likely to contain 

4 privileged content and simply print out a list of 

5 those items. The second task is to prepare a summary 

6 of that content in a way that does not disclose the 

7 privileged information itself yet provides enough of a 

8 description that can permit a requesting party to 

9 evaluate the claim of privilege. 

10 And while I don’t want to minimize the tasks 

11 involved in the very largest examples of complex 

12 litigation with very large volumes, in the big scheme 

13 of things, the first task is generally a manageable 

14 one, especially when paired with the availability and 

15 protection of 502(d) claw-back orders. 

16 It’s been this second task, summarizing the 

17 content in a way that does not disclose the privileged 

18 information itself yet provides enough of a 

19 description that can permit a requesting party to 

20 evaluate that claim of privilege, that’s the task that 

21 has historically been a repetitive and tedious and, 

22 yes, an expensive task requiring lawyers. 

23 By the time this rule is enacted, that 

24 historical premise, the one involving that second 

25 task, will, in all certainty, be materially different 
 240 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 than it is today due to rapidly emerging technology. 

2 So to circle back to the larger point is 

3 that the existing proposal’s emphasis on flexibility 

4 and not an attempt at substantive specificity is 

5 likely to be the only approach which will encourage 

6 continued innovation, creativity, and permit this 

7 proposed rule to remain relevant in the years to come. 

8 And with that, I’ll conclude my comments and 

9 answer any questions you may have. 

10 CHAIR ROSENBERG: Thank you. Actually, I 

11 didn’t mean to take my camera off when I turned my mic 

12 off. 

13 Okay. Professor Marcus. 

14 PROFESSOR MARCUS: Thank you, Mr. Roberts. 

15 I think you may have been president at the creation. 

16 I was president at the creation of what became the 

17 2006 e-discovery amendments, and one of the things we 

18 were trying to do then was devise rule language that 

19 was technologically neutral. That is, it would 

20 accommodate unforeseeable changes in technology. 

21 I’d like to bring up something I’ve read 

22 about, probably we’ve all read about, in the newspaper 

23 concerning use of generative AI in certain legal 

24 contexts and that is the hallucination problem. In 

25 terms of the second step logging potential, I’m 
 241 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 guessing you’re thinking of something like generative 

2 AI. And how are we supposed to get a handle on that 

3 now or forever? And maybe we should just sit back and 

4 wait to see what happens. What are your thoughts on 

5 this subject? 

6 MR. ROBERTS: So this technology is already 

7 here, and your students are probably using it to 

8 summarize Pennoyer v. Neff the night before class. 

9 The issue of hallucinations and reliability 

10 and credibility is a work in progress that way, but 

11 summarizing a document is not a heavy lift for this 

12 technology, and summarizing a document with criteria 

13 that floats it up to a level of disclosure that does 

14 not disclose privilege is not a heavy lift for this 

15 technology. Even the simple act of drafting the 

16 proposed summary would enormously accelerate this 

17 process and bring great efficiencies to this process. 

18 So my only point is that things that seemed 

19 insurmountable with these kinds of problems you raised 

20 10 years ago are now routine for us and five years, 10 

21 years hence, these kinds of things that seem 

22 enormously burdensome and disproportionately costly, 

23 the premise of those are going to be much, much 

24 different and that the rule needs to survive those 

25 kinds of changes. And the existing draft does that, I 
 242 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 believe, and the calls by some to go further and try 

2 to create time-specific specificity is not going to 

3 survive technology’s changes. 

4 CHAIR ROSENBERG: Any further questions or 

5 comments? No? 

6 MR. ROBERTS: Thank you. 

7 CHAIR ROSENBERG: Okay. Thank you, 

8 Mr. Roberts. We appreciate it. 

9 And our final witness for the day is Andrew 

10 Myers on privilege logs. 

11 MR. MYERS: Good afternoon. Excuse me. I 

12 haven’t spoken all day. Good afternoon and thank you 

13 to the Committee and everyone participating for giving 

14 me an opportunity to speak today on privilege logs and 

15 the proposed rule changes. 

16 My name is Andrew Myers. I’m an attorney 

17 working in the litigation department at Bayer U.S. I 

18 have experience in creating and overseeing production 

19 of priv logs of different kinds and different scales 

20 involving different technologies, easily more than a 

21 million records logged at this point. 

22 For written submission, I will look to 

23 provide supplementary comments, but I support the 

24 comments already put forward by Robert Keeling, 

25 Jonathan Redgrave, and Alex Stahl in the fall. 
 243 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 Frankly, I thought that I might be rehashing some 

2 already discussed materials and this may be even more 

3 so following David Cohen’s testimony this afternoon. 

4 Nonetheless, I wanted to appear on three 

5 particular aspects that have come up a lot in the 

6 discussion, including just now Mr. Roberts’ 

7 discussion. The first is that while I very much 

8 appreciate the Committee’s interest in priv logging 

9 and particularly the emphasis on the cost and the 

10 burden of privilege logs and early attention from the 

11 court, these are all great, from my experience, I 

12 would like to see either the rule proposal proposed 

13 committee notes go further. Specifically, we’ve 

14 discussed somewhat other -- it wasn't me -- you've 

15 already discussed cross-referencing or something to 

16 Rule 26(b), whether putting something directly in 

17 there, (5)(A) -- 

18 PROFESSOR MARCUS: To interrupt you there, 

19 I’m the guy who’s been bringing that up. 

20 MR. MYERS: Well, sir -- 

21 PROFESSOR MARCUS: And I’d be interested in 

22 your explaining why that would be helpful since 26(f) 

23 tells people what to do before they submit their 

24 report to the judge and 16(b) addresses that. We’ve 

25 got that in there. Why is a change to 26(b)(5)(A) of 
 244 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 value as well? 

2 MR. MYERS: Absolutely. So thank you. 

3 So very straightforwardly, if you’re going 

4 to describe the nature to assess the claim, that is 

5 where, to use the analogy, the best contract is one 

6 that’s signed and thrown in a drawer and nobody ever 

7 looks at. 

8 And so there are a lot of people on the call 

9 today that I think I could work very well with about 

10 how to generate and come up with a log and what needs 

11 to be on it. And meeting and conferring, we do that 

12 already. We meet and confer and even exchange example 

13 logs in matters, and yet still the default, including 

14 in matters that I’m involved in, including ones where 

15 I would like to do something different, is a document16 by-document log. So even though we do meet and confer 

17 and we do exchange and discuss that, the rule doesn’t 

18 push behavior, whether due to practice or case law, to 

19 where it isn’t just expected that it'll be a document20 by-document log. 

21 And so kind of like in the way that when 

22 people stop getting along you go and look at the 

23 contract when people can’t work things out, having 

24 some sort of idea as to what would be required to 

25 assess the claim and what actually would meet that 
 245 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 burden and remain proportional, I think, would be very 

2 helpful in the parties not just getting into, you 

3 know, a slog-fest and see because, as the typical 

4 producing party, the requesting party doesn’t have a 

5 lot to lose in that fight if that makes sense. 

6 And then Professor -- oh, awesome. Thank 

7 you. And from my experience, one of the things I 

8 think that -- not to overstate it, there are real 

9 consequences to having to go through a document-by10 document log. There’s the cost. And that can 

11 be -- it isn’t 10 percent of the overall discovery and 

12 document production costs. It can be and has 

13 been -- I went and looked through some matters, and it 

14 can be on par with the cost to identify the 

15 potentially relevant producible set. 

16 It can be sort of there’s a seesaw. It 

17 would be in balance between all the work done to come 

18 up with the entire producible potential relevant set 

19 and the work done to describe the final privilege 

20 determinations and to describe them for logging 

21 purposes if it’s a document-by-document. 

22 Similarly, you can have the same thing 

23 happen with the time where it can be two months to 

24 come up with a producible set and two months to come 

25 up with a log. 
 246 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 I will add that I want to go to Mr. Roberts’ 

2 technology, there is a cost to that technology. And 

3 so, while it is wonderful to see where, you know, 

4 generative AI and other things are moving, unlike 

5 metadata logs that have been discussed a few times, 

6 that additional technology is not free. There is a 

7 substantial cost to coming up with generative AI, and 

8 you have other problems. It’s not entirely perfect. 

9 And also we have increasing data, so discovery costs 

10 time, even though we have technology that helps us do 

11 it better. 

12 And so I don’t want to go too far in my 

13 time -- past my time and leave time for questions. 

14 Two other things that I thought came up a lot. One, 

15 one of the reasons I wanted to talk the rolling 

16 privilege logs, I wanted to specifically talk about 

17 that because I agree very strongly with an iterative 

18 process is beneficial to the parties and the court. 

19 Rolling production logs, if they are just 

20 produced -- I’m sorry, production logs -- rolling 

21 privilege logs, if they’re simply going to be this 

22 document-by-document and you do half of one and then 

23 you do another half later, that is more than the same 

24 amount of work. 

25 But, if you’re doing different kinds where 
 247 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 you’re having a privilege log where you start with a 

2 categorical log and then you make those determinations 

3 and then you get a metadata log until you get down to 

4 a set where it makes sense to either sample or do some 

5 other version, like do a document-by-document, I’m in 

6 full support of that. 

7 And then I’ll add one real quickly. I’ll 

8 say I want to make a comment on the sufficiency of 

9 logs that are not document-by-document. I think 

10 there’s been some disparaging comments made about 

11 categorical logs and I think they have a lot of value. 

12 And one of the ways I recognize that they have value 

13 is because, when a categorical log -- because, when 

14 claims that we -- that something is not privileged, 

15 whether it’s in a letter from the requesting party or 

16 an order from the court, including Chhabria’s order in 

17 the Facebook matter that was referenced before, 

18 they’re often done categorically. 

19 So they come forward and say here, we’ve 

20 produced an 8,000 document-by-document privilege log 

21 and then the response might be back these 36 entries 

22 are not privileged because they have a non-Bayer, non23 outside counsel party on them. And so, if the 

24 response is categorically go back, I think it would 

25 actually benefit everyone to streamline the process by 
 248 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 doing categorical logs and saying, hey, let’s work out 

2 these how we’re going to treat and how we’re going to 

3 respond to this, the joint defense companies or some 

4 other outside group, and I think that would be a real 

5 benefit to progressing. And with that, I’ll pause and 

6 leave any questions, please. 

7 CHAIR ROSENBERG: Thank you so much. 

8 Rick? 

9 PROFESSOR MARCUS: Just if I heard 

10 correctly, the previous speaker said what we have put 

11 out for comment is pitch perfect. How does the pitch 

12 sound to you? 

13 MR. MYERS: I would like a little more 

14 because, to be honest -- to be respectful, of course, 

15 the things that the comment suggests that we -- after 

16 this -- you know, the discovery plan that we are 

17 meeting and talking about the priv log and that there 

18 already is a 1993 comment, right, stating that a 

19 document-by-document priv log isn’t necessary, so we 

20 do meet and confer on every matter and talk about priv 

21 logs, even exchanging samples of what we think would 

22 be a workable priv log, and yet the default remains 

23 that we produce document-by-document priv logs is the 

24 expectation, and so I feel -- 

25 PROFESSOR MARCUS: So, in terms of the 1993 
 249 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 Committee note, are you telling us that our Committee 

2 notes don’t really control what happens out there in 

3 the world? 

4 MR. MYERS: I think that may be the truth, 

5 especially if there was a lot of them or if the case 

6 law hasn’t tracked them. And in an asymmetric 

7 discovery situation, you have sort of a limited -- you 

8 know, there's a limited number of motions we want to 

9 make in a discovery setting before the court. We 

10 don’t want to every week to be saying, oh, you know, 

11 they want to have us do this burdensome thing, we need 

12 to be seen before the court. We’d much rather have 

13 something to point to beyond that note because, 

14 respectfully again, it exists and yet we still were 

15 doing for the past 30 years, the default position is 

16 document-by-document privilege logging. 

17 CHAIR ROSENBERG: Thank you. Any other -- 

18 any further comments or questions? Okay. Well, thank 

19 you so much, Mr. Myers. Thank you for your patience 

20 and waiting all day and helping us conclude a very 

21 valuable day of testimony, so we appreciate it. 

22 MR. MYERS: Okay, great. I appreciate it. 

23 CHAIR ROSENBERG: And for the 42 or so who 

24 hung in there all day, it looks as if so many 

25 participants are remaining, we do want to tell you at 
 250 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 this point that we’re concluding the hearing. We did 

2 get through all I guess a total of 28 witnesses. We 

3 originally had 30, but due to weather, of which I 

4 don’t know anything about because I’m in Florida, we 

5 lost two of our witnesses. But, as I think I said at 

6 the October hearing, we cannot thank each and every 

7 one of you enough. You have taken time out of your 

8 busy schedule. You’ve written comments. You’ve 

9 provided testimony. You’ve provided summaries of your 

10 testimony. You’ve appeared. You’ve waited. You’ve 

11 answered questions from our civ pro professors and our 

12 reporters and our judges, and you have, most 

13 importantly, enlightened us and educated us and given 

14 us much more work to do, which we intend to do. 

15 As I also mentioned in the beginning of this 

16 hearing, for those who are interested, of course, the 

17 witnesses will be there, but it’s an open hearing. 

18 We’ll be back at it on February 6. I think Allison at 

19 some point will have disseminated the Teams link and 

20 the schedule. We want to thank Allison and everybody 

21 at the AO for helping with the logistics. She too was 

22 caught in weather issues and had to do this double 

23 virtually, so we thank her for that. 

24 And with that, I’ll just note that we were 

25 very much on schedule. Maybe that’s because two 
 251 

 Heritage Reporting Corporation 

 (202) 628-4888 

1 witnesses didn’t show up and we cut our break short, 

2 but we’re concluding before 5:00 p.m. for the record. 

3 So have a nice evening and we’ll look 

4 forward to seeing maybe some of you again at the 

5 February 6 hearing. Thank you. 

6 (Whereupon, at 4:55 p.m., the meeting in the 

7 above-entitled matter was adjourned.) 

8 // 

9 // 

10 // 

11 // 

12 // 

13 // 

14 // 

15 // 

16 // 

17 // 

18 // 

19 // 

20 // 

21 // 

22 // 

23 // 

24 // 

25 // 
 252 

 Heritage Reporting Corporation 

 (202) 628-4888 

 REPORTER'S CERTIFICATE 

DOCKET NO.: N/A 

CASE TITLE: Proposed Amendments to the 

Federal Rules of Civil Procedure 

HEARING DATE: January 16, 2024 

LOCATION: Washington, D.C. 

 

I hereby certify that the proceedings and 

evidence are contained fully and accurately on the 

tapes and notes reported by me at the hearing in the 

above case before the Administrative Office of the 

U.S. Courts. 

Date: January 30, 2024 

 

David Jones 

Official Reporter 

Heritage Reporting Corporation 

Suite 206 

1220 L Street, N.W. 

Washington, D.C. 20005-4018