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: )

 )

PROPOSED AMENDMENTS TO THE )

FEDERAL RULES OF CIVIL )

PROCEDURE )

Pages: 1 through 290

Place: Washington, D.C.

Date: October 16, 2023
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ADMINISTRATIVE OFFICE OF THE U.S. COURTS

IN THE MATTER OF: )

 )

PROPOSED AMENDMENTS TO THE )

FEDERAL RULES OF CIVIL )

PROCEDURE )

Suite 206

Heritage Reporting Corporation

1220 L Street, N.W.

Washington, D.C.

Monday,

October 16, 2023

The parties met remotely, pursuant to the notice, 

at 9:33 a.m.

COMMITTEE MEMBERS AND STAFF: 

HON. ROBIN L. ROSENBERG, Chair

PROF. RICHARD L. MARCUS, Reporter

PROF. ANDREW D. BRADT, 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

HON. JENNIFER C. BOAL

HON. M. HANNAH LAUCK

JOSEPH M. SELLERS, ESQ.

ARIANA J. TADLER, ESQ.

HELEN E. WITT, ESQ.

PROF. EDWARD H. COOPER

CARMELITA R. SHINN, ESQ.

WITNESSES TESTIFYING:

ROBERT KEELING

DOUGLAS MCNAMARA

MARY MASSARON

ALEX DAHL

KASPAR STOFFELMAYR

JOHN BEISNER (Virtual)

JONATHAN REDGRAVE (Virtual)

CHRISTOPHER CAMPBELL
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WITNESSES TESTIFYING: (Cont'd.)

JAMES SHEPHERD

CHRISTOPHER GUTH

FRED HASTON

MARKHAM LEVENTHAL 

AMY KELLER

LANA OLSON 

AMY LARSON

JOHN GUTTMAN

GREGORY HALPERIN

HARLEY RATLIFF

JOHN ROSENTHAL

SHERMAN JOYCE

DEIRDRE KOLE

LEIGH O'DELL
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1 P R O C E E D I N G S

2 (9:33 a.m.)

3 CHAIR ROSENBERG: Good morning, everyone. 

4 It's wonderful to see everyone here. Welcome and 

5 thank you to all of the Committee members, the 

6 witnesses, and the observers who are here in 

7 attendance both in person and virtually. Whether you 

8 are here in person or joining us remotely, we do 

9 appreciate your participation in the rulemaking 

10 process. 

11 Today is the first of three scheduled public 

12 hearings on the proposed amendments to the Federal 

13 Rules of Civil Procedure. The current published 

14 proposals out for public comment include the proposed 

15 privilege log amendments, Rules 26 and 16, and the 

16 proposed new rule on MDL proceedings, Rule 16.1. We 

17 do look forward to hearing your testimony on these 

18 proposed amendments and the new rule.

19 Each witness's formal testimony will be 

20 limited to five minutes, followed by five minutes of 

21 questions from the Committee. Times on the schedule 

22 are approximate and may be adjusted as needed. A 

23 signal will be given when there is one minute left for 

24 each witness's formal testimony and when there is one 

25 minute left for questioning.
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1 For those who are appearing remotely, just a 

2 few technical reminders. If you could leave your 

3 video off and microphones muted until you're called on 

4 to make your formal presentation. With respect to our 

5 remote Committee members if there are any, you may 

6 have your videos on throughout the hearing if you 

7 desire to, and we ask that you use the Raise Hand 

8 feature or physically raise your hand in the video 

9 frame to indicate a desire to comment or to ask 

10 questions. As for our in-person participants, please 

11 remember to use microphones when speaking and to 

12 switch them off during breaks and when not in use.

13 This hearing is recorded and a transcript 

14 will be publicly available on the U.S. Courts' 

15 website. If those of you who are appearing remotely 

16 get disconnected, please use the original Teams link 

17 to rejoin or use the conference bridge number located 

18 at the bottom of the meeting invite to join by audio.

19 So, with that, I'd like to call our first 

20 witness to the podium, Robert Keeling from Sidley 

21 Austin, and it's our understanding that based on your 

22 summary you'll be addressing privilege logs. So 

23 welcome and thank you for kicking us off this morning.

24 MR. KEELING: Thank you and good morning. 

25 My name is Robert Keeling, and I'm a partner at the 
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1 law firm of Sidley Austin, where I lead Sidley's e2 discovery and data analytics group. I want to thank 

3 the Committee for the opportunity to speak to you 

4 today on this very important topic of how we can 

5 improve upon and modernize the privilege logging 

6 process.

7 My practice provides a unique perspective on 

8 these issues. I serve as discovery counsel on a range 

9 of matters where I manage all aspects of discovery for 

10 large corporations. The cases that I work on today 

11 typically involve the review and production of 

12 millions of documents or tens of millions of 

13 documents. Included in those millions of documents 

14 are tens of thousands of privileged communications as 

15 lawyers have followed their clients first to email 

16 and, more recently, to chat applications. 

17 I have witnessed firsthand the incredible 

18 burdens of creating document-by-document privilege 

19 logs and the needless waste of resources that 

20 accompany current privilege logging standards. Just 

21 by way of example, since 2021, I have managed numerous 

22 reviews where document-by-document logs were required. 

23 Specifically, the number of log entries for each of 

24 those matters involved logging 22,000 documents, 

25 26,000 documents, 43,000 documents, 53,000 documents, 
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1 and one matter involving the logging of 135,129 

2 documents.

3 Composing these logs takes an enormous 

4 amount of time. For just one of the matters that I 

5 mentioned above, the contract attorney team spent a 

6 total of 21,378 hours on the single log, including 

7 redactions and QC. Outside counsel for the matter 

8 spent more than 700 hours on the log, bringing the 

9 total time on the log to over 22,000 hours. To put 

10 that in perspective, in big law, a common marker of a 

11 very busy associate is 2,000 hours a year. If you do 

12 the math, 22,000 hours, this would be the equivalent 

13 of an associate spending 11 years of their life to 

14 compose one log for one party on one matter.

15 As a practitioner who routinely deals with 

16 these issues, the need for privilege law reform is 

17 overwhelming and evident. The critical question for 

18 this Committee now is, what does that reform look 

19 like? Based off my many years of experience, I 

20 strongly believe that to change the privilege log 

21 burdens caused by the current language in 26(b)(5), 

22 the Committee will need to change the language of 

23 26(b)(5), particularly setting forth that privilege 

24 logs should be proportional to the needs of the case.

25 Regarding the proposed changes, I have two 
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1 observations. First, regarding the early meet-and2 confer requirement, parties typically do not have the 

3 information they need to meaningfully discuss and 

4 negotiate privilege log issues at the outset of a 

5 case, as proposed Rule 26(f)(3) requires. Likewise, 

6 courts also will not have sufficient information 

7 related to the scope of privilege review at this time, 

8 making it impractical for courts to address 

9 substantive privilege log requirements in a scheduling 

10 order, particularly disputes relating to privilege 

11 logging.

12 Now, importantly, I believe the proposed 

13 meet-and-confer requirements make more sense if 

14 combined with meaningful changes to privilege log 

15 standards themselves. In other words, if there is a 

16 change to Rule 26(b)(5) consistent with, for example, 

17 the proposed Jonathan Redgrave submission, then the 

18 proposed meet-and-confer requirements would, in my 

19 view, be beneficial.

20 Separately, I am concerned with the portion 

21 of the Committee notes that call for the production of 

22 rolling privilege logs. I can confidently say that 

23 rolling privilege logs are inefficient and 

24 ineffective. More specifically, they will lead to 

25 delay, increased costs, and lower-quality logs in 
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1 large document cases. In turn, lower-quality logs 

2 will lead to more disputes between parties and 

3 increased judicial resources to resolve those 

4 disputes. I suspect this seems counterintuitive. 

5 After all, parties routinely engage in rolling 

6 productions. Why not engage in rolling logs? Well, 

7 logs are different, and in particular, the more 

8 requirements put on a privilege log, the more 

9 expensive it will be. 

10 Resources are limited. A party can focus on 

11 either the document production or the privilege log 

12 but cannot do both in a high-quality manner at the 

13 same time. Also, rolling logs will increase the 

14 likelihood of the inadvertent production of privileged 

15 documents because a party will not have enough 

16 resources to do sufficient quality control on 

17 privilege while also trying to prepare ongoing 

18 document productions. 

19 As an alternative to the Advisory Committee 

20 notes calling for rolling logs, it may be possible to 

21 achieve the Committee's goals of early dispute 

22 resolution of these matters by asking that privilege 

23 logs be tiered or, even better, phased so that 

24 documents relevant to threshold issues, such as 

25 whether preemption would apply in a case, could be 
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1 logged early, before resolution of those issues. This 

2 will have the benefit of focusing the parties and the 

3 court on privileged communications that actually 

4 matter to the case. Thank you for your time --

5 CHAIR ROSENBERG: That's about five minutes.

6 MR. KEELING: -- and for your continued work 

7 on these important issues.

8 CHAIR ROSENBERG: Okay. Thank you so much. 

9 Let me inquire as to whether there are any questions, 

10 and if you feel at the end that you have not been able 

11 to say something that you intended to say in your 

12 opening remarks, we'll give you that opportunity to do 

13 so.

14 Let me turn first to our reporters and see 

15 if there are any preliminary questions you may have, 

16 and then I'll turn to our Committee members for any 

17 questions. 

18 PROF. MARCUS: Well, thank you. I guess my 

19 preliminary questions are for some background, and our 

20 Committee members probably have it more than I do, but 

21 I'll remember that 20 years ago in this room I was 

22 working on the e-discovery amendments, which included 

23 various things that we're talking about. The problem 

24 of identifying responsive materials in a terabyte, 

25 say, of data that's very large, the problem of 
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1 discerning whether those identified as responsive or 

2 privileged sounds like a big challenge. 

3 So one thing I'm interested in is why 

4 logging is a big add-on. The second thing I'm 

5 interested in is, if it's too soon to talk about this 

6 up-front, when is it timely to talk about it and how 

7 would one go about telling people to address things 

8 then? And third, related to that, if you have phased 

9 or tiered or some other name of it instead of rolling 

10 production of documents looking at, say, preemption as 

11 a defense, would you agree -- this is kind of 

12 switching horses -- would you agree that it makes more 

13 sense to focus on that than what some people we'll 

14 hear from later call vetting individual claims in MDL 

15 proceedings? So those are three sort of overview 

16 questions that occur to me.

17 MR, KEELING: Sure. So perhaps taking them 

18 slightly out of order. As far as when I believe this 

19 issue could be better joined, to me, it's more 

20 appropriate in the Rule 34 process, after the parties 

21 have exchanged discovery. That's when they're 

22 negotiating about appropriate custodians, and, 

23 frankly, the number and type of custodians will have 

24 the biggest impact on privilege. 

25 For example, at the extreme example, if in-
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1 house counsel, for whatever reason, is a custodian, 

2 that will dramatically increase the number of 

3 privilege documents. Also, typically, the more senior 

4 a custodian, the more likely that custodian is to 

5 interact with counsel and a greater proportion of 

6 privilege documents in their files, and you only know 

7 that after receiving document requests and going 

8 through that process. 

9 To your first question, yes, the terabytes 

10 of data is a huge problem. My first matter as a 

11 junior associate, storage was so expensive that our 

12 client actually printed out emails that they wanted to 

13 save and filed them. Obviously, we're no longer in 

14 that universe. Storage is cheap. Communications 

15 happen frequently. And it's the volume that is an 

16 issue, but despite that volume, the volume has a 

17 direct impact on the cost and burden of logging. We 

18 see logging can be -- on the one matter that I 

19 mentioned, it was roughly about 23 percent of our 

20 entire discovery costs for our contract attorneys was 

21 in logging, so separate from initial review, 

22 responsiveness review, that type of thing. 

23 PROF. MARCUS: Sorry to interrupt, but 

24 follow-up on what you just said. So somebody has to 

25 make a determination this is possibly privileged, 
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1 somebody else has to review that to decide if that's a 

2 legitimate claim of privilege. And putting an entry 

3 on a log is the big deal, those other things are not?

4 MR. KEELING: It is a significant part of 

5 the cost of the overall process. So, as I mentioned, 

6 23 percent. And, yes, typically, you do have an 

7 initial review for responsiveness and privilege and 

8 then a separate review for logging. And for folks who 

9 might not do this all the time, you might think, well, 

10 why don't you do it all at the same time? I have 

11 written the world's most boring law review article on 

12 this very topic, where it's actually more efficient 

13 and less costly to segregate those reviews and have a 

14 specific review just focused on logging, but it adds 

15 an enormous cost. 

16 And so the more requirements, for example, a 

17 document-by-document log, it forces an individualized 

18 determination, not just determination but

19 describing the document and the privileged material in 

20 a way that doesn't provide enough detail that could 

21 risk waiver of the document, waiver of the privilege, 

22 and that's a complicated task. That takes a lot of 

23 time and money particularly at scale.

24 CHAIR ROSENBERG: Let me see if we have any 

25 questions from any of our Committee members.
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1 Judge Jordan?

2 MR. SELLERS: You mentioned a concern about 

3 proportionality and said 26(b)(5) should be amended. 

4 Is there a reason that the proportionality rule in 

5 26(b)(1) doesn't cover your concern? 

6 MR. KEELING: I wish it did. There's a 

7 significant line of cases where courts see privileges 

8 different and essentially apply a perfection standard 

9 to both the privilege call itself and to the logging 

10 entry. And I think, even if this Committee thinks 

11 that it should cover, my experience and my practice is 

12 that it does not, that there is a different and higher 

13 standard that courts are applying to both privilege 

14 review and privilege logging at this time.

15 MR. SELLERS: As a theoretical matter, 

16 there's nothing that prevents an attorney from saying, 

17 look, 26(b)(1) talks about proportionality, Your 

18 Honor, this is not proportional to the case, is there?

19 MR. KEELING: I don't think there's anything 

20 preventing a lawyer from arguing that. We just see a 

21 significant number still of document-by-document logs 

22 in big cases. And so despite perhaps the attorney's 

23 ability to argue that, we see the actual practice of 

24 cases and the decision of courts still requiring 

25 burdensome, expensive document-by-document logs on 
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1 cases, and so, therefore, some further clarification, 

2 I believe, is needed.

3 MR. SELLERS: I'm curious. I gather your --

4 the cases you cite suggest that you are involved in 

5 cases involving very large document productions. You 

6 are obviously aware that the rules apply to cases with 

7 smaller volumes of production. Is there any reason 

8 why the meet-and-confer process that's been proposed 

9 wouldn't -- I realize you're frustrated, the rules, 

10 you don't think, work well, but with respect to the 

11 meet-and-confer, it's hard to design a one-size-fits12 all rule for all the types of cases before the courts.

13 Is there a reason why the meet-and-confer 

14 process would not meet your concerns if parties were 

15 engaged in meaningful and reasonable compromise?

16 MR. KEELING: If parties were engaged in 

17 reasonable and meaningful compromise, I think, in most 

18 cases, the proposed amendments could work. The 

19 problem is my cases in asymmetric litigation, for 

20 example, there's no reason for the other side to 

21 compromise, and they propose burdensome privilege 

22 requirements either connected to ESI protocols or not, 

23 and you end up engaged in literally month-long 

24 negotiations over these, which is extensive and 

25 ultimately requires court involvement, and just the 
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1 current system is broken in that way and, in my view, 

2 requires some type of reform.

3 CHAIR ROSENBERG: Helen? And then I think 

4 Rick had another question.

5 MS. WITT: You mentioned that you think that 

6 the rolling production would be more inefficient. 

7 Putting aside the resource issue that you described, 

8 are there other reasons that you think that rolling 

9 privilege logging in whatever form as agreed for a 

10 particular case would necessarily be inefficient? 

11 MR. KEELING: I think there are ways for 

12 rolling logs to be efficient, and the primary way is 

13 to put less requirements on them. Where you really 

14 get a problem is where the log is tied to, for 

15 example, a particular custodian and that you have to 

16 produce the log at the same time documents for that 

17 custodian is produced or let's say 21 days after. And 

18 so the more -- or you have to have a certain 

19 percentage of documents, so the more requirements that 

20 are put on rolling productions, the harder they are to 

21 meet and the more they lead to the problems that I 

22 mentioned, either increased costs and increased 

23 likelihood of the inadvertent disclosure of privileged 

24 documents.

25 CHAIR ROSENBERG: Judge Boal and then Rick.
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1 JUDGE BOAL: Yes. In terms of the timing 

2 and method for complying with Rule 26(b)(5)(A), why do 

3 you think the current proposal is not flexible enough 

4 to address your concerns about the situation in the 

5 cases you've described? Where the parties don't know 

6 enough to make a meaningful suggestion, why couldn't 

7 you make a suggestion at the conference about when to 

8 deal with it?

9 MR. KEELING: Well, for example, through 

10 experience, and I should say I get hired by clients 

11 predominantly to help run privilege logs, which is an 

12 odd thing that I don't think existed, you know, even 

13 just a few years ago, and that shows the need, I 

14 think, for some type of reform as specialized counsel 

15 is now needed in big cases just for a privilege 

16 review.

17 But, to your point, in discussions, I'm 

18 being asked to justify why document-by-document logs 

19 are not burdensome, are not sufficient, and I respond 

20 with my experience, but if I'm going before the court 

21 at an early stage, I lack the specifics to justify the 

22 burden that you would normally have. For example, in 

23 opposing a motion to compel much later on in the 

24 process in response to the documents side, I'll lack 

25 the number of privileged documents that will be at 
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1 issue, the percentage of privileged documents, the 

2 estimated cost. I don't have any of that information 

3 at the beginning of the case, which makes my job in 

4 resisting calls for very burdensome document-by5 document discovery very difficult.

6 CHAIR ROSENBERG: Rick?

7 PROF. MARCUS: Something that I think you've

8 mentioned and I know the next speaker addresses is 

9 what's sometimes called categorical exclusions or 

10 something like that, and just as an inadequate one, 

11 suppose the category privileged or otherwise protected 

12 as litigation preparation materials therefore is 

13 excluded. I'm wondering, since I think the next 

14 speaker says something like his experience with 

15 categorical logging is categorically bad, what you can 

16 tell us about why it might be good?

17 MR. KEELING: So categorical logs along with 

18 metadata logs, I believe, are a reasonable alternative 

19 to document-by-document logs, and there are certain 

20 categories that should always be, I think, excluded, 

21 for example, in the vast majority of cases, such as 

22 privileged documents created after the filing of the 

23 complaint, communications with outside counsel.

24 In my view, the issue and the concern that 

25 was identified that perhaps categorical logs could 
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1 potentially lead to over-withholding, and while that 

2 is not my experience, I think that can be addressed by 

3 what is referred to as, like, a categorical-plus log 

4 or a metadata-plus log, which means you provide the 

5 categories in this instance or you provide documents 

6 via just an objective metadata log with the to, from, 

7 CC, things like that. And the other side then has the 

8 ability to focus in on either particular categories or 

9 particular parts of the log and then ask for more 

10 information, which could include, as appropriate, 

11 document-by-document entries.

12 But what you're doing there is you're 

13 limiting the document-by-document burden to documents 

14 that actually are more likely to matter. Like, the 

15 vast majority of privileged documents don't matter to 

16 the substance of the case, right? And so this 

17 categorical-plus approach is more likely to focus the 

18 parties on what matters and also, I think, will 

19 address the perceived issue of over-withholding by 

20 requesting parties.

21 CHAIR ROSENBERG: Okay. Well, thank you so 

22 much, Mr. Keeling, for starting us off this morning

23 and for your responsiveness to the questions we've 

24 had. We appreciate your comments and the time you've 

25 taken to present to us.
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1 MR. KEELING: Thank you. 

2 CHAIR ROSENBERG: Thank you so much. 

3 Mr. McNamara?

4 MR. MCNAMARA: Good morning. 

5 CHAIR ROSENBERG: Good morning. 

6 MR. MCNAMARA: Thank you very much. My name 

7 is Doug McNamara. I'm an attorney that specializes in 

8 consumer class actions, products cases, data breach 

9 cases, and I'm here because I support the proposed 

10 amendments. The sooner resolution on format and 

11 timing of logs can get done, the better. Rolling logs 

12 and document-by-document logs I have found in my 

13 experience are best to avoid over-withholding, in 

14 camera reviews, and re-depositions. And over15 withholding is a real problem. It's been since when I 

16 started as an associate on the defense side at a big 

17 defense firm, I noted in their comment that DRI stated 

18 that if lawyers are going to cheat, they will do so in 

19 a log-by-log or categorical log basis.

20 Well, to me, it's not so much over21 withholding is because of insincerity. It's because 

22 of insecurity. In the '90s, picture a room, a 

23 conference table, a bunch of 20-somethings around 

24 bankers boxes of papers and we have to look through 

25 these and figure out if they're privileged. We joked 
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1 this is where shaky relationships went to die and new 

2 ones were born. You'd spend eight hours with each 

3 other looking through these papers and if you saw a 

4 document and you're like I don't know if this is bad 

5 or not, I don't want to be the person that hands this 

6 over to the other side and gets fired or gets yelled 

7 at.

8 And as Mr. Keeling alluded to, it's still 

9 that way. We still have contract lawyers and junior 

10 lawyers making this first call. They're the first 

11 line on this, and a lot of them don't know anything 

12 about the attorney-client privilege or attorney work 

13 product or deliberative privilege or any of these 

14 privileges. So they put it on a log and they let it 

15 rest there to kick the can down the road and go to the 

16 next person.

17 The problem is, when that happens, you may 

18 have depositions go on, you may have discovery 

19 proceed, and then, all of a sudden, you get the log 

20 and it's like wait a minute, these documents, they 

21 should never have been privileged. And that's not me 

22 saying this as the plaintiff's lawyer. It's usually 

23 persons like Mr. Keeling, who then see the log come up 

24 to them and say, oh, I think folks were a little 

25 overeager here. And to give you an example, in 2023, 
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1 Judge Chhabria in the Facebook Cambridge Analytica 

2 case, where Facebook and Gibson Dunn gave a 180,000-

3 document privilege log and, after some sampling, they 

4 deprivileged 63 percent of that log. And when Judge 

5 Chhabria at the sanctions hearing said what happened, 

6 the senior counsel at Gibson's response is that 

7 nervous associates overdesignated the documents to 

8 avoid waiving privilege.

9 And a lot has happened in the '90s, 

10 especially to me, but it has not changed with 

11 associates. Nobody wants to be the person responsible 

12 for doing that. The sooner you have logs that get 

13 done, that are kicked up to more senior counsel, that 

14 are given over to the other side, the quicker you're 

15 going to get to flesh this out and stop that.

16 I did notice that Mr. Keeling talked about 

17 categorical logs and meta logs, and, to me, they're 

18 very, very different. So a meta log, to me, and this 

19 is something we couldn't do back in the '90s, you can 

20 produce in a spreadsheet the to, the from, the CC, the

21 subject matter of the document, and the date. So 

22 you're immediately seeing who got it, who wrote it, 

23 what the subject was, and when. You're already going 

24 to be able to answer certain important questions, like 

25 was this done in anticipation of litigation? Are 
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1 there any lawyers involved here? Is the subject one 

2 where we would think this probably was business 

3 advice? A lot of things are going to come right off 

4 the top from seeing that kind of a log that you won't 

5 see in a categorical log.

6 Let me then quickly turn to format. I don't 

7 believe there's a problem with 26(b)(5)(A) the way 

8 it's written, and the judges aren't misapplying the 

9 rule. And I also don't think you can change the rule 

10 to change what's going on. A party that produces a 

11 document that claims it's privileged has a burden 

12 under state law to meet that burden that this is a 

13 privileged document.

14 The judges are applying the law. That party 

15 has to show that they meet all the elements of that, 

16 and that means the judge has to look -- he or she has 

17 to look at the underlying elements. They have to see 

18 the to, the from, the what happened. And if they 

19 can't see that on a categorical log, they're going to 

20 do what even the Southern District of New York seems 

21 to do, which has a presumptive rule on categorical 

22 logs, they're going to ask for more information, 

23 they're going to do in camera reviews and send you 

24 back to do it again.

25 I don't think the producing party decides is 
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1 a good idea. I saw that LCJ and that Mr. Keeling had 

2 suggested that too. I don't think you can allow that 

3 party to have that right. Again, they have the burden 

4 to do it at the end of the day. So that's where this 

5 is not just asymmetric litigation. You have the 

6 burden, you're taking the extra step.

7 And then, finally, in terms of the Committee 

8 note, I think I agree also with DRI that some examples 

9 of adequate logs in the note would help. And I gave a 

10 few in my testimony that Judge Grimm had, of course, 

11 for the District of Maryland and also Judge Waxse 

12 included in a decision before. Thank you.

13 CHAIR ROSENBERG: All right. May I turn to 

14 our reporters to see if there are any questions of Mr. 

15 McNamara?

16 PROF. MARCUS: If I may, I think I'd like 

17 you to expand a little bit about what you called meta 

18 logs and tell us whether those are almost push-a19 button items and also why that isn't good enough for 

20 you in a document-by-document sense or some other 

21 sense because maybe that's easy to do. And then, 

22 finally, in terms of rolling or tiered or phased 

23 production, have you found that that has worked well 

24 in terms of document production and privilege logging 

25 or privilege review in the cases on which you work?
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1 MR. MCNAMARA: Sure. So the meta logs are a 

2 great way of winnowing things down. You can imagine 

3 the spreadsheet, you'll have the to, the from, the 

4 day, all the recipients, the subject matter that's in 

5 electronic discovery, you have a lot of the things 

6 you'd see in the log except that last column where the 

7 lawyers are doing the analysis and saying privileged 

8 because it, you know, dealt with this issue. You can 

9 cut down a lot of the stuff that's going to be on it. 

10 You can basically get rid of the chaff because you 

11 realize, well, it went to too many people, there are 

12 no lawyers on it, et cetera.

13 It's a good step. It actually can save time 

14 and money, but at the end of the day, if you're the 

15 party claiming the privilege, you got to do that last 

16 column, you have to say why it's privileged because 

17 you have to justify it. You don't get to just say I 

18 want to keep it. So you will have that column 

19 eventually. It might save some time and money to do a 

20 meta log first. Whether you call it a tiered log, I 

21 don't think we're that far apart with Mr. Keeling on 

22 that, on how to get to that point. But that is 

23 something you could discuss with the parties at the 

24 initial conference. You know, that's exactly why this 

25 is a great idea in the rule.
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1 PROF. MARCUS: And when you say the last 

2 column, attorney-client privilege, litigation 

3 preparation, what are the sorts of things one could 

4 enter in there that would help you?

5 MR. MCNAMARA: Well, it's going to be 

6 exactly -- it's going to be -- well, unfortunately, a 

7 lot of times they just put ACP AWB and they treat them 

8 as the same. But, usually, you're going to see 

9 something substantive in that column will be withheld 

10 because litigation advice, withheld because question 

11 for a lawyer. There's going to be some information 

12 there that actually is a justification that the 

13 producing party is giving to why to withhold it, and 

14 they have to do that at some point. 

15 PROF. MARCUS: But isn't that part of the 

16 review process necessary to determine whether to 

17 withhold the document, not just to make a list?

18 MR. MCNAMARA: Correct. But a lot of times 

19 with custodians, especially say you have -- as Mr. 

20 Keeling indicated, you may have an in-house counsel as 

21 a custodian. You might have a lot of documents there, 

22 but then, when you look at it and you realize, well, 

23 it went to the in-house counsel, but it also went to 

24 50 other people in the company, you know? It went to 

25 the in-house counsel, but it also went to everybody 
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1 doing the incident response in that data breach.

2 You can pretty quickly see this is going to 

3 be business advice. It went to the in-house counsel, 

4 but it went to the people who were answering questions 

5 for the PR. So you can do a sufficient -- significant 

6 amount, I should say, of winnowing down by doing a 

7 tiered log. And if you have folks that can discuss 

8 this early on in the process at the initial 

9 conference, it saves some time.

10 This also goes to the idea about the rolling 

11 log being one where -- and it has been for me a time12 saver because the quicker you get the log, especially 

13 early on, you might say I'm seeing a lot of documents 

14 that involve this particular third party. I don't 

15 think it's privileged because they did, say, a 

16 forensic report. And you could have that fight in the 

17 beginning of the case instead of having that fight at 

18 the end of the case, when people have already been 

19 deposed and you have to do depositions again.

20 PROF. MARCUS: You mentioned depositions 

21 that occur before what we're talking about has been 

22 completed. Are you suggesting that we should say 

23 depositions should not occur until that process is 

24 completed? 

25 MR. MCNAMARA: Absolutely not. No, no, not 
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1 at all. And that's part of the idea of seeking 

2 rolling logs, of seeking cooperation, seeking 

3 discussion with the other side about the format of the 

4 privilege log up-front. A lot of times, we would get 

5 a log a couple of months down the road, maybe right 

6 before the end of fact discovery, and, you know, it's 

7 a static document, doesn't have a lot of information, 

8 we have to go back and there's letters back and forth, 

9 and by the time you get the log, you know, you're 

10 almost done with fact discovery. So the sooner that 

11 this issue can get resolved, it's more efficient in my 

12 experience. 

13 CHAIR ROSENBERG: Thank you.

14 Andrew? 

15 PROF. BRADT: Thanks. This dovetails a 

16 little bit to what you were saying, but I wonder 

17 whether you could comment on Mr. Keeling's point that 

18 the -- or his assertion that the conference considered 

19 by the rule is too early to be productive in a lot of 

20 cases. Has that been your experience, or is there 

21 much you can do at the very outset of the case, you 

22 can accomplish?

23 MR. MCNAMARA: There's much you can do at 

24 the outset. First of all, you've got to just, you 

25 know, agree, is there going to be certain things that 
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1 categorically you don't have to log? Hey, this is a 

2 case where there's nothing you have to bother logging 

3 after the lawyers have been engaged and the litigation 

4 has started because there's not going to be any 

5 ongoing issue or that there's particular things that 

6 you can just forget about logging on both sides. 

7 Usually, also, at some -- as soon as the litigation 

8 starts, you have some idea of who the custodians may 

9 be and you could discuss those hand-in-hand.

10 These are going to be the key custodians. 

11 Let's do a metadata review of those and figure out 

12 from there, especially if they're the most important 

13 custodians, where we're looking at it, and we may get 

14 a pretty good idea of the landscape thereafter and 

15 also the format. You know, if there's going to be a 

16 privilege by a doc-by-doc or a categorical log and 

17 there's disagreement, bring it up sooner with the 

18 court so that nobody wastes their time down the road 

19 with invective letters about your log is terrible; no, 

20 my log is sufficient. So I think it definitely would 

21 save some anguish to do that up-front.

22 CHAIR ROSENBERG: Ariana?

23 MS. TADLER: How often are you finding that 

24 you and your opposing party are agreeing to a 502(d) 

25 order and bringing that to the court? 
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1 MR. MCNAMARA: A hundred percent. A hundred 

2 percent. Well, I at this point don't have a case 

3 where I have an adversary who does not put a 502(d) 

4 either in the protective order or in the ESI protocol 

5 or somewhere else. And that should to some degree 

6 help with the fear of inadvertent production. You 

7 know, if they do produce too much because there is the 

8 emphasis on getting the production out there, it can 

9 be clawed back, and that does seem, I think, to take 

10 out some of the concern about a time-consuming and 

11 arduous log or else we end up waiving something. No, 

12 you don't waive it. Under 502(d), you can still get 

13 it back without having to worry about subject matter 

14 waiver.

15 MS. TADLER: How familiar are you with other 

16 cases? I mean, this may be your practice in the types 

17 of cases that you're involved in. In other -- Mr. 

18 Keeling, I think, was often focused on asymmetrical 

19 cases during his testimony. Are your colleagues that 

20 you're aware of also agreeing to those and are they on 

21 their own promoting the inclusion of them? 

22 MR. MCNAMARA: I don't know any of my 

23 colleagues who have opposed a 502(d). Again, the goal 

24 on my side is I would like the documents as soon as 

25 possible so that I know what -- I have a Rule 16 
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1 obligation, I've got to prosecute my case. I've got 

2 to show I'm being due diligent. I want to get my 

3 documents. If it means that I have to agree to a 

4 502(d) so that I lose the chance of arguing waiver, 

5 I'm fine with that. I would like to see the document 

6 as soon as possible so I can make that assessment, 

7 know what to do next, know who to subpoena, get the 

8 depositions done and move quick as possible. 

9 I don't know anyone who -- if they don't 

10 understand what a 502(d) is, then that's something we 

11 should probably do a better job on my side of the "v." 

12 to educate them, but I don't know anyone who really 

13 objects to them. 

14 MS. TADLER: And I should have asked the 

15 question to Mr. Keeling also about 502(d) and how that 

16 impacts practice, so we might want to come circle 

17 around on that with some others. Thanks.

18 CHAIR ROSENBERG: Okay. Thank you. 

19 And Ed?

20 PROF. COOPER: All of these discussions 

21 invariably focus on attorney-client privilege or trial 

22 preparation. Is that because other privileges seldom 

23 arise or because they are more easily identified? 

24 MR. MCNAMARA: They do -- I have seen, 

25 especially with folks that have deliberative -- that 
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1 deal with the government and have regulatory 

2 interactions, those do come up as well, and those will 

3 often -- those are easier usually identified because 

4 of the number of parties involved. There's 

5 specialization at that particular firm, so you might 

6 see it real quick.

7 Whereas, with work product and attorney8 client, unfortunately, some corporations, people got 

9 the idea, if I slap the word "privileged" on an email, 

10 it's automatically privileged, or if I CC the in-house 

11 counsel, it's automatically privileged. And I think 

12 that also has exacerbated the amount of privileged 

13 documents that persons like Mr. Keeling have to go 

14 through because they're just -- they're not really 

15 privileged. But you don't get that as much. People 

16 don't usually say deliberative process on an email 

17 because they're afraid of turning it over, so it 

18 doesn't come up as often.

19 CHAIR ROSENBERG: Okay. Thank you so much, 

20 Mr. McNamara. We appreciate your time.

21 And Ms. Massaron? And as I understand it, 

22 you'll be addressing Rule 16.1. 

23 MS. MASSARON: Yes, that's correct. Good 

24 morning. 

25 CHAIR ROSENBERG: Good morning.
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1 MS. MASSARON: I want to thank the Committee 

2 for allowing me to appear. I'm Mary Massaron. I'm an 

3 appellate lawyer at Plunkett Cooney in Michigan. I've 

4 been practicing appellate law for a little more than 

5 30 years. So my vantage on the Federal Rules of Civil 

6 Procedure comes from my experience in a law firm with 

7 the firm's clients, my clients, and my partners coming 

8 to inquire of me what's allowed and what's not allowed 

9 as litigation proceeds. 

10 And I've had an abiding faith in our Federal 

11 Rules since my civil procedure class in which 

12 Professor Lombard started the day, my first day in law 

13 school, holding up the Federal Rules and saying, 

14 listen to the rules, there shall be a complaint and an 

15 answer, it's almost biblical. And he had a passion 

16 for the rules which he certainly communicated to me. 

17 I commend you for the hard work you do, particularly 

18 in the MDL area, where this question of rules is 

19 difficult and where I think it's widely agreed that 

20 there are problems, but finding a solution is not 

21 easy. 

22 A few years ago, I represented a Greek 

23 entity that was litigating in this country and, again, 

24 they had tremendous faith in our judicial system, 

25 which was really quite inspiring to me, and they 
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1 wanted to know, though, in our initial meetings, how 

2 these rules worked, what will the process be, what can 

3 we do, what can the other side do, how will the judge 

4 approach this. All of that requires rules.

5 And so I thought it might be helpful to sort 

6 of set a kind of foundation about something that I 

7 think we all know but that I think is important to 

8 keep in the front of our minds as we think about what 

9 to do about the problem of meritless claims which 

10 exist in the MDL context. Certainly, our rules were 

11 initially adopted because there was this what one 

12 scholar called a chaotic and complicated condition 

13 caused by the lack of rules. And I think we've heard 

14 people talk about the MDL context as being sort of 

15 like the Wild West because of the absence of specific 

16 rules for that context, which now, after all, is an 

17 overwhelming proportion of the litigation in our 

18 federal courts. 

19 And one description of what is a rule is or 

20 a rule of law system that Ronald Katz talked about 

21 that I think is sort of a touchstone, when you have a 

22 rule-based system, you have principled predictability, 

23 derived from valid authority, external to the 

24 government decision-maker. That would be the judge in 

25 litigation. And so the touchstone is, does how these 
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1 cases are proceeding satisfy that definition from 

2 Ronald Katz or some other comparable definition?

3 And I thought it might be helpful, because I 

4 understand there's been a great deal of discussion 

5 over many years, to talk a little bit about rules and 

6 flexibility because I know that the MDL context, 

7 there's a great concern about having flexibility 

8 remain and how will rules work with that.

9 One thing that I think about a lot when I 

10 think about rules and that I talk about in briefs that 

11 I write about how to interpret rules or how a court 

12 should think about a rule that's under dispute is the 

13 difference between three categories.

14 One category is a sort of bright-line rule. 

15 And, of course, some of our Federal Rules of Civil 

16 Procedure are very bright line, although even there, 

17 where there is specific timing, often the specific 

18 timing is preceded by the words in general, and then 

19 there's an opportunity with that bright-line rule to 

20 build in flexibility on a showing of good cause for 

21 some different option. But, nevertheless, the 

22 standard, the default, is a bright line, and 

23 everybody, a new person to the system, a company from 

24 another country, an associate just learning how to 

25 practice law, can look at that bright line and 
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1 understand in the ordinary case in this context this 

2 is what's going to happen, and on a showing of good 

3 cause, some other thing will happen.

4 A second kind of rule includes a standard, 

5 and our Federal Rules have standards as well. One 

6 good example, I think, is also under Federal Rule 

7 12(4)(e), which allows a motion for a more definite 

8 statement, and that rule has a standard for when that 

9 motion should be granted. The standard is, is the 

10 pleading so vague or ambiguous that a party cannot 

11 reasonably prepare a response? That gives you a very 

12 firm notion of what's required even though it allows 

13 for flexibility in the particular circumstance. 

14 And then there are ad hoc. I don't think ad 

15 hoc decisions are rules. We don't know about them in 

16 advance. They're not something that give guidance. 

17 There's no standard that anybody could look at, no 

18 bright line that anybody could look at after the fact 

19 to say whether that ad hoc decision conforms or 

20 doesn't conform, and, to me, that's a problem in the 

21 current situation.

22 CHAIR ROSENBERG: If you could just maybe 

23 wrap up, and then we'll see if we have any questions.

24 MS. MASSARON: Sure. 

25 CHAIR ROSENBERG: Sure.
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1 MS. MASSARON: Really, the only other point 

2 I had was simply to say, if you look at our Federal 

3 Rules, and I read them again yesterday actually on the 

4 plane, parts of them, they're brilliant at having a 

5 bright line or a standard while allowing for 

6 flexibility. It seems to me that the pleading 

7 requirement, and I want to focus specifically on the 

8 LCJ proposal to modify the disclosures, it seems to me 

9 that if that were to be adopted, it would be a start 

10 of trying to deal with the enormous problems that I 

11 think everybody recognizes of meritless claims that 

12 are not addressed until at the back end of the 

13 litigation, which cost enormous amounts of time and 

14 resources for the courts and the parties.

15 CHAIR ROSENBERG: Thank you so much.

16 Rick? 

17 PROF. MARCUS: Thank you. I think I have 

18 one generalized question or two really about your list 

19 of categories of rules. One is the ad hoc rule 

20 authority perhaps included in our 16.1 is really 

21 pretty similar to what's already and has for 40 years 

22 been in Rule 16, which says the judge must set 

23 schedules and so on. And I wonder if you think that's 

24 a rule.

25 And I also wonder about something else 
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1 that's raised by LCJ, I think, and others, which is 

2 that -- well, a rule can also say, Judge, you have 

3 authority to do X, and one X that might be filled in 

4 there is appoint leadership counsel. Would that be a 

5 rule if it clearly gave a judge authority to do that 

6 where there's some doubt about it?

7 MS. MASSARON: I'm not at all sure that the 

8 rules can give a judge the authority to appoint a 

9 leader of lawyers for parties before the case.

10 PROF. MARCUS: Oh, no, no, I'm not talking 

11 about that. I'm just saying that would be a rule, 

12 wouldn't it?

13 MS. MASSARON: I'm sorry, I'm not 

14 understanding your question.

15 PROF. MARCUS: Well, that's another -- a 

16 rule can also grant authority. You could debate 

17 whether it should be granted. But that's a rule also 

18 which doesn't seem to be in one of your other 

19 categories.

20 MS. MASSARON: That's a sort of enabling 

21 rule. I guess my comments are directed more toward 

22 those rules that are designed to provide the roadway 

23 for a lawsuit and to urge you to adopt rules that make 

24 that roadway and the procedural mechanisms by which 

25 the parties lead their litigation on each side clear 
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1 so that lawyers and judges who don't know that from 

2 the get-go can look and get a picture of how it's 

3 supposed to proceed.

4 And litigation, I don't have to tell you or 

5 anyone in this room, can be very complex. So not 

6 every litigation follows the same path. But, if you 

7 think about it as a decision tree, there's a 

8 complaint, there's an answer, then there are various 

9 procedural mechanisms that govern the next steps. One 

10 of the things, and this goes again to the disclosures 

11 and the problem of meritless claims, and I think it is 

12 strongly related to the idea of the rules, is that our 

13 Federal Rules historically have provided very bright14 line procedures for weeding out meritless claims at 

15 the outset. The lawyer who files a complaint has an 

16 obligation. We understand that, for a variety of 

17 reasons, that obligation to know that there's standing 

18 and to have done some preliminary review isn't 

19 happening in the same way in the MDL context, and 

20 that, to me, is a serious problem. 

21 Then the rules provide for motions to 

22 dismiss, but, because of the volume, those have been 

23 perceived and have not been the answer one might have 

24 thought. So the LCJ modification of the proposal in 

25 16(4), I think, is an effort to make that work better 
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1 in this context so that everybody knows how it's going 

2 to work and so that it avoids this problem of these 

3 meritless claims sitting, making it hard to settle, 

4 making it hard to process, adding to the discovery 

5 costs, and really contravening the fundamental 

6 philosophy of the rules, which is to allow for an 

7 early elimination of meritless claims. 

8 CHAIR ROSENBERG: So let me just interrupt 

9 to see if there are any -- and I know Mr. Dahl is 

10 speaking next for the LCJ proposals. Any questions 

11 from our Committee members?

12 Andrew, did you have a question?

13 PROF. BRADT: Yeah. I guess I'll just 

14 follow up on Rick's question about Rule 16(c) and the 

15 laundry list of things that a judge may consider at a 

16 pretrial conference and why, if that rule is 

17 acceptable, why not this one? And also, why doesn't 

18 this rule enhance the ability to lay out a roadmap 

19 better for those who are uninitiated in the LCJ 

20 process or in the MDL process? 

21 MS. MASSARON: And here's my answer to that. 

22 I think that laundry list is something that really 

23 belongs in the manual for complex litigation. It 

24 belongs in judicial training. I don't think it's the 

25 kind of rule that helps the parties know the roadmap 
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1 for the case and it's not the kind of thing that has 

2 historically been in the Federal Rules.

3 It seems to me our system has been an 

4 adversarial system. And I understand there's maybe 

5 debate, certainly debate about how much the judiciary 

6 should be managerial versus how much the judges should 

7 be deciding matters as brought and litigated between 

8 the parties. But wherever that line is, it seems to 

9 me incorporating all of that here as a way to deal 

10 with the MDL problem is not the answer. The answer is 

11 to try to make these rules in a much more rule-like 

12 fashion apply in the MDL context, and that's what I 

13 would hope that the Committee would be able to try to 

14 do. I understand it's difficult.

15 CHAIR ROSENBERG: Thank you. We so 

16 appreciate your comments and look forward to further 

17 discussion on some of these issues. 

18 Mr. Dahl on behalf of Lawyers for Civil 

19 Justice, and I know you're going to try to address 

20 both privilege logs and Rule 16.1, so good luck doing 

21 that in five minutes.

22 MR. DAHL: Thank you. It's a great honor to 

23 appear before the Committee. The Committee has 

24 identified two very serious rules problems in the MDL 

25 context, that the FRCP are allowing a very large 
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1 number of claims that do not belong in cases and do 

2 not belong in our courts, causing avoidable management

3 problems and fundamental questions about well-accepted 

4 legal standards and basic fairness.

5 In the privilege logs, an overwhelming 

6 burden caused by a misunderstanding of the rule and 

7 the comment to Rule 26(b)(5)(A). One commonality 

8 between these two rules problems is that they are well 

9 defined already in the rules and they have been 

10 changed by practices that have changed the meaning of 

11 the rules in unexpected ways and now need fixing.

12 Another commonality is that the Committee's 

13 proposals address these two rules problems only 

14 indirectly, without directly fixing the rules' 

15 problem. I'll address MDLs first. It is highly 

16 needed in the FRCP to have rules governing MDLs, just 

17 like all other cases, and to keep the FRCP true to 

18 fundamental legal requirements. As I understand, the 

19 Committee's purpose in 16.1 is to help identify issues 

20 that should be addressed early in order to avoid 

21 problems later. 16.1(c)(4) is meant to address the 

22 well described phenomenon of unexplained, unexamined 

23 claims hampering judicial management. A new MDL judge 

24 needs to know this: the FRCP rules about claim 

25 sufficiency are likely to have no effect in your new 
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1 MDL. Many, even most, of the claims do not belong in 

2 the litigation and have no relationship to the case. 

3 The claimants never used the product or suffered any 

4 injury within the scope of the case.

5 This problem provides management problems 

6 and opportunities. Ignoring the problem will impair 

7 the judge's ability to understand and manage the case, 

8 while taking action on the problem will inform the 

9 decisions about discovery, motion practice, bellwether 

10 trials, and other matters. Ignoring the problem 

11 prevents parties from reaching resolution, while 

12 addressing the problem can accelerate the parties' 

13 understanding of what needs to happen to resolve the 

14 case.

15 Kicking the can down the road does not save 

16 any effort or time. You will eventually have to 

17 figure this out. I point your attention to the recent 

18 order in the 3M case: "Where, as here, counsel failed 

19 to adequately organize and manage their inventories, a 

20 domino effect develops, resulting in the disruption of 

21 hundreds of thousands of other MDL cases." The order 

22 says this stops now.

23 Well, it's a good thing that this stops now. 

24 Now, in that case, is years after the largest MDL has 

25 been proceeding through the court system. Now is not 
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1 the right time to deal with whether those claims 

2 belong in that case. It should happen first. And 

3 this is a central concept of our comments to the 

4 Committee to pay attention to the prophylactic effect 

5 of a rule. A rule can create compliance with the 

6 well-accepted pleading standards and due diligence 

7 requirements. Only a rule can be effective because 

8 waiting for each judge to decide whether there is 

9 going to be enforcement and how that enforcement will 

10 go and negotiating it is only an invitation to file 

11 meritless unexamined claims. 

12 The notion that such a rule would constrain 

13 judges in the management of the cases is false. Such 

14 a rule would liberate the judges from having to deal 

15 with the problem in the first place because it would 

16 prevent the filing of unexamined claims.

17 This relates to the fundamental reason why 

18 this is a rules problem. The rules that govern the 

19 pleading standards and due diligence in all other 

20 cases are not working. Rules 3, 7, 8, 9, 11, and 12 

21 ask this existential question, do the FRCP define 

22 pleadings and pleading standards and discovery tools, 

23 or do they only do so in 30 percent of cases, the 30 

24 percent that are not consolidated into MDLs?

25 In MDLs, there is effectively no guidance, 
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1 as if there were no Federal Rules of Civil Procedure. 

2 You will hear more from other people today on these 

3 topics, but ignoring the rules should be unacceptable 

4 to courts, and leaving the rule problem unfixed should 

5 be unacceptable to the Committee.

6 I refer to the comment where we've proposed 

7 changes to Section (c)(4) and also to describing why 

8 the note should explain why the Committee is 

9 proceeding with this rule, what the problem is, what 

10 the problem you're trying to solve is, and, also, I'll 

11 touch on the other topics in the rule that we mention 

12 that are not rules problems and therefore should not 

13 be included, and in fact, some of them are going to 

14 create new rules problems. 

15 I'll switch quickly to privilege logs.

16 CHAIR ROSENBERG: Maybe take a minute or so 

17 and let me see what questions we have. That's been 

18 your five minutes, but I do understand you're covering 

19 two proposed rules and many other witnesses have 

20 referred to your filing, so why don't we give you 

21 another minute or so. 

22 MR. DAHL: Okay. I'll make it very brief.

23 Again, as in the MDL context, the Committee got this 

24 right in 26(b)(5)(A) describing what the privilege log 

25 responsibility is, that it does not include a 
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1 document-by-document in every case. The rule is meant 

2 to be flexible and allow discretion. The problem is 

3 that an overwhelming number of courts don't understand 

4 the rule as saying that anymore. 

5 It is creating enormous inefficiencies. I 

6 adopt the comments of the people who are more 

7 experienced than I am in this topic. It is causing a 

8 great deal of time and money down the drain for no 

9 purpose. It is inviting gamesmanship and satellite 

10 litigation. The Committee's proposal will no doubt 

11 help by encouraging people to discuss the problem. 

12 However, no one who turns to the source of the logging 

13 obligation, 26(b)(5)(A), is going to see these 

14 amendments because they are amendments to other rules.

15 It is clear from the proposal that it is 

16 meant to fix the problem of 26(b)(5)(A). There are a 

17 dozen references to (b)(5)(A) in the Committee's 

18 proposal to amend other rules. A better solution 

19 would be to address the problem in the source of --

20 where the source exists in (b)(5)(a) or, at the very 

21 least, make a reference in that rule to the new 

22 amendments and define the standards of what 

23 sufficiency means in a comment and a note to 

24 (b)(5)(A). Thank you.

25 CHAIR ROSENBERG: Thank you so much. 
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1 Rick, do you have any questions? 

2 PROF. MARCUS: I think I have mainly about 

3 the MDL, but let me go backwards with the last thing 

4 you mentioned. You would like to see something as a 

5 beacon in 26(b)(5)(A) that says you should go look at 

6 26(f), which presumably is where people will look if 

7 they're complying with 26(f), and that's a long time 

8 before they have to do the privilege log, so I'm not 

9 clear why that's useful. But I gather you think a 

10 cross-reference would be valuable there. And I think 

11 from the position of, say, the plaintiff's side, maybe 

12 a question is whether there's any downside to that.

13 Several of the submissions we've received, 

14 I'm switching to MDL now, in terms of what sometimes 

15 is called vetting, urge that evidence must be 

16 presented up-front, facts must be presented up-front, 

17 and so on. Why isn't it enough to call the attention 

18 of the parties in the court to how that should be done 

19 in a given case rather than trying to prescribe how it 

20 ought to be done? Because that should vary. That 

21 probably varies a great deal with different kinds of 

22 cases. That's one question Shouldn't we leave that 

23 for attention with individual specifics? 

24 The other question on that is something I 

25 raised with someone else earlier. If there's a 
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1 preemption issue or something like that which might 

2 clear the board, shouldn't the court deal with that 

3 before doing the difficult, challenging, and expensive 

4 process of individual scrutiny of cases, particularly 

5 if you think no motion is required and the court has 

6 to do this all by itself? So I think, basically, the 

7 point is why doesn't this put the responsibility where 

8 it can be addressed most effectively?

9 MR. DAHL: The answer, Professor, I believe, 

10 is that a rule that describes the standards will have 

11 that effect without the need for judicial involvement. 

12 If the rule says that compliance with the well13 described pleading standards and burdens of going 

14 forward will be addressed early in the MDL, what will 

15 happen is that people will act accordingly, and just 

16 as with the other rules, by and large, people are 

17 going to follow that.

18 There will, of course, still be room for and 

19 a need for courts to define what that requirement will 

20 be in a particular case. But the point of it, that it 

21 will happen, should be a rule, because only that is 

22 going to communicate to all parties, future parties 

23 day one of the case, even before day one of the case, 

24 what is an MDL? How does an MDL work? Well, early on 

25 in an MDL, claimants are required to make a very basic 
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1 showing that they have a claim, that their claim 

2 belongs in the case. That will be defined by the 

3 judge early in the matter. That will address -- that 

4 will avoid the management problem of having to address 

5 the unexamined claim problem. 

6 And it will also answer your second point 

7 about prioritizing what the judge has to do first 

8 because these problems, by and large, aren't going to 

9 come to the judge's desk if the rule prescribes that

10 there will be a process for eliminating the meritless 

11 claims, so don't bring them.

12 CHAIR ROSENBERG: Andrew?

13 PROF. BRADT: Thanks. I have a question 

14 about the unvetted or unsupported claims piece. And 

15 what I noticed in your submission in this initiative, 

16 others who are taking a similar view, is that the 

17 citation to that is either anecdotal or to language in 

18 a 2018 subcommittee report of this Committee. My 

19 question is, are you aware of any empirical data that 

20 we can cite to about the extent of the unsupported 

21 claims problem? 

22 In an article earlier this year in the Texas 

23 Law Review, Professor Ray says he's not aware of any 

24 empirical study of the number of meritless claims in 

25 MDLs or the extent of the problem. So I just wonder, 
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1 is there something new or something you can point us 

2 to that would go in that direction? 

3 MR. DAHL: I believe there are studies on 

4 that topic, but I am not fluent with them, so I don't 

5 know. I do think that part of the problem perhaps is 

6 that, to some extent, we don't know what we don't 

7 know. There is not vetting of unsupported claims 

8 until very late in the process, if ever, and that 

9 information may exist with claims administrators and 

10 others rather than easily known. I mean, that's the 

11 problem at the beginning of an MDL. The time of the 

12 16.1 conference, nobody has any idea how many of the 

13 claims are unsupported, but it's widely understood 

14 that it's a large number, half or more in a lot of 

15 these big cases.

16 PROF. BRADT: And is there -- you say half 

17 or more. Can you point to something that would 

18 substantiate that in any particular case? 

19 MR. DAHL: I believe that's the general 

20 understanding. I don't know that there are studies on 

21 that. I don't know it's possible for studies to be on 

22 that. But I do think there's literature on the topic.

23 CHAIR ROSENBERG: Judge Proctor?

24 JUDGE PROCTOR: Thank you. Back to the 

25 first sentence of Section 1407(a), "When civil actions 
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1 involving one or more common questions of factor are 

2 pending in different districts, such actions may be 

3 transferred to any district for coordinated or 

4 consolidated pretrial proceedings."

5 Okay. It seems to me what you're proposing 

6 is that these actions be transferred to a transferee 

7 judge for individualized proceedings, which would look 

8 no different than where they were where the good Lord 

9 flung them. And so my question is I think a fair 

10 pushback on your position would be I think your 

11 assertion is you haven't heard us, and I think we 

12 would say, as the subcommittee, oh, no, we have heard 

13 you and we have provided in Subsection 4 a provision 

14 that allows the transferee judge to say you're exactly 

15 right, we have to dig in right now to these 

16 individualized actions and see if there's a basis for 

17 their filing. 

18 But, as Professor Marcus said, there may be 

19 other cases where there's an across-the-board issue, 

20 whether it's preemption, general causation, an 

21 arbitration provision, or some other across-the-board 

22 dispositive issue that should be prioritized in 

23 coordinated proceedings, and why wouldn't Subsection 4

24 permit that flexibility that would actually inure to 

25 the benefit of the clients and lawyers you're 
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1 representing, where they wouldn't be spending tons of 

2 money on individualized matters when there's a 

3 potential TKO at the beginning of the pretrial 

4 proceedings?

5 MR. DAHL: The operative word of the 

6 sentence you quoted from the statute is "actions." 

7 And I don't think that it is appropriate to presume 

8 the actions exist where people do not have Article III 

9 standing or any claim or entitlement to the claim.

10 And, secondly, I think, as a management 

11 issue, your second point, I urge you to keep in mind 

12 the prophylaxis of what a rule would mean. It's not a 

13 matter of whether the judge has flexibility to manage 

14 the case. It's whether or not that the problems that 

15 land on the judge's desk are going to include all of 

16 these unexamined claims or not. 

17 JUDGE PROCTOR: Let's put you in a 

18 conference room with your client in a big MDL and 

19 you're talking to your client about litigation 

20 strategy and you're saying, you know, we have a motion 

21 we're going to file on general causation or preemption 

22 that we think has an 80 percent chance of knocking 

23 each one of these cases out, but what I'm going to 

24 propose is that our law firm immediately start looking 

25 at each tree in the forest while we're doing that, 
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1 even though we think there's only a 20 percent chance 

2 that's going to have to be done eventually. What do 

3 you think your client's going to say in response to 

4 that? 

5 MR. DAHL: Are you presuming that a rule has 

6 already taken effect of not filing --

7 JUDGE PROCTOR: No, I'm just talking about 

8 in a vacuum. I'm talking about in a vacuum. I'm 

9 talking about what is the smart management of 

10 litigation practice even from a defendant's 

11 standpoint?

12 MR. DAHL: Well, Your Honor, I take your 

13 question very seriously, but I think that the point 

14 really has to be what a rule would mean about changing 

15 that dynamic in the first place with no judicial 

16 involvement by creating the expectation and creating 

17 the standard that claims that are filed into the MDL 

18 belong in the case, have some relationship in the 

19 case. I think that a motion of -- you know, it may be 

20 the most efficient way to deal with the case, but you 

21 can do that without having thousands of meritless 

22 claims pending or having no idea what those claims are 

23 until they've been --

24 JUDGE PROCTOR: I'll end with this. Would 

25 you agree with the Committee today, following up on 
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1 Professor Bradt's point, that if there are studies 

2 that pinpoint some of these empirical issues that 

3 you're contending, because there's a difference 

4 between a widely accepted assertion and a widely 

5 accepted set of data, that you would share that with 

6 us? Because we have not received that to this point. 

7 I think that's why Professor Bradt was asking about 

8 it.

9 MR. DAHL: Of course, that would be helpful, 

10 but the problem is that we may not know what we don't 

11 know, that because of these -- because there is not 

12 vetting in this way, we don't know. That's the 

13 problem that arrives on the desk of the newly 

14 appointed MDL judge in the initial conference.

15 JUDGE PROCTOR: But, if we did vetting in 

16 these cases instead of consolidated or centralized 

17 proceedings, it would grind the MDL process to a halt, 

18 wouldn't it?

19 MR. DAHL: No, I think that's exactly the 

20 point that I'm trying to get at with the prophylactic 

21 effect of a rule. Perhaps this thought experiment 

22 would work. What if we didn't have any traffic rules 

23 in our community and we convened this meeting and the 

24 proposal was made, let's put a stop sign at the 

25 intersection so that everybody knows they have to stop 
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1 every time they enter the intersection, and somebody 

2 says, no, no, no -- the chief of police, no, no, no, 

3 we can't make it illegal not to stop at every 

4 intersection because we would have to put a police 

5 person at every single intersection and arrest every 

6 single person --

7 JUDGE PROCTOR: I think your analogy, quite 

8 fairly, is, if we need a stop sign at every 

9 intersection, then the pushback would be no, at some 

10 intersections, we need a traffic light so that you get 

11 the green light to go. Some we need a yield sign. 

12 Some we need a four-way stop. That's the flexibility 

13 of intelligent development of a traffic pattern, it 

14 seems to me.

15 MR. DAHL: But I think this one is different 

16 because what the flexibility argument is, is there may 

17 be circumstances where someone should be able to run a 

18 stop sign. They're on the way to the hospital. It's 

19 the middle of the night. No one's around. They have 

20 a great field of view. Why would you make it so they 

21 have to stop?

22 What I'm getting at, though, is the effect 

23 of rules is that they largely create compliance and, 

24 in this case, create compliance with something that 

25 the rules already describe and everyone accepts that 
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1 you have to have some basis to file a claim in court 

2 before you do it. That is the rule's problem because 

3 it exists -- it is taken care of by the existing rules 

4 in all other cases, but that rule is not having the 

5 effect in MDLs. That is the MDL rule problem that I 

6 think this Committee has identified and should solve, 

7 and solving it with a rule, creating that expectation 

8 that there will be a process to enforce the standards 

9 early in an MDL, will largely make the problem not 

10 here.

11 JUDGE PROCTOR: That's the key point, right? 

12 We have -- the MDL process has methodologies, rules, 

13 procedures for dealing with meritless claims. You 

14 just want those bright lines to be put at the 

15 beginning of the case, not upon remand, not upon 

16 summary judgement, not upon a 12(b)(6) motion, 

17 correct?

18 MR. DAHL: I would urge that if the rule 

19 made it clear that that is what is going to be 

20 required in each case, that it would make the problem 

21 largely go away, it would keep the judge's discretion 

22 of how and when to deal with that problem, but the 

23 flip side is this, that if you don't make that a rule, 

24 then what everyone understands is that each judge in 

25 each MDL is going to make that decision later, and in 
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1 the meantime, the only answer for the practitioner is, 

2 well, go ahead and file all of your claims because we 

3 don't know what's going to happen in the case. 

4 PROF. MARCUS: Mr. Dahl, can I -- Judge 

5 Lauck has a question, but this is switching gears a 

6 little bit. It seems to me one of the things we have 

7 been told is that Rule 26(b)(5)(A) and the attendant 

8 Committee note didn't create an expectation to do what 

9 you wish would have happened if that had been 

10 followed. So do rules really create these 

11 expectations that you're talking about? In that 

12 instance, apparently not. Why would this one do what 

13 you want in a way that avoids the pitfalls that Judge

14 Proctor's talking about? 

15 MR. DAHL: You're talking about the note to 

16 the privilege log rule?

17 PROF. MARCUS: Well, yes, I think you say, 

18 well, gee, courts are not following what you told them 

19 to do. Well, neither are litigants. So why should we 

20 expect 16.1 to have this socialization effect that you 

21 are urging upon us?

22 MR. DAHL: No one has commented more 

23 carefully and insightfully about the difficulties of 

24 writing rules and causing their effects than you, 

25 Professor, so I hardly dare to address it, but I do 
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1 think that the Committee shouldn't throw up its hands 

2 and think that this is an unsolvable problem. Again, 

3 the commonality is the principles that we're talking 

4 about here already exist, already exist in the rules. 

5 This Committee has developed those standards. 

6 Practices have overtaken them in these two areas. And 

7 it is a small thing for the Committee to address the 

8 problems with the existing standards.

9 And perhaps this addresses Professor Bradt's 

10 question as well, that if this were a revolution,

11 maybe more studies and more empirical data is 

12 required. But this isn't a revolution. It's not even 

13 an evolution. This is applying the concepts that are 

14 already in the rules in contexts that have changed due 

15 to unexpected things that have nothing to do with this 

16 Committee. But, nevertheless, the standards have 

17 changed and the rules need to be fixed to accommodate 

18 those practices in both of these instances.

19 CHAIR ROSENBERG: Joe, then Judge Lauck.

20 MR. SELLERS: I'm curious whether you think 

21 the proposed rule erects any barriers for courts, 

22 transferee courts to make the kind of assessments 

23 early or whenever it's appropriate that you are eager 

24 to have done. It seems to me that every transferee 

25 judge has an interest in ensuring as quickly as 
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1 properly possible to whittle down the claims that are 

2 merit -- to those that have merit and exclude those 

3 that are meritless and that part of the plan behind 

4 the rule as proposed is that process may vary from MDL 

5 to MDL depending on the size and nature of the 

6 evidence and the like, and at least as I have viewed 

7 the proposed rule, it's identifying tools in the 

8 judicial toolbox to be able to address these. 

9 So I'm curious whether you think there's 

10 some barrier in the rule as it's currently drafted to 

11 achieve the goal that you're proposing.

12 MR. DAHL: There is a barrier that is not in 

13 the rule and there is a tool that is not in any 

14 judge's toolbox, which is to set that expectation and 

15 standard before day one of a rule that you can read in 

16 law school and know about before you file the case or 

17 before the case is filed against you. What is an MDL? 

18 Well, an MDL is a procedure that includes, among other 

19 things, an early showing that you have enough support 

20 to go forward with your claim in the case.

21 No judge can do that. A judge who gets a 

22 newly assigned MDL, taking on that topic, it would be 

23 months before the judge could make that decision, 

24 communicate it, describe it, and give it effect. And 

25 if there's not a rule, one judge can't create the 
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1 expectation that that's what all MDLs will require, 

2 and that's the problem that only a rule can solve and 

3 why a rule would help all future MDL judges manage 

4 their cases. 

5 MR. SELLERS: So I understood your written 

6 comments to recognize that the proposed rule is not 

7 intended to displace all the other rules of civil 

8 procedure. They continue to have application in these 

9 proceedings. So wouldn't you agree with me that the 

10 rules that already exist that put counsel on notice 

11 that they have to file complaints that satisfy Rule 11 

12 and satisfy other portions of the rules will still 

13 apply to them and give them the guidance that you're 

14 seeking? And I don't see why that is not sufficient. 

15 MR. DAHL: I absolutely agree that those 

16 rules apply, and the problem is that they're not 

17 having the effect and the reason is, and I'm 

18 channeling what transferee judges have said, that 

19 there is something about MDLs that's different. I 

20 don't read in the statute that what's different is 

21 that there are no pleading standards or no requirement 

22 of Article III standing to allege an injury. What's 

23 different about MDLs? Multiplicity of parties.

24 So the system under the current rules that's 

25 designed perhaps for one-on-one, one-party cases, two-
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1 party cases, that involves a pleading and a review, a 

2 motion to dismiss, and allowance to file an amended 

3 complaint and another review times 20,000 is where you 

4 get to Judge Proctor's point of a judge would do 

5 nothing else. 

6 And so the idea, how do you solve for that? 

7 How do you enforce the well-accepted and documented 

8 pleading standards in a case with 20,000 claimants? 

9 And this is our attempt to help the Committee do that, 

10 which is require from the get-go some information we 

11 have proposed evidence of exposure and harm that would 

12 satisfy all those pleading burdens and standards 

13 without bogging down the court and the parties or 

14 even, frankly, creating a new burden. I mean, the 

15 burden to have that information going forward exists 

16 in all other cases under the rules today.

17 CHAIR ROSENBERG: Okay. Thank you. 

18 Judge Lauck, you do not have a question?

19 Ariana?

20 MS. TADLER: So, Mr. Dahl, in your 

21 September 18 submission or LCJ's submission, you have 

22 a proposal with specific language. Are you continuing 

23 to promote that language at this time? 

24 MR. DAHL: Yes, yes. That language or 

25 something close to it. 
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1 MS. TADLER: So my question to you is, is 

2 this language really intended to focus more in the 

3 personal injury and mass tort arena because MDLs are 

4 not exclusively mass torts?

5 MR. DAHL: Correct. Most of the problems of 

6 big MDLs exist in the mass tort arena, as you well 

7 know, and so, yes, it has -- with that problem, with 

8 the rules problem in mind, that's where the language 

9 comes from.

10 MS. TADLER: Okay. Because, obviously, you 

11 know this because you've read the rules for so long 

12 and we've talked about this so frequently, that the 

13 rules really do need to be so that they don't focus on 

14 any one type of case. And so I'm just wondering, are 

15 you contemplating that this would somehow have a 

16 carveout?

17 MR. DAHL: I contemplate that just as with 

18 all of the other rules that when they don't make 

19 sense, they don't -- or they are just not so 

20 prescriptive in cases, I mean, as you well know, it is 

21 very common practice for parties to agree and judges 

22 to agree to different practices when needed. So we do 

23 not intend the rule to be any sort of barrier or cause 

24 any more extraneous or inapplicable work in MDLs as 

25 any other rule would.
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1 MS. TADLER: Thank you.

2 CHAIR ROSENBERG: Mr. Dahl, are you going to 

3 be spending the day with us today, or did you intend 

4 on leaving after your presentation? 

5 MR. DAHL: I intend to stay here for the 

6 duration. 

7 CHAIR ROSENBERG: Okay. So we may have 

8 additional questions if that's all right. We're going 

9 to move on to the next witness, but as long as we know 

10 you're going to be here, I want all of our members to 

11 know that there could be follow-up. And I say that 

12 because you're trying to cover two important -- both 

13 rules, well, three, and many people did reference your 

14 submission, so it thus follows that there may be more 

15 questions directed to you. So thank you so much. 

16 MR. DAHL: Thank you, Your Honor.

17 CHAIR ROSENBERG: Okay. And, Mr. 

18 Stoffelmayr, if you could come forward, and it appears 

19 as if you're addressing 16.1. And, you know, to the 

20 extent that some of the points have been made, 

21 obviously, in the interest of time, no need to repeat 

22 certain points unless one of our members actually has 

23 a follow-up question and they refer back to any 

24 earlier comments, but we'd like to hear anything that 

25 we haven't heard. And that goes for all of the 
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1 witnesses. So welcome. 

2 MR. STOFFELMAYR: Yeah. Thank you very

3 much. My name is Kaspar Stoffelmayr. I practice at 

4 Bartlit Beck in Chicago. And I've submitted a not 

5 long but longer comment and just want to highlight 

6 maybe a few points. I appreciate the opportunity to 

7 do so in person.

8 The first thing I want to say is just, you 

9 know, how thankful I think many of us are that the 

10 Committee has drafted and is talking about a rule for 

11 MDLs. A lot of us have thought that's long overdue at 

12 this point. I had a conversation with some colleagues 

13 last week when they said, you know, we've got this 

14 case, we think it's going to be swept into this MDL, 

15 what should we expect to happen? What should we be 

16 telling the client is going to happen?

17 And I thought, well, if it was a normal case 

18 and someone said we've been sued, what's going to 

19 happen, you'd say, well, we'll look at the complaint. 

20 If we think there's a legal issue, we'll file a motion 

21 to dismiss. If not, we'll file an answer. Here's 

22 what goes in an answer. Then there's going to be some 

23 discovery. When the question was what should we 

24 expect to happen in the MDL, you know, my answer is, 

25 well, first off, who's your judge? And then there's 
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1 four or five things that can happen, and if this judge 

2 has a track record, we can use that as a guide. If 

3 not, you know, all bets are off.

4 And there's a view that that's a good thing, 

5 that, I think -- I mean, I've been in many 

6 conversations with parts of this group. There's a 

7 view that, you know, more flexibility is always a good 

8 thing. And I hope this is not too much of an 

9 unpopular view in this room, but there are concerns 

10 there are times that judicial flexibility is not just 

11 a one-way good thing. And I don't want to repeat 

12 everything Mr. Dahl said, but one really, really 

13 important way in which flexibility is 

14 counterproductive is, when people don't know before a 

15 case is filed what is going to happen and they don't 

16 know what the expectations are going to be of them and 

17 their clients, they will adjust their behavior 

18 accordingly and not in helpful ways.

19 So that's maybe, you know, sort of the big 

20 and that gets to -- you've heard plenty about this 

21 unsubstantiated claims problem, there are many people 

22 after me. I'm not going to repeat what has been said 

23 and what will be said. But I do just want to 

24 emphasize that that is not independent. That problem 

25 is not independent from the more general problem that 
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1 when we don't have rules people will adjust their 

2 behavior.

3 More generally, I mean, coming back to the 

4 draft rule, like I said, you know, many of us have for 

5 years been saying MDLs are in some ways too ruleless 

6 in ways that we think have all sorts of unhappy 

7 consequences. And so, you know, when we see a draft 

8 rule for MDLs, everyone gets excited and thinks that's 

9 a great thing. But this particular rule, my question 

10 is, what problem is it trying to solve? Because none 

11 of the problems I've ever heard really anyone express, 

12 whether a plaintiff's lawyer, a defense lawyer, a 

13 party themselves, a judge, it doesn't seem to me that 

14 any of those problems would be solved by this rule. 

15 What this rule does is says here are some things -- I 

16 mean, I'm really talking about Subsection C. What 

17 this says is here are some things you might want to 

18 think about, and that's the way people will read it. 

19 Here are some things that judges might think 

20 about, they might not think about. And doesn't 

21 provide anything that you would describe as standards 

22 for how to address any of these issues. So, you know, 

23 if it's -- you know, whether it's what we call early 

24 vetting, whether it's, you know, consolidated 

25 pleadings, it doesn't provide any guidance to the 
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1 judge or, more importantly from my perspective, the 

2 parties about what any of that means and what 

3 standards a judge should use. And in that sense, 

4 there is a real risk of, I think, an unintended 

5 consequence that a rule of this nature simply invites 

6 and encourages even more of the sort of ad hoc 

7 rulemaking that, you know, many of us find very 

8 troubling already in MDLs.

9 CHAIR ROSENBERG: Okay. Thank you so much.

10 From our reporters? 

11 PROF. BRADT: I guess I'll ask the same 

12 question I asked before, which is, doesn't Rule 16(c) 

13 already and has already for the last 40 years provided 

14 what you describe as ad hoc rulemaking in the rules? 

15 And are you suggesting that that rule is problematic? 

16 And I guess I'll ask the follow-up question already, 

17 which is, doesn't the list of things to consider make 

18 it more clear what may happen in an MDL to clients who 

19 don't have experience in it? 

20 MR. STOFFELMAYR: So a couple things. A 

21 certain amount of ad hoc rulemaking has always gone on 

22 and always will. That's, yeah, absolutely. And Rule 

23 16 I guess you could say contributes to that perhaps. 

24 That's fine. I mean, the rules are not written to 

25 address every situation. They are meant to allow a 
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1 certain amount of flexibility.

2 What concerns me about this draft is it 

3 takes a number of very controversial subjects, you 

4 know, consolidated pleadings, direct filing, things 

5 like that, it takes a number of very controversial 

6 subjects and says here is something for you to 

7 consider kind of making it up as you go. There's no 

8 standards, you know, no suggestion that the Rules 

9 Committee has come to any conclusions about whether 

10 these are proper or what they would look like, but it 

11 just says here's an opportunity to, you know, do your 

12 own thing.

13 And especially when it comes to these 

14 controversial topics, which is unlike regular Rule 16, 

15 that's a real -- there is a real risk that it invites, 

16 you know, an expansion of this kind of ad hoc 

17 rulemaking, which, like I said -- and MDLs are 

18 already, you know, sort of -- whether you like it or 

19 not, well, it's a defining -- it is for many people, I 

20 would say, a defining feature. And, you know, when 

21 you say there's a list of four things, does that help 

22 people to know what might happen in an MDL? Those 

23 four things are in the manual. They're in any number 

24 of best practices.

25 You know, nobody has trouble -- well, I 
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1 shouldn't say nobody. It's not hard to figure out 

2 things that might happen in an MDL. What's impossible 

3 to figure out is what will happen in an MDL. And a 

4 list of four, five, 10 things that might happen 

5 doesn't give you any better predictability about what 

6 actually will happen unless maybe you know who the 

7 judge is and that judge has a track record you can 

8 look at.

9 CHAIR ROSENBERG: Rick?

10 PROF. MARCUS: Well, I think I'm going to 

11 steal Judge Proctor's question. You think there 

12 should be a -- I think you think there should be a 

13 rule that calls for pretty immediate, let's say, 

14 individual scrutiny of individual claims, that's early 

15 vetting? Is that always true, even if there's an 

16 across-the-board objection to the legal foundation of 

17 all these claims, preemptions, whatever it may be?

18 MR. STOFFELMAYR: Absolutely 100 percent. 

19 There is no reason anyone should ever think it is in 

20 their interest, a good idea to file a claim if they 

21 have no idea if that claim --

22 PROF. MARCUS: Okay. So, if you're in the 

23 room with the client that Judge Proctor described, you 

24 are going to urge that client to spend large amounts 

25 of money for individual scrutiny of cases even though 
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1 there's an across-the-board legal argument that could 

2 put this all to an end?

3 MR. STOFFELMAYR: I don't know. I guess I 

4 don't understand the hypothetical because here we are 

5 in the current world. Okay. In the current world, I 

6 can say to the client, I am fairly confident that one 

7 day we will find out somewhere between 20 and 60 

8 percent of these cases never should have been filed.

9 There is no way for us to figure that out today. We 

10 will ask the judge for an order. We may or may not 

11 get it. We'll be told to negotiate, and we'll end up 

12 negotiating what will probably look like a fact sheet 

13 that will not address this issue. It'll give us names 

14 and addresses and things like that, but it won't 

15 address this issue.

16 In the meantime, let's file our preemption 

17 motion. I wish that I had ever seen a preemption 

18 motion that I felt like I could advise the client had 

19 an 80 percent chance of success, but it could happen, 

20 obviously. But, you know, we'll say, well, meantime, 

21 we'll file our preemption motion and if that gets 

22 granted, the case is over. If it doesn't get granted, 

23 you know, we'll slog along.

24 If the rule were amended, the anticipated 

25 effect, this was Mr. Dahl's point, is sitting in that 
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1 conference room, I would say there's nothing -- you 

2 know, it's nothing we have to do, but I'm pretty 

3 confident, like it or not, client, most of these cases 

4 probably are people who really were injured by your 

5 product. That's now, and we have a preemption motion, 

6 but we're not devoting enormous resources to anything. 

7 All we're saying is you need to provide this sort of 

8 information up-front. And if people have to do that, 

9 they won't file the cases where they can't, obviously, 

10 and, you know, there is nothing we need to do.

11 CHAIR ROSENBERG: Any further questions?

12 Judge Proctor?

13 JUDGE PROCTOR: There are cases where you 

14 have a dispositive motion and you ask the court to 

15 hold off discovery under rule -- until a 12(b)(6) 

16 motion's litigated, right?

17 MR. STOFFELMAYR: Sure.

18 JUDGE PROCTOR: That happens. Is there a 

19 rule, is there a current rule in Rule 16 that says the 

20 court must do that in every situation?

21 MR. STOFFELMAYR: No. Many judges don't in 

22 my experience. It's less a problem then.

23 JUDGE PROCTOR: So because -- and they may 

24 have reasons one way or the other for it, but what I'm 

25 wondering is you're asking for an individualized rule 
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1 in 16.1 and centralized proceedings that you don't 

2 even have present in Rule 16 in a single plaintiff 

3 versus a single defendant case, am I right? 

4 MR. STOFFELMAYR: And the reason is we don't 

5 have this problem in single-plaintiff, two-plaintiff 

6 cases. If somebody sues my client and it's, you know, 

7 a plaintiff and a spouse with a derivative claim and 

8 they lay out and say, you know, here's exactly what 

9 happened in a complaint, you know, I used the 

10 medication, whatever it is, I got a prescription from 

11 Dr. So-and-So, I used the medication. Two weeks 

12 later, I had this adverse event and, you know, for 

13 such and such reasons, I believe your product was the 

14 reason for the adverse event. 

15 I almost never am going to look at that and 

16 say, what are the odds they really had a prescription? 

17 What are the odds they really had a heart attack?

18 It's never going to come up. The problem is a problem 

19 we have in multi -- you know, large multi-plaintiff 

20 cases where a hundred percent of the time I'm looking 

21 at a short form complaint probably or a long complaint 

22 that is a hundred percent boilerplate, uses the 

23 plaintiff's name once, and I'm looking at that and I'm 

24 saying there is probably a 20 to 50 percent chance 

25 this person never had a heart attack, but we may never 
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1 find that. It's a completely different kind of case 

2 the way that it's evolved. 

3 JUDGE PROCTOR: So give me your three top ad 

4 hoc rules that MDL transferee judges implement that 

5 you would say we should address. 

6 MR. STOFFELMAYR: With an actual rule -- I 

7 mean with a --

8 JUDGE PROCTOR: Yeah. Well, you've said the 

9 problem --

10 MR. STOFFELMAYR: Yeah.

11 JUDGE PROCTOR: In your submission, you said 

12 one of the problems this rule is going to foster and 

13 permit and allow to continue is ad hoc rulemaking by 

14 transferee judges. Give me your best three examples 

15 of that.

16 MR. STOFFELMAYR: So, I mean, the one we've 

17 all been talking about, a rule, you know, fact sheets 

18 plus, something that actually had the effect on 

19 people, that there is an expectation that you can't 

20 file this this case if you can't provide enough 

21 evidence to show that there is some there there. That 

22 would be one.

23 Two, consolidated pleadings. Nobody today 

24 knows what -- we see them all the time. No one can 

25 tell you ahead of time for sure what are these and 
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1 what legal effect do they have. I would love a rule 

2 that said either no pleadings other than those 

3 recognized in Rule 7 or said, in addition to the 

4 pleadings allowed in Rule 7, these two, three, four 

5 pleadings and explained what legal effect they have.

6 JUDGE PROCTOR: Can you repeat that last one 

7 again, please? 

8 MR. STOFFELMAYR: Sure. I said I would love 

9 a rule that either said there will be no pleadings 

10 other than those allowed by Rule 7 and explained 

11 whether a master complaint is or isn't a complaint for 

12 purposes of Rule 7, I guess, because nobody, you know, 

13 I think, knows the answer to that question. So either 

14 said there's no such thing as master complaints, short 

15 form complaints, there's just Rule 7, or 

16 alternatively, a rule that said, in addition to the 

17 pleadings allowed by Rule 7, here are two, three, 

18 four, you know, additional types of pleadings, maybe a 

19 master complaint would be one, maybe a short form 

20 complaint, a master answer, you know, so it's parallel 

21 and explained what the force of those pleadings is, 

22 you know, what legal effect does the master complaint 

23 have because, right now, in different cases, it can 

24 mean something very different. It can simply be an 

25 administrative device. It might be a binding pleading 
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1 that everyone is tied to. You might be able to file a 

2 motion to dismiss it. You might not be. That would 

3 be a rule that, you know, everyone can read ahead of 

4 time and know what that means rather than each judge 

5 will sort of start fresh. 

6 And you asked for three. Direct filing is 

7 the other one that I think is a source of huge 

8 confusion. And there is a sense among some judges 

9 anyway that, you know, defendants, come on, you've got 

10 to agree to this, you know, don't be difficult. 

11 What's the big deal? This saves everybody a lot of 

12 problems.

13 JUDGE PROCTOR: There's a rule that permits 

14 you to object to that, the venue rules, in personam 

15 jurisdiction rules, so I don't understand that. 

16 Direct filing only comes into play when both sides 

17 agree to it or else there's a litigated issue about 

18 whether direct filing is appropriate. Unlike our 

19 Criminal Rules of Procedure, in the Civil Rules, the 

20 parties can agree to anything they want if the court 

21 permits it, so I'm at a loss to understand why the 

22 direct filing has gotten so much traction on your 

23 side.

24 MR. STOFFELMAYR: Because there are 

25 agreements and then there are, you know, we better 
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1 agree to this or bad things are going to happen, 

2 because I have a case where the judge ordered us to 

3 waive service. That's the opposite of a waiver if 

4 you're ordered to do it. Now fine, nobody cares, 

5 everybody was going to waive service anyway. So, 

6 obviously, it doesn't get litigated. But there is a 

7 dynamic in these cases where everyone is expected to 

8 kind of do what the judge wants on something like 

9 that, and at the beginning, at the outset, who wants 

10 to pick a fight over direct filing, because you're 

11 thinking how much difference does it really make.

12 PROF. MARCUS: So you think a rule should 

13 say judges must not do -- accept direct filing, even 

14 if the parties accept it?

15 MR. STOFFELMAYR: Again, I mean, my -- I 

16 think someone else can address whether direct filing 

17 is a good or a bad thing. My point is we would all be 

18 better off if we had a rule on direct filing. The 

19 rule might say it is always permissible and when it 

20 happens, here is the impact on choice of law 

21 questions, here's the impact on statutes of 

22 limitations, depending on the jurisdiction, may or may 

23 not follow substantive choice of law principles, here 

24 is the impact on personal jurisdiction arguments, et 

25 cetera, et cetera.
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1 You know, if the Committee concludes that 

2 direct filing, you know, is a good thing, we need a 

3 rule that explains what it is and how it works and 

4 what the consequences are rather than the parties 

5 being told draft a direct filing order and I'll sign 

6 it.

7 PROF. MARCUS: And so that rule ought to 

8 handcuff the judge to do anything different.

9 MR. STOFFELMAYR: I'm not a -- I mean, so 

10 maybe this is an unpopular view in this room, but I 

11 don't think that's always a bad thing. But most rules 

12 are written with a certain amount of discretion, 

13 right? And I think, in my comment, I never really 

14 focused on this before, I always sort of thought that 

15 if someone doesn't serve timely, you know, the judge 

16 kind of always let it go. It's actually really 

17 interesting. If you read I guess it's Rule 3(m), 

18 there are a lot of guardrails around what a judge can 

19 and can't do when someone didn't file a -- didn't 

20 serve a complaint on time. Virtually all of the rules 

21 work that way. So I don't know that, you know, when I 

22 say we need a rule that that rule would have to be any 

23 more of a straitjacket than virtually all of the other 

24 rules or handcuffs to use your term. 

25 CHAIR ROSENBERG: Okay. Thank you so much. 
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1 Are you going to be staying? Are you staying for the 

2 duration of the day? 

3 MR. STOFFELMAYR: I was going to stay until 

4 3 or 4 if that's okay.

5 CHAIR ROSENBERG: Okay. Okay. No, that 

6 sounds good. If we have some additional questions, we 

7 have time at the end, I know we'd be anxious to ask 

8 you. Thank you so much for your presentation. We 

9 appreciate it.

10 Next, we're going to move to Mr. Beisner, 

11 who is appearing remotely. We see him on the screen, 

12 and you may proceed, Mr. Beisner. You're here to talk 

13 about 16.1. And you're on mute right now. Let's see 

14 if -- frozen and muted. Have we unmuted everybody for 

15 purposes of being able to speak? Yeah. There's an 

16 issue with his connection? Okay.

17 So I think, Mr. Beisner, if you can hear us 

18 and given that we're a little off schedule, but we 

19 knew that, so that was all planned, we're going to 

20 take -- you want to take -- we'll take our break now, 

21 our 10-minute break. This way, Mr. Beisner, we can 

22 work on making sure the technology works when we 

23 return from the break. So it's 11:17. We'll be back 

24 at 11:27. We'll begin with Mr. Beisner and then we'll 

25 go to Mr. Redgrave. Thank you.
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1 (Whereupon, a brief recess was taken.)

2 CHAIR ROSENBERG: To get started now, did we 

3 work out our technology issues?

4 MR. BEISNER: I believe we did.

5 CHAIR ROSENBERG: Okay. So just sit tight, 

6 Mr. Beisner, we can hear you, see you. I'm just 

7 waiting for everybody to be seated, and we will get 

8 going, so just give us a minute or so. 

9 MR. BEISNER: And to be clear, the 

10 technology issues were all of my making.

11 CHAIR ROSENBERG: The record so reflects.

12 MR. BEISNER: Yes, blame me. 

13 CHAIR ROSENBERG: Okay. All right, Mr. 

14 Beisner, let's have you proceed. And I think we'll 

15 give you the one-minute warning, but you'll monitor 

16 yourself as well. 

17 MR. BEISNER: Okay. Thank you for the 

18 opportunity to appear before the Committee today to 

19 provide comments on the proposed rule, 16.1. I 

20 apologize for not appearing in person, but, 

21 unfortunately, circumstances required me to be away 

22 from Washington today. My comments this morning are 

23 limited to one element of the proposed rule, that's 

24 Subsection 16(c)(1), which would prompt courts and 

25 parties to consider at the initial MDL status 
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1 conference the question, quoting the rule, proposed 

2 rule, whether leadership counsel should be appointed.

3 In recent years, the MDL leadership counsel 

4 concept has undergone substantial change. Not long 

5 ago, MDL plaintiffs' counsel simply organized 

6 themselves and courts essentially confirmed their 

7 plans, sometimes subject to adjustments. For example, 

8 I recall that when the HMO MDL was commenced in the 

9 Southern District of Florida back in 2000, there was a 

10 well-publicized spat among plaintiffs' counsel about 

11 who should take the lead role. At the initial status 

12 conference, counsel asked Judge Moreno for two weeks 

13 to sort out their differences. The court reluctantly 

14 agreed but with an admonition that if counsel couldn't 

15 agree on a leadership plan, the court would make the 

16 picks.

17 In more recent years, we've migrated toward 

18 transferee courts taking applications for lead counsel 

19 roles and making selections without much, if any, 

20 input from plaintiffs or their counsel. But partly as 

21 a result of that evolution, I think the leadership 

22 counsel concept has become rather muddled. In a 2020 

23 Law Review article, Rutgers Law Professor David Noll 

24 examined the counsel leadership orders from over 200 

25 MDL proceedings. He concluded that while the lead 
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1 counsel notion is among many ad hoc MDL 

2 improvisations, counsel leadership orders, as he put 

3 it, constitute the most extreme level of ad hocery in 

4 the MDL realm. By the professor's reckoning, the 

5 contents of counsel leadership orders vary widely. 

6 And, to me, that raises a question whether we should 

7 be dropping into our federal procedural rules a 

8 concept that's seemingly so ill-defined.

9 Perhaps the greater concern, however, should 

10 be the myriad judicial authority and ethical questions 

11 raised by counsel leadership orders. Those orders 

12 typically designate a few lawyers to run an MDL 

13 proceeding on behalf of all the plaintiffs therein. 

14 Thus, without anyone's consent, the counsel actually 

15 hired by most individual plaintiffs are more or less 

16 replaced with different attorneys picked by the MDL 

17 court. According to Professor Noll, this sidelining 

18 of non-leadership counsel is explicit in 22 percent of 

19 the counsel leadership orders he reviewed.

20 For example, one order states, and I'm 

21 quoting now, "Counsel for plaintiffs who disagree with 

22 lead counsel or who have individual or divergent 

23 positions may not act separately on behalf of their 

24 clients without prior authorization of this court." 

25 Other leadership orders are less explicit, but they 
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1 generally make clear that the court-appointed 

2 attorneys are running the show and imply that non3 leadership counsel may not represent their clients in 

4 the manner that they normally would.

5 The source of an MDL court's authority to 

6 essentially override plaintiffs' choice of counsel in 

7 this matter is far from clear. Some suggest the 

8 authority exists because a mass tort proceeding 

9 resembles a class action in which lead counsel are 

10 normally appointed under Rule 23(g).

11 But our appellate courts see it differently. 

12 In its Fosamax decision several years ago, for 

13 example, the Third Circuit stated that in mass tort 

14 proceedings, plaintiffs each retain the right to 

15 develop their own cases because, and I'm quoting now, 

16 "A mass tort MDL is not a class action but rather a 

17 collection of separate lawsuits coordinated for 

18 pretrial proceedings."

19 This concern is heightened by the fact that 

20 some MDL courts have ruled that the court-appointed 

21 lead counsel do not owe standard fiduciary duties to 

22 plaintiffs in an MDL proceeding with whom they do not 

23 have a formal retention agreement. That presumably 

24 means that lead counsel are not obtaining informed 

25 consents from such plaintiffs regarding key strategic 
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1 decisions, and it's unclear who should be conferring 

2 with such plaintiffs about their claims when their 

3 retained counsel have essentially been barred from 

4 active participation in the litigation. 

5 Because of these concerns, I fear that 

6 counsel leadership orders being issued in some MDL 

7 proceedings could be challenged by plaintiffs 

8 dissatisfied with the outcomes they obtain. And with 

9 that in mind, I respectfully submit that before we 

10 enshrine the MDL leadership counsel concept in our 

11 federal rules, it would be prudent to develop a 

12 stronger consensus about how that concept should be 

13 defined and about how to craft leadership orders to 

14 ensure that they neither exceed judicial authority nor 

15 infringe on plaintiffs' individual due process rights.

16 CHAIR ROSENBERG: Thank you, Mr. Beisner.

17 From our reporters? Rick?

18 PROF. MARCUS: John, thank you very much. 

19 This is Rick Marcus. I am assuming that you would 

20 agree with the notion that having a thousand lawyers 

21 doing a thousand things that they each individually 

22 want to do is inconsistent with the 1407(a) objective 

23 of structured, orderly pretrial proceedings. 

24 MR. BEISNER: Yeah. I do not want to be 

25 heard to say there should not be leadership counsel in 
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1 MDL proceedings. I agree that would be a nightmare, 

2 but I think that the shift away from -- and there are 

3 reasons why this happened that are valid, but I think

4 the shift away from counsel sort of selecting their 

5 own leadership, there being a participation in that, 

6 to the court sort of stepping in and saying these are 

7 going to be leadership counsel to the exclusion of the 

8 active role of other counsel is where the problem 

9 comes and I think probably needs some softening.

10 PROF. MARCUS: John, just a footnote on 

11 that. Do you recall the fine paper controversy in the 

12 early 1980s concerning that class action leadership 

13 Tammany Hall situation as was described? You're 

14 saying the court should not have the major role, but 

15 rather, the organizational and political skills of the 

16 plaintiffs' bar should be determinative?

17 MR. BEISNER: No, I'm not saying that at 

18 all. And that's why I'm saying the move away from the 

19 total self-selection is a sound basis. I think there 

20 were abuses under that approach as well. But I think 

21 there's a happy medium that could be struck under 

22 which there is more participation by counsel in 

23 selecting. The notes do not say anything about 

24 consulting with the plaintiffs in the proceeding or 

25 with the counsel who are not aspiring to be non --
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1 that are not aspiring to be leadership counsel.

2 And there is that specific provision in the 

3 rule itself that talks about, you know, should there 

4 be some restriction on the participation of non5 leadership counsel in the proceeding. I think all 

6 those sorts of things are going to invite challenges 

7 from plaintiffs who don't like the outcome of these 

8 cases and, you know, perhaps upset the applecart after 

9 people have invested a lot of time in these MDL 

10 proceedings.

11 CHAIR ROSENBERG: Andrew?

12 PROF. BRADT: Thanks. Thank you. Thank you 

13 for being here. I just want to clarify the link 

14 between what you described as the changes in 

15 appointment of leadership counsel and reduced input by 

16 those who aren't in leadership. It would seem to me 

17 it would be the reverse, that if leadership is 

18 organizing themselves as a slate and presenting it to 

19 the judge with a rubber stamp, then that would be more 

20 exclusive to the other attorneys in the case than what 

21 you're describing now. I guess I just don't see the 

22 linkage between the change in practice and the 

23 problems you're identifying. 

24 MR. BEISNER: I think what happened before 

25 in a lot of cases is there were multiple slates 
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1 presented, different people offered candidacy, and 

2 there was a lot more consultation by the courts about 

3 who is supporting whom. I agree with you that there 

4 probably is need for greater court involvement in that 

5 process, and I'm not returning to those days where the 

6 biggest person in the room in terms of power and 

7 political might is selected. I think the court needs 

8 to look out for that. But I think there are ways to 

9 soften this process so that the court is open to input 

10 from the counsel about who they would like to see in 

11 these leadership roles, and that's not contemplated by 

12 the current draft.

13 CHAIR ROSENBERG: Judge Proctor?

14 JUDGE PROCTOR: Hello, John. A question.

15 What should we make of the fact that most leadership 

16 appointments are on the plaintiffs' side and we're 

17 hearing this from defense counsel generally, not 

18 plaintiffs' counsel?

19 MR. BEISNER: Yeah. And the reason that 

20 you're hearing from me on that is I am fearful that we 

21 as defendants could go through MDL proceedings, have 

22 the results that we like, and then have plaintiffs' 

23 counsel turn around and say, I was denied my due 

24 process in that proceeding because my counsel was sent 

25 to the bench, didn't participate, was not able to 
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1 participate in a particular strategy decision that 

2 resulted in an adverse ruling. Or, when we get cases 

3 remanded in the discovery process, you could have 

4 people say, well, my attorney wasn't able to 

5 participate in that and so discovery decisions that 

6 were made by the MDL court should be ignored because, 

7 now that we're remanded, we want to do it differently.

8 I think that's the reason I'm here making 

9 those concerns, raising those concerns. And, indeed, 

10 you know, let me be very specific about this, and, 

11 Judge Proctor, this kind of goes to the question that 

12 you raised earlier as well. You know, in the Fosamax

13 case that I mentioned, which was a preemption case and 

14 it ultimately went to the Supreme Court and the Third 

15 Circuit's decision was vacated in that case, but one

16 of the arguments there was that not enough attention 

17 was given to the individual claims in that case with 

18 respect to the preemption motion and that the sweeping 

19 ruling that the court issued was therefore improper.

20 And so this -- the sort of challenge I'm 

21 talking about, although it was a little bit different 

22 there, was made in that case and was accepted by the 

23 Third Circuit, and so that's why I'm concerned, 

24 because there was a bit of a challenge to the lead 

25 counsel not giving adequate attention to the 
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1 individual claims. 

2 Judge Proctor, going back to another issue 

3 that you raised earlier about I think when Mr. Dahl 

4 was up before then, I know I'm off topic here, but I'd 

5 also note that case, I think, gets at the reason why 

6 you need to look at claims individually even where you 

7 have a sweeping motion, because there, you know, the 

8 court was was critical of the lack of information 

9 about the individual claims and, you know, it said you 

10 need to look at these claims individually. They need 

11 to be accounted for in that way.

12 And if you look at the recent rulings of the 

13 Third Circuit, the Sixth Circuit, and so on, you know, 

14 I think they really stress the notion that these 

15 claims, under the MDL statute, must be viewed as 

16 individual claims, must be treated as such. And, you 

17 know, this notion that you kind of go to this sweeping 

18 motion first without doing anything else, I think 

19 these cases really undermine that proposition. 

20 JUDGE PROCTOR: Going back to your original 

21 point, though, of lack of due process, doesn't the 

22 fact that the rule permits the parties to submit a 

23 report about counsel's selection or counsel leadership 

24 and on top of that is agnostic on how the leadership 

25 structure should look, doesn't that create more 
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1 opportunities for there to be a tailored solution for 

2 each case in terms of selection of leadership?

3 MR. BEISNER: I guess I didn't recognize 

4 that in there. As I read it, it talks about the court 

5 consulting with recommendations of other judges and so 

6 on, but there really isn't a clear -- and maybe I just 

7 missed it, but there isn't a clear idea that the court 

8 should confer in some manner or consult in some manner 

9 with counsel who have decided to play a back-bencher 

10 role in the proceeding.

11 JUDGE PROCTOR: Well, 16(c) says, in 

12 preparing a report for the conference, transferee 

13 courts should order the parties to meet and confer or 

14 meet and prepare a report to be submitted to the court 

15 before the conference begins, and that's one of the 

16 subjects in the report, is whether leadership counsel 

17 should be appointed and, if so, how. 

18 MR. BEISNER: Understood. I'm talking about 

19 the actual selection of the counsel, though. I see 

20 what you're saying is that they can propose a 

21 mechanism for that, but there's certainly nothing in 

22 the notes that encourage a court in making its 

23 appointments to be conferring with the parties' 

24 counsel.

25 CHAIR ROSENBERG: Andrew? Or, no, nothing?
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1 PROF. BRADT: I return it to you.

2 CHAIR ROSENBERG: Okay. Okay. All right. 

3 Mr. Beisner, thank you so much. As always, very 

4 helpful comments and we appreciate it.

5 We'll move on now to Mr. Redgrave, who also 

6 is appearing remotely, and he's going to address 

7 privilege logs.

8 MR. REDGRAVE: Good morning. Are you able 

9 to see and hear me?

10 CHAIR ROSENBERG: We can.

11 MR. REDGRAVE: Excellent. I appreciate the 

12 opportunity to appear remotely. I apologize I could 

13 not myself be in D.C. for the meeting in person. But 

14 I want to kind of cut to the chase on the privilege 

15 log. And, again, appreciate the efforts of the 

16 Committee to work through the issue. You've obviously 

17 received a couple submissions that I have made, along 

18 with Judge Facciola, a retired magistrate judge from 

19 the District of Columbia. 

20 I think, to focus my remarks, I'm going to 

21 go first to a question Professor Marcus asked to Mr. 

22 Keeling that was kind of going to the cost, 

23 complexities, and issues here, and I wanted to note 

24 two things. First, there is a significant level of 

25 nuance and inquiry required. Obviously, when you do a 
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1 document-by-document log, that detail that you have to 

2 do for every entry and the QC and everything else, 

3 it's enormous. But doing any level of logging, of 

4 course, is expensive and deeply, you know, vexing in 

5 some ways for those of us that do it a lot.

6 But I think the reality is modern practice 

7 really requires us to have a rule that kind of matches 

8 better the reality and doesn't create pitfalls for 

9 those in different jurisdictions or in locations where 

10 people aren't aware of best practices or aren't 

11 following them, and that's the reason for urging a 

12 rule change. And I would say that what the Committee 

13 has put forward is very much an important set of 

14 changes in terms of the Rule 26 conference and the 

15 Rule 16 conference, but more is necessary with respect 

16 to an actual change to 26(b)(5), and I'll get to that.

17 But the burdens that are involved, the 

18 complexities, you have multiple privileges, including 

19 not just the attorney-client and the attorney work 

20 product consideration, you can have the spousal. I 

21 was looking at that, just a case in the Southern 

22 District for a Rule 45 subpoena. You can have joint 

23 defense considerations, common interest 

24 considerations. There's just a lot there. Then 

25 you've got get waiver, privilege breakers and the 
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1 rest. So getting an early conference as the Rules 

2 Committee suggests and what we suggested in our 

3 proposal is important because it kind of tees up what 

4 cases are going to have more complex issues and what 

5 cases can you actually dispense with issues.

6 But the second thing I want to make a point 

7 here is that it's not just a big case or two. You 

8 talk about large expenses on privilege logs even in 

9 small cases, which is actually a greater impact on 

10 proportionality of the cases, which is why I think a 

11 holistic change in the rule, including a Rule 26(b)(5) 

12 change, is important so that those cases can benefit 

13 because, while maybe a large company can be very 

14 dissatisfied with a disproportionate impact, which is 

15 wasteful, and I think we all agree we don't want that 

16 for any parties, if in a small case you're spending a 

17 disproportionate amount, that could be a gate-closing 

18 impact, in other words, really impacting the 

19 availability of the courts to smaller cases if that 

20 party gets swamped by some sort of burden on 

21 privilege.

22 The second point I want to just jump to, as 

23 Judge Jordan I believe it was asked Mr. Keeling in the 

24 context of why we need a rule, I will stand by what 

25 Judge Facciola and I submitted that the changes to the 
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1 meet-and-confer and the conference rules are not 

2 enough. 26(b)(5) itself is really the source of kind 

3 of the de facto standard of document-by-document 

4 whether we like it or not. 

5 I was just reading a case from the Northern 

6 District of Illinois from August 11 and the court 

7 there, in resolving an issue on an interrogatory 

8 points to and you've got to comply with 26(b)(5) 

9 footnote to cases from 1987 and thereafter, all about 

10 you have to go statement by statement, document by 

11 document, just boom, done.

12 I did an informal poll at a recent 

13 conference with people that served as clerks, and I 

14 asked them what their experience was with the rules 

15 and Advisory Committee notes and I know this group 

16 will probably be sad to know that most parties cite to 

17 the rules, not the Advisory Committee notes. Not that 

18 many people are geeks like me that read every single 

19 Advisory Committee note upside down and backwards. 

20 And I think we have to realize that when we can have 

21 the balance between what's in a note and what's in the 

22 rule. And I think, here, the rules package is 

23 incomplete if we don't address the actual 26(b)(5). 

24 We, meaning Judge Facciola and I, did submit some 

25 proposed language. I won't pretend that that's the 
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1 best language. I used the word "accord" in the 

2 drafting, not pursuant to, but the Lawyers for Civil 

3 Justice submission also picked up on that.

4 I do submit that what we tried to do in that 

5 proposal that we put forth on January 31 of this year 

6 is to create something that's just neutral but gets it 

7 in the rule and not just the Advisory Committee note. 

8 And I'll say one of the salient benefits could be, if 

9 the Committee were to go down that route and do that 

10 simple change, that same change could then be 

11 implemented in Rule 45.

12 And I will note that the Lawyers for Civil 

13 Justice's October 4 submission pointed out that Rule 

14 45 is kind of untouched, and that's a critical 

15 component because the non-party subpoena recipients 

16 aren't necessarily in the meet-and-confers or anything 

17 else, but they should get the benefit of the same 

18 level of proportionality and reasonableness being 

19 applied to what they have to log and how they have to 

20 log it and when. So I'd submit, if the same change 

21 was made to Rule 45 as it relates to the same language 

22 for Section (b)(5) on the logging, that could really 

23 knock that out in an efficient way. 

24 The third thing I wanted to raise is Ariana 

25 Tadler raised a question, I think, to Mr. McNamara 
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1 with respect to 502(d) orders. I simply have to 

2 report that in a very major significant matter that 

3 I'm involved in right now, well-known plaintiffs 

4 firms, a multiple of them, all refused to agree to a 

5 502(d) order, one to put the party to the test on the 

6 other side to have to go through all the traps of 

7 502(d), really taking away any possible safety net. 

8 The judge refused. Well, the judge agreed with the 

9 plaintiffs and entered their order and so no 

10 protection there in a world where it's not really 

11 mandatory.

12 And even if you do have a 502(d) order, I 

13 will submit that that doesn't really address the 

14 potential challenges in the excessive costs and really 

15 pointlessness of logging things where people could 

16 agree up-front. 

17 Now the fourth point I want to make, and 

18 this is kind of teeing off of Mr. McNamara's comments, 

19 which I thought were very good, back to the need to 

20 have issues addressed up-front and the value of that, 

21 that mirrors what Judge Facciola and I submitted. But 

22 I think one of the things that's teased out of the 

23 Lawyers for Civil Justice submission and Mr. Keeling's 

24 testimony that I'd like to tie into is the concept of 

25 rolling, and that's the language that the Committee 
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1 used in the proposed draft Committee note. 

2 I think that's not quite getting to what you 

3 need because rolling has a unfortunate meaning that 

4 people are like, well, it just means you have a log 

5 that trails or just all the production is rolling, 

6 you're just going. It's like no, it's more it's a 

7 deeper meaning. Judge Facciola and I submitted that 

8 it's a tiered or a phased concept that just like Mr. 

9 McNamara said, if you can get some key issues on 

10 privilege addressed at the front end, like are we 

11 dealing with a situation where someone's going to 

12 claim there's a waiver? I mean, someone's going to 

13 raise a crime-fraud argument? Is someone going to --

14 you know, we don't really need to log anything after 

15 the complaint was filed or after a particular event in 

16 the past, all sorts of things -- or you know what? 

17 We will agree that there are people in your 

18 law department that are all litigation-related, they 

19 don't have two hats. We get it, don't even log 

20 anything going to them. Or you could say that if it's 

21 a direct communication versus CC's, treat them 

22 differently. Let's talk about that up-front 

23 conceptually, but then we have to have an iteration, a 

24 continued dialogue as perhaps other things come up in 

25 in the litigation.
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1 So I think that's what the Committee was 

2 getting at to front issues early when you can, but 

3 then also, and this is reflected in the January 

4 submission Judge Facciola and I put forward, is we 

5 have to recognize it is evolution, things will happen, 

6 so we don't have a one and done, you've got to come up 

7 at the front of the case with all the issues. So I 

8 recognize that's a little bit of a nuance there, but I 

9 think the Committee's onto the right idea. I think 

10 that the word "rolling" is the problem, I should say. 

11 CHAIR ROSENBERG: Mr. Redgrave, let me 

12 interrupt just for a moment to see if we have any 

13 questions from our reporters, from Rick, from Andrew, 

14 any of our Committee members?

15 (No response.) 

16 CHAIR ROSENBERG: Okay. So, Mr. Redgrave, 

17 we have no questions, so did you want to finish your 

18 thought?

19 MR. REDGRAVE: No, I apologize for that. 

20 That was really at the end of it because I think I was 

21 trying to just kind of touch on the issues. I don't 

22 want to repeat what others said or what we had in the 

23 written submissions. I will say that Judge Facciola 

24 and I are considering a final sort of note on this 

25 since both of us have kind of been like tilting at a 
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1 windmill of privilege logs for 20 years or so 

2 together. We really do believe that there's a need 

3 for better practice across the country and with 

4 uniformity, again, to mend where you've gone.

5 I see what the Committee did with respect to 

6 truncation of the Rule Committee notes. I think the 

7 biggest thing here is we really believe two things, or 

8 I should say I should really believe because I'm 

9 speaking here by myself.

10 The Rule 45 point is something that we 

11 missed, we didn't put in there, I think it should be 

12 addressed, that non-parties all must show up if 

13 they're having to do privilege logging. It needs to 

14 be proportional and we need to watch for what's 

15 proposed by the non-parties and assess, number one.

16 Number two, we really need to have the rule 

17 change in 26(b)(5)(A). The submission we had, I 

18 think, is on point, and I think the law, the 

19 experience that people talk about later today ties in 

20 with that.

21 And then the third thing is this, you know, 

22 in the Committee note on rolling, if that can be 

23 adjusted to better reflect the concept, as I explained 

24 earlier. But, other than that, I don't want to drone 

25 on. I appreciate what the Committee has done on the 
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1 privilege logging rule and am very, very happy with 

2 the process but would urge that we go a little 

3 further.

4 CHAIR ROSENBERG: All right. Thank you so 

5 much, Mr. Redgrave.

6 Oh, Judge Bates?

7 JUDGE BATES: I just have one question that 

8 may be borne of ignorance in terms of the difference 

9 between rolling and tiered. Would rolling allow for 

10 production of documents and logging before all the 

11 documents have been reviewed for privilege purposes, 

12 whereas tiered by categories, would that require that 

13 you have finished the review of all documents so you 

14 know what fits in that category and whether you're 

15 claiming privilege?

16 MR. REDGRAVE: Appreciate the question. It 

17 would not necessarily mean that because you can have a 

18 tiering as a concept, as an agreement as to what 

19 issues are more important, which ones will be fronted, 

20 do you want to have certain individuals or certain 

21 issues, you know, addressed earlier, like I mentioned, 

22 if there's some allegation of crime-fraud, for 

23 instance. But that's kind of a unique situation.

24 But there could be some issues where someone 

25 says, you know, all the work that these lawyers were 
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1 doing were really business hat, not lawyer hat. It's 

2 not legal advice, can you -- you know, let's talk 

3 about that first. And then you have some sample 

4 documents to go to a judge to say, you know, call 

5 balls and strikes, and that'll guide what the rest of 

6 the logging will be.

7 So the concern I have with rolling, and this 

8 will put it better in context, I hope, is that in the 

9 nomenclature of most discovery folks, rolling is just 

10 like, okay, we need a rolling production, don't wait 

11 until you have all the documents, you know, gathered 

12 until you start producing and you haven't reviewed it 

13 all until you start producing and, by the same token, 

14 when you have the privilege logs trail that, so 

15 they're rolling too. 

16 That is just a mechanical kind of concept, 

17 and I'm afraid that that would kind of miss the point 

18 that I think the Committee and others are endorsing 

19 here, and that is do it as a tiered or a phased, but 

20 that doesn't mean that you have to, you know, wait for

21 everything to be concluded either because you should 

22 be able to intellectually separate the issues, advance 

23 things for consideration, and even get additional 

24 guidance on some sticky privilege issues, like which 

25 particular law, especially if you have foreign 
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1 privileges involved. I mean, so there's a lot of 

2 things here where early judicial involvement can be 

3 very helpful, and that's the point, I think, that 

4 needs to be driven home.

5 CHAIR ROSENBERG: Okay. Thank you so much.

6 And, next, we'll hear from Mr. Campbell on 

7 16.1.

8 MR. CAMPBELL: Thank you, Judge Rosenberg.

9 CHAIR ROSENBERG: Good morning.

10 MR. CAMPBELL: Good morning to the 

11 Committee. Thank you for letting me speak. My name 

12 is Chris Campbell.

13 CHAIR ROSENBERG: Oh, do you have your mic 

14 on? Green light.

15 MR. CAMPBELL: Where's the green light?

16 CHAIR ROSENBERG: There you go. Thanks.

17 MR. CAMPBELL: My name is Chris Campbell. I 

18 am a partner at DLA Piper, where I'm the chair of the 

19 product liability and mass torts group at the firm. I 

20 have two points to make. First is to applaud the 

21 Committee for putting forward a rule on MDLs where 

22 they are badly needed. My second point is to reduce 

23 my applause to a very polite golf clap for Rule 16.1, 

24 which seems to do very little. 

25 With regard to my first point, MDLs lack 
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1 structure today. They lack predictability. And, 

2 particularly important, they lack accessibility. Put 

3 yourselves in the shoes of a young lawyer who is new 

4 to MDLs. There are very little places they can go to 

5 find out how an MDL proceeds given all this 

6 variability. There are no local rules. There's not 

7 even really Westlaw that can provide guidance. The 

8 best resource a young lawyer has is probably an older 

9 lawyer who can sort of pass down the process of an MDL 

10 to that younger lawyer in the way that people handed 

11 down word-of-mouth information back when we were 

12 living in caves.

13 We can do better than this. I think Rule 

14 16.1, unfortunately, is not doing better. It is a 

15 weak and frail and feeble rule. It is more of a 

16 suggestion than a rule. And I would submit that by 

17 basically not requiring anything it promotes the 

18 rulelessness of MDLs. It also has some specific 

19 challenges that I would highlight for the Committee.

20 First of all, because you've set out now a 

21 specific rule, 16.1 on MDLs, it raises the question, 

22 are all the other rules not applicable to MDLs? And, 

23 as you've heard from other members today, other 

24 witnesses, that is a problem. It seems to be very 

25 inconsistent whether the other rules are applied in an 
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1 MDL setting or not.

2 And I think Rule 16.1 misses a crucial 

3 opportunity to highlight what Judge Proctor was 

4 mentioning earlier, which are those key moments where 

5 an MDL can actually find a dispositive issue early on 

6 in a case and address that dispositive issue early 

7 before the parties have engaged in extensive discovery 

8 that may be unrelated and to really decide if that 

9 issue allows the case to go forward or not.

10 Judge Rosenberg, you've done that 

11 effectively yourself in the Zantac MDL, and others 

12 have certainly done it as well.

13 And, thirdly, I think 16.1 promotes MDL 

14 esoterica, some of it which is controversial. Things 

15 like the leadership counsel that Mr. Beisner talked 

16 about is built into the rule, the concept of putting 

17 forward special masters, which is a little bit 

18 controversial, I would suggest in MDLs, and the 

19 reference to early settlement talks, which are also in 

20 the new proposed rule.

21 So, again, while I applaud the effort to put 

22 forward a rule, we certainly need rules in the MDL 

23 side of things, this doesn't seem to do it. And my 

24 applause diminishes to sort of a tepid applause for 

25 Rule 16.1. Those are my comments. Thank you very 
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1 much.

2 CHAIR ROSENBERG: Okay. Thank you so much.

3 Rick or Andrew? Ed? Any of our Committee 

4 members? Okay, Andrew has a question.

5 Professor Bradt?

6 PROF. BRADT: I have a question, and it 

7 relates to your written submission rather than to your 

8 comments here today, but one of the things that you 

9 suggest shouldn't be enshrined in the rules, direct 

10 filing stipulations, and in that, you say it conflicts 

11 with Rule 3 and the MDL statute. I'm just interested 

12 in how direct filing stipulations violate Rule 3 or 

13 the MDL statute. 

14 MR. CAMPBELL: So I would certainly defer to 

15 others to talk more in more detail about direct 

16 filing. I think, from my perspective, what I'm hoping 

17 to avoid in the MDL setting is the inconsistency of 

18 allowing direct filing or not allowing it. And the 

19 fact that practitioners aren't really clear on that 

20 going in, that's the issue that I would raise.

21 PROF. MARCUS: How does one forbid it?

22 MR. CAMPBELL: How does one forbid direct 

23 filing, Professor?

24 PROF. MARCUS: Well, if a plaintiff files in 

25 the MDL transferee court and the defendant does not 
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1 object, that's a direct filing, right?

2 MR. CAMPBELL: Right.

3 PROF. MARCUS: So would you say that should 

4 be forbidden by rule?

5 MR. CAMPBELL: I'm more concerned that there 

6 be a specific rule that governs the issue than the 

7 content of that specific rule. My message here is 

8 really that rules are important. They provide a 

9 baseline, they provide a default to all the 

10 practitioners, and, to me, it's more important that 

11 they exist than the specific content, and direct 

12 filing would be one where I would probably defer on 

13 that.

14 CHAIR ROSENBERG: Judge Proctor?

15 JUDGE PROCTOR: Are you familiar with any 

16 multidistrict litigation of any size where leadership 

17 counsel was not appointed?

18 MR. CAMPBELL: No.

19 JUDGE PROCTOR: That's a reality that we 

20 deal with on a day-in, day-out basis. I've heard not 

21 just you but others say we're enshrining the practice 

22 when we mention it as something that the transferee 

23 judge should receive a report about and discuss with 

24 the parties. But it seems to me it's just a reality. 

25 And it's a prompt for the transferee judge to discuss 
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1 with the parties whether and it doesn't presume -- the 

2 rule does not -- the draft rule does not presume 

3 leadership counsel be appointed, but it also creates 

4 the opportunity to discuss how that appointment 

5 process should look. What is the evil of that? 

6 MR. CAMPBELL: I don't think there's an 

7 evil. There's no evil to it. And I think I would 

8 really raise the same issues that Mr. Beisner raised, 

9 which are we need a clear process governing how 

10 leadership are appointed. I think the current draft 

11 of the rule references to non-leadership attorneys 

12 having limited roles, which I question whether that's 

13 something that is really fair and viable or not. 

14 JUDGE PROCTOR: Are you familiar with any 

15 sizable MDL where non-leadership counsel have the same 

16 role as leadership counsel? It just wouldn't work, 

17 would it?

18 MR. CAMPBELL: It would work, but it just 

19 strikes me as something that needs to be clarified and 

20 I think addressed and also building in the concept of 

21 how the actual plaintiffs' lawyers work together and 

22 do this organically on their own. I think that all 

23 has to be built into the process. And it doesn't feel 

24 to me like that has been done in the current rule.

25 CHAIR ROSENBERG: Andrew?
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1 PROF. BRADT: Thanks. And I don't want to 

2 sound like a broken record on this, but you discussed 

3 the concern about enshrining judicial involvement in 

4 facilitating settlement as one of the things that 

5 shouldn't be in the rule. But, of course, that's 

6 already in Rule 16.

7 MR. CAMPBELL: Correct.

8 PROF. BRADT: And Rule 16.1 mirrors that 

9 language. So isn't any enshrinement concern 

10 effectively non-unique in the sense that it's already 

11 there? 

12 MR. CAMPBELL: That's the one question I 

13 predicted I would get, so I'm so glad you asked that. 

14 Thank you. So I think what I would say is I think 

15 it's fine that it's there as a concept, but I think 

16 the corollary concept should be there as well, which 

17 is the early dispositive issue Judge Proctor raised. 

18 I think that has to be in there. You could argue that 

19 that's there in (c)(7), but it really just says legal 

20 and factual issues. I think I think there should 

21 actually be a specific call out for early dispositive 

22 issues, such as general causation, preemption, and 

23 others that many on this Committee are aware of. I 

24 just think that has to be balanced against the 

25 settlement issue. 
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1 PROF. MARCUS: So settlement discussions 

2 should be forbidden by rule until those other 

3 decisions are made?

4 MR. CAMPBELL: I'm not saying that at all. 

5 I'm saying, if you're giving a laundry list of topics, 

6 I think that settlement has to be balanced with the 

7 early dispositive motion idea. 

8 CHAIR ROSENBERG: Okay. Thank you so much. 

9 We appreciate your comments. 

10 Mr. Shepherd will now address 16.1 as well.

11 Welcome.

12 MR. SHEPHERD: Thanks. My name is James 

13 Shepherd. Thank you for the opportunity to speak 

14 today. I'm a partner at the law firm of Shook, Hardy 

15 & Bacon in Houston, Texas. I'm a trial lawyer with 

16 over 20 years experience in MDLs. I'm currently 

17 serving as national counsel in my sixth product 

18 liability MDL. I've been in the trenches in MDLs my 

19 entire career. I've personally witnessed the 

20 inefficiencies that exist in MDLs because of chaos 

21 that's caused by meritless claims. 

22 I've designed and executed strategies that 

23 have resulted in the dismissal of thousands of these 

24 meritless claims, and I'm here to tell you that we 

25 need a better way, and, as currently drafted, Rule 
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1 16.1 is not it. Legal scholars have appropriately 

2 cited, and you guys have heard it many, many times, 

3 the Field of Dreams axiom, if you will build it, they 

4 will come when describing MDLs.

5 PROF. MARCUS: Do you have statistical data 

6 concerning the proportion of claims that are 

7 groundless? You mentioned dismissal or something of 

8 thousands in your experience. Where is the data on 

9 that? 

10 MR. SHEPHERD: Well, I mean the data is in 

11 the dismissals that happened. I will talk to some 

12 specific numbers in one of the MDLs as an example in 

13 my comments. And then, obviously, for the MDLs that I 

14 have been involved with, I can provide numbers of 

15 cases that have been dismissed that were meritless 

16 going back to the Bay Call MDL, which was the first 

17 one I did in the early 2000s.

18 The axiom from the Field of Dreams is 

19 apropos when it comes to meritless claims and MDLs, 

20 and your judges are essentially powerless to do 

21 anything about it. Safeguards that normally exist to 

22 prevent meritless claims often are just not practical 

23 in MDLs. Judges don't have the time or the resources 

24 to deal with hundreds or thousands of Rule 12(b)(6) 

25 motions in an MDL. Consequently, what you have is 
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1 attorneys who often in a -- it's a callous moneygrab 

2 is what it is, file legally insufficient claims, many 

3 of which omit basic information that's required to 

4 establish that the plaintiff actually used the product 

5 at issue -- I'm a products lawyer, so I'm talking 

6 about products -- and/or suffered the alleged injury.

7 As you know, the MDL Subcommittee has 

8 observed that judges and litigators agree on this 

9 point. These meritless cases and claims --

10 PROF. MARCUS: I think I wrote what you just 

11 referred to, and I think we ought to reserve

12 judgment on whether the plaintiffs and the defendants 

13 agree on those points. We may hear from some 

14 plaintiff lawyers who don't. 

15 MR. SHEPHERD: Sure. But the agenda book on 

16 the Advisory Committee states, "A significant number 

17 of claimants, ultimately, often at the settlement 

18 stage, drafts have unsupportable claims, either 

19 because the claimant did not use the product involved 

20 or because the claimant did not suffer injury." 

21 Right?

22 And I think -- I know that there are 

23 plaintiff attorneys that agree with that because I 

24 deal with them all the time on the PSC, and when it 

25 comes time to deal with the end of an MDL, those 
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1 attorneys do not like having to deal with meritless 

2 claims either. It's very difficult for them to make 

3 them go away and to end the MDL. 

4 CHAIR ROSENBERG: Judge Proctor has a 

5 question.

6 MR. SHEPHERD: Sure.

7 JUDGE PROCTOR: And I think you just hit on 

8 what I think the constant friction and rub in all this 

9 is: you want a rule that would have these meritless 

10 claims identified at the settlement process.

11 MR. SHEPHERD: Before the settlement 

12 process, I'd like it to happen very early.

13 JUDGE PROCTOR: Okay. Before the settlement 

14 process, exactly.

15 MR. SHEPHERD: Right. Yes.

16 JUDGE PROCTOR: Because you think that would 

17 help with settlement discussions to know what -- but 

18 the problem is it seems to me that that makes sense in 

19 some cases but not every case. And the fact of the 

20 matter is there may not ever be cases -- there may be 

21 cases where there's not going to be a settlement 

22 process because the defendant or the plaintiffs are so 

23 far apart on valuing the claims or because of some 

24 protected golden holy grail of a product.

25 We can't build a rule and force lawyers and 
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1 judges to engage in a practice every time when there 

2 makes no sense to engage in the practice every time. 

3 And so what I would say is it is a complete 

4 fabrication to say that MDLs do not permit termination 

5 of meritless claims. The process -- that's built into 

6 the process. It may be later when settlement 

7 discussions occur or when the lawyers want to have 

8 settlement discussions or their clients.

9 But the point is there are terminating 

10 points in every MDL for meritless claims, 12(b)(6) 

11 when we get to that, Rule 56 when we get to that, on 

12 remand sometimes when those things are reached, but 

13 when you have centralized proceedings, the transferee 

14 judge is not worried about whether 5 percent of the 

15 trees are dead. The transferee judge has to be 

16 concerned with moving the forest along, right?

17 MR. SHEPHERD: Well, obviously, the 

18 transferee judge does have to move the forest along. 

19 I don't think there is ever a time where allowing the 

20 meritless cases -- in a product setting, a case where 

21 a plaintiff cannot give a shred of evidence that they 

22 used the product or that they suffered the injury, I 

23 can't imagine a situation in which the judicial 

24 system, the MDL process, the transferee court would 

25 want those cases pending. 
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1 JUDGE PROCTOR: We don't, but there are 

2 points when we get to deal with those. But the point 

3 that I think you're -- and I think you've been the 

4 most candid on this, and that is you want it dealt 

5 with by the time you begin settlement discussions, and 

6 that's not always practicable. 

7 MR. SHEPHERD: I mean, I do, but that's not 

8 the only time. I mean, these cases have -- they 

9 create chaos. I mean, chaos is the word. Throughout 

10 the process, starting from day one, there are filings. 

11 There's paper. There's things that the judges and the 

12 parties have to look at. In the Mirena MDL, it was in 

13 the Southern District of New York, it was Cathy Seibel 

14 was the judge, great judge, by the way. We had a case 

15 management conference every month for three years. 

16 These conferences lasted at least two hours, sometimes 

17 they would go a half a day. We dealt with substantial 

18 issues that were brought about by meritless cases in 

19 every single one of those case management conferences 

20 for years.

21 We shouldn't have to do it. It would be so 

22 much easier for the court and for the parties, but 

23 really for the court, if there were thousands of cases 

24 that just weren't in the system that shouldn't be 

25 there, that just shouldn't be there. 
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1 CHAIR ROSENBERG: Judge Jordan has a 

2 question.

3 MR. SHEPHERD: Sure.

4 JUDGE JORDAN: Yeah. I'd like to get you to 

5 focus on the practicability point that was made by 

6 Judge Proctor's question, and this has come up in the 

7 testimony of several people. 

8 MR. SHEPHERD: Sure. 

9 JUDGE JORDAN: I know you don't speak for 

10 everybody. but take a crack at it. Is there something 

11 in the rule as currently proposed -- well, let me 

12 change that. Is there something in the rule as you 

13 would like to see it that would prevent people from 

14 bringing a dispositive motion that would cover 

15 everything at once? In other words, there are 

16 preemption issues that have been raised. Like,

17 you've got a rule in mind.

18 MR. SHEPHERD: Yeah.

19 JUDGE JORDAN: Would the way you've got the 

20 rule in mind prevent somebody from bringing a 

21 preemption motion to, Judge Proctor's metaphor, move 

22 the forest along? Or is there -- yeah. Is there 

23 something that would make it impracticable to do what 

24 you're saying and still give a judge the opportunity 

25 to say, I'm going to look at this fully dispositive 
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1 motion first?

2 MR. SHEPHERD: No, I don't see a reason why 

3 they can't happen at the same time. 

4 JUDGE JORDAN: Well, I mean, maybe they 

5 can't happen at the same time because you got one 

6 judge and you've got tens of thousands of claimants 

7 and thousands of lawyers. 

8 MR. SHEPHERD: No, I understand that. But 

9 the way -- and I've heard this in the comments, and 

10 the way that I processed this would work, this is 

11 nothing different than a Rule 26 disclosure, right? A 

12 claimant files a case in the MDL, or it gets 

13 transferred to the MDL. Within 30 days, they have to 

14 make a disclosure. That disclosure is going to be 

15 some proof. Maybe it's the prescription records that 

16 they used a product. Maybe it's a receipt that they 

17 used a product. And if there's an injury, maybe it's 

18 a medical record. Two pieces of paper is what we're 

19 asking for.

20 If they don't give me those two pieces of 

21 paper, as a defendant, I'm going to file a one-line 

22 motion in the court to dismiss. The court's going to

23 dismiss it because the plaintiff is not going to 

24 respond to it. That will happen in the beginning, and 

25 after it happens enough times, people won't file these 
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1 cases. 

2 JUDGE JORDAN: So your point on 

3 practicability is there's a way to frame this so it 

4 doesn't jam the system up in the same way that a 

5 12(b)(6) motion could stop everything if the judge 

6 said stop it?

7 MR. SHEPHERD: Right. Right. This is a 

8 self-executing instrument where they provide two 

9 pieces of paper, and if they don't, the case is going 

10 to be dismissed. They know it going in because it's 

11 in the rule. All the judge has got to do is sign the 

12 order. They'll have an opportunity, of course, to say 

13 I've got some reason why I can't do this or I didn't 

14 do this. But those are not going to be -- that's not 

15 going to happen often. That's going to be an 

16 exception. I mean, we know from looking at these 

17 cases and I've been in MDLs now -- we have hundreds of 

18 thousands of these cases. These people, they call a 

19 phone number, put her name on a piece of paper, a case 

20 gets filed, and they disappear into neverland. And 

21 those are the cases that we're dealing with.

22 Still, PFSs have to go out. We have to 

23 collect information on them. We have to get medical 

24 records on them. Getting those things are very, very 

25 difficult. If the case is moving forward as Judge 
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1 Proctor says, we have to continue to prepare our case, 

2 so we have to do those things. We have to follow the 

3 procedure that's necessary for us to defend our 

4 clients. But we're doing it so many times for people 

5 that they probably don't even know they have a case.

6 CHAIR ROSENBERG: Andrew?

7 PROF. BRADT: Yeah. I'm grateful for your 

8 testimony because I'm eager to understand the real 

9 problem here with these cases. These are not cases 

10 that are meritless because of something complicated. 

11 They're meritless because of, say, they don't have the 

12 receipt or the proof they used the product. What is 

13 the real practical problem of those cases being parked 

14 on the docket during the MDL process, where it seems 

15 to me that much of the discovery and litigation is 

16 over the common issues, and if those claims are truly 

17 meritless, you don't have to settle them? It's not a 

18 class action. You don't have to settle them all. You 

19 just don't pay them out on the back end. What's the 

20 real problem? 

21 MR. SHEPHERD: I can give you three that 

22 come to mind. One, the PFS process is a process that 

23 is now ingrained in the MDL. It begins in the 

24 beginning and it goes out, there's a questionnaire 

25 that they have to fill out. They have to give us 
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1 certain information, medical records and certain 

2 information, execute releases that we can use. There 

3 is -- you would not believe how much time and effort 

4 is invested in those PFSs. That has to happen in 

5 these meritless places. Oftentimes, judges set up a 

6 system that if the plaintiff doesn't fill out the PFS 

7 or doesn't fill out core criteria on the PFS, there's 

8 a system in place that'll allow the court to 

9 eventually dismiss the case.

10 In the Mirena MDL, the plaintiffs were given 

11 eight different opportunities to fix their PFS before 

12 the court actually dismissed the case. That takes a

13 huge amount of time .

14 Two, a lot of these cases, the amount of 

15 discovery that's done on the defense side is 

16 gargantuan. You're talking millions and millions and 

17 millions of pages of documents. Often, the reason 

18 that that level of discovery is allowed is because the 

19 number of cases that are out there, there's a 

20 proportionality rule and an argument that plaintiffs 

21 get to make that say, hey, there's so many people 

22 here, they should have to give us everything they 

23 have.

24 PROF. MARCUS: So, if you cut 10,000 to 

25 5,000, that argument goes away?
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1 MR. SHEPHERD: The nuance, Professor, it 

2 doesn't go away. But I will tell you, because I've 

3 stood in front of judges and argued this, if there are 

4 less cases, there will be less discovery. And I can't 

5 tell you how much difference it would make, but it 

6 will make a difference and there will be less fights 

7 because of it. 

8 And then the third thing goes to settlement.

9 I know it's long in the process. The rule as it's 

10 currently stated talks about early discussion of 

11 settlement or settlement early, early, early. Listen, 

12 defendants, nor plaintiffs, really, are going to 

13 settle early with all these meritless cases. 

14 Plaintiffs don't -- the defendants are not interested 

15 in making inventory settlements of meritless cases. 

16 And plaintiffs' attorneys, at least in my experience, 

17 hold out for more money in settlements and make it 

18 much more difficult to settle because they need to 

19 make sure that the claims of the plaintiffs with 

20 colorable claims actually are not underfunded because 

21 they've got to pay out meritless claimants that are 

22 also in that pool. So I think there are three 

23 practical reasons right there. 

24 PROF. BRADT: Doesn't that mean there's an 

25 incentive for them not to file those claims at all?
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1 MR. SHEPHERD: Say that again, I'm sorry.

2 PROF. BRADT: Doesn't that mean there's a 

3 built-in incentive for them not to file those claims 

4 at all if they're concerned that the better claims 

5 aren't going to get paid out? 

6 MR. SHEPHERD: I mean, as you sit and think 

7 about it, yeah, but it doesn't make a difference. 

8 They're getting -- they're doing it. 

9 MALE VOICE: Is it really the case that they 

10 have that incentive? I mean, I guess I'm talking to 

11 Henry here, right? It's not like one person is filing 

12 these claims. You can have somebody with great claims 

13 and somebody with lousy claims. The person with lousy 

14 claims has an incentive to have lousy claims because 

15 they think they're going to get some money out of it 

16 and it doesn't make a difference to them that it's 

17 going to intrude on somebody else's, or at least that 

18 occurs to me might be a problem. Am I thinking about 

19 that wrong?

20 MR. SHEPHERD: No, you're not thinking about 

21 it wrong at all.

22 CHAIR ROSENBERG: Okay. Thank you so much.

23 MR. SHEPHERD: You're welcome.

24 CHAIR ROSENBERG: Okay. Thank you so much.

25 MR. SHEPHERD: I do have numbers if people 
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1 are interested and have asked about numbers, I can 

2 give you the numbers. I have a set of them today for 

3 the Mirena litigation, and I'm happy to try to provide 

4 the same sort of information for any other MDL.

5 CHAIR ROSENBERG: Will you be staying for 

6 the day?

7 MR. SHEPHERD: I will be here probably to 

8 about 4:00.

9 CHAIR ROSENBERG: Okay. .

10 PROF. MARCUS: Those numbers are about 

11 outcomes or showings that these people right up front 

12 would have been excluded? Don't answer that question. 

13 That would be useful to know when you submit the 

14 numbers.

15 MALE VOICE: Well, and also what would be 

16 useful is not the numbers with respect to a particular 

17 product in a particular case because that's not what's 

18 being presented to us. What's being presented to us 

19 is there's this generalized across-the-world problem, 

20 right, that in every MDL of any size, you're going to 

21 have frivolous claims that are included in that.

22 So what I'm interested in hearing and I 

23 think what Professor Bradt started this conversation 

24 wanting to hear is what empirical data supports that 

25 because we're told by the other side of the aisle 
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1 that's just not so. It's not true. That doesn't mean 

2 there aren't a few here and there. But, as a general 

3 problem, they say that's not a problem. And so what 

4 we're -- you understand we're the neutrals. 

5 MR. SHEPHERD: No, I understand. When they 

6 say that, are they talking about specific types of 

7 cases? So my focus is really going to be in products 

8 cases, and in products cases, it is something that we 

9 see all the time. I understand that MDLs are not 

10 always about products liability cases. And in that 

11 context, I can't speak to the empirical data. I can 

12 just do it within my world.

13 JUDGE PROCTOR: But we have to develop a 

14 rule that deals with products cases --

15 MR. SHEPHERD: I understand.

16 JUDGE PROCTOR: -- antitrust cases, sales --

17 MR. SHEPHERD: That's why you all get paid 

18 the big bucks.

19 JUDGE PROCTOR: -- obscured practices cases, 

20 so all right. Thank you.

21 MR. SHEPHERD: Okay. You're welcome.

22 CHAIR ROSENBERG: All right. Thank you so 

23 much. 

24 Mr. Guth will address 16.1.

25 MR. GUTH: Hi. I'm Chris Guth. I am
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1 senior --

2 CHAIR ROSENBERG: Sorry, I mispronounced 

3 your name. 

4 MR. GUTH: No problem. General -- senior 

5 assistant general counsel at Bayer. I manage our 

6 litigations. In my time at Bayer, I have managed at 

7 least seven MDLs with tens of thousands of cases in 

8 those MDLs and hundreds of thousands of cases in the 

9 litigations overall.

10 I had some nice remarks that I think were 

11 going to flow really well. I want to instead try to 

12 answer some questions that have been raised here from 

13 the client perspective. I think I'm surprised at this 

14 point that we are debating whether this problem 

15 exists. I thought we had gone beyond that. I have 

16 never been in a room like this in meetings, where 

17 plaintiffs are also around, where we've been 

18 discussing the rule process, where I have met a single 

19 plaintiff attorney who has challenged the idea that 

20 there are unsupportable claims in every product 

21 liability MDL. 

22 Now those attorneys have different ideas 

23 about whether those claims belong there, about why 

24 they are there in the first place, and about how to 

25 handle them. But, again, I have never heard a 
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1 plaintiff attorney challenge the idea that there are 

2 significant percentages of cases in MDLs that simply 

3 do not belong there. And so it's a bit concerning to 

4 me, who has been working on this process for the last 

5 six, seven years, where I thought we started six or 

6 seven years ago with a global understanding that this 

7 is a global product liability mass tort issue and now 

8 we seem to have been taking a few steps back from 

9 that.

10 That being said --

11 CHAIR ROSENBERG: Can I interject for a 

12 moment maybe to recalibrate us and not have you feel 

13 as if you're taking multiple steps back. Why don't 

14 you take a look, as I know you have, at (c)(1)(4)? 

15 Maybe tell us why that provision, separate and apart 

16 from I know --

17 MR. GUTH: Sure.

18 CHAIR ROSENBERG: -- points that were made 

19 by LCJ about maybe it's confusing as it relates to the 

20 discovery process, but assume that's not the discovery 

21 process. Assume that is up-front, early, the 

22 attorneys are to meet. They are to discuss many 

23 things. This isn't exhaustive, but many things, many 

24 things that likely are things that all of you have 

25 experienced in your MDL years and years and years of 
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1 experience. I'd be surprised if you haven't gone 

2 through most, if not all, of these issues in the 

3 checklist. 

4 So (c)(4) speaks about not whether but how 

5 and when the parties will exchange information about 

6 the factual bases for their claims and defenses. Is 

7 that not going to the issue of the merits of the 

8 claims? Is that not going to the concept of initial 

9 disclosures? What about that provision? And why 

10 isn't that to some extent, maybe not perfectly, maybe 

11 not in mandatory language, why does that not go at 

12 least a few steps forward toward the very issue that 

13 most of us have been or most of you have been bringing 

14 to our attention today?

15 MR. GUTH: First of all, because it doesn't 

16 mention or address the issue at all, not in the rules 

17 section, not in the comments section. We here all 

18 understand that (c)(4) deals with unsupported claims.

19 There's nothing about unsupported claims or even an 

20 allusion to unsupported claims in the note or the rule 

21 so far as we see.

22 CHAIR ROSENBERG: But, if you understand it 

23 is unsupported claims, but you don't see the word 

24 "unsupported claims," wouldn't you then be prompted to 

25 bring that to the judge's attention if the judge, for 
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1 some reason, was out of the loop and didn't understand 

2 what you all understood? So let's say the judge 

3 didn't read that as unsupported claims. You've just 

4 said you do. Wouldn't that be the very thing you 

5 would bring to the court's attention at the first 

6 hearing so that the court can say, what do you all 

7 think we should do about unsupported claims, and then 

8 form an opinion about actually how to address 

9 unsupported claims? How does this preclude addressing 

10 unsupported claims? 

11 MR. GUTH: It doesn't preclude it at all. 

12 And you're absolutely right, we would go into the 

13 first case management conference as we do right now 

14 and seek some sort of method to deal with that issue. 

15 Here's the problem. Without a rule mandating that 

16 these -- that support for belonging in the litigation 

17 is actually required from the plaintiffs as they walk 

18 in the door, what you're going to end up with when I 

19 walk into a case and my outside counsel walk into a 

20 case management conference and say, this means we have 

21 to figure out a way to deal with these claims, you're 

22 going to have plaintiffs' counsel walking into that 

23 same conference and saying, oh, no, we don't need a 

24 really hard rule. These cases wouldn't have tens of 

25 thousands of plaintiffs filed in them that don't 
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1 belong in them if there wasn't some benefit or 

2 incentive on the plaintiffs' side to do that. So they 

3 would walk in and say, defense wants us to put forward 

4 all this stuff that we're never supposed to put 

5 forward and we're not supposed to do it this early in 

6 the litigation and it all comes out in the wash, why 

7 don't we go with the PFS system.

8 I guarantee, once forced to do something, 

9 it'll be why don't we go with the PFS system because 

10 that works so well. If the PFS system worked well, we 

11 wouldn't be having this conversation right now. We 

12 wouldn't have been having this conversation --

13 CHAIR ROSENBERG: Sorry to interrupt. So 

14 the existing rules, Rule 8, kind of doesn't mean 

15 anything to plaintiffs' lawyers in MDLs?

16 MR. GUTH: No.

17 CHAIR ROSENBERG: Rule 11 doesn't mean 

18 anything to lawyers in MDLs?

19 MR. GUTH: No.

20 CHAIR ROSENBERG: The potential for Rule 12 

21 motions doesn't mean anything for lawyers in the MDL 

22 context? Is that --

23 MR. GUTH: Yes. If it did, we wouldn't be 

24 here. If it did, we wouldn't have thousands of cases 

25 in every MDL where people literally have not used the 
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1 product, literally do not have the injury, literally 

2 do not pick up the phone for god knows what reason, 

3 whether they're alive, whether they're not real 

4 people, I don't know, but plaintiff lawyers can't get 

5 a hold of scores of, of hundreds of, of thousands of 

6 plaintiffs who have been filed in these litigations.

7 So the evidence shows that those rules don't 

8 matter or they would be used --

9 PROF. MARCUS: That's why there's no PFS 

10 response from those folks?

11 MR. GUTH: Right. And that's why --

12 PROF. MARCUS: Then why doesn't that solve 

13 your problem?

14 MR. GUTH: Because the PFS system is --

15 okay, to Judge Proctor's question about what if we can 

16 deal with -- and I'm using this to answer your 

17 question, Professor, what if we can deal with 

18 dispositive motions to take care of this issue? We 

19 did that in a case. We did that in the Mirena case 

20 that Mr. Shepherd talked about, 702 motions excluded 

21 plaintiffs' experts. Summary judgment was granted on 

22 behalf of the company, case over. During that time, 

23 the PFS system was going through -- while the judge 

24 was handling dispositive motions, the PFS system was 

25 going through its stages.
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1 This is worth -- this is the best PFS system 

2 I've ever seen, and I think, if it could be done 

3 better, it would have already been done. Plaintiff 

4 files a case. The plaintiff lawyer has 60 days to 

5 provide a PFS. If it's not provided on time, they 

6 have 30 days to cure it. If there's no cure, bearer 

7 has to give notice to the steering committee. Then 

8 they file a motion without prejudice at the next case 

9 management conference.

10 Then, if there's no cure, we file a motion 

11 to dismiss without prejudice. Then the motion to 

12 dismiss is argued before the court. Then there's a 

13 show cause order. This is all in the comment. And 

14 then we have to go back with another chance for them 

15 to cure it. And then we go back to the court. Now 

16 one second. We go back to the court for a motion to 

17 dismiss with cause. That's the PFS system because 

18 it's negotiated. Because it is negotiated, you're 

19 going to have 17 steps of cure and fixing, these 

20 people never show up.

21 I think we have a handful, literally a 

22 handful -- if Mr. Shepherd's still here, you can ask 

23 him -- a handful of the hundreds and hundreds of 

24 plaintiffs who are dismissed who ever fought back on 

25 anything, who ever responded to anything, which is 
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1 why, if we institute a rule that mandates it, we're 

2 not litigating this forever, it will be prophylactic. 

3 They're not going to file these cases. It will make 

4 the MDL world so much simpler because they will be 

5 gone. 

6 PROF. MARCUS: And in that case you just 

7 described, was that prophylactic effect noticed? Did 

8 people stop filing those claims?

9 MR. GUTH: In the PFS world? They just 

10 didn't respond to the PFS. They had nothing to --

11 they didn't lose anything.

12 PROF. MARCUS: No, my point is, if the goal 

13 of doing this is that the claims will not be filed, 

14 does that experience show that's what happened?

15 MR. GUTH: I don't know. I don't know the 

16 kind of temporal relationship between -- the PFS --

17 the answer is I don't know because I'd have to look at 

18 when they were dismissed versus when they were filed, 

19 which firms' cases were dismissed and filed. So it's 

20 a fair question. I don't know the answer to it.

21 JUDGE JORDAN: Can I ask a question --

22 CHAIR ROSENBERG: Judge Jordan and then 

23 Judge Proctor.

24 JUDGE JORDAN: -- because I don't 

25 understand. I thought your assertion, Mr. Guth, was, 
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1 if we had a rule that required something up-front that 

2 would screen these, that would be a prophylaxis 

3 because that would stop people from doing this going 

4 forward. I'm not understanding your question, Rick, 

5 because your question seems to be, well, the PFS 

6 system was operating in this case, didn't that make it 

7 better? And if I'm understanding the point that's 

8 being made, it's the PFS system doesn't work. That's 

9 why we want the other system. So maybe I might be 

10 missing something.

11 PROF. MARCUS: Judge, I can clarify. I know 

12 I've heard MDL recipient judges report on the 

13 avalanche of claims they kept getting. Now, if this 

14 prophylaxis works, the avalanche should stop

15 MR. GUTH: The PFS system is a -- it 

16 actually is a discovery tool. It truly is. I know 

17 you've heard us say that, but we're not pretending --

18 we're not turning the PFSs into something they're not. 

19 PFS is our discovery tool. We end up having to use 

20 them. Those sheets are intended to get information 

21 about actual plaintiffs to help us move the actual 

22 plaintiffs' cases forward, seriously. They're not 

23 meant to vet claims. They're meant for us to get 

24 names and addresses and family members who saw them 

25 use the product and medical records so that we can get 
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1 cases ready for trial. That's our expectation.

2 CHAIR ROSENBERG: Let me --

3 MR. GUTH: But then what happens is --

4 CHAIR ROSENBERG: I'm sorry. We're running 

5 a little low on time and I want to just make sure 

6 Judge Proctor's question is answered. 

7 JUDGE PROCTOR: Yeah. I just wanted to 

8 clarify. No one is suggesting this isn't a problem. 

9 When we ask for empirical data, we're trying to 

10 determine is it a problem in every single MDL no 

11 matter what. And that's my point, is you've just 

12 given us a prime example of how this rule could work. 

13 In the MDL you referenced, you got in front of the 

14 judge; you said you needed this procedure. It was 

15 negotiated and approved by the court and there was a 

16 process in place.

17 Let me take you back. You're now the client 

18 in the hypothetical room I talked about and your 

19 outside counsel is saying we would like to incur 

20 hundreds of thousands, if not millions, of litigation 

21 dollars litigating whether or not everybody who's 

22 filed in this MDL is properly in the MDL. At the same 

23 time, we're filing what we think should be, odds on, a 

24 successful across-the-board TKO. Do you give them the 

25 green light to go spend millions of dollars that may 
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1 end up being wasteful at the end of the day, as 

2 opposed to --

3 MR. GUTH: Every time. Every time.

4 JUDGE PROCTOR: Every time?

5 MR. GUTH: Every time.

6 JUDGE PROCTOR: Well, okay.

7 MR. GUTH: And I am the client --

8 JUDGE PROCTOR: Let me ask you this. Is it 

9 reasonable for general counsel not to do that every 

10 time? 

11 MR. GUTH: No, because these cases --

12 JUDGE PROCTOR: I'd say you're going to have 

13 some disagreements there.

14 MR. GUTH: Absolutely not. I don't think 

15 you will find a single defense corporate counsel here 

16 who will say that it is not hugely important to fight 

17 against the unsupported meritless claims that are 

18 being filed because, even if it was a bifurcated case, 

19 and you, Judge, put a stay on everything happening in 

20 that case --

21 JUDGE PROCTOR: Let me ask you this.

22 MR. GUTH: May I?

23 JUDGE PROCTOR: Okay. You've answered. 

24 You've answered.

25 MR. GUTH: Just one thing.
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1 JUDGE PROCTOR: But I'm the judge. Well, 

2 hold on. I'm the judge. Why should I and my staff 

3 have to devote thousands of hours, hundreds of hours, 

4 even dozens of hours doing something that may be 

5 unnecessary in the end?

6 MR. GUTH: So, Judge, I lost the point I was 

7 going to make when I rudely kept talking while you 

8 were talking, so I guess that's what I deserve by 

9 doing that. So I guess I would respond with a bit of 

10 a question to -- or an actual question back to you, 

11 which is, if you were dealing with a summary judgment 

12 or a preemption motion, and a summary judgment motion 

13 would require discovery to begin with, and so my 

14 question to you is, are you really going to put a stay 

15 on the entire litigation while you handle the 

16 preemption motion is really the only --

17 JUDGE PROCTOR: Oh, we do it all the time in 

18 single plaintiff versus single defendant. Ironically, 

19 as we were in this meeting, one of my law clerks sent 

20 me a text order staying proceedings so the parties can 

21 accomplish another task they've asked to accomplish by 

22 their agreement, but we do it on qualified immunity. 

23 We do it on motions to dismiss. In securities 

24 litigation, as you know, you're not even allowed to 

25 start discovery until motions to dismiss are decided.
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1 We do it across the board in all sorts of 

2 other cases. And I don't see why product MDLs should 

3 be different. You can get in front of a judge and 

4 make all your arguments that you're making here in 

5 that case, but I don't think you can make these 

6 arguments that we should impose as a Committee

7 or a subcommittee, we should impose on each transferee 

8 judge an obligation when it doesn't make sense in a 

9 particular case that we can't even envision right now.

10 CHAIR ROSENBERG: Let me see if Andrew has a 

11 quick question. Then I think we're going to move on.

12 PROF. BRADT: Yeah. My only question is a 

13 spin on Judge Proctor's. He's concerned about the 

14 scope of the problem across all different kinds of 

15 MDLs. I don't think anybody would dispute that there 

16 are meritless cases filed in MDLs. There's meritless 

17 cases filed in all other contexts as well.

18 What I'm concerned about is the extent of 

19 the problem. I've heard you cite that tens of 

20 thousands of cases were dismissed, and then you moved 

21 to thousands, and then, in your most recent comment, 

22 you said hundreds and hundreds. And so I guess I'm 

23 trying to figure out, it's like how many communists 

24 are in the State Department? I'm trying to figure out 

25 what the real numbers are.
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1 MR. GUTH: Well, it depends on how big your 

2 litigation is, right? And so, if we had a litigation, 

3 I had a litigation, that was an MDL. Back in the days 

4 when we talked about claim numbers like 500 and 600, 

5 you're obviously only going to have a handful. In our 

6 Xarelto litigation, we had a thousand cases. I mean, 

7 this is a perfect example of what happens when you 

8 don't have a rule that is a front stop to all of this.

9 Judge, I hear you about the work that you're 

10 concerned about you and your staff having to do. I 

11 think we probably disagree on the ultimate amount of 

12 work having to be done due to the prophylactic effect 

13 that I hope would happen. And, frankly, if we don't 

14 think there's going to be a prophylactic effect, then 

15 I think the rule has failed because we're not trying 

16 to figure out how to better litigate claims that don't 

17 belong here in the first place. We're trying to keep 

18 them from coming in.

19 But, in Xarelto, we had over a thousand 

20 cases dismissed on the PFSs that's remedy-able. Over 

21 the entire course of the litigation, right, the court 

22 and the parties are dealing with those PFSs. We had 

23 500 additional cases dismissed out of 1200 that were 

24 picked to get worked up for trial. So now it's again 

25 infecting the entire process of the litigation, right? 
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1 Now we're at trial selections and 40 percent of 1200 

2 gone the first time the plaintiff lawyers had to look 

3 at them.

4 Then, in settlement, so now we're at the 

5 tail end of the litigation, another 2,700 cases gone 

6 because they never belonged there. So there's, I 

7 don't know, 5,000 -- no, 4,000, Professor, in Xarelto, 

8 for example. So tens of thousands was probably 

9 flippant by me. I don't have any of my cases where 

10 tens of thousands have been dismissed. But there is 

11 four plus thousand in Xarelto. And the judge had to 

12 deal with it and the parties had to deal with it in 

13 the entire process.

14 CHAIR ROSENBERG: We have one quick question 

15 from Joe.

16 MR. SELLERS: I just want to -- it would 

17 help me at least to know when you talk about 4,000, 

18 for instance, you haven't given us -- what's the 

19 universe? Four thousand out of 100,000, 30,000?

20 MR. GUTH: Out of 30 -- I think there were 

21 32 in the MDL, so, like, 11 percent or something. I 

22 think that's right, but we had a much larger 

23 litigation in state court too, but that's about right. 

24 In Mirena, I don't know, it was 20 percent-ish. And I 

25 hope I'm not putting words in Mr. Shepherd's mouth, so 
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1 out of maybe 5,000, a thousand. I mean, percentages 

2 are nice to look at, but the raw numbers can be 

3 disconcerting too. It's there.

4 CHAIR ROSENBERG: Question from Judge Lauck.

5 JUDGE LAUCK: So, when you say they were 

6 dismissed at different times as meritless, was it for 

7 all the same reason? 

8 MR. GUTH: I don't know. I mean -- well --

9 JUDGE LAUCK: Well, that actually could 

10 matter because, of course, as litigation goes on, 

11 things may be deemed meritless for reasons that 

12 occurred during the litigation. 

13 MR. GUTH: I hear you, Judge. I get what 

14 you're saying now. That's the danger. We haven't yet 

15 figured out a good single word to describe this stuff. 

16 I don't mean lack of legal merit, like we win because 

17 the product didn't deserve to have a warning. We did 

18 that at trial. I mean cases where they literally 

19 didn't use the product. I guess I don't know why a 

20 plaintiff lawyer dismisses their claims, but if a 

21 plaintiff lawyer fails to fill out their PFS, there 

22 could be any bunch of things. But the point is it 

23 should have never been filed in the first place 

24 because all a PFS asks you to do is give me your name, 

25 number, tell me where you got your prescription from 
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1 and what your injury is. That's the basis of a 

2 lawsuit. It's literally the basis of a lawsuit. And 

3 when they don't do that, that's meritless or 

4 unsupported or whatever. That's the vast majority of 

5 those dismissals. When a case gets picked to be 

6 worked up for trial in an initial trial pool and the 

7 plaintiff finally sees their case, finally sees their 

8 case and maybe finally talks to their client and says, 

9 no, I'm out of here, pick another case to go to trial, 

10 I don't know really why that plaintiff lawyer for the 

11 first time in five years decided to let it go, but 

12 that's what I mean by meritless.

13 CHAIR ROSENBERG: All right. Thank you so 

14 much. As you can see, we're not eating lunch now at 

15 12:30, but we're going to do that at 1 so we have time 

16 for at least one and maybe two. Let's see what Mr. 

17 Haston has to say about 16.1. Thank you so much. 

18 MR. HASTON: Good afternoon, Judge Rosenthal 

19 and fellow Committee members. I'm sorry that I'm the 

20 one standing between you guys and lunch. I will try 

21 to have something original to say for the group.

22 My name's Tripp Haston. I'm a partner at 

23 the Bradley Arant Firm in Birmingham, Alabama, and I'm 

24 pleased to appear today on behalf of the International 

25 Association of Defense Counsel, or the IADC, 
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1 concerning proposed Rule 16.1. The IADC is a 103-

2 year-old invitation-only organization of more than 

3 2500 attorneys who have varied practices in civil 

4 litigation and international arbitration. We've been 

5 a leader on civil justice reform issues as the founder 

6 of DRI in 1960 and as one of the three founding member 

7 organizations of Lawyers for Civil Justice in 1987. 

8 Many of our members, including myself, have 

9 served in leadership and supporting roles for numerous 

10 clients in multidistrict litigations as outside 

11 counsel and as well as corporate counsel. Together 

12 with my fellow IADC members, over the last 20 years, 

13 we've witnessed exponential growth on the MDL dockets. 

14 We're convinced the primary cause of this growth and 

15 the burden on the court system is the absence of 

16 adequate measures to prevent the meritless filing of 

17 lawsuits and MDL proceedings.

18 Now that concludes about the original 

19 comments that I have to make because most of what 

20 you've heard today were the things that I had planned 

21 to talk about today, because the three things that I 

22 had planned to address that are in my outline that you 

23 have in front of you are the need for what I call a 

24 fair filter in 16.1(c)(4).

25 Judge Rosenthal, you talked about the --
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1 Rosenberg -- you talked about the existing rule, and I 

2 think one of the reasons that you're hearing so much 

3 from all of us about this is this is the first time 

4 we've had a rule on MDL litigation truly, right. And 

5 so I appreciate no one being defensive about hearing 

6 so much about it because there's a lot of concern and 

7 care about what you actually say, and that's what 

8 today is really about. I'm delighted that we are 

9 getting really good questions about the focus.

10 And, Professor Bradt, there is a bright 

11 young associate in Birmingham, Alabama, who doesn't 

12 know this yet, but they're going to be tasked with 

13 developing the empirical data that you and other 

14 Committee members are so desperate for because that 

15 data does exist. And Mr. Guth, who's a client, I was 

16 involved in leadership in the Xarelto litigation. He 

17 stole my thunder, about 4200 cases going out.

18 Just to sort of say it one more time, for 

19 us, I think this is the issue. If you're going to 

20 receive the benefit of an MDL as a plaintiff, I don't 

21 think it is too much to ask to show up and provide the 

22 factual basis for your claim at the very beginning 

23 before you're allowed citizenship into that MDL. The 

24 longer you're in, the more complicated -- the 

25 meritless claims, the longer they're in, the more 
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1 complicated it makes administration of the MDL.

2 There have been a lot of questions about 

3 that from the panel. And I would cite you to Judge 

4 Casey Rodgers' Law Review article that is found at 

5 Footnote 14 in LCJ's note, where she talks about in 

6 her Law Review article that was published in 2021 that 

7 the high volume of unsupported claims interfere with 

8 the court's ability to establish a fair and 

9 informative bellwether process. 

10 So it has an impact on the court, not to 

11 mention the millions of dollars that are spent by the 

12 defense in getting meritless cases out that should 

13 never have been there in the first place if they just 

14 showed up and provided the most basic information to 

15 allow them to be citizens in the MDL.

16 The other two comments I had were -- and 

17 Judge Proctor raised this as well -- I think it would 

18 be terrific if more judges embraced cross-cutting 

19 issues at the very beginning. But I don't think that 

20 there is a choice, a dichotomy, between having to sort 

21 of address a cross-cutting issue and also asking the 

22 plaintiff for the basic citizenship type of 

23 information they need to participate because what 

24 happens is, as everyone knows, is that MDLs get 

25 rolling, they get involved, they roll down the road, 
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1 and it takes some time to get a motion up before the 

2 court to address the court and resolve it. And so --

3 JUDGE PROCTOR: You realize most citizens 

4 are born, not naturalized?

5 MR. HASTON: I'm sorry, Judge?

6 JUDGE PROCTOR: Most citizens are born, not 

7 naturalized. 

8 MR. HASTON: Yeah. Well, a fair point. But 

9 I think all we're asking for is, you know, the MDL 

10 vehicle has made things very easy to participate in 

11 litigation. And I think that from the defense side, 

12 if we could just make sure we have the right people in 

13 the litigation from the beginning, not four or five 

14 years down the road, it would be better for everyone.

15 The other comment I have is about direct 

16 filing orders, and I think this goes to the point that 

17 whatever this Committee says and puts out in your 

18 commentary will be cited and held up and used. I 

19 think several of us are very troubled about direct 

20 filing orders. Mr. Stoffelmayr addressed that with 

21 us. And so we're not saying prohibit direct filing 

22 orders. We're just saying there's no need to mention 

23 them. If the parties agree to it, great. But there's 

24 often situations where we are strongly encouraged to

25 agree to this because it just makes everything easier 
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1 for administration. But it will require defendants to 

2 waive some fundamental rights to get there. And so 

3 that's why we're saying there's no need to be explicit 

4 about it because of that reason.

5 CHAIR ROSENBERG: Thank you. 

6 MR. HASTON: You're welcome.

7 CHAIR ROSENBERG: Andrew?

8 PROF. BRADT: So, on that direct filing 

9 point, I just want to ask the same question I asked to 

10 Mr. Campbell. You say in your outline that they 

11 violate Rule 3 and the statutory framework of MDL. 

12 MR. HASTON: Yes.

13 PROF. BRADT: I guess I'm curious as to why 

14 because I haven't heard the answer to that yet. And 

15 second, direct filing orders, it sounds like you're 

16 concerned that they're strong arming to get stipulated 

17 to. But is there a circumstance where defendants are 

18 actually unable to raise personal jurisdiction and 

19 venue considerations if they come up later, after a 

20 case has been direct filed? They don't waive them for 

21 the whole case, they waive them just for the purpose 

22 of pretrial, right?

23 MR. HASTON: Right. So let me answer the 

24 first question. I think what the LCJ note says is 

25 that direct filing orders are inconsistent with Rule 
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1 3, which talks about that it governs the commencement 

2 of actions by filing in the correct court, right, 

3 venue, jurisdiction, and the like. And --

4 PROF. BRADT: No, it's the filing of the 

5 complaint that commences the action. 

6 MR. HASTON: Can I answer the second part of 

7 your question about statutory framework? It mandates 

8 that MDL transfers shall be made on a JPML, not that 

9 something is to go directly to the court. It's 

10 supposed to go through the JPML. And so that's our 

11 point on direct filing orders.

12 CHAIR ROSENBERG: Okay. Thank you so much.

13 MR. HASTON: Thank you.

14 CHAIR ROSENBERG: We really appreciate your 

15 comments.

16 Mr. Leventhal on 16.1?

17 MR. LEVENTHAL: I guess I can't say good 

18 morning anymore. In any event, thank you for having 

19 me. My name's Markham Leventhal. I'm a litigation 

20 partner at Carlton Fields, a class action defense 

21 lawyer. Consistent with my letter that I submitted on 

22 October 5, I believe I'm going to address subject 

23 matter jurisdiction, and what I mean by subject matter 

24 jurisdiction is, in particular, Article III standing.

25 So some basic principles that we're all 
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1 familiar with. Number one, standing as a

2 constitutional requirement comes from Article III, 

3 Section 2 of the Constitution, and it's derived from, 

4 of course, the case or controversy requirement. In 

5 Spokeo, one of the -- I guess it's a 2016 Supreme 

6 Court case, the Supreme Court, citing Raines v. Byrd, 

7 which is an older standing case, said no principle is 

8 more fundamental than the judiciary's proper role in 

9 our system of government and the constitutional 

10 limitation of federal court jurisdiction to actual 

11 cases or controversies. 

12 And, of course, the Supreme Court has 

13 repeatedly emphasized that every district court judge, 

14 whether an MDL judge or not, has an obligation to 

15 supervise and police constitutional standing. And I 

16 think in my letter I cited to U.S. v. Hayes. The 

17 quote is, "The federal courts are under an independent 

18 obligation to examine their own jurisdiction, and 

19 standing is perhaps the most important of the 

20 jurisdictional doctrines." And it goes without 

21 saying there is no Article III exception to MDL 

22 proceedings. So the court needs to ensure that it 

23 receives from the plaintiffs all the essential 

24 information to ensure there's constitutional standing. 

25 So what are the requirements of constitutional 
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1 standing? I think we all know what they are, but, 

2 basically, three elements. Number one is injury-in3 fact. Secondly, that injury-in-fact has to be 

4 traceable, traceability to a particular defendant 

5 that's named in the proceeding. And third is 

6 redressability. 

7 So traceability, of course, is a causation 

8 concept. And the Duke Power case was framed as the 

9 plaintiff has an obligation to establish a substantial 

10 likelihood that the defendant caused the injury. 

11 That's traceability. So we've got three 

12 constitutional requirements, and the plaintiff bears 

13 the burden of establishing those three elements and 

14 that burden applies at every stage of the proceeding. 

15 So also in Spokeo, the Court said at the pleadings 

16 stage, the plaintiff must clearly allege facts 

17 demonstrating each element of standing. And then, in 

18 TransUnion, the famous quote, "Standing is not 

19 dispensed in gross. Rather, plaintiffs must 

20 demonstrate standing for each claim that they press 

21 and for each form of relief."

22 But, unfortunately, in many of the MDL 

23 proceedings, particularly those that we've been 

24 talking about, the larger ones, thousands or hundreds 

25 of plaintiffs, the transferee judges are just simply 
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1 not being provided with the information that they need 

2 to ensure that all the plaintiffs have standing. As a 

3 result, you have heard improper claims, some people 

4 referring to them as meritless claims, but I'm 

5 focusing on the constitutional obligation to ensure 

6 that there is standing.

7 So let's turn to the proposed rule. Section 

8 C talks about the transferee court should order the 

9 parties to meet and prepare a report to be submitted 

10 to the court before the initial conference. And 

11 that's a great idea. But then there is a list of 

12 essentially things that are, I guess, discretionary, 

13 not mandatory, but, in any event, standing is not 

14 mentioned anywhere.

15 So I looked at (c)(4) and I guess that seems 

16 to be the place in the proposed rule where this would 

17 most likely be addressed. And so the suggestion that 

18 I have is that (c)(4) should be revised so that the 

19 report shall address, not may address but shall 

20 address, number one, whether the parties agree or 

21 disagree that the plaintiffs have established 

22 standing. 

23 And there may be some cases -- there are 

24 other MDLs, small MDLs, not everything is a massive 

25 product liability, where there could be no issue of 
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1 standing. You could have a pension plan litigation, 

2 you might have insurance policies or whatever. And 

3 the parties will agree in the report we don't have an 

4 issue of standing, we don't anticipate. In others 

5 though, if that's not the case, then the report should 

6 state how and when. And this is sort of a takeoff on 

7 the rule that's there but more specific and more tied 

8 into the LCJ's suggestion. If not, how and when 

9 sufficient information will be provided by each named 

10 plaintiff to establish injury-in-fact and traceability 

11 and, of course, redressability.

12 And we could talk -- there are volumes 

13 written on each one of those requirements, but that's 

14 the basic suggestion that in the report, do you agree 

15 there's standing? If not, how and when will the basic 

16 information for standing be prevented -- be provided 

17 to the transferee judge.

18 CHAIR ROSENBERG: So about five minutes to 

19 reserve final comment, and then I'll see if there are 

20 any questions.

21 MR. LEVENTHAL: Okay. One final comment on 

22 the existing Subsection (c)(4). So this doesn't have 

23 anything to do with an exchange of information, and it 

24 also doesn't have anything to do with defenses. So I 

25 would strike both of those words, "exchange" and 
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1 "defenses," from (c)(4). I agree with the LCJ's 

2 proposal, except, again, I think it should be 

3 mandatory in every initial report. 

4 CHAIR ROSENBERG: Okay. Thank you so much.

5 Ed?

6 PROF. COOPER: There's two preliminaries, 

7 then the question. First, the Supreme Court also says 

8 regularly that standing is a question separate from 

9 the merits. Second is you have sketched the burden as 

10 to standing depends on the stage of the litigation in 

11 which the question is raised: pleading, summary 

12 judgment, trial. And the question against that 

13 background is, suppose the plaintiff adequately pleads 

14 a claim for relief to whatever standard of pleading 

15 applied, can you get the case dismissed for lack of 

16 standing?

17 MR. LEVENTHAL: Well, of course, you can get 

18 the case dismissed. You can move for lack of subject 

19 matter jurisdiction.

20 PROF. COOPER: Yes. And why does a 

21 plaintiff who has adequately pleaded a claim for 

22 relief -- you're now talking, you know, all these 

23 MDLs, as far as I know, a claim to recover damages. 

24 When does that plaintiff who has a claim for relief 

25 not have standing to pursue the claim?
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1 MR. LEVENTHAL: Well, that could very well 

2 be the case. But there are a lot of situations where 

3 the plaintiffs have not established a right to damages 

4 and --

5 PROF. COOPER: Yeah. Well, but that's the 

6 whole point. What is difference between proving the 

7 claim, pleading it, defeating summary judgement, 

8 establishing it at trial, what is the difference 

9 between that and standing that says, yes, you have a 

10 claim, you can prove it at trial, you can recover 

11 damages, but you do not have standing to pursue that 

12 relief?

13 MR. LEVENTHAL: Okay. So I would answer it 

14 this way. You're absolutely right that the issue of 

15 standing goes through phases, and the burden, so16 called burden of proof heightens as you go through. 

17 At the trial stage in TransUnion, the court said, 

18 nobody can get damages awarded under Article III 

19 unless they prove standing. At the summary judgment 

20 phase, maybe an affidavit or whatever is sufficient. 

21 At the pleading stage, however, you have to have 

22 established the basic facts of standing. And it's an 

23 independent obligation of the court to look at that. 

24 It's not an obligation. It's an obligation, 

25 obviously, of the plaintiffs to provide that 
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1 information, but the court has its own obligation to 

2 supervise and police subject matter jurisdiction.

3 So I think that both things can happen at 

4 the same time. I mean a pleading requirement is 

5 different, and that could be tested later on on Rule 

6 12 or whatever, summary judgment. But my point is 

7 that at the inception of the litigation, at the 

8 pleading stage, there is a constitutional requirement 

9 to establish basic information, provide it to the 

10 court so that standing exists. And that, I believe, 

11 if it was in the report and a requirement, would go a 

12 long way to eliminating what we've heard so much about 

13 so many meritless claims.

14 PROF. COOPER: One last variation in 

15 response, and then I will desist for others. At the 

16 pleading stage, the question of subject matter 

17 jurisdiction can be treated as a question of fact, as 

18 you say, and the court can inquire into it. Does that 

19 mean that the court should be able, without a jury at 

20 a hearing not described as a trial, decide whether the 

21 plaintiff has proved its claim on the merits, has 

22 proved that I used the product, the product injured 

23 me, the product was defective, but still say you do 

24 not have standing?

25 MR. LEVENTHAL: I think that that would 
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1 probably be unlikely. It's not something that I've 

2 seen before. And, of course, at the pleading stage, 

3 you know, that's not going to be the ultimate 

4 requirement. So I'm just suggesting that at the 

5 pleading stage, there should be a mechanism in MDL 

6 proceedings such that the plaintiffs are providing the 

7 court with the basic essential elements of standing, 

8 injury-in-fact and traceability being the most 

9 important.

10 CHAIR ROSENBERG: Judge Proctor?

11 JUDGE PROCTOR: So, if I'm a brand-new 

12 transferee judge taking over a 200,000 claim MDL, your 

13 expectation would be that on day one I should start 

14 looking at 200,000 claims to see if each one of them 

15 has standing?

16 MR. LEVENTHAL: My expectation would be, at 

17 the initial conference, you would get a report and you 

18 would see either the plaintiffs and defendants agree 

19 that standing's not a big issue here or that the 

20 defendants say standing is a big issue and why and 

21 what's going to be done. The how and when of what is 

22 in (c)(4) now, how and when is that going to be 

23 addressed. 

24 JUDGE PROCTOR: How does 16.1 not permit 

25 exactly that?
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1 MR. LEVENTHAL: How does it not?

2 JUDGE PROCTOR: Yeah, 16.1 says prepare a 

3 report, give it to the transferee judge. Tell them 

4 what legal and factual issues need to be discussed and 

5 a process for assessing those. But I think you're --

6 I thought -- maybe I misunderstood your point, but I 

7 thought your point was I've got an independent 

8 obligation, even if parties don't raise it, to make 

9 sure everybody has standing, and that means I'd have 

10 to go through 200,000 claimants to see that each one 

11 of them has standing?

12 MR. LEVENTHAL: I'm not asking you to do 

13 that. What I am asking you to do, though, is to 

14 ensure that there's a mechanism in place where that 

15 information is before the court, and if the defendant 

16 wants to raise that issue, it can.

17 CHAIR ROSENBERG: I'm sorry to interrupt. 

18 That's what (c)(3) is. I mean, that's what (c)(3) is. 

19 You see, this list is not exhaustive and it doesn't 

20 require that the parties agree about what the issues 

21 are, as they often don't through counsel, so we could 

22 have a conference and the plaintiffs could say, judge, 

23 we see these as the paramount legal issues. And the 

24 defense could stand up and say and we see these and 

25 highlight standing, right?
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1 MR. LEVENTHAL: Yes, but there's no 

2 requirement specific to standing, and that's what I'm 

3 getting at. 

4 CHAIR ROSENBERG: Yeah. Okay. Are there 

5 any other questions on -- no. Okay. Thank you so 

6 much.

7 MR. LEVENTHAL: Thank you.

8 CHAIR ROSENBERG: So I have a question for 

9 Ms. Keller because you've waited patiently. We could 

10 take you now, at 1:03, or, because I know you 

11 anticipated going at 12, so if you otherwise were 

12 planning on having lunch, we could take you as the 

13 first witness after lunch, which would be about --

14 we're going to shorten lunch a bit. Are you under a 

15 time constraint? 

16 MS. KELLER: I am not, and it's whatever you 

17 prefer. 

18 CHAIR ROSENBERG: Okay. I think then let's 

19 pause for a lunch break now, and thank you for 

20 accommodating us. So we have -- we're almost on 

21 schedule if we go with a half-hour lunch and Ms. 

22 Keller has kindly agreed, so we're really only one 

23 witness behind. So let's try to eat lunch in a half24 an-hour. So that's like 1:34 if that's comfortable 

25 for everyone. So look to reconvene in about 30 
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1 minutes. And, again, we appreciate it. It's a 

2 balance of making sure you've been heard but keeping 

3 to a schedule. We're planning on adjourning at 3:30, 

4 but if some of you are still here and some of us are 

5 still here, we may want to further engage. So thank 

6 you so much.

7 (Whereupon, at 1:04 p.m., the hearing in the 

8 above-entitled matter recessed, to reconvene at 1:34 

9 p.m. this same day, Monday, October 16, 2023.)

10 //

11 //

12 //

13 //

14 //

15 //

16 //

17 //

18 //

19 //

20 //

21 //

22 //

23 //

24 //

25 //
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1 A F T E R N O O N S E S S I O N

2 (1:35 p.m.)

3 CHAIR ROSENBERG: I just want to, you know, 

4 tell everybody how appreciative we are for you all to 

5 be here. I know we've lost half the group. I hope 

6 that wasn't due to anything other than scheduling and 

7 that they've already said what they wanted to say. 

8 This is just incredibly valuable, and the Committee 

9 members and reporters have spent an inordinate amount 

10 of time reading I think it came to over 150 pages 

11 worth of summaries that you all submitted. I don't 

12 know if you saw that among all of yourselves. So this 

13 is really our first opportunity to ask questions of 

14 the astute remarks that you've given us. 

15 So I certainly don't want anybody to walk 

16 away viewing the questions as anything other than 

17 that, inquisitive minds among people who have spent 

18 years now studying this issue and just wanting to make 

19 sure, even though we've heard from many of you many 

20 times before, that we fully understand the issues and 

21 can appreciate fully the input that you're giving us.

22 So I know I speak on behalf of all of us in 

23 saying thus far we have found it to be very helpful, 

24 and we know this is time away from your primary 

25 positions, and the time you put into preparing your 
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1 summaries and to come here today is not lost on us. 

2 So thank you so much.

3 I think we're going to go a little bit out 

4 of order because I think there is a flight or two and 

5 we want to make sure that nobody is delayed. So, if 

6 I'm understanding correctly, Lana Olson will go next 

7 on privilege logs. 

8 Is that okay with you, Amy Keller, who was

9 promised to come up first after lunch? So as long as 

10 you're okay. 

11 Lana, let's hear from you, if we could, on 

12 privilege logs, and thank you for your patience, and 

13 we look forward to hearing from you.

14 MS. OLSON: Thank you so much. And I 

15 appreciate you accommodating me and hated to make a 

16 big mess out of the schedule, but I do appreciate it, 

17 as will my daughter.

18 CHAIR ROSENBERG: I made the mess, so you're 

19 helping us clean it up. 

20 MS. OLSON: Good afternoon. And thank you 

21 so much to the Committee for considering this 

22 important issue. My name is Lana Olson and I am a 25-

23 year practicing lawyer in Birmingham, Alabama, and for 

24 about a week-and-a-half longer, I am the president of 

25 DRI, not that I'm counting at all. I'm appearing 
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1 before you today on behalf of DRI, which is the 

2 largest legal association representing the interests 

3 of business individuals in civil litigation, as well 

4 as DRI's Center for Law and Public Policy, DRI's 

5 national policy and advocacy arm. 

6 I am here today to discuss the proposed 

7 amendments to Rule 16 and 20 --

8 (Technical interference.)

9 MS. OLSON: DRI believes that the parties' 

10 planning conference should include a substantive 

11 discussion about how claims of privilege and trial 

12 preparation materials best be handled by the parties 

13 in a particular case. That means specific discussions 

14 between counsel about both the timing and the method, 

15 which can ultimately be reflected in the case 

16 management order. I have seen firsthand what happens 

17 when such early discussions and decisions do not take 

18 place. For example, a party undertakes its work to 

19 provide relevant documents to the other side, 

20 sometimes flagging those privileged materials in order 

21 to get the documents out as quickly as possible 

22 without focusing on what the format will ultimately 

23 look like for disclosing items withheld for privilege. 

24 Then, all of a sudden, late in the discovery 

25 period, that party receives a demand for a document-
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1 by-document privilege log to be produced in the next 

2 10 days. At that point, it is much more difficult to 

3 suggest categorical limitations, carveouts, or 

4 alternative solutions to the document-by-document log.

5 Alternatively, a party might start logging 

6 privileged documents from the beginning and in 

7 fairness try to group together entities by family or 

8 category, only to find out months or years later that 

9 the other side objects to such an approach, which 

10 means potentially redoing large parts of the privilege 

11 log.

12 In my experience, this isn't a one-size13 fits-all issue, which is why making this part of the 

14 Rule 26(f) conference and ultimately part of the 

15 formal case management plan would be a welcome and 

16 much-needed change. Indeed, alternative solutions for 

17 the timing and method for addressing claims of 

18 privilege in trial preparation materials is a topic 

19 that's received relatively little focus today but is 

20 ripe for creative lawyers to work together to identify 

21 ways to do this better. Knowing early on where there 

22 are agreements or areas of dispute and having them 

23 addressed and resolved early, before burdensome and 

24 potentially unnecessary work is undertaken, would be a 

25 vast improvement over what's currently taking place in 
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1 many cases today.

2 Providing a clear path to prompt the parties 

3 to consider how to manage the review and disclosure of 

4 privileged materials is certainly in line with the 

5 overall purpose of the rules, to secure the just, 

6 speedy, and inexpensive determination of every action.

7 I can say without hesitation that in my practice, 

8 there's not a single time I can recall when having 

9 this discussion and resolving disagreements earlier 

10 would not have been a better approach. Without that 

11 early discussion and the ability to craft a bespoke 

12 plan that makes sense in the context of a specific 

13 case, a cascade of inefficient, uselessly expensive, 

14 and distracting results can occur that benefits no 

15 one, neither party on either side or the court.

16 Importantly, in addition to the proposed 

17 amendments to Rule 16(b) and 26(f)(3)(D), DRI also 

18 support the proposal from LCJ to amend Rule 

19 26(5)(b)(A) to make clear that the rule does not 

20 require document-by-document privilege logs but rather 

21 allows parties to create categorical logs or agree to 

22 other alternatives. 

23 While the current proposals before you 

24 certainly improve the situation and while we 

25 understand that the Committee has previously looked at 
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1 the issue of amending Rule 25 -- 26(b)(5)(A) as well, 

2 we do agree with the LCJ that an amendment to 

3 26(b)(5)(A) is also important and necessary, and we 

4 sincerely hope that you're open to reconsidering that 

5 additional amendment to the rules regarding privilege 

6 laws. Thank you so much for your time, and I'm happy 

7 to answer any questions. 

8 CHAIR ROSENBERG: Thank you. From our 

9 reporters? Rick?

10 PROF. MARCUS: Well, two things. Thank you 

11 very much. This has been very helpful. One is if you 

12 could say a word about what a categorical log is and 

13 what categories you have had experience using to good 

14 effect. And I thought I had another question, but 

15 perhaps I don't. Oh, and the second is, am I correct 

16 in understanding, which I think is different from what 

17 someone said this morning, that you think postponing 

18 this issue and this problem until after documents are 

19 collected, et cetera, would not be a good idea? I'd 

20 just make sure that I'm correct about that. I'm 

21 interested also in categories.

22 MS. OLSON: Sure. Let me answer in reverse 

23 order because that may be more helpful. So I think 

24 having the discussion earlier is better. What that 

25 discussion consists of may be an agreement to
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1 postpone privilege discussions until, you know, after 

2 the first set of documents are produced or agree that 

3 we will exclude a certain category of documents, which 

4 I'll talk about more in a minute, up-front and then, 

5 you know, carve out timing for when certain things 

6 will happen. 

7 I think that's the most important point. It 

8 is something that the parties need to talk about and 

9 need to agree about. It may be that you can say this 

10 is a case where we know we can carve out A, B, C, D; 

11 there's Categories F, R, W and we know that those 

12 aren't going to be required to be logged individually.

13 And so everybody starts out on the same 

14 page. That doesn't mean there may not be issues that

15 are raised later on, but at least starting out, 

16 everybody has an expectation of what to do as they 

17 begin reviewing and producing documents. 

18 On the categorical log, that's a term I 

19 think people can use sort of having different 

20 meanings, but, to me, and I have a case right now, 

21 it's a large toxic tort case, where we did this. We 

22 talked early on and we agreed for categories we would 

23 not require logging of communications between a lawyer 

24 and their client after the retention of the lawyer. 

25 So we knew that neither side had to worry about post-
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1 retention logging, which some people have sort of done 

2 and understood, but some people don't necessarily 

3 approach it that way.

4 We also were able to exclude a couple other 

5 categories, timing-based categories, so things that 

6 occurred after the filing of the complaint. We were 

7 able to include certain documents with regulatory 

8 agencies. Everybody agreed we are going to require 

9 logging if you're going to hold anything back on 

10 privilege because we don't think those are actually 

11 privileged. 

12 So the categorical discussion is really 

13 something that is case-specific. It's counsel14 specific and jurisdictional-specific. But I think it 

15 makes great sense, as opposed to spending thousands 

16 and thousands and thousands of dollars on the front 

17 end or the back end going down a path that you don't 

18 necessarily have to go down.

19 PROF. MARCUS: Can I ask sort of a follow-up 

20 question?

21 MS. OLSON: Sure.

22 PROF. MARCUS: We've been urged to say 

23 something in 26(b)(5) as well. Do you think that's 

24 desirable, important, since we're talking about the 

25 26(f) meeting and 26(f) as it is amended going to say 
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1 talk about this? 

2 MS. OLSON: Right.

3 PROF. MARCUS: Why is it useful to say 

4 something over in 26(b)(5)(A) also?

5 MS. OLSON: I think it's the icing on the 

6 cake to make everything as clear as possible. I think 

7 that specifying you have to talk about the timing and 

8 method without that accompanying change to the role 

9 could lead to the result, for example, okay, so we're 

10 talking about the timing and method, I want a 

11 document-by-document log and I need it within 30 days.

12 That's not the spirit, to me, of what the 

13 amendments to the rule was intended to do. I think 

14 having that very clear counterpart would help parties 

15 understand and give them a clearer path on not only 

16 what they need to do but what they don't automatically 

17 have to default to.

18 CHAIR ROSENBERG: Any Committee members?

19 (No response.)

20 CHAIR ROSENBERG: Okay. Well, thank you so 

21 much. I hope you make your flight. 

22 MS. OLSON: Thanks.

23 CHAIR ROSENBERG: And we appreciate your 

24 testimony here today. 

25 And, Amy Keller, thank you again for your 
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1 patience, and we'll hear from you now on privilege 

2 logs.

3 MS. KELLER: Thank you so much, everyone. 

4 It is an honor to provide my thoughts to you today.

5 My name is Amy Keller. I'm the managing partner of 

6 Dicello Levitt's Chicago office, and I'm also the 

7 chair of the privacy, cybersecurity, and technology 

8 practice group of that law firm. I am one of the 

9 dreaded plaintiffs' lawyers that you've heard about 

10 earlier today, but I do take my Rule 8, 11, and 12 

11 responsibilities very seriously.

12 I enthusiastically support the proposed 

13 amendments regarding privilege logs that the Committee 

14 has proposed, and the reason why I support them is 

15 because of my experience litigating a lot of these 

16 large multidistrict litigation cases. When we talk 

17 about MDLs, there's quite a few different varieties of 

18 MDL. I primarily work in class action cases. So, 

19 when we talk about plaintiffs' fact sheets, I don't 

20 really have plaintiffs' fact sheets in my cases. I 

21 abide by Rule 23 and we do discovery based upon that. 

22 So some of these concepts don't really cross 

23 over when it comes to MDLs, and as I think about that, 

24 I think about how one size fits all doesn't really 

25 work for litigation, how imposing one thing upon, you 
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1 know, folks who are working in complex litigation 

2 doesn't work because there's so many different 

3 varieties and styles of litigation. And I think the 

4 way that the rule has been crafted and is proposed, it 

5 does lend itself to flexibility among the parties and 

6 among the court to really come up with a privilege log 

7 proposal that meets the needs of the litigation, as 

8 well as the concerns of both sides of the aisle. 

9 Now I've heard a lot of facts and figures, 

10 you know, coming from some of the folks providing 

11 testimony today without a lot of citations to those 

12 facts or figures. So that's why I really wanted to 

13 draw upon experience from a real-world example case, 

14 and this is the In Re Marriott data breach litigation 

15 that's pending in the District of Maryland, and in 

16 that case, I serve as co-lead counsel.

17 Now this case really demonstrates why having 

18 these discussions at the front end of litigation is so 

19 vitally important. We had very accomplished ESI 

20 counsel negotiate a whole host of orders at the outset 

21 of the litigation, orders that were entered in July of 

22 2019. Now, in one of those orders in the ESI 

23 protocol, the parties agreed that a party withholding 

24 documents based on one or more claims of privilege 

25 will produce a privilege log in accordance with a 
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1 mutually agreed upon or court-ordered time frame, 

2 right? But, beyond that, we hadn't agreed upon 

3 anything because, from plaintiffs', you know, 

4 perspective, we hadn't really had a situation where we 

5 had that much agreement with defendants before or met 

6 that much disagreement with the defendants before. 

7 Fast-forward, you know, several months 

8 later, and all of a sudden, the defendant is proposing 

9 a categorical log. And, you know, I'm not necessarily 

10 opposed to a categorical log, and I agree with the 

11 folks from DRI that there are some things that you can 

12 agree don't have to be logged. I agree, you don't 

13 necessarily have to log communications with counsel 

14 after you file litigation. That doesn't make any 

15 sense. I don't want to have to log the communications 

16 with plaintiffs, right?

17 But there are some things when it comes to 

18 the actual merits of the litigation where having a 

19 categorical log just doesn't make a whole lot of sense 

20 because, you know, the rule, as it's written right 

21 now, of 26(b)(5)(A) says you have to describe the 

22 nature of the documents, communications, or tangible 

23 things not produced or disclosed and do so in a manner 

24 that without revealing the -- and this is where my 

25 writing has failed me -- without revealing the actual 
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1 information that's privileged or protected, will 

2 enable other parties to assess the claim, right? 

3 It doesn't say anything about a log. It 

4 just says gives the other party enough information to 

5 actually assess the claim of privilege. So, if you 

6 want to give me a long, lengthy memo with a bunch of 

7 case law citations and describe the documents, fine. 

8 But, really, what the log is, it enables the parties 

9 and the court to sort through the documents and really 

10 efficiently look at that information.

11 Okay. So, when we were negotiating with 

12 Marriott, you know, we wanted to get some really 

13 baseline things before we agreed upon any kind of 

14 categorical logging, right? We were willing to 

15 consider categorical logs and we wanted that -- we 

16 wanted to agree on the categories being used, have an 

17 attestation by an attorney to provide reasonable 

18 context as to the role of the person making the 

19 privilege assertion, the applicability of the 

20 privilege and how the review was conducted, specific 

21 data points for categorical logs, and then, finally, 

22 distinct data points for document-by-document logs, 

23 you know, very reasonable high-level rudimentary 

24 stuff, and the defendants didn't want to do that, so 

25 here we are many years into the litigation and we 
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1 don't have a log that we can actually look at to 

2 assess the claim of privilege. And there are a lot of 

3 issues in this litigation where defendants may think 

4 that they have a good assertion of privilege that we 

5 can't test. 

6 So, for example, in data breach litigation, 

7 right, after you have a data breach, you might have 

8 some kind of post-breach assessment that provides the 

9 party with a business side analysis of how it happens 

10 so they can remediate things, but then sometimes 

11 that's also used as litigation work product, right? 

12 And that is a very contested issue. But class 

13 counsel, we have to know so that we can test the 

14 privilege. This kind of categorical logging would not 

15 have allowed us the insight to really understand what 

16 was being withheld. 

17 Judge Facciola was our special master in 

18 that case. He did a brilliant job. And we had so 

19 many conferences with him, I think, you know, he 

20 finally lost his patience because he said, if I had 

21 known that categorical logging would be this difficult 

22 for the parties to agree upon, I never would have 

23 suggested it. And I thought that was a pretty 

24 powerful statement by someone who had been working to 

25 say, hey, maybe categorical logging actually will save 
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1 the parties some resources. So anyway, he said do a 

2 document-by-document log, okay. I've had it with you 

3 two. Actually, do a document-by-document log. And 

4 we've heard a lot about overdesignation over the 

5 course of today. Because they had to do a document6 by-document log, counsel actually had to look at the 

7 documents that they were going to put on that 

8 categorical privilege log, and they de-designated 

9 13,000 documents, 13,000. And I'm not casting 

10 aspersions. I'm not saying anyone acted in bad faith.

11 But what I'm saying is, when you do the 

12 initial review, you have to do a follow-up review to 

13 make sure that the privilege assertion can actually 

14 stand up, that it actually has a basis, right? And 

15 only because we insisted on more information being 

16 provided so we could actually test the claim of 

17 privilege were we given more documents. The problem 

18 is, because we didn't agree upon this at the outset, 

19 we had to redo two depositions, right? We had to get 

20 more information on interrogatories. So it actually 

21 was inefficient and didn't go along with Rule 23. 

22 CHAIR ROSENBERG: Thank you, Ms. Keller. So 

23 I think we probably have a couple of questions, so we 

24 want to make sure those get answered as well. 

25 MS. KELLER: Sure.
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1 CHAIR ROSENBERG: Rick, did you have a 

2 question?

3 PROF. MARCUS: One thing we have heard, 

4 including from Jonathan Redgrave, is that it would be 

5 a good idea, as Judge Facciola thought also, to say 

6 something in Rule 26(b)(5)(A), and I'm wondering if 

7 that would trouble you? And if it said something 

8 about the possibility of categorical log agreements, 

9 whether that would trouble you? And, finally, with 

10 your experience of reviewing millions of -- you began 

11 by saying --

12 MS. KELLER: Lines, yes.

13 PROF. MARCUS: Millions of log entries, how 

14 much help can technology provide for preparing a log 

15 and/or for doing the review process to identify 

16 potentially privileged documents? So, since we've 

17 heard much from one side, I'm interested in what you 

18 might say if you're sort of on the other side.

19 MS. KELLER: I appreciate that question. 

20 With regard to the comment about categorical logs, my 

21 concern is that that might be viewed as an 

22 encouragement to do them, and I don't want to 

23 necessarily say this is the way to go because some of 

24 the issues that we faced in Marriott might be the 

25 issues that litigants face in the future.
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1 Another one of the issues with categorical 

2 logs is ,if plaintiffs are challenging them and 

3 saying, this doesn't give me enough information to 

4 actually challenge the claim of privilege, it shifts 

5 then the burden on the courts because now the courts 

6 have to do an in camera review of the documents that 

7 would be covered under the categorical privilege 

8 designations because we can't see them. And if 

9 opposing counsel isn't going to give us more 

10 information, I think that's just putting more burden 

11 on the courts.

12 I think it's okay to say the parties can 

13 consider, you know, different things to save time, 

14 save resources, et cetera. But I don't think we 

15 should necessarily encourage categorical logging 

16 because I do think it creates a burden on the courts.

17 To your second point --

18 PROF. MARCUS: But saying something in 

19 26(b)(5)(A) referring over to what you are talking 

20 about would be okay with you?

21 MS. KELLER: Yes. If you say 26(b)(5)(A), 

22 you know, we said that the parties should meet early 

23 and come up with a game plan as to how to litigate the 

24 case at the outset, you know, and consider X, Y, and 

25 Z, yeah, I don't see how that's necessarily an issue. 
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1 With regard to your other question about 

2 technology, right? When, you know, first-year 

3 associates and second-year associates are doing a 

4 privilege review of electronically stored information, 

5 there's going to be metadata associated with those 

6 documents. So, when they click the button that 

7 something is privileged, it can create a log with to, 

8 from, subject line, date. That basic information is 

9 very helpful for plaintiffs from the outset because 

10 what it will do is it'll enable us to see was a lawyer 

11 involved at all in this communication. 

12 And if a lawyer was involved at all in the 

13 communication, did opposing -- I'm sorry, did 

14 defendant also send the communication on to a bunch of 

15 other third parties, destroying the privilege? These 

16 things, from the outset of the litigation, from the 

17 outset of the document production, they can be done 

18 efficiently, very quickly, and can help us assess 

19 things and, as my colleague, Mr. McNamara, was 

20 referring to, sort of cull down the number of 

21 challenges that we have, right? Ultimately, it still 

22 remains the producing party's burden to establish 

23 privilege, but what this can do is it can help us get 

24 to it pretty quickly.

25 CHAIR ROSENBERG: Thank you.
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1 Any other questions from our members? Judge 

2 Jordan?

3 JUDGE JORDAN: I'd asked one of the lawyers 

4 speaking from the defense side whether (b)(1) 

5 proportionality under Rule 26 was sufficient and was 

6 told no because it's not happening. People are 

7 treating this -- judges and case law coming out of the 

8 courts say that this has to be document by document 

9 and held to a high standard. Is that your experience? 

10 And if that is your experience, then why wouldn't we 

11 put something about proportionality into (b)(5)?

12 MS. KELLER: Well, when you look at -- so 

13 the concern being that because they're producing so 

14 many documents, the creation of a privilege log is 

15 burdensome and that's not proportional? Is that the 

16 argument?

17 JUDGE JORDAN: I think the argument as I 

18 understood it was relative to the size of the case, 

19 the amount of time, money, effort put into it is 

20 disproportional. It's disproportionate. It should 

21 not -- it shouldn't cost 22,000 attorney hours to 

22 produce a privilege log relative to the case that was 

23 being discussed or maybe relative to any case, but

24 I'm trying to get a feel from your side of the "v.", 

25 is it, in fact, the case that privilege logs end up 
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1 being a disproportionate burden on the parties? And 

2 if they are, should 26(b)(5) be amended to make sure 

3 that the proportionality principle, which was at some 

4 serious cost, expense, and effort on behalf of the 

5 judicial conference, put into the rule, be made 

6 explicit as it pertains to privilege logging?

7 MS. KELLER: Well, and I'm going to answer 

8 your question by saying I think that issue would be 

9 resolved by the rule that you are all proposing right 

10 now, where you talk about these things from the outset 

11 of the litigation. Like I was referring to, no one12 size-all-fits answer is going to necessarily help in 

13 all instances of litigation, and --

14 JUDGE JORDAN: Well, let me press you, Ms. 

15 Keller, because I'm trying to get an answer to this 

16 question.

17 MS. KELLER: Yes.

18 JUDGE JORDAN: Is it your experience from 

19 the plaintiff's side that privilege logging can 

20 sometimes be disproportionate in terms of the value of 

21 the litigation, that it's costing too much in time, 

22 money, and effort for people? 

23 MS. KELLER: From my perspective, no. And 

24 the reason is because I have learned now to have 

25 negotiations early on to carve out things, right, from 
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1 logging and to have agreements, right, so that 

2 addresses the concerns about time and expense, et 

3 cetera. It also helps me because, on the plaintiff's 

4 side, we're producing more and more and more documents 

5 as it relates to causation. So, in a lot of my data 

6 breach cases now, I'm having to produce notification 

7 of every single data breach that plaintiffs have 

8 received from the last 10 years, which involves 

9 culling through, you know, emails, et cetera. 

10 So, I mean, in terms of proportionality, 

11 we're starting to see that even out. And in my 

12 experience, because --

13 JUDGE JORDAN: So are you saying it's pretty 

14 much symmetrical? 

15 MS. KELLER: I'm not saying it's 

16 symmetrical, no. I think that would be bad faith for 

17 me to say it's symmetrical. Just by nature of 

18 litigation, right, individual plaintiffs are not going 

19 to have a full set of documents on the design schema 

20 of a product or product testing or cybersecurity, but 

21 they will have their individual circumstances, right, 

22 which I have an obligation to go through and produce. 

23 But what I'm saying is adopting this rule 

24 and having those discussions from the outset, as I am 

25 doing now, can address those concerns that defendants 
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1 have because you can carve out from the logging 

2 certain things. And if you have discussions with 

3 defendants, you can agree on certain principles that 

4 can accelerate certain review, like, for example, 

5 producing metadata logs, right, that help you look at 

6 these documents and do review. And then I can follow 

7 up with the defendants and say, I need more 

8 information on these documents, you know, you're going 

9 to have to give me this log a little bit faster so I 

10 can actually determine, you know, what's the privilege 

11 and how it's being asserted.

12 My concern is, if you put proportionality 

13 into the rule, that's all of a sudden going to 

14 foreclose those conversations from occurring because 

15 defendants are going to say proportionality.

16 JUDGE JORDAN: Let me make sure I understand 

17 because I thought I heard you saying it's already in 

18 there in what you're suggesting, but you're afraid 

19 that if we actually say proportionality in 26(b)(5), 

20 that that will do damage?

21 MS. KELLER: It will foreclose, I think, the 

22 discussions that you all are envisioning at the outset 

23 of the litigation to talk about the concerns that the 

24 defendants have and the plaintiffs have and to develop 

25 a privilege log protocol that would address those 
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1 concerns. 

2 JUDGE JORDAN: So do you agree that 26(b)(1) 

3 is not being treated, that principle of 

4 proportionality is not being treated as pertaining to 

5 privilege logging?

6 MS. KELLER: I'm saying it is in my 

7 experience because I do have these conversations.

8 PROF. MARCUS: Can I -- I think this is in 

9 keeping with what Judge Jordan was just asking. One 

10 thing we have been told several times is that some 

11 plaintiffs' lawyers take the position that document12 by-document logging is absolutely required by 

13 26(b)(5)(A). I think you'd probably agree that is 

14 disproportionate in some cases, so maybe saying that 

15 in 26(b)(5)(A) would be a good idea?

16 MS. KELLER: But, again, I think, if you say 

17 it in the rule, what it's going to do is defendants 

18 are just going to say -- they're going to point to 

19 that and say, it's disproportionate for me to do a 

20 document-by-document log; therefore, I must do 

21 categorical logs and you might miss out.

22 PROF. MARCUS: But, if the current 26(b)(1) 

23 rule provision permits them to say this, I'm not clear 

24 on why saying it also in 26(b)(5)(A) would produce bad 

25 results. 
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1 MS. KELLER: Well, 26(b)(5)(A) doesn't 

2 necessarily say that you have to do category or that 

3 you have to do a document-by-document log anyway. You 

4 can have these early discussions per the rule that you 

5 all drafted and that I am supporting to have 

6 discussions from the outset as to how to develop 

7 things to -- really in keeping with Rule 1, right?

8 And my concern is, if you put that principle 

9 into 26(b)(5)(A), what's going to happen is a party 

10 may point to that and say, in no instance is it 

11 appropriate for me to do a document-by-document log 

12 because I have to produce over a million pages and 

13 that's not fair to me. What your rule is saying is 

14 the parties should have these discussions and, you 

15 know, you can bring it to the court if you're having a 

16 disagreement, you can resolve these things from the 

17 outset; you can resolve things very early on.

18 But putting that language in there may 

19 foreclose what you're actually trying to do with your 

20 proposed rule, which is have the discussions early, 

21 talk about ways to save time, effort, and resources, 

22 and come up with something that works for your 

23 specific litigation.

24 CHAIR ROSENBERG: Thank you so much.

25 MS. KELLER: Thank you.
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1 CHAIR ROSENBERG: Thank you.

2 Ms. Larson, who will also address privilege 

3 logs.

4 MS. LARSON: Good afternoon, Committee 

5 members. It's a privilege to be here in front of you 

6 today and I appreciate the opportunity to address you. 

7 My name is Amy Larson, and I'm a litigator at BSP Law. 

8 We are a boutique litigation firm with offices in 

9 Troy, Michigan, and Houston, Texas. And my practice 

10 is focused almost exclusively on product liability 

11 defense. And since I started practicing in 2003, I 

12 and others at my firm have served in some capacity as 

13 national discovery counsel for various auto 

14 manufacturers. While not all cases I handle involve 

15 large document productions, the vast majority do.

16 Unfortunately, despite the 1993 Committee 

17 notes advising that detailed privilege logs "may be 

18 unduly burdensome when voluminous documents are 

19 claimed to be privileged or protected, particularly if 

20 the items can be described by category," a detailed 

21 document-by-document privilege log is the default 

22 format in almost every matter that I handle.

23 I appreciate that the Committee recognizes 

24 the burden and inefficiency imposed by document-by25 document privilege logging, and I commend the 
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1 Committee for turning its attention to this issue. It 

2 isn't a particularly interesting issue to most people 

3 inside or outside the law. In fact, when I tried to 

4 explain this to my husband, he told me he was 

5 struggling to stay awake after two minutes, and this 

6 was particularly telling given that my husband has a 

7 Ph.D. in accounting. 

8 So, nevertheless, the Committee has rightly 

9 recognized that, boring or not, this is an issue that 

10 is worthy of attention. So, in my comments today, I 

11 want to focus quickly because I can see that the

12 Committee is focusing on things that I think are 

13 important as well. My first point is that to correct 

14 the privilege log problem, the privilege log rule 

15 itself, Rule 26(b)(5)(A), and its accompanying 

16 Committee notes must make clear that detailed 

17 document-by-document privilege logs are not required 

18 in most cases.

19 The real issue today is that this is 

20 default. And I'm going to vary a little bit from what 

21 I have written here because I think it's important to 

22 give some context. This is happening while large 

23 document productions are happening. We are getting 

24 document requests, we are going through thousands, 

25 tens of thousands, sometimes hundreds of thousands of 
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1 documents, and in the process of doing that, we are 

2 identifying privileged documents.

3 It is very difficult to convince or even 

4 advise a client that in the middle of a case like 

5 this, we should go and bother a judge, who hates 

6 discovery disputes more than anything that -- that I 

7 can assure you, I have sometimes as national discovery 

8 counsel had a judge say either out loud or in every 

9 other way, oh, no, here she comes again, right, 

10 because they don't want to deal with discovery 

11 disputes. So you are left with the default document12 by-document privilege log, or you have to go to the 

13 judge and say, hey, I think there's a better way. 

14 Now the Committee's recommendations, I 

15 think, are great because they put that issue to the 

16 front. But, as Mr. Keeling pointed out, at the 

17 beginning of a case, you haven't started searching for 

18 those documents, you don't know what those documents 

19 look like. So, while it's helpful to bring it to the 

20 judge's attention early because at least you don't 

21 seem like such a gnat later on in the case, you've got 

22 to have something expressed when you say, judge, we 

23 should consider a different approach to privilege 

24 logging, this is what we suggest. The judge is going 

25 to turn to Rule 26 and say remind me, what are these 
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1 supposed to look like? 

2 And instead of us having to argue there's a 

3 better way to do it from what really is the default, 

4 and I think LCJ laid that out well, we are able to say 

5 let's work together to come up with something that 

6 works. And I thought there was a great question about 

7 what categories can look like. And I think the 

8 flexibility is great. Mr. Keeling gave an example of 

9 how metadata can be easily identified, but I have 

10 offered that before. I have said I'll give you a 

11 metadata log because I'll tell you what's particularly 

12 burdensome in privilege logging, is having to give 

13 that detailed description of the document without 

14 giving away the contents of the document and waiving 

15 privilege. 

16 And that's something -- I don't know if the 

17 technology question was answered, but that's something 

18 technology can't do, right? You need a thinking mind 

19 to go, we have a claim of privilege, and we say the 

20 type of privilege. So you can give to, from, you know 

21 it's attorney-client privilege. That's pretty easy to 

22 do. Then you have to have someone, a human, say how 

23 do I describe this document. It could be a long chain 

24 in an email. It could be an entire internal 

25 investigation. 
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1 So, if we were able to go to counsel and

2 say -- to opposing counsel and to the judge and say, 

3 hey, we don't know yet what we're going to get, but we 

4 may have an idea, right? Some of us do this a lot and 

5 we may have an idea of at least the types of 

6 documents. We can come up with a plan. And we may 

7 say, hey, we will give you metadata logs only with a 

8 very general description. If you have questions, then 

9 we can go into further detail, because I'll tell you I 

10 had a recent case, we had 120,000 documents we 

11 produced; our privilege log was 35,000 entries. And 

12 what I got, which is what I often get, to be honest, 

13 was like a dartboard approach. 

14 I had plaintiff's counsel call me and say, 

15 tell me a few things about a few of these documents 

16 that you've claimed privilege on, no discernible 

17 pattern, and I think that talking about a way to 

18 produce privilege logs that's not document-by-document 

19 is helpful to both sides. It allows for focused 

20 inquiries from opposing counsel because they can see 

21 categories, which, in my estimation, are much more 

22 helpful to them than to see -- and, again, the 

23 categories can mean a lot of things, but much more 

24 helpful to them than 35,000 entries. 

25 So, if you have any questions, I'm happy to 
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1 answer those.

2 PROF. MARCUS: Well, I guess I'm asking this 

3 of many people. You think 23 -- the addition of some 

4 cross-reference, I take it, in 26(b)(5)(A) would be 

5 desirable? Am I right about that? That's sort of an 

6 intro.

7 MS. LARSON: Yes, yes. Absolutely.

8 PROF. MARCUS: Do you recognize that 

9 categories vary a lot depending on the kind of case? 

10 So I'm guessing that you wouldn't think a rule could 

11 say here are the categories or anything like that. Am 

12 I right about that? 

13 MS. LARSON; I think it could perhaps be 

14 difficult, and I've listened in on some of the 

15 comments today and I'm very well aware that these 

16 rules have to be crafted not just for those doing MDLs 

17 or individual product liability cases but for a lot of 

18 different kinds of cases. I've certainly been 

19 involved in cases where I've had, you know, a five20 entry log. But I do think just giving the flexibility 

21 and, again, emphasizing, as the 1993 Committee notes 

22 said so clearly, that this is not the default and, in 

23 fact, the more voluminous your production is, the more 

24 you must, for efficiency, because the time and money 

25 that is spent on these logs that I can tell you I can 
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1 count on maybe the addition of a second hand in my 

2 career how many times I've even had substantive 

3 inquiries from the other side. And yet I am billing 

4 my clients hours and hours to comply with the rule as 

5 it is default put into place by most courts. So I 

6 think it would be efficient and beneficial to both 

7 sides. 

8 CHAIR ROSENBERG: Judge Jordan?

9 JUDGE JORDAN: I'm assuming you wouldn't be 

10 opposed to a reference to proportionality in 

11 26(b)(5)(A), right?

12 MS. LARSON: Not at all.

13 JUDGE JORDAN: Then would you speak to Ms. 

14 Keller's objection to doing that, and I may not do 

15 justice to how she put it, but you were here when she 

16 was speaking, right? She said that that would -- if I 

17 understood her correctly, that would prompt or cause 

18 there to be a proportionality objection in virtually 

19 every case. So, instead of facilitating cooperation 

20 between counsel, it would actually be a hindrance to 

21 it and be problematic. Do have a response to that 

22 objection? 

23 MS. LARSON: My response is I think the fact 

24 that she supports the other amendments makes her much 

25 more reasonable than a lot of opposing counsel, so I 
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1 look forward to maybe having her on the other side 

2 sometime because she's saying, if we have early 

3 discussions, we can come up with ways that are not 

4 document-by-document privilege logs. So I don't

5 think -- I think whether it is by the use of the word 

6 "proportionality" or some other method, some other 

7 wording that the rule makes clear in either addition 

8 to 26(b)(5)(A) or in a note that the default is not 

9 document-by-document privilege log.

10 Whether the word "proportionality" is used, 

11 I would like that, but it's like the Committee note 

12 said in the 1993 Committee notes, it may be unduly 

13 burdensome to have a document-by-document privilege 

14 log when voluminous documents are claimed to be 

15 privileged, especially if they can be described by 

16 categories.

17 CHAIR ROSENBERG: Okay.

18 MS. LARSON: Thank you.

19 CHAIR ROSENBERG: Judge Boal?

20 JUDGE BOAL: And as the rules are currently 

21 constituted, you don't feel that you're able to argue 

22 proportionality if you had a dispute over the 

23 privilege logs?

24 MS. LARSON: I mean, in reality, since it's 

25 the default, we can certainly do that, but, again, in 
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1 reality, it's a little bit of a waste of any goodwill 

2 that we have with the judge. So most clients and, 

3 again, it puts me in a tough position even as 

4 sometimes discovery-only counsel to say we should 

5 really go to the judge because this privilege log is 

6 taking so much time and it's not helpful. And, 

7 honestly, it's a tool sometimes for delay and burden 

8 that the other side uses for us. 

9 I mean, that's just the way that it is. So, 

10 as it's written right now, I suppose we could and we 

11 have, but as you can see, I think the LCJ did a great 

12 job documenting this, it's very unevenly applied, and 

13 in some jurisdictions, they'll just say no, our 

14 default and our rule is that we do document-by15 document, if that answers your question.

16 CHAIR ROSENBERG: Okay. Thank you so much.

17 And Mr. Guttmann, who will address 16.1.

18 MR. GUTTMANN: Thank you. Good afternoon, 

19 and thanks for giving me the time. My name is John 

20 Guttman. I'm a principal at Beveridge & Diamond in 

21 our Washington office, and like everybody in our firm, 

22 my practice is environmental and toxic tort 

23 litigation. That's pretty much all we do. In 

24 addition, I am Vice Chair of DRI's Center for Law and 

25 Policy. Lana Olson gave a brief description of the 
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1 center as well earlier. We're basically the think 

2 tank, if you will, for DRI.

3 I'd like to begin by going back to the 

4 beginning to the statute, 28 U.S.C. § 1407. The 

5 statute says that the purpose of multidistrict 

6 litigation, and I'm paraphrasing obviously, is to 

7 promote the just and efficient conduct of the actions 

8 that are in an MDL. So any rule that the Committee 

9 proposes should be a step in that direction, 

10 increasing the just and efficient conduct of the 

11 litigation that's in an MDL. 

12 Part of that, it seems to me, is to reduce 

13 the burden on the courts, and another part of it is to 

14 promote overall efficiency for the parties as well.

15 In terms of reducing the burden on the courts, as 

16 opposed to increasing that burden, my suggestion is 

17 that the rule should put clear obligations on the 

18 parties, which is to say on their counsel, as opposed 

19 to requiring additional steps at the outset of the MDL 

20 from the court.

21 The proposed rule, 16.1, implicitly 

22 acknowledges, I think, that there is a problem with 

23 unsupportable claims in MDLs. Now I know there was 

24 discussion this morning about give us data that will 

25 support that and that will be provided to you. But my 
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1 point is to say this, that in an individual case, 

2 questions related to standing -- standing can be 

3 addressed at any point, obviously, but the initial 

4 inquiry, was there an injury-in-fact? If there was, 

5 is it fairly traceable to the conduct of the 

6 defendant? And is the claim plausibly at least within 

7 the statute of limitations? Those questions are 

8 typically dealt with at the outset of an individual 

9 plaintiff case.

10 It's a different situation in an MDL because

11 they may not be dealt with in terms of particular 

12 cases in the MDL for 18 months, two years, even longer 

13 down the road, depending upon how the MDL moves, and 

14 some of them move at glacial paces. They are very 

15 difficult for the courts to manage. But there must be 

16 standing for each plaintiff and for each claim brought 

17 by each plaintiff just as there is in an individual 

18 plaintiff case. That's obviously the law, which I 

19 don't need to tell this group the precedent for that. 

20 So why are unsupportable claims being filed?

21 And the data will show that they are. There are 

22 multiple reasons why that can happen. One of them, 

23 plain and simple, I think, is lack of care on the part 

24 of the lawyer filing the claims. A second is -- and 

25 in that regard, let me just say, you know, we do live 
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1 in an era where you turn on your television and you 

2 see ads soliciting plaintiffs to file lawsuits. 

3 Claims get filed. Do they get the diligent 

4 examination pre-filing that they should get? The data 

5 will show that not necessarily.

6 Also, there's an incentive in many instances 

7 for a lawyer to file as many claims as possible. If 

8 you've got a lot of claims, you are more likely to end 

9 up as the lead counsel, liaison counsel, the 

10 terminology varies from MDL to MDL obviously, or on a 

11 plaintiff steering committee. In addition, the more 

12 claims there are filed in an MDL affects what might 

13 happen in the pot, to get right down to it, in an 

14 early settlement.

15 So there are reasons, I submit, to, right at 

16 the outset, assess whether or not claims are even 

17 plausible. The rule should provide a mechanism for 

18 the parties and the court to assess the scope of the 

19 MDL, and that means to assess the viability of claims, 

20 and that will enable the transferee court to decide on 

21 approaches to discovery. It enables the court and the 

22 parties both to have a good sense of, is there a 

23 possibility of an early settlement in this case? What 

24 would that involve? Getting your arms around the size 

25 of the thing is an essential predicate to having that 
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1 kind of conversation.

2 I know you heard earlier about MDL 2885. 

3 That's the 3M earplugs, hearing protection MDL, so I'm 

4 not going to go into that at length except to say 

5 this. That MDL was established in 2019. We're just 

6 about at the end of 2023, we're in the fall. There 

7 have been 16 trials in that MDL, I think, at least as 

8 of the last time I checked. But we're still seeing 

9 the court threaten sanctions against lawyers for the 

10 fact that there are claims that are baseless sitting 

11 there on the docket.

12 I'd also point the court to MDL 2873. 

13 That's the aqueous film-forming foam litigation, the 

14 firefighting foam litigation. That one was filed in 

15 2018. And we're involved behind the scenes, we're not 

16 out front in that one for a variety of reasons. But I 

17 talked to somebody on Friday who's working on it, who 

18 said, you know, we're getting five, six dismissals a 

19 day now of claims that were brought some time ago and 

20 have been kicking around, influencing the size of this 

21 MDL. 

22 I've been involved in MDL 1358, which is the 

23 MTBE litigation, since it was filed in 2000. That's 

24 now, I believe, the second oldest MDL in the federal 

25 courts. Only asbestos is older. We have different 
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1 kinds of cases than we had in kind of the first half 

2 of it chronologically. Now it's all cases brought by 

3 states, they're very different. But there was a 

4 period where it was all cases brought by people with 

5 wells, public water providers, individuals with 

6 private wells, and there was a painstaking process to 

7 sort out who's got a real claim as opposed to simply 

8 feeling threatened.

9 If you have a claim and you're bringing a 

10 claim on behalf of multiple well fields, are they all 

11 really contaminated? Or are some of them not 

12 contaminated? And if they're not, why are they in 

13 this case? Because they influence the dynamics when 

14 you start talking about settlement. In a lot of these 

15 cases that we deal with in the environmental area, 

16 it's not just how many plaintiffs are there but how 

17 big is the contaminated area or how many wells are 

18 contaminated. Those kinds of things are very, very 

19 significant in terms of influencing the parties' and 

20 the court's assessment of how big the whole thing is.

21 CHAIR ROSENBERG: Mr. Guttmann, let me pause 

22 and just see if we have any questions from our 

23 reporters. 

24 PROF. MARCUS: Well, I'd like you to 

25 elaborate on what we've been urged by folks in
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1 medical -- in pharmaceutical and medical products is 

2 to insist on certain things. Would the same things be 

3 applicable in a toxic tort situation that might be 

4 applicable there? Is there an across-the-board 

5 requirement that would fit the cases you work on?

6 MR. GUTTMANN: Yes, but I think it's all 

7 MDLs. So, if we have a consumer fraud case, it seems 

8 to me the same issues might be present. And so my 

9 suggestion to you is that any requirement imposed on 

10 the parties, imposed on the counsel filing the claim

11 has to be generally worded and really boils down to 

12 this, do you have a -- is there a good-faith basis 

13 that you as the lawyer have for asserting that your 

14 client is injured, for asserting that the injury is 

15 traceable to the conduct of one or more of the 

16 defendants, lots of times there's multiple defendants, 

17 and that it falls within the statute of limitations.

18 Now I know that when filing a complaint, a 

19 lawyer is subject to Rule 11, obviously, but the fact 

20 of the matter is, if the rule and the comment were to 

21 have something that specific and in the comment a 

22 reference to this filing, just like everything else is 

23 subject to Rule 11, there ought to be a deterrent 

24 effect that would lessen, at a minimum, the number of 

25 bogus claims that are filed in some of these MDLs.
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1 CHAIR ROSENBERG: Anyone else have 

2 questions? Judge Proctor and then Andrew.

3 JUDGE PROCTOR: Yes. As said before, thank 

4 you. Is there something we can do that would 

5 communicate the importance of this issue without 

6 putting everyone in the same box and the law of 

7 unintended consequences for creating this fabric of 

8 litigation that's unnecessary in some, if not many, 

9 cases? And I'm wondering about maybe particularly 

10 with respect to the comment language.

11 MR. GUTTMANN: I think, at a minimum, it 

12 would advance the ball if the comments were to 

13 reference the attorney's obligation before filing to 

14 conduct a preliminary investigation in all cases in 

15 the MDL. The tricky part is the second piece of my 

16 argument is it helps everybody if those issues are 

17 addressed early, right at the outset of the MDL. And 

18 that's where anything more than imposing on the 

19 lawyers an obligation to file something in the MDL at 

20 the outset, it makes it hard because anything else 

21 imposes obligations on the court. And I think that 

22 these cases are incredibly burdensome for judges, so 

23 that's why I'm focused on trying to impose a burden, 

24 an obligation on the parties, not on the court.

25 JUDGE PROCTOR: I picked up on that.
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1 CHAIR ROSENBERG: Andrew?

2 PROF. BRADT: Thank you very much. You 

3 raised a point that I don't think has been raised 

4 earlier about the unsupported claims issue, and that's 

5 that it may have an effect on who's appointed as 

6 leadership counsel. And I just wanted to know if 

7 there's evidence of that that you could show because 

8 often what we hear is that you have repeat players who 

9 are lead counsel, and those don't seem like the kind 

10 of folks who you're describing, who would increase the 

11 number of claims filed in order to get that 

12 appointment. So I'd be interested if you could 

13 demonstrate that causal link. 

14 MR. GUTTMANN: Well, I certainly don't want 

15 to, you know, cast aspersions on particular lawyers, 

16 but I can say this, that I have seen in MDLs cases 

17 where lawyers filed claims that ultimately were 

18 dismissed for lack of standing with that attorney 

19 having, prior to the dismissal, served as the lead 

20 voice for the plaintiffs.

21 CHAIR ROSENBERG: Any further questions?

22 (No response.)

23 CHAIR ROSENBERG: All right. Thank you so 

24 much. 

25 MR. GUTTMANN: Thank you for your time.
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1 CHAIR ROSENBERG: Much appreciated.

2 Mr. Halperin, who will address 16.1 as well. 

3 Welcome.

4 MR. HALPERIN: Good afternoon. My name is 

5 Greg Halperin, and I'm a partner at Covington & 

6 Burling in our product liability and mass torts 

7 practice group. Although much of the discussion of 

8 Rule 16.1 today has been focused on (c)(4), I'd like 

9 to focus on (c)(5) and ask the Committee to, at a 

10 minimum, clarify two things in the notes: first, that 

11 master and short form complaints taken together must 

12 satisfy Rule 8 and, where applicable, Rule 9(b), and 

13 second, that defendants must be afforded an 

14 opportunity to seek dismissal of the master complaint 

15 under Rule 12.

16 Now Rule 8(a)(2) applies to all civil 

17 actions and proceedings in federal court and it 

18 requires all complaints to allege facts showing that 

19 the pleader is entitled to relief. Because the master 

20 complaint necessarily lacks allegations about any 

21 particular plaintiff, the short form complaint must 

22 contain sufficient individualized allegations that 

23 taken together with the general allegations in the 

24 master complaint provide defendants fair notice under 

25 Rule 8. 
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1 But, in my experience, as my experience in 

2 MDLs has shown, this is rarely the case. To make sure 

3 my experience was not an outlier, I pulled the short 

4 form complaints in the 10 largest MDLs pending as of 

5 last month, which collectively represent 91 percent of 

6 all MDL master complaints -- all MDL member cases 

7 anywhere in the country. Nine of those MDLs use short 

8 form complaints, and most of them, in my view, do not 

9 meet basic pleading requirements.

10 In the talcum powder MDL, the second-largest 

11 active MDL today, although the master complaint 

12 alleges that plaintiffs were diagnosed with various 

13 forms of cancer of the female reproductive system, the 

14 short form complaint simply requires a plaintiff to 

15 allege that she experienced a "talcum powder products 

16 injury, without any specification of what that injury 

17 actually was." This basic 8(a)(2) requirement is 

18 reserved for a plaintiff profile form that was not 

19 ordered until three-and-a-half years into the 

20 litigation and, even then, initially for only a subset 

21 of plaintiffs.

22 In the 3M earplug MDL, the largest active 

23 MDL today with over 240,000 member cases, the short 

24 form complaint provides no information about when the 

25 plaintiff allegedly used 3M earplugs. In the Bard 
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1 hernia mesh and IVC filters MDLs, the third and 

2 seventh largest MDLs, respectively, the short form 

3 complaints do not identify the date of injury. 

4 This basic timing information precludes 

5 assessment of whether cases were timely filed within 

6 applicable statutes of limitation and repose, and in 

7 six of the 10 largest MDLs, the court permitted 

8 plaintiffs to plead fraud claims via short form 

9 complaint by simply checking a box to opt in to the 

10 fraud allegations in the master complaint. Such an 

11 approach cannot be squared with Rule 9(b), which

12 necessarily requires individualized allegations 

13 substantiating that a plaintiff heard and relied upon 

14 the alleged fraudulent or fraudulent statements. 

15 So, if Rule 16.1 is going to expressly 

16 authorize consolidated pleadings, which as folks have 

17 indicated today are not listed in Rule 7, I ask the 

18 Advisory Committee notes to provide guidance that 

19 master and short form complaints are collectively 

20 subject to the same pleading requirements as Rule 

21 7(a)(1) complaints. This is especially needed, I 

22 submit, in light of (c)(4), which could be read to 

23 suggest that it is okay for plaintiffs to avoid 

24 providing the factual allegations in their claims in 

25 their complaints and instead do so later.
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1 That takes me to the second point. 

2 Consolidated pleadings should not prevent defendants 

3 from moving under Rule 12 to dismiss master complaints 

4 that fail to state a claim. Without guidance in the 

5 federal rules, courts have taken varying approaches to 

6 motions to dismiss consolidated pleadings. Some have 

7 interpreted them only as administrative devices and 

8 barred defendants from filing motions to dismiss them.

9 Others have permitted motions to dismiss but 

10 expressly ruled that the sufficiency of the claims set 

11 forth in the master complaint are to be viewed with, 

12 "substantial leniency." And, finally, some courts 

13 have treated motions to dismiss the master complaint 

14 no different from a motion to dismiss in any other 

15 case. In light of Rule 1 and in light of the purposes 

16 of MDL proceedings to promote the just and efficient 

17 conduct of civil actions pending in different 

18 districts, I believe the third approach is the right 

19 one. 

20 The first approach requires defendants to 

21 file identical motions to dismiss in hundreds or 

22 thousands of individual cases, which is neither just 

23 nor efficient. And nothing in the federal rules 

24 supports putting the court's thumb on the scale 

25 against dismissal, as the second approach does, simply 
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1 because lawyers have recruited hundreds or thousands 

2 of plaintiffs to bring the same claims. 

3 If the federal rules are going to go into 

4 encourage consideration of consolidated pleadings, the 

5 Advisory Committee notes should clarify that those 

6 consolidated pleadings are not immune from challenge 

7 under Rule 12(b)(6) or subject to a standard of review 

8 that is different from any other complaint filed in 

9 federal court. 

10 Thank you. I welcome the panel's questions. 

11 CHAIR ROSENBERG: Thank you. So can I -- I 

12 think your comments are very straightforward. I want 

13 to make sure I understand them. Primarily, are you 

14 suggesting that there should be additional language in 

15 the notes, one, to address the fact that the short 

16 form complaint, in conjunction with the master 

17 complaint, to the extent short form and masters are 

18 used, must meet Rule 8 and Rule 9(b) pleading 

19 requirements, mention of that in the notes? And, 

20 secondarily, in the notes, that to the extent the MDL 

21 is going to provide for consolidated complaints, that 

22 motions to dismiss under 12(b)(6), allowing for master 

23 complaints does not preclude the ability to file 

24 motions to dismiss under 12(b)(6) or something along 

25 those lines? I mean, is that, in essence, your two 
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1 main points?

2 MR. HALPERIN: Absolutely. I defer to 

3 others' testimony on other aspects of 16.1. But I 

4 think those two additions to the Advisory Committee 

5 notes on (c)(5) would go a long way towards making 

6 (c)(5) more administrable and short form complaints 

7 solve a lot of the ambiguity about those issues that 

8 are percolating in the courts today. 

9 CHAIR ROSENBERG: And you think (c)(4) 

10 arguably is ambiguous insofar as it might suggest or 

11 lead one to believe that you don't need to comply with 

12 Rule 8 or 9(b) but rather exchange it so that maybe a 

13 note along (c)(4) to clarify that that is not in lieu 

14 of a pleading requirement?

15 MR. HALPERIN: I think that's important as 

16 well. (c)(4)'s when language, I think, could be read 

17 to mean that you don't have to allege the stuff in the 

18 complaint because it's going to come later. 

19 CHAIR ROSENBERG: Okay. Thank you.

20 Judge Proctor?

21 JUDGE PROCTOR: Yes. I'm just curious, how 

22 do you think your approach or suggestion squares with 

23 Footnote 3 in the Bank of America opinion, where the 

24 Supreme Court said there's really two purposes these 

25 master complaints can serve. One is to essentially 
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1 consolidate the pleadings into a single document, or 

2 the second approach would be more of an administrative 

3 summary of the claims that doesn't have legal effect 

4 but advances just organization of the claims that way.

5 MR. HALPERIN: Sure. With respect to the 

6 Supreme Court, I don't understand the administrative 

7 purpose of a master complaint. I think, if a document 

8 is going to be out there setting forth what the claims 

9 are in the litigation, it has to have some effect in 

10 the litigation, it can't just be an administrative 

11 device. You know, if you were taking an individual 

12 complaint, they can number in the hundreds or even 

13 thousands of pages for a single plaintiff and there's 

14 no summary administrative complaint to have non15 binding, helpful summary effect of that complaint. So 

16 I don't see the purpose of an administrative complaint 

17 in an MDL any different from any other case.

18 CHAIR ROSENBERG: Andrew?

19 PROF. BRADT: Thanks. I'd just like to 

20 clarify the 9(b) part of it. So 9(b) says in alleging 

21 fraud or mistake, a party must state with 

22 particularity the circumstances constituting fraud or 

23 mistake. And so, if the gravamen of the fraud is in 

24 the master complaint, I guess my question is, are you 

25 saying that the individual short form complaints have 
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1 to include more than that?

2 MR. HALPERIN: No, and I'm not saying they 

3 have to -- you know, the fraudulent statements should 

4 be in the master complaint. What's missing from the 

5 master complaint is, did the individual actually hear 

6 those statements? Did the individual rely on those 

7 statements to their detriment? And that information 

8 can't be in a master complaint because it requires 

9 individual facts. So that's what I think needs to be 

10 in the short form complaint tying into the allegations 

11 of the master.

12 CHAIR ROSENBERG: Any other questions?

13 (No response.)

14 CHAIR ROSENBERG: Okay. Thank you so much.

15 MR. HALPERIN: Thank you. 

16 CHAIR ROSENBERG: And next, John Rosenthal, 

17 who will address privilege logs. Oh, no, no. Mr. 

18 Ratliff, sorry. Sorry about that, Mr. Ratliff, who 

19 will address 16.1. And then Mr. Rosenthal, who will 

20 address privilege logs, and then we will take a break.

21 MR. RATLIFF: Good afternoon. I guess, 

22 first, my name is Harley Ratliff. I'm a partner at 

23 Shook, Hardy & Bacon. Second, I appreciate the time 

24 to speak before you and the effort that has been put 

25 on by the Committee in addressing these rules. Third, 
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1 going this late in the day, what I've learned is my 

2 pre-prepared comments have been thrown in the trash 

3 and I'm going to try to answer some of the questions I 

4 heard earlier, which is, one, talking about (c)(4). 

5 Is there some sort of empirical data as it relates to 

6 unvetted, unexamined claims? 

7 I think trying to put that data together 

8 across multiple MDLs is difficult, but I do want to 

9 point out an MDL that I think is illustrative of the 

10 issue. So I am currently in an MDL that is going to 

11 in one month hit its seven-year mark. What we know 

12 and what is undisputed from plaintiffs' fact sheet 

13 data is 80 percent of the inventory of the, at one 

14 time, 16,000 cases, 80 percent have never seen a 

15 doctor for the injury they allege and 80 percent have 

16 never been diagnosed with the injury that they allege, 

17 an injury that is claimed to be a signature injury and 

18 one that is diagnosed. We are seven years in and more 

19 than 80 percent of the cases have no proof that they 

20 have ever been injured. We also know through the fact 

21 sheet process that another 3,000 cases have been 

22 dismissed through a show cause process either because 

23 they did not have product ID or because they didn't 

24 even fill out the fact sheet itself. 

25 And the cost there has been a federal judge 
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1 who has worked tirelessly for the last four years 

2 having a show cause process every single 90 days, 

3 which means we have to put people on deficiency 

4 notices, they have to respond, and then she sits down 

5 and goes through the cases one-by-one every 90 days 

6 for either a half-day, full-day, or two-day hearings.

7 That is a cost on our clients and it's a 

8 cost on the federal judiciary. And so, to kind of put 

9 things into perspective, if the proposed 16.1 Rule was 

10 more of a gatekeeping function, like I think my 

11 colleague, Mr. Shepherd, talked about, do you have 

12 just these basic elements of proof? Or what LCJ 

13 recommended, which I think is general enough to cover 

14 all MDLs? Had that been in place seven years ago, 

15 what kind of MDL would we be looking at now?

16 CHAIR ROSENBERG: Do you think -- may I 

17 interrupt?

18 MR. RATLIFF: Sure.

19 CHAIR ROSENBERG: Mr. Halperin's suggestion, 

20 do you think if there was language in the notes that 

21 made it clear that the expectation was that the master 

22 and/or short form or in combination must comply with 

23 Rule 8 and Rule 9(b) applicable pleading standards, 

24 that that would address this problem you're raising?

25 MR. RATLIFF: I think, candidly, Your Honor, 
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1 it would help. I don't think of it as a panacea in 

2 the sense of having some type of 16.1 that does have a 

3 gatekeeping element to it. So, when it comes to the 

4 notes, what I think would be helpful, because I've 

5 heard concern about how do we draft something that's 

6 generally applicable not just to mass tort or products 

7 MDLs but to all MDLs, I do think there is a place in 

8 the notes to say this problem or this issue may arise 

9 or may be more acute in these types of litigations 

10 than in other litigations. 

11 And I think it's also fair perhaps in the 

12 notes to say this is something that the parties, maybe 

13 it's an antitrust litigation, maybe it's an airplane 

14 MDL, this is something the parties can waive or 

15 discuss because they may not need this. But I think, 

16 when we're talking about mass tort product liability 

17 MDLs, the practical reality to me is there is not only 

18 a huge cost to our clients, but there is a huge cost 

19 to the federal judiciary. And I think the other 

20 reality that gets lost in this is -- and I put this in 

21 my comments -- is all of these volume of claims, they 

22 overshadow the claims where there might actually be a 

23 controversy to litigate. Now we may disagree, but if 

24 you're talking about litigating 350 claims or 350 

25 lawsuits, where everyone has been diagnosed with the 
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1 injury and they've taken the product, versus 16,000, 

2 well, now we're litigating the real issues and we can 

3 really get to the bottom of things.

4 CHAIR ROSENBERG: But aren't the -- I'm just 

5 curious -- and I don't necessarily disagree with 

6 anything that anyone has said about -- and I think 

7 that has been, you know, a comment we've heard on our 

8 speaking and listening tours over the past several 

9 years that nobody's in support of unsupportable 

10 claims. The plaintiffs aren't -- at least the 

11 plaintiff attorneys from whom we've heard and the 

12 defense isn't, but, I mean, the legal issues are the 

13 legal issues, aren't they? So whether you have 16 or 

14 1600 or 16,000, if sort of preemption is an issue, is 

15 that really going to affect the briefing of the issue 

16 and the judge's ruling on the issue on a legal issue?

17 Again, it's not -- they're not necessarily 

18 mutually exclusive. There could be insurmountable 

19 unsupportable claim problems, but I just want to make 

20 sure we're not conflating the two. I mean, at the end 

21 of the day, you just need, you know, maybe one viable 

22 plaintiff's claim to generate, you know, a preemption 

23 argument and it's going to be equally necessary and 

24 applicable whether it's to one, 16, 1600, or 16,000, 

25 right? 
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1 MR. RATLIFF: Yes, Your Honor. I think that 

2 presupposes that I'm going to win every preemption 

3 argument that I bring before the court, which I think 

4 is unlikely. And so the --

5 CHAIR ROSENBERG: Okay. So you're talking 

6 about if you're -- so you're not precluded from 

7 raising the argument and you're not precluded from 

8 winning the argument, but if you don't win the 

9 argument, now you're facing now this problem of am I 

10 facing 16, 1600, or 16,000? 

11 MR. RATLIFF: Correct. I think you're 

12 facing the black box problem, which is what is in 

13 here?

14 CHAIR ROSENBERG: Right. But summary 

15 judgment and Daubert, that actually -- those are also 

16 legal issues that don't necessarily relate to how many 

17 claims, which I think goes back to Judge Proctor's 

18 question a little bit, which is, is this more of an 

19 issue for when defendants are being asked to settle 

20 claims and it's very frustrating for defendants, we're 

21 hearing, to be asked to settle the claims, when many, 

22 some claims aren't supportable, and maybe the 

23 defendants don't feel armed to know which ones are 

24 supportable and which ones aren't. And so we should 

25 put something in the rule to either prevent them from 
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1 ever being filed, which raises a question, can we 

2 actually -- is there such a thing? Or second, like 

3 you judges need to do something. But then we've gone 

4 down that path of, well, do you want us to go claim by 

5 claim by claim? And would you all want to file 16,000 

6 motions to dismiss? Would you want to do that? 

7 MR. RATLIFF: Well, we try and address that 

8 sort of in turn. I mean, I think, if you had some

9 sort of gatekeeping 16.1. on the front end, you're not 

10 talking about 16,000 motions for summary judgment.

11 CHAIR ROSENBERG: So the gatekeeping, 

12 meaning like something in the notes that says you've 

13 got to comply with Rule 8 and 9(b) and the implication 

14 is, if you don't, like, anytime you don't comply with 

15 the rule, you may be subject to sanctions?

16 MR. RATLIFF: Do you have the product? Did 

17 you take the product? Do you have the injury? That 

18 should be a threshold issue that should be how do you 

19 get into this MDL? You know, it's in --

20 CHAIR ROSENBERG: Is that synonymous with 

21 Rule 8, though? Do you think Rule 8 would require 

22 somebody to say I have an injury, I took this product 

23 and my injury is a result of this product? Is that 

24 another way of saying comply with Rule 8? 

25 MR. RATLIFF: Correct.
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1 CHAIR ROSENBERG: Okay.

2 MR. RATLIFF: Correct, Your Honor, as it 

3 relates to the resolution problem. And I think one of 

4 the questions or comments I heard is, well, is there 

5 really a practical problem of having these cases 

6 unexamined, unvetted, however you want to describe it, 

7 parked in these MDLs? The answer to that is 

8 unquestionably yes. And when you talk about the 

9 resolution piece, so I have had, and I hate to be 

10 anecdotal about it, but it's factual, and I think 

11 everyone in this room has had the same experience, is 

12 you go and you say, look, we're going to try and get 

13 out of this litigation. We're kind of at an endpoint. 

14 We'd like to talk about resolution, you have X number 

15 of cases, we've looked at 20 of them. These have no 

16 value.

17 And the comment we get back time and time 

18 again is you're correct; these have no value. These 

19 are dog cases, if you will, to use a little 

20 colloquialism. But they say, I've already put $3,000 

21 into this case because I had a filing fee and I 

22 collected some medical records. I'm getting that 

23 money back. And so this case, which I acknowledge to 

24 you is worthless, we're eye-to-eye here, it's going to 

25 cost you something, and then it becomes an economy of 
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1 scale. 

2 So maybe you pay a few grand to get rid of 

3 one worthless case. But, when you're talking about 

4 12,000 of them, 20,000 of them, 50,000 of them, that 

5 becomes real money. And I think, at the end of the 

6 day, that obscures the ability to potentially resolve 

7 and compensate individuals who may actually have the 

8 injury and took the product. And you say this is a 

9 case that perhaps we want to get out of.

10 CHAIR ROSENBERG: Judge Proctor, do you --

11 JUDGE PROCTOR: Yeah. I just think what 

12 you're saying makes a lot of sense. I understand 

13 particularly when you get into the exponential 

14 multiplying of these cases. I guess what we've been 

15 struggling with for five-plus years now is the 

16 different ways even the defense bars approach this. 

17 We've heard from the defense bar there should not be 

18 any encouragement by an MDL judge to settle cases. 

19 That doesn't make a lot of sense because settlements 

20 save the bench and the bar and the courts time and 

21 money and headaches. That's straight from Newburg.

22 We've heard also, hey, we need to have some 

23 rules set in place where we can figure out what these 

24 claims look like so we can tackle settlement. And I 

25 think that's kind of what you're getting at here is we 
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1 shouldn't be expected to settle these frivolous 

2 claims.

3 So, you know, I tried to raise this point 

4 previously, I don't know that it fell on listening 

5 ears, but it seems to me there are points along even 

6 the MDL spectrum where frivolous claims can be dealt 

7 with. It's just -- it's not always conducive to 

8 handling those right off the bat in the first 60 days 

9 of a case is what our transferee judges push back and 

10 tell us. That's not to say there aren't cases where 

11 they aren't willing to do that, but I think they've 

12 been -- you know, when we met with them last year and 

13 the year before at the transferee judges conference, 

14 they said please don't put that burden on us to do it 

15 in every single case. So how do we navigate that? 

16 MR. RATLIFF: So, Your Honor, I think you're 

17 correct in some respects. There is obviously an 

18 avenue to do that. In my experience, we have had a 

19 comprehensive fact sheet process, we have gone through 

20 a show cause process, we've gotten lots of cases 

21 dismissed. The question to me, though, becomes, yes, 

22 there is that avenue, there's also dispositive motion 

23 practice. But the practical reality is, when you have 

24 that many cases, I haven't had a judge allow us to 

25 file summary judgments or motions to dismiss in every 
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1 single individual case, and now that burden is going 

2 to be taken back to the remand courts to address all 

3 of those, and I've been in front of remand courts that 

4 say, why wasn't this -- what am I -- why do I have 

5 this case? Why are we addressing this now? 

6 And so I think it's kind of maybe two7 pronged, which is, yes, there are mechanisms, but I do 

8 think there is certainly a procedure or -- and maybe 

9 this is something that gets negotiated with the court, 

10 but if they have the encouragement from Rule 16.1 to 

11 say at some point early in the litigation, there needs 

12 to be, whether you want to call it a lone pine, 

13 whether you want to call it a show cause process, you 

14 need to come forward with just the basic elements of 

15 information that you should be in this court 

16 altogether because it is not like what you see in one17 off litigations or one-off cases, where oftentimes 

18 you're contacted by the plaintiff's attorney and they 

19 say here is the injury; here's the product, we have 

20 proof of all of this, would you like to talk 

21 resolution now or would you like to litigate it? That 

22 just does not happen in MDLs.

23 And to talk about the resolution piece and 

24 that's one other part that I wanted to mention very 

25 briefly as it relates to (c)(9). I know Rule 16 talks 
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1 about facilitating settlement, and I think that is a 

2 worthy goal certainly in individual cases. I know my 

3 home district, the Western District of Missouri, there 

4 is a mandatory early settlement conference. I think 

5 that has value there. 

6 I do think there is a problem, and if you'd 

7 give me just a second to explain, with making the idea 

8 of resolution in these big MDLs paramount right from 

9 the get-go that sometimes can be very 

10 counterproductive and why I think maybe it should be 

11 excised from the proposed rule, which is this. In our 

12 MDL at the very beginning, the very first status 

13 conference, the presiding judge, and I think it was 

14 well-intentioned and well-thought-out, said I'm going 

15 to have a settlement committee for both sides and it 

16 can't be people in the trenches. We're going appoint 

17 settlement committees. That was the very first thing 

18 we did. Once that order came out, if you Googled the 

19 next day our product and settlement, all you saw were 

20 advertisements saying settlement committee appointed, 

21 settlement imminent, and we track the data very 

22 analytically at our firm and what we saw was hundreds 

23 and hundreds and hundreds of cases being filed in 

24 seriatim over the next several months. 

25 So I do think there is value in the 
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1 judiciary and MDLs being involved in the resolution 

2 piece unquestionably. I do have some concern about 

3 the way the rule is drafted, and maybe it's just the 

4 way I read it, of making it something that is 

5 paramount from the get-go. I think it's something 

6 that maybe a little more water under the bridge needs 

7 to happen before the presiding MDL judge starts to 

8 address that with the parties. 

9 JUDGE PROCTOR: So one quick follow-up. 

10 MR. RATLIFF: Yeah.

11 JUDGE PROCTOR: I can't count on all the 

12 fingers that are in this room the number of times I 

13 heard this while I sat with the panel: we're going to 

14 send this case off to X district to Judge Y and Judge 

15 Y doesn't have to do everything in this case, Judge Y 

16 can be surgical, deal with the centralized issues, the 

17 coordinated proceedings, deal with discovery, deal 

18 with this general causation issue, deal with the 

19 Daubert issues, whatever the case may be for 

20 deficiency, and then the other issues can be sent back 

21 to the transferal courts, we'll remand them back for 

22 that.

23 I think that's part and parcel of what's 

24 been built into the MDL statute from day one. And 

25 maybe some criticism is MDL judges try to do too much, 
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1 try to handle everything, but how do you square a one2 size-fits-all, we have to deal with purportedly 

3 unsupportable claims in the beginning of a case in a 

4 case where the panel just sends it for a particular 

5 surgical reason to deal with things in a centralized 

6 proceeding and then everybody expects that it's going 

7 to be remanded back?

8 MR. RATLIFF: That is a fair question. And 

9 I think the practical reality is, because I've heard 

10 those same arguments before the panel, I have not made 

11 them myself, but I probably drafted those types of 

12 comments to people who have made those comments before 

13 the panel, is that I think there is sort of an ideal 

14 world where that would happen, but I think the 

15 practical reality is that MDLs are messy and judges 

16 are trying to wrap a lot of these cases up in a bow 

17 because I think there is a feeling that -- and this is 

18 a perception -- that if cases do get remanded, that 

19 it's somehow seen as a failure of the MDL. 

20 I don't think that to be the case. Where I 

21 think there is maybe a shortcoming is what cases are 

22 being remanded and should those cases have been there 

23 in the first place? And we shouldn't be letting cases 

24 come in in 2013, sit parked for eight years, 10 years 

25 and then be unleashed out into the wild and then, all 
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1 of a sudden, you have remand courts saying what is 

2 this case and we're starting from ground one. That 

3 would be my response to that.

4 JUDGE PROCTOR: And that's a fair response 

5 to a question. Thank you. 

6 MR. RATLIFF: Okay.

7 CHAIR ROSENBERG: To a fair question. Thank 

8 you so much. Oh, Judge Bates. Don't go yet. 

9 JUDGE BATES: I have one little question. 

10 Your concern about settlement seems to be a timing 

11 question more than anything else. If (c)(9), which 

12 currently says whether the court should consider 

13 measures to facilitate settlement, et cetera, simply 

14 said whether and, if so, when the court should 

15 consider measures to facilitate settlement, would that 

16 take care of the concern you have? 

17 MR. RATLIFF: I think that would certainly 

18 help. My concern, and I only speak for myself here, 

19 is that coming out hot at the outset at the initial 

20 case management conference and saying, well, let's 

21 talk about resolution now, let's get this going, I 

22 think, is counterproductive. And there's a feeling on 

23 my side that sort of feels like, wow, liability has 

24 already been a little bit presupposed. And then, 

25 also, I think it perhaps sets unrealistic expectations 
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1 for the attorneys who have filed these lawsuits until 

2 we've had a little bit more time to see how all of 

3 this is going to shake out. So, yes, I think that 

4 would be a helpful step.

5 CHAIR ROSENBERG: We might let you join the 

6 drafting committee. No, thank you. You probably 

7 don't want to.

8 MR. RATLIFF: No, it sounds great. I'd be 

9 happy to.

10 CHAIR ROSENBERG: Okay. Thank you so much.

11 And, Mr. Rosenthal, if we can hear from you 

12 before our mid-afternoon, we'll call it late afternoon 

13 break, on privilege logs.

14 MR. ROSENTHAL: Good afternoon. Thank you 

15 for the opportunity to speak to the Committee. Also, 

16 thank you for your tireless efforts and dedication to 

17 help improve our judicial system through rules reform.

18 In order to put my comment in perspective, I'm 30 

19 years out as a complex class and MDL litigator. I 

20 also chair our e-discovery and information management 

21 practice group, where we do about 250,000 hours of e22 discovery, a significant portion of which has to do 

23 with privilege review and privilege logging. 

24 Beyond that, I'm a former steering committee 

25 member of the Sedona Conference, and while there, I 
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1 was editor-in-chief of the Sedona Conference's 

2 commentary on the protection of privileged ESI. In 

3 2016, the Sedona Conference wrote procedure and 

4 process for protecting privileged ESI from production 

5 is broken. We went on to say that privilege logging 

6 is arguably the most burdensome and time-consuming 

7 task in litigation. We also went on to say that 

8 modern privilege logging is as expensive as it is 

9 useless. Those statements are true in 2023.

10 The single largest cost component in any 

11 civil litigation is privilege review and logging.

12 Let me say that again. When you break down all the 

13 expenses of litigation, the single largest cost 

14 component, and this is across all litigation -- I 

15 handle MDLs to landlord-tenant cases within our

16 group -- it's the single largest cost component, and I 

17 think it's broken. I think the current proposals go a 

18 long way in helping that, but consistent with Judge

19 Facciola, Jonathan Redgrave and LCJ's position, I 

20 would advocate we need to do more. Some of what I am 

21 advocating is consistent. Some is a little further.

22 So the first thing is that document-by23 document logging has become the de facto. I go into 

24 meet-and-confers, the other side doesn't want to even 

25 discuss other types of logging processes. You even go 
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1 to court. We have many standing rules and local rules 

2 that say, if you do not produce a log that has X, Y, 

3 and Z document-by-document, there is a presumption of 

4 waiver.

5 I think and I would humbly suggest that we 

6 need to revise in addition to the proposed amendments 

7 26(b)(5)(A), and I think we should revise it 

8 consistent with the language suggested by Judge 

9 Facciola and Jonathan Redgrave. Moreover, I think we 

10 should revise the Committee note to make it abundantly 

11 clear what was already in the rules in 1993 but seems 

12 to have been lost by many practitioners in many 

13 courts, that document-by-document logging is not the 

14 de facto standard.

15 I would also encourage the Committee to put 

16 in the Advisory Committee note an encouragement that 

17 the parties look to other means to log documents, and 

18 a few examples: categorical logging, metadata logging, 

19 and what I'd call categorical logging plus. A lot of 

20 times, and you've heard it here today, well, if we get 

21 categorical logs, that's really an effort to hide 

22 documents, we don't get the information that we need.

23 And that could be a fair comment. But I 

24 have used, over the years, as early as 2009, where 

25 Judge Facciola endorsed in Redgrave surcharge, kind of 
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1 a categorical log plus, where in the first instance, 

2 we produced categorical logs, or metadata logs, or 

3 what we call objective logs. And then based upon a 

4 good faith basis, the other side, the receiving party 

5 has the right to come back and say well, that's great, 

6 but for this category, or this subcategory, I need 

7 document-by-document. I think if the Committee would 

8 about in the Advisory Committee notes, these different 

9 options, it would move the ball forward.

10 In terms of other things that I would 

11 suggest should be in the 26(b)(5)(A) comments, one is 

12 a rebuttable presumption that certain kinds of 

13 information need not be logged, such as information 

14 after the date of the complaint. I would suggest 

15 there should also be some guidance as to what should 

16 be in a log. The case law is all over the place. The 

17 majority of the case law does spell out the categories 

18 that need to be in there. But I can't tell you the 

19 number of times I have to meet and confer and then 

20 litigate what should actually be on the log.

21 The next issue is that discovery is 

22 transforming from emails to chats. And the volume of 

23 information subject to discovery in most litigation is 

24 either email or chats. And there is a huge, huge 

25 fight going on between whether top level logging is 
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1 appropriate. And most receiving parties are pushing 

2 back and saying you should not do top level logging.

3 So if I have an email with 40 parts in the 

4 chains, they want 40 entries in the privilege log. I 

5 would I would suggest the Committee could add a 

6 provision endorsing the use of top level logging, or 

7 what I would call top level logging plus, the same 

8 kind of issue. You can get a top level log and then 

9 it's based upon good faith. 

10 The last one is a novel thing. I believe 

11 that 502(d) has been underused in many respects. And 

12 I've written extensively on that and talked 

13 extensively on that. But I would encourage the 

14 Committee to put into the advisory committee note an 

15 encouragement that the parties should consider, and 

16 the court should enter, a 502(d) that says the 

17 contents of a privilege log cannot be used as a basis 

18 of where. I think 502(d) allows for that and part of 

19 the issue is on the defense side or producing parties, 

20 we're concerned that if we put too much in a log, 

21 that'll be used as the argument is waived. 

22 So I think we can improve the quality of 

23 logs and the dialogue around this issue by encouraging 

24 broader use of 502(d) for this purpose. Happy to 

25 answer any questions. I'm also happy to answer the two 
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1 questions that have been posed on technology and 

2 proportionality. 

3 CHAIR ROSENBERG: Okay, thank you. Let me 

4 check. 

5 Rick?

6 PROF. MARCUS: I'm not sure if you said this 

7 at the beginning, I was out of the room. I know in 

8 earlier events that we've attended, you've emphasized 

9 that some of your opposing counsel adamantly insisted 

10 on document-by-document without regard to any other 

11 considerations. I wonder if you haven't dealt with 

12 that fine, but otherwise, could you elaborate on the 

13 importance of making it clear in 26(b)(5)(A) that 

14 that's not required, going back to the 1993 note, 

15 which sort of said that? I think that's a point worth 

16 pursuing a bit further.

17 MR. ROSENTHAL: Yes. I don't -- further, I 

18 don't think it's just practitioners, I face that with 

19 judges, magistrate judges and special masters all the 

20 time. They believe that's the de facto standard. 

21 And, in fact, there's a waiver if you don't. I think 

22 it would allow a lot more leeway in the meet and 

23 confer if it's clarified that that is not de facto; 

24 that's not a requirement under the rules. And I think 

25 the Facciola Redgrave language, in addition with some 
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1 revisions to the note, would get us there.

2 CHAIR ROSENBERG: Judge Bates?

3 JUDGE BATES: Perhaps with respect to the 

4 502 issue, but certainly with respect to the 

5 rebuttable presumption that you suggest with respect 

6 to some items, aren't those more statements of 

7 substantive law that you would be asking to insert 

8 into a rule of practice and procedure as to what is 

9 privileged, for example? 

10 MR. ROSENTHAL: Well, I'm not advocating it 

11 -- it could be construed that way. I'm not advocating 

12 it to put it in the rule, I'm advocating it to put it 

13 into the Advisory Committee notes. I think that what 

14 we've seen since --

15 JUDGE BATES: That makes it even worse.

16 (Laughter.)

17 MR. ROSENTHAL: It could be, but I think 

18 what we've seen since 2006, is that the comments in 

19 advisory committee notes have gone a long way in 

20 changing actual practice on the ground.

21 CHAIR ROSENBERG: Okay, thank you so much. 

22 We really appreciate your comments. So let's take a 

23 mid-afternoon break. It's 3:06. Let's be back at 

24 3:16 for our final three commenters, from whom -- or 

25 witnesses from whom we are very interested to hear 
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1 from.

2 Keep in mind, obviously, we've heard from 19 

3 people, so if you could hone in on anything you think 

4 hasn't been said or a response to what someone else 

5 has said that you will either agree or don't agree, 

6 that would really help. You could kind of think of 

7 yourselves as sort of the wrap up. It's not to take 

8 anything away, but that would be very helpful and I 

9 think good use of our time. So we'll see you back in 

10 ten minutes. 

11 (Whereupon, a brief recess was taken.)

12 CHAIR ROSENBERG: Rule 16.1. Oh, you're 

13 just gonna speak about 16.1. Okay. We're looking 

14 forward to hearing. 

15 MR. JOYCE: Okay. Thank you. Well, thank 

16 you to the Committee and I appreciate very much the 

17 opportunity to be here. My name is Sherman Joyce. 

18 I'm president of the American Tort Reform Association. 

19 Let me just say at the outset, this is a new forum for 

20 me. My organization frequently testifies for before 

21 legislatures and Congress. We often filed amicus 

22 briefs before the federal and state courts, but this 

23 is a confluence of events that we're here, and I'm 

24 delighted to have the opportunity to present some 

25 thoughts and I will adhere to your admonition to be 
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1 brief. 

2 No one's ever complained when I've been too 

3 short, so I will attempt to do that. But to focus on 

4 some key issues and not sort of cover ground that's 

5 been much more effectively covered than I. Just at 

6 the outset, again, I'm not here to talk about our 

7 personal experience in litigation, but to offer our 

8 perspective on these issues and how we look at it 

9 within the broader legal reform community. 

10 At the outset, I would just say that we do 

11 associate ourselves and endorse the perspective 

12 presented by Lawyers for Civil Justice, an 

13 organization we work closely with. In particular the 

14 issue of claim sufficiency, we see as central, not 

15 just to the issue for you, that you're considering in 

16 this process, but to us as well because we think that 

17 this is -- the whole mass torts issue is creating a 

18 broad issue, and it's of great interest to the 

19 membership of my organization. I appreciate the 

20 opportunity to talk about that.

21 I think Mr. Guttman talked about the fact 

22 that the data will be furnished to you about the 

23 actual number of cases that don't -- that shouldn't be 

24 brought in the context of MDL litigation. I can just 

25 attest that from the input that we get from our 
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1 members who are involved in these cases, that seems 

2 like a very solid piece of data. And obviously, it's 

3 what was reflected in the work, not just of your 

4 subcommittee on MDL, but also some of the observations 

5 that other members of the federal bench have made in 

6 public statements, again, which we look to implement 

7 in terms of our perspective.

8 As I said, our member companies, those that 

9 we work with closely believe that a very, very 

10 powerful force in the impact of litigation is simply 

11 the volume of the litigation. And that's why we think 

12 it's so important that you're doing what you're doing.

13 What I thought I would do is spend a few 

14 minutes just providing a little bit of a different 

15 perspective. And that's from the external factors 

16 that I think are often in play. They're not directly 

17 relevant to your jurisdiction, but we think that 

18 they're important from the perspective of what's 

19 actually some key factors in driving the litigation.

20 The reality is from where we sit, that 

21 there's really a very active and growing external 

22 industry that's grown up around the mass torts 

23 litigation, certainly, if you contrast it to 

24 litigation back when the MDL statute was enacted in 

25 1968, it's very visible to us. You've heard some 
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1 reference to it today. An estimate that we prepared, 

2 my organization, between 2017 and 2021, nearly $7 

3 billion was spent on advertising. And that's probably 

4 --

5 PROF. MARCUS: What was that number again?

6 MR. JOYCE: The correct number is $6.8 

7 billion. It's in a reference in my statement. I will 

8 submit the full statement in a report that my 

9 organization prepared. That's overall advertising to 

10 promote litigation. But in the mass torts world, I 

11 think it's important to look also specifically at some 

12 of the more significant cases, $131 million on Round13 Up, $122 million on Xarelto, $111 million on talcum 

14 powder. 

15 Why does this happen? I actually had an 

16 interview recently, someone asked why is this done, 

17 and the answer is simple, it works. It generates 

18 claimants, and that's the important part. Lead 

19 generators, as you know, you've heard a little bit 

20 have call centers that collect medical information, 

21 they sell that information to the lawyers. That's the 

22 way it works. That's the business side of this.

23 Another key component of this is the 

24 litigation finance world. I'm old enough to remember 

25 my older son graduated from law school a couple of 
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1 years ago, we've contrasted sort of the difference in 

2 different theories about who should and can have a 

3 role in litigation. I know it's an important issue, 

4 not right before the court or right before this 

5 committee now, but it is an important consideration.

6 The fact is that you have these litigation 

7 finance companies taking a stake in these lawsuits, 

8 actually having a role in them. And they obviously 

9 are, it's been clearly demonstrated, providing capital 

10 to underwrite the advertising that I was just 

11 mentioning. One data that I saw, as we were doing 

12 some research on this, is a company Westby Advisors 

13 has estimated that between 2019 and 2022, the 

14 litigation funding industry increased by 44 percent. 

15 So those are external factors that I think as you 

16 consider your role, and this important work that 

17 you're doing with Rule 16.1, is something to keep in 

18 mind. This is not -- they are, we believe, responding 

19 to the opportunities. Your subcommittee talked about 

20 the Field of Dreams, if you build it, they will come. 

21 They are responding to that field of dreams. 

22 CHAIR ROSENBERG: Thank you. Let me see if 

23 there are any -- take a pause, see if there's any 

24 questions.

25 Rick?
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1 PROF. MARCUS: I don't see the $6.8 billion 

2 figure in your submission. 

3 MR. JOYCE: I can I can get that to you. We 

4 have submitted that. 

5 PROF. MARCUS: Is that the measure of pay 

6 outs by defendants, total cost of litigation, the 

7 finance --

8 MR. JOYCE: It's the cost of the 

9 advertising. 

10 PROF. MARCUS: Okay, so --

11 MR. JOYCE: I'll get that to the Committee.

12 PROF. MARCUS: The specifics you offered us, 

13 Round-Up and to other case, don't look like they are 

14 readily going to add up to that much money. Is the 

15 advertising exceeding the amount of the pay outs?

16 MR. JOYCE: No. The $6.8 billion is total 

17 advertising.

18 PROF. MARCUS: Right. 

19 MR. JOYCE: And so this is a subset of that 

20 advertising.

21 PROF. MARCUS: But this is litigation 

22 promotion advertising?

23 MR. JOYCE: Yes. 

24 PROF. MARCUS: And but I'm asking if that's 

25 way up here and the pay outs are down here, it seems 
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1 backwards to me.

2 MR. JOYCE: No, I'm not referring to pay 

3 outs. I'm referring to --

4 PROF. MARCUS: No, no, I understand that. 

5 So in order to make that worth your while, you'd have 

6 to have more than $8 billion dollars worth of pay outs 

7 to spend almost $8 billion on advertising, right? 

8 MR. JOYCE: Well, I'd have to -- we'd have 

9 to line those up. What I'm referring to are these 

10 external forces that are helping to generate the 

11 claimants, not the actual pay outs.

12 JUDGE JORDAN: Can I ask the question to --

13 CHAIR ROSENBERG: Judge Jordan and then 

14 Judge Bates. 

15 JUDGE JORDAN: Yeah. This almost $7 

16 billion, that's total, not on an annualized basis, but 

17 total over some period of time? Or are you saying --

18 MR. JOYCE: Yes. It was between --

19 JUDGE JORDAN: Over what period of time?

20 MR. JOYCE: 2017 to 2021.

21 JUDGE JORDAN: And I believe Professor 

22 Marcus' question that's mine, too, is there must have 

23 been more than $7 billion in pay outs over that period 

24 of time. Otherwise, we'd to say that the folks doing 

25 the advertising and running these businesses are 
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1 economically irrational, right? 

2 MR. JOYCE: Well, the overall figure that I 

3 gave you referred to all litigation.

4 JUDGE JORDAN: Right, so the question is, in 

5 all litigation, all mass torts, all MDLs that you're 

6 concerned about, you're saying that the payout is in 

7 excess of $7 billion?

8 MR. JOYCE: Yes.

9 JUDGE JORDAN: Am I right about that?

10 MR. JOYCE: Well, I think we've seen 

11 definitely studies we've done, US Chamber of Commerce 

12 has done and others on the total cost of the civil 

13 justice system. We can share those with you. But 

14 you're --

15 JUDGE JORDAN: It can't just be the total 

16 cost of the civil justice system, we're talking about 

17 MDLs. Do you have -- maybe you don't have it. Do you 

18 have a number of what the total payout over that same 

19 period of time? 

20 MR. JOYCE: I do not. But we could probably 

21 find some examples of some individual cases, such as 

22 the Xarelto case paid, I think it was $775 million.

23 JUDGE JORDAN: Whatever the figures are, I 

24 understand that that might relate to whether MDLs are 

25 a good idea, but connect it in some way, if you would, 
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1 to the specific proposals that are set forth in Rule 

2 16.1. What does the size of the advertisement lead to 

3 in terms of what should be in 16.1? Or whether there 

4 should be a 16.1? 

5 MR. JOYCE: Well, I think our perspective is 

6 that the advertising helps to generate an overall 

7 volume of more claimants. And our perspective is, as 

8 our friends at Lawyers for Civil Justice recommended, 

9 is that there be an effective and reasonable method by 

10 which we can judge individual cases -- individual 

11 cases within the MDL in same way if they were brought 

12 as an individual case.

13 CHAIR ROSENBERG: Judge Proctor?

14 JUDGE PROCTOR: Let me make sure I 

15 understand what you're saying and not saying. 

16 Obviously, these products that are being sued over

17 are made known to consumers by advertisement, right?

18 MR. JOYCE: Yes. 

19 JUDGE PROCTOR: And so there's not an 

20 improper -- it's not a, per se, improper purpose 

21 behind lawyer advertising. What you're saying, 

22 though, is that that is one of the factors that 

23 contributes to people signing up who really aren't 

24 injured and being signed up, even though they're not 

25 injured, for example? 
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1 MR. JOYCE: Yes, I think that's correct. 

2 JUDGE PROCTOR: So that doesn't help us with 

3 the gross advertising dollars, but your point is, is 

4 the gross advertising dollars are indicative of

5 how people end up in the system, even though they 

6 shouldn't -- you say they shouldn't be in the system?

7 MR. JOYCE: Or should be considered and 

8 evaluated at the front end the way they would be if 

9 they were bringing the case individually.

10 JUDGE PROCTOR: The opposite of a mass 

11 exodus. But the point is, is the average consumer 

12 doesn't know how to file a claim, even though they've 

13 been injured. Advertising, obviously, helps with 

14 that.

15 MR. JOYCE: Well, again --

16 JUDGE PROCTOR: Not to mention the fact the 

17 Supreme Court says you can do it. 

18 MR. JOYCE: I'm sorry. The Supreme Court 

19 says you can do what?

20 JUDGE PROCTOR: Says you can do it, says 

21 lawyers can advertise.

22 MR. JOYCE: That's true. And I'm not here 

23 to suggest that they can't. What I am here to suggest 

24 is that the advertising helps to generate that overall 

25 claim number, which factors into the consideration 
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1 that your subcommittee highlighted with up to 50 

2 percent, in some cases, perhaps not being meritorious, 

3 that don't belong, that that number gets higher and 

4 higher. 

5 JUDGE PROCTOR: I understand. Thank you.

6 CHAIR ROSENBERG: Okay. Thank you so much. 

7 MR. JOYCE: Thank you. 

8 CHAIR ROSENBERG: And if we can hear now for 

9 Ms. Kole regarding 16.1.

10 MS. KOLE: Good afternoon. My name is 

11 Deirdre Kole, and I'm assistant general counsel at 

12 Johnson and Johnson. I'm responsible for the 

13 management and oversight of a number of our product 

14 liability litigations against our companies. Prior to 

15 joining Johnson and Johnson, I was a partner at the 

16 law firm Drinker Biddle and Reath, where my practice 

17 focused on representing pharmaceutical and medical 

18 device companies, including in mass torts and MDLs.

19 I join with the others and thanking the 

20 Committee for allowing me to speak today and in 

21 commending the Committee's efforts to bring much 

22 needed change to the rules governing MDLs. It's been 

23 a long and, I hope, productive day. So without 

24 revisiting all of today's discussions, I do want to 

25 echo the concerns of many that spoke earlier about the 
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1 unprecedented numbers of unsubstantiated claims that 

2 are clogging the courts and overwhelming the MDLs.

3 Many of you have inquired about the 

4 articulated concern with unsubstantiated claims. To 

5 that point, empirical data is often difficult to 

6 obtain about the extent to which deficient claims are 

7 being filed in mass tort MDLs. The researchers who 

8 have looked at this question tend to focus on how many 

9 claims in MDL have been adjudicated to be bogus. But 

10 because individual claims are not typically challenged 

11 in the MDL courts, there's not much to glean from that 

12 particular metric.

13 Rather, the evidence lies in the extent to 

14 which claims disappear when vetting actually begins. 

15 So, for example, in Vioxx, upwards of 40 percent of 

16 the claims disappeared when claimants were required to 

17 provide proof of product usage, such as a prescription 

18 and/or proof of product injury to participate in the 

19 settlement. Now, some of you might say, but you don't 

20 know why those cases disappeared at that point in 

21 time. But it stands to reason that if the claims only 

22 disappeared at point of settlement, that the claims 

23 never should have been filed in the first place.

24 Similarly, when a random sample of claimants 

25 in the 3M --
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1 PROF. MARCUS: Can I interrupt? I'm sorry.

2 MS. KOLE: Yes, of course.

3 PROF. MARCUS: Why does that stand to 

4 reason?

5 MS. KOLE: Because at that point in time, 

6 the claims were going to be paid out, so only those 

7 who actually were able to come forward with proof of 

8 product usage and proof of injury would qualify for 

9 the settlement and get paid.

10 PROF. MARCUS: I'm not sure I'm following 

11 the logic, but go ahead.

12 MS. KOLE: Okay. Similarly, when a random 

13 sample of claimants in the 3M Combat Arms Earplug 

14 litigation were ordered to produce evidence to 

15 substantiate their claims, the vast majority could 

16 not, 126 out of 500 Wave 1 plaintiffs, so 25 percent, 

17 reportedly produced no evidence and dropped out of the 

18 case. And nearly three quarters had no record of ever 

19 using the product at issue.

20 Notably, in the MDL involving at Ethicon's 

21 pelvic mesh devices, 46,511 cases were filed against 

22 Ethicon which is a J&J company. Out of these cases 

23 24,695, more than half, were ultimately dismissed for 

24 basic factual shortcomings or inability to establish a 

25 recognizable injury.
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1 Another proponent of early gatekeeping along 

2 the lines of what Rule 11 requires -- as many of you 

3 know in many MDLs, the initial CMO typically suspends 

4 all pleadings, motions and discovery practice pending 

5 further order of the court. So there's no mechanism 

6 that guards against the filing or substantiating 

7 claims.

8 I think that something like an explicit 

9 reference to Rule 8, 9 and/or 11, could bolster in the 

10 MDL context and serve as a critical reminder that 

11 parties due process safeguards should still apply in 

12 the MDL context. For that reason, I believe that 

13 something along the lines of the (c)(4) amendment as 

14 suggested by LCJ, or language along the lines of how 

15 and when the parties will exchange information about 

16 the factual basis for their claims and defenses, 

17 including initial disclosures that demonstrate 

18 compliance with Rules 8, 9 and 11, to confirm that 

19 each case is properly before the MDL would help to aid 

20 in this effort.

21 CHAIR ROSENBERG: Thank you. What are your 

22 views on some of the earlier comments we heard, and 

23 you touched on it that you thought -- referenced 8, 9 

24 and 11 would go a long way. One suggestion was

25 making explicit what I would think would be implicit 
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1 as to the pleadings in an MDL, whether it's the master 

2 or the short form, or the two of them in conjunction, 

3 that they comply with all applicable rules, including 

4 but not limited to 8, 9 and I guess 11 is separate, 

5 but I mean do you think that would address what you're 

6 saying? 

7 MS. KOLE: I think it would be a marked 

8 improvement than where we are right now. I think, 

9 right now, the MDL practice is very ad hoc and is 

10 subject to the preferences of the individual judge 

11 presiding over the MDL proceeding, to the extent that 

12 the rule could remind practitioners the rest of the 

13 rules of procedure actually still apply in these 

14 proceedings, that would be very helpful in guarding 

15 against some of these issues. 

16 CHAIR ROSENBERG: And do you think there's 

17 confusion that people actually think they don't apply? 

18 Or is it we all know, they apply, but we need to 

19 remind people with that, whether it's lawyers and 

20 judges alike, or is there confusion as to whether they 

21 apply or not and whether 16.1 would somehow mean other 

22 rules don't apply? 

23 MS. KOLE: I think, Your Honor, that many 

24 people believe MDLs are different, you know, there is 

25 a special place for MDLs because we don't do 
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1 individual motion practice in those cases. We don't 

2 look at each case on its individual merits. And 

3 because of the totality, we have to look at everything 

4 in this sort of conglomerate fashion that doesn't lend 

5 itself necessarily to how the original rules were 

6 designed and applied. 

7 CHAIR ROSENBERG: Thus, the reminder would 

8 be helpful. 

9 MS. KOLE: Yes.

10 CHAIR ROSENBERG: Okay. Joe, did you have a 

11 question? Did I see your hand reaching for the 

12 microphone? 

13 MR. SELLERS: Sure. I think my question may 

14 have been superseded by your recommendation, which I 

15 think is a sound one, but I was a little questioning 

16 when you gave us some quotes about numbers and 

17 dismissal of claims. Some of these, I gather, might 

18 be claims that were dismissed after discovery or some 

19 other steps in the process, rather than claims that 

20 necessarily should never have been brought to begin 

21 with, that is that they didn't even -- with a little 

22 bit of due diligence, they would have never been 

23 brought?

24 MS. KOLE: I think that's true, but I also 

25 think that part of the problem we face is that cases 
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1 are filed, partly because of issues like the mass tort 

2 aggregators and lawyer advertising, that should not 

3 have been brought in the first place. And so why do 

4 the parties have to invest the time and effort, 

5 resources and money in going through discovery, in 

6 going through the PFS processing, in getting medical 

7 records? Because it's an undue burden on us for 

8 something that shouldn't have been filed in the first 

9 place. 

10 MR. SELLERS: Right. But I assume, and I 

11 guess what I'm saying is, there may be and your 

12 reference to Rules 8, 9 and 11 might help encourage 

13 lawyers and aggregators and others to be engaged in 

14 more due diligence. There'll be some screening that 

15 would be warranted, it could be done at the outset. 

16 But there may be other ways in which some of these 

17 claims get dismissed because in the course of 

18 discovery, it's clear that they can't prove causation 

19 or they can't do something else that might not have 

20 been quite as clear at the time of filing. And that's 

21 partly what litigation and discovery is about.

22 MS. KOLE: Absolutely. I mean there's 

23 alternate causation. There's all sorts of other 

24 things that could --

25 MR. SELLERS: Right.
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1 MS. KOLE: -- take place during discovery, 

2 but only for appropriate claims. 

3 MR. SELLERS: Right. And I just want to 

4 make the distinction between those for which it ought 

5 to have been evident before filing that they shouldn't 

6 have been filed, as opposed to those that were filed, 

7 but eventually dismissed because they couldn't meet 

8 some evidentiary standard that only emerged in their 

9 failure in the course of discovery.

10 MS. KOLE: Right. We're on the same page.

11 CHAIR ROSENBERG: Ariana and then Judge 

12 Boal. 

13 MS. TADLER: I just want to further pick up 

14 on that. And I think Joe and I are thinking about the 

15 same thing, perhaps. So isn't it the case, though, 

16 and in terms of some of these numbers that you've 

17 shared, that it might well be that you get to the 

18 point of settlement and perhaps there are -- there may 

19 be claimants who never -- they didn't have the product 

20 or the pharmaceutical or whatever -- but aren't there 

21 instances where there are specifics like product ID 

22 and those claimants simply are incapable of providing 

23 that information and for that reason, they are 

24 excluded?

25 I'm trying to understand the scope of the 
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1 figures so that we make sure that we understand, 

2 really, the applicability and not get lost in what are 

3 large numbers, but perhaps the numbers are not as 

4 large as being quoted because they might be including 

5 people who never purchased or never used or never had 

6 the device implemented versus causation issues, like 

7 Joe and you have just touched upon; also, there may be 

8 specifics that they simply cannot provide because they 

9 just don't have that information and they are 

10 excluded?

11 MS. KOLE: But isn't your point that they 

12 ultimately never should have filed?

13 MS. TADLER: Not necessarily, not 

14 necessarily. 

15 MS. KOLE: Actually, I think that I have a 

16 follow on from these very, Ariana Tadler's (phonetic) 

17 question because if, and obviously, you know, the mesh 

18 cases much better than I do, but it may be that there 

19 are higher dismissal rates in the mesh cases because 

20 they were a device that was inserted surgically, as 

21 opposed to a prescription and a person may know that 

22 they had a mesh, but they didn't know which kind of 

23 mesh from or the product number for the mesh. So it's 

24 a little harder to get that information up front, 

25 especially if there are statue limitations issue. So 
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1 that may be why there's a higher percentage of those 

2 types of dismissals in the mesh cases. 

3 MS. TADLER: That could be true, but in 

4 naming a defendant, shouldn't you know who the 

5 responsible party is? And if it's available in your 

6 medical records, shouldn't you do that due diligence 

7 on the front end? 

8 MS. KOLE: Sometimes it's not always clear 

9 in the medical records, the product number -- I mean, 

10 that was true in that case I had, it was not what the 

11 device was.

12 CHAIR ROSENBERG: Rick?

13 PROF. MARCUS: On Page 4 of your submission, 

14 you say something -- well, one of the things we've 

15 heard today and before is cases in an MDL should be 

16 handled the same as case individual cases. The bottom 

17 of Page 4, you say what you think a rule should 

18 require is that within 30 days of being filed in MDL, 

19 the plaintiff must produce evidence, medical records, 

20 identifying the product, documenting the injury, and 

21 that if that doesn't happen, the MDL court must 

22 dismiss with prejudice and impose sanctions. Is that 

23 what happens in ordinary one-on-one cases? 

24 MS. KOLE: I mean it's a Rule 11 

25 requirement, though.
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1 PROF. MARCUS: It is --

2 MS. KOLE: It's akin to --

3 PROF. MARCUS: Rule 11(c) says you can't do 

4 anything until you serve a motion, the other side gets 

5 21 days to back off; the court may impose sanctions on 

6 finding a violation of the rule.

7 MS. KOLE: Right. 

8 CHAIR ROSENBERG: And it's not the 

9 attorney's fees of the defendant, but something else.

10 MS. KOLE: No, I understand that, but I 

11 think part of what this proposal is designed to 

12 safeguard against is the deterrent effect for the 

13 pervasive practice of filing unsubstantiated claims. 

14 So to the extent that this would be required, this 

15 could be something along the lines of a Rule 26 

16 disclosure, where at the outset of the litigation, you 

17 file your complaint, within 30 days, you provide proof 

18 of injury, proof of use of the product at issue. And 

19 then you get to pass go. If not, you shouldn't get to 

20 pass go and we shouldn't have to incur the cost of 

21 defending against meritless claims.

22 CHAIR ROSENBERG: Do you find that in MDLs, 

23 defense counsel wants to proceed with the initial 

24 disclosures under Rule 26 but someone is saying that 

25 shouldn't be, whether it's the judge or plaintiff's 
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1 counsel objecting to them? I mean, what does that 

2 look like, the discussions about initial disclosures?

3 MS. KOLE: So I think, as I mentioned 

4 earlier, typically the first CMO in an MDL, the judge 

5 orders that all discovery pleadings and motion 

6 practice shall be suspended until further order of the 

7 court. And then the parties meet with the judge; they 

8 have their Rule 16 conference or whatever the 

9 equivalent is in the current MDL context. And they 

10 talk about the issues that they want to go forward 

11 with and I think because everybody's so focused on 

12 getting to Bellwether trials, a lot of things fall by 

13 the wayside. So the focus becomes on plaintiff fact 

14 sheets and defense fact sheets, and how are we going 

15 to get to the trial pool? And how are we going to get 

16 the first case out there so that we can assess the 

17 merits of the litigation? 

18 So the focus shifts from are there viable 

19 claims here to how are we going to get to the first 

20 Bellwether trial? That's been my experience, at 

21 least.

22 CHAIR ROSENBERG: But so I mean what is your 

23 position on initial disclosures? I mean are defense 

24 counsel part of the fact that it falls by the wayside? 

25 Do you affirmatively want those required disclosures 
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1 or is that consistent with how you think and MDL 

2 should be that you don't do that and you move forward 

3 with preparing for Bellwether and fact sheets?

4 MS. KOLE: In some MDLs, there has been an 

5 equivalent of this type of disclosure, like a 

6 plaintiff profile form, which requires certain 

7 biographical information about the plaintiff, who the 

8 surgeon was in a medical device case, and the proof of 

9 product you use and proof of -- for a qualifying 

10 injury or revision, perhaps. So they would have to 

11 provide that as akin to an initial disclosure. It's 

12 just typically a negotiated CMO that the judge can 

13 enter as opposed to something that's prescribed by the 

14 rules.

15 CHAIR ROSENBERG: Judge Proctor?

16 JUDGE PROCTOR: Yes. Thank you. And you're 

17 probably our last speaker from this perspective, so I 

18 just wanted to mention, you cited our agenda book from 

19 November 1, 2018. So I went back to look, just to 

20 review that again, because I was actually not on the -

21 - in 2018, I was on the panel, not on this committee. 

22 And it seems to me, and this address is not just to 

23 you, but to the others remaining in the room that have 

24 already spoken, it seems to me that we have been 

25 struggling with this issue and known about this issue 
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1 for five years now.

2 We referenced all the problems, the get a 

3 name, make a claim problem; the aggregators angling 

4 for leadership problem; the aggregators wanting a seat 

5 at the table problem; the aggregators building up 

6 inventory for settlement purposes. We referenced the 

7 fact that sometimes people don't do due diligence on 

8 the claims that they file on behalf of clients, but 

9 there are product ID problems. Sometimes clients 

10 don't know which hip implant was put in them.

11 We talked about the difference between how 

12 easy it is to track down a prescription versus an 

13 over-the-counter purchase in terms of product use. 

14 I'm gonna butcher this, but Judge Dao (phonetic) and I 

15 think Judge St. Eve used to say there are three tests 

16 for a rule. Is there a problem? Is there a rules17 based solution to the problem? And is there some law 

18 of unintended consequences that we need to be careful 

19 about?

20 To be clear, we know there's a problem. We 

21 understand there's a problem. Now, that doesn't mean 

22 we always -- it doesn't mean everybody agrees on the 

23 size of the problem and the problem shows up in every 

24 single products liability MDL, but I'm gonna to accept 

25 for purposes of our hearing today in hearing from you 
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1 that that is the case. Just so you understand, we're 

2 focused on is there a rules-based solution that 

3 doesn't create unintended consequences? 

4 So I think we -- the lion's share of what we 

5 dealt with today is, is there a problem? I'm still 

6 searching for the right answers to is there a rules7 based solution that doesn't create some unintended 

8 consequence for, not just the parties, but also the 

9 transferee judges who handle these cases. So I don't 

10 know if you wanted to respond to that, but I felt I've 

11 got to say it because we tested hard a few of the 

12 assertions made earlier today, but that was why. We 

13 were trying to figure out, okay, but what would a rule 

14 look like that would solve this problem?

15 MS. KOLE: And I'm glad we agree that there 

16 is a problem. And I do think that there is a rules17 based solution in that if people vet their cases more 

18 proactively than they currently do and part of the 

19 problem is that because of how lawyer advertising is 

20 functioning, plaintiffs or claimants are signing up 

21 with multiple law firms. And both are filing on 

22 behalf of the clients. They don't know. We get to 

23 the end of the cases and we realize that there's 

24 multiple firms involved, and we don't know who the 

25 case belongs to. So there's a lot of unintended 
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1 consequences, I think, by virtue of the advertising 

2 itself. 

3 Having said that, I do think that if we use 

4 or at least pay reference to the rules that already 

5 exist and try to apply them in this context, we can 

6 try to make a measured inroads into alleviating the 

7 problem that currently exists. As to unintended 

8 consequences, I'm not sure how applying Rule 11 or 

9 Rule 8 or Rule 9 would really impede claimants' 

10 rights.

11 CHAIR ROSENBERG: Judge Jordan?

12 JUDGE JORDAN: Following up on something the 

13 Judge Proctor has asked, and maybe I should have been 

14 asking this directly throughout the day, although I 

15 think a lot of the questions were going around this. 

16 For those who have been opposing Rule 16.1 as it's 

17 drafted, do you think that it's better than nothing? 

18 Or is it worse than nothing? 

19 MS. KOLE: I think it's better than nothing.

20 JUDGE JORDAN: So 16.1, as drafted, you'd 

21 say, doesn't go far enough, but you wouldn't say this 

22 is actively going to do harm?

23 MS. KOLE: I don't think it's actively going 

24 to do harm. I think that, from my perspective, the 

25 chief problem that we face in MDLs are the number of 
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1 claims and if we can do more in (c)(4) to alleviate 

2 that we'll be better served.

3 JUDGE JORDAN: Okay. Understood, thanks.

4 CHAIR ROSENBERG: Judge Boal.

5 JUDGE BOAL: So I appreciate all the 

6 comments that we've had today, but I'd particularly 

7 like to thank you and the other corporate 

8 representative because I do find it helpful to hear 

9 from the parties, so thank you. 

10 MS. KOLE: My pleasure. Thank you for 

11 having me. 

12 CHAIR ROSENBERG: Thank you so much. Okay. 

13 Last, but by no means least, but by no means least, 

14 carrying the mantle for maybe the plaintiffs, we 

15 haven't as much from the plaintiff side as the defense 

16 side today, but Ms. O'Dell to address Rule 16.1. 

17 MS. O'DELL: Thank you, Your Honor. Thank 

18 you all. Thank you for your efforts and for the 

19 opportunity to have a chance to speak to the rule. My 

20 name is Leigh O'Dell. I represent plaintiffs. I 

21 currently serve as co-lead counsel in the Johnson & 

22 Johnson talcum powder MDL. I have seen at the street 

23 level, if you will, a lot of these problems and relish 

24 the opportunity to talk with you. And I want to focus 

25 on the actual substance of the rule and the focus on 
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1 the initial conference and trying to set the stage for 

2 the initial conference once an MDL is created.

3 And first, I think there absolutely should 

4 be an initial case management conference, and I would 

5 go farther than the rule does to require that that 

6 happen. And then as to the topics themselves, and I

7 want to focus on Subsection C, the report for the 

8 initial management conference, as described, should be 

9 more focused on preliminary matters. And as I 

10 appreciate those, it should be an opportunity for the 

11 parties to apprise the court of the factual basis of 

12 the claims, the legal issues, the status of the 

13 litigation in the federal courts and any orders that 

14 have been previously been entered prior to 

15 consolidation.

16 It also should be an opportunity for the 

17 parties to tell the federal court about what's been 

18 happening in state court litigation. It should be an 

19 opportunity to discuss whether there should be 

20 leadership appointed, the process and the timing.

21 I heard from my friend, Mr. Beisner this 

22 morning, my friend on the other side of the "v." I 

23 don't share his concerns about the appointment of 

24 plaintiff's counsel as leaders. In fact, I would 

25 commend to you, Professor Bradt and Professor Baker's 
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1 article on MDL myths and what they discuss in terms of 

2 the potential -- the lack of ethical concerns between 

3 leadership counsel and non-leadership counsel and how 

4 that is addressed. I think they absolutely nailed it 

5 as it's worked out over my 20 year career in MDLs. 

6 I think limiting the report in the initial 

7 conference to the shortened list of topics reflected 

8 in proposed Rule 16.1(c)(1), (2), (3) and (11) focuses 

9 the court on the matters most important at the 

10 beginning of the case. These topics allow the court 

11 to become informed, but they do not require 

12 substantive decision making that will affect the 

13 direction of the MDL prior to the appointment of 

14 leadership.

15 I want to talk a little bit about leadership 

16 and coordinating counsel. Rule 16.1(b) suggests that 

17 the court may appoint coordinating counsel. I would 

18 urge the committee to delete this provision. There 

19 are no qualifications for this position. While 

20 there's not a requirement that this counsel be 

21 appointed, the fact that it's suggested in the rule 

22 means that more likely than not a coordinating counsel

23 would be appointed. If appointed, there's no 

24 requirement that the coordinating counsel have 

25 knowledge of the case, have a stake in the litigation, 
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1 if you will, know the parties involved in order to be 

2 able to do that coordinating job effectively. 

3 Should it be a neutral? Should it be a 

4 plaintiff's lawyer, if you're talking about 

5 coordinating the plaintiff side? There's so many open 

6 questions. We believe adding this step into the 

7 process would be inefficient. It's not necessary, and 

8 it's likely unproductive. And then when you think 

9 about leadership itself. And let me just speak to 

10 this because this primarily affects the plaintiff 

11 side, leadership appointments will affect the 

12 direction of the case, the theories that are pursued, 

13 the injuries that become a part of the MDL, the 

14 discovery, the scope. 

15 Leadership is absolutely critical on the 

16 plaintiff side. And it's extremely important for 

17 lawyers who represent clients who've been injured, 

18 that leadership be appointed as quickly as possible. 

19 My colleagues on the other side of the "v.", they have 

20 a client that hires them, they have a strategic plan 

21 right away. They hit the ground running in the 

22 initial conference. Plaintiffs don't have that 

23 capacity. We find ourselves in a place where we're 

24 still trying to organize ourselves. We don't know 

25 who's going to be involved and who the players are 
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1 going to be. 

2 And I would say moreover, coordinating 

3 counsel, despite their best efforts, if they had a 

4 report that touched on every topic in Subsection C, 

5 what would end up happening is the defendants have all 

6 their leadership in place, the plaintiffs do not and 

7 what's in that report very likely would prejudice the 

8 plaintiffs going forward, particularly if the 

9 leadership that's appointed does not agree with the 

10 points made in that initial report. I think that is 

11 very important.

12 And truly, my experience is most experienced 

13 counsel on both sides are able to come together, 

14 submit a report to the court without coordinating 

15 counsel. And I've found that to be true in every MDL 

16 that I've been a part of.

17 Now, let me talk about a few of the topics 

18 listed in 16.1(c) that I feel, frankly, are not ripe 

19 for consideration during the initial status 

20 conference. We've heard a lot today about claims and 

21 whether they're supported or unsupported, Subsection 4 

22 and how parties should exchange information. Let me 

23 say from the plaintiff's perspective, I believe the 

24 rules apply equally in MDLs, including Rule 11 and 

25 those are requirements that we have as lawyers and 
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1 officers of the court. I believe that. 

2 I believe there is a process that can be 

3 worked out where fact sheets or something similar to 

4 that can be instituted very soon after leadership is 

5 appointed in order for plaintiffs who file a claim to, 

6 in an appropriate time period, provide evidence. I 

7 believe that that is absolutely important, and that 

8 claims that are adjudicated should be claims that are 

9 supported with product ID or appropriate evidence or 

10 evidence of injury.

11 But it shouldn't be that to have a 

12 citizenship, you've got to have a green card at the 

13 first day you file a complaint. We heard that earlier 

14 and that should not be the case. Let me also say, as 

15 it applies to consolidated pleadings, and particularly 

16 master complaints and short form complaints, they work 

17 together to present the claims of an individual 

18 claimant. And we heard some discussion about the 

19 talcum powder MDL earlier, and since I happen to be 

20 very familiar with that, let me just point out a 

21 couple of things.

22 There is a 200-page master complaint with 

23 specificity as to fraud and every other aspect of the 

24 litigation, including the injury. And a talcum powder 

25 injury is defined as epithelial ovarian cancer, so if 
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1 an individual plaintiff on the shortform complaint 

2 checks she has a talcum powder injury, it means she 

3 has epithelial ovarian cancer, and obviously, she's 

4 going to have to put forward evidence of that injury 

5 as the time goes on. 

6 CHAIR ROSENBERG: Can we just take a pause 

7 for just some questions? And then if you haven't had 

8 a chance to cover what else you wanted to say, we'll 

9 circle back. 

10 I think just Judge Jordan had a question.

11 JUDGE JORDAN: Yes, I do you. Well, two. 

12 One of them is you said you were concerned about 

13 coordinating counsel, there's no authority for that, 

14 but then you are in favor of leadership counsel. Is 

15 there authority to appoint leadership counsel that's 

16 anymore grounded than the authority to appoint 

17 coordinating counsel? 

18 MS. O'DELL: I may have misspoken, Your 

19 Honor, and not been clear. What I was saying is 

20 there's no criteria for that. There's no description 

21 in the rule of what would be intended? Who would be 

22 the appropriate person to fulfill that role? What 

23 would be the scope of the role? Would it be a 

24 neutral? Would it be one for defense and one for 

25 plaintiffs and what --
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1 JUDGE JORDAN: But you're not relying on an 

2 authority or lack of authority?

3 MS. O'DELL: No, Your Honor. I just said 

4 it's not clear and from my perspective, I think what 

5 could occur is that you would end up having two rounds 

6 of appointments and all the ancillary activity that 

7 goes on in terms of leadership appointments, if you 

8 had a coordinating counsel for plaintiffs, for 

9 example, you would have a competitive process among 

10 lawyers for that. And then that individual, I'm 

11 assuming would be -- their job would end after the 

12 appointment of leadership and you'd have a second 

13 process, creating a lot of inefficiencies. 

14 JUDGE JORDAN: Okay. And maybe more 

15 importantly, at some point in your presentation, you 

16 said, in effect, there shouldn't be early vetting or 

17 at least that's what it sounded like to me. That, you 

18 know, let this stuff come out later. But that isn't 

19 the way it works in one-on-one litigation. We don't 

20 say you can just file whatever you want and then down 

21 the road in discovery, we'll figure out whether your 

22 pleading was adequate or not.

23 There are rules about pleading. And so one 

24 of the things, of course, we've heard again, and again 

25 and again today is it is as if the rules were 
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1 suspended in MDS because people are coming to court --

2 they're not -- you know, and it may be that in a 

3 wonderful 100-page or 200-page master complaint, 

4 there's a definition of what a injury is. And by 

5 checking a box, somebody can say yeah, but they meant 

6 that because if you look on Page 87 of the complaint, 

7 that's what that meant. And surely that's what this 

8 person meant when they checked that and sent it into 

9 their lawyer. Maybe that happens in some cases, but 

10 we're hearing from a lot of these folks on the other 

11 side of the "v.", that there's just nothing resembling 

12 ordinary pleading, where somebody says in a mass tort 

13 case, I took the medicine or I used your product and I 

14 used it within the statute of limitations, and I got 

15 to injured, give me money. 

16 There's nothing close to that. So are we 

17 are we getting the wrong information from them? Is it 

18 or do you have some different thing to tell us? I've 

19 heard a lot about give us the facts or the numbers. 

20 Do you have some facts or numbers that tell us this is 

21 kind of an unfounded concern that we've been hearing 

22 all day?

23 MS. O'DELL: I think there are two sort of 

24 topics within your question, Your Honor, if I could 

25 take them in turn. The first thing is the pleading, 
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1 the actual complaint itself and whether it's 

2 sufficient. And that's what I was speaking to in 

3 regard to a master complaint and the short form 

4 complaint, basically that Rule 7(a) pleading that 

5 begins the action. And in this context, where there's 

6 a master complaint for administrative purposes, it 

7 seems perfectly appropriate that a plaintiff should be 

8 able to have it. There should be an agreed upon form, 

9 and I can say in the talcum powder MDL, it was agreed 

10 upon, and a plaintiff could indicate the claims that 

11 she was asserting, as well as the injury. And there 

12 were definitions that were understood by the parties 

13 without any real confusion on that point.

14 There's a separate issue as it relates to 

15 facts supporting an individual claim, as they might be 

16 put forward in a plaintiff fact sheet process. I am 

17 for vetting of claims. I am for the appropriate 

18 timing. I do believe that 30 days is too short, but 

19 in most MDLs, you have to put forward a plaintiff fact 

20 sheet that has information about what you're 

21 asserting, including the specific injury and the 

22 medical records showing your injury. And if you have 

23 a pharmaceutical, for example, a proof of use 

24 document, like a pharmacy profile form, within 60 to 

25 90 days. If you're unable to do that, and you can't 
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1 show cause why there's a good faith reason you can't 

2 do it, then that case should be addressed. 

3 I would not -- I am not advocating that 

4 claims not be vetted. I've vet my own claims. That's 

5 something that we feel very strongly about. And I 

6 believe all lawyers should vet their claims. And I 

7 have said that publicly at seminars. I've said it to 

8 all the lawyers in the talcum powder MDL multiple 

9 times. So please don't understand me to say I'm not 

10 in favor of that. What I am in favor of is a fair 

11 process --

12 JUDGE JORDAN: I didn't misunderstand you 

13 and think you're saying let's all violate Rule 11. I 

14 did not --

15 MS. O'DELL: I know.

16 JUDGE JORDAN: I did not think that that's 

17 what was going on. 

18 MS. O'DELL: Good.

19 JUDGE JORDAN: What I am trying to press a 

20 little bit on is there seems to be like a real chasm 

21 here with folks on the defense side saying over and 

22 over again, there is a dramatic number, not a few, but 

23 a very sizable percentage of these cases, which should 

24 never be brought. It's not, as Mr. Seller was saying 

25 earlier and Ms. Tadler was questioning that, it's not 
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1 that they had some adequate basis to start with and 

2 then in the course of discovery, you'd see it or they 

3 can't make a certain level of proof or something. 

4 It's just they never had a claim. They saw the number 

5 on the screen while they were watching a Matlock 

6 rerun. They called. All of a sudden, they're getting 

7 a cut of this, and there's some lawyer there who's 

8 only too happy to have a paralegal or a phone 

9 answering person, bring it in and say, I got another 

10 number, man, give me my money. And then that builds 

11 on itself. 

12 And then it is a force that has momentum on 

13 its own. And that starts driving litigation. That's 

14 the theme or the story that we're getting to over and 

15 over and over again. And you are the last person 

16 today who's speaking from the other side, so I'm 

17 asking you to tell us something that would help us 

18 understand that the story about the avalanche, the 

19 little pebble that starts coming downhill and then 

20 it's more and more and more and now the boulders are 

21 falling and crushing justice underneath them, that 

22 that's just not -- we shouldn't be worried about that. 

23 That's much ado, if not about nothing, it's overblown.

24 Take the crack at it.

25 MS. O'DELL: Thank you for the opportunity. 
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1 I'd love to. I mean there are a number of issues at 

2 play in terms of the increase in the number of claims 

3 that are being put forward. Partially, it's because 

4 we have litigations recently that are dealing with 

5 consumer products, and they are used by millions of 

6 people, millions of people. So if you're talking 

7 about Round-Up, or talcum powder, or Zantac, for that 

8 matter, or other cases, then you've got millions of 

9 people have been exposed. If they those products 

10 cause injury, you're going to have a greater number of 

11 potential claimants. That's one thing. 

12 Second thing as to claims not being vetted, 

13 I believe, it's that if a lawyer gets a claim that 

14 they have a duty to vet that claim prior to filing it, 

15 it is not a if somebody comes to my law firm, to give 

16 you a practical example, and they say Leigh, I believe 

17 I was injured by X product, my duty as a lawyer is to 

18 vet that case before I file it. I believe that is the 

19 right approach, even if somebody came to me because 

20 they were referred or a person who advertises sent 

21 that case to my firm, I still have a duty as a lawyer 

22 to be a lawyer and to substantiate that claim before 

23 filing. 

24 Having said that, are there claims filed in 

25 MDLs that are not supported by your product use or
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1 they don't have the right injury? I would not say, 

2 no, there are, but is it the problem that we've heard 

3 about today? I'm not sure that it is, very frankly. 

4 Are there reasons lawyers sometimes have to file a 

5 case before they're prepared fully? Yes, whether it 

6 be statute of limitations or other issues. 

7 So I would just say, is it as -- you've 

8 gotten the full throated view today, and I appreciate 

9 everyone's perspective that they brought. I don't 

10 believe that actually is accurate from what I see, or 

11 is there some percentage, yes. Is it 30 percent? No. 

12 Is it 60 percent, which I heard earlier? Absolutely, 

13 no, I don't believe that to be the case.

14 CHAIR ROSENBERG: A few more questions. So 

15 we have Judge Bates, then Judge Proctor, then Rick and 

16 then we'll go from there. 

17 JUDGE BATES: A little more specific follow18 up on that, I understand part of your issue with 

19 respect to (c)(4), the early vetting, if you want to 

20 call it that, is that it's premature before there's a 

21 leadership counsel appointed. Tell us why you think 

22 it's premature to even have it as an issue of 

23 discussion at that initial conference, before 

24 leadership counsel is appointed?

25 MS. O'DELL: Thank you. The reason is this, 
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1 because leadership -- we don't even know who's going 

2 to be speaking on behalf of plaintiff, since its 

3 coordinating counsel or what their involvement in the 

4 litigation is. I do believe it's necessary to have 

5 knowledge of the case individually; what injuries are 

6 going to be within the scope of the MDL? What type of 

7 use is going to be required? What are the relevant 

8 tools in order to exchange information? That really 

9 should be something that is a part of the meet and 

10 confer process with the plaintiff steering committee 

11 and the defendant, not -- it could be mentioned, but 

12 in terms of the substance of it, I believe it must 

13 wait until after leadership. And if that's the case, 

14 why would you spend the court's time on it in the 

15 initial conference? You could mention it. It's got 

16 to be addressed and we all agree on that. 

17 JUDGE JORDAN: That seems to be true of 

18 virtually every one of the matters listed, all 12 of 

19 them really would benefit or need someone to speak to 

20 them. So why isn't what you're saying that you can't 

21 do any of this until there's a leadership counsel?

22 MS. O'DELL: Your Honor, and I don't -- I'm 

23 not arguing that there shouldn't be any of this 

24 mentioned. In fact, I believe there are some very 

25 important things to mention. I think the court needs 
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1 to understand generally about the facts of the case 

2 and some of the legal issues. I think that can be 

3 done. I think that you can inform the court and 

4 apprise them of what's happened in federal court and 

5 state courts. I think you can talk about leadership, 

6 that's a fulsome conference. 

7 But, for example, I don't think settlement 

8 is an appropriate topic for the initial status 

9 conference for many reasons, some of which I share the 

10 views of my friends on the defense side about that 

11 being too soon. Whether you refer matters to a 

12 magistrate judge or a special master, I think it's far 

13 too soon to understand what will be needed at that 

14 point in time. And so what I'm suggesting is that the 

15 rule essentially narrow the group of topics that I 

16 think are very important, set aside those that really 

17 should be addressed after leadership, maybe even put 

18 them in another subsection of the rule, but not make 

19 them a part of the initial conference because, 

20 frankly, the people that will be speaking at that 

21 time, if it's coordinating counsel, will really not 

22 have authority from the plaintiff's perspective. 

23 JUDGE JORDAN: So effectively, you would 

24 take the list of 12 and reduce it down to a list of 

25 about four or five subjects?
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1 MS. O'DELL: Correct.

2 JUDGE JORDAN: And eliminate a lot of these 

3 items that are listed?

4 MS. O'DELL: Or segregate the other issues 

5 to another subsection after leadership is appointed. 

6 I do think they're very important, all, it's just a 

7 matter of timing.

8 CHAIR ROSENBERG: Judge Proctor?

9 JUDGE PROCTOR: So the way we've drafted the 

10 proposed rule is that the parties are the meet and 

11 confer. And it strikes me that that may be the best 

12 opportunity for the transferee judge to hear from 

13 everyone on all these issues, because after 

14 appointment of -- there is going to be leadership 

15 counsel appointed after appointment of leadership,

16 it's not necessarily all the communications, but 

17 probably substantially most of the communications to 

18 the court on behalf of the plaintiff side would be 

19 through leadership or steering committee members. And 

20 so we were concerned with, well what happens with 

21 everyone else who isn't in leadership? It seems to me 

22 that preparing a report for the conference gives all 

23 the parties a chance to weigh in. 

24 And I think you referenced sometimes there's 

25 a difference in leadership about which theories to 
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1 pursue, how to sequence the litigation, all those 

2 things. If the court is waiting to hear those things 

3 from just a select -- the group the court selects, 

4 wouldn't that limit the court in terms of having a 

5 more fully orbed understanding of the different 

6 perspectives on the case?

7 MS. O'DELL: I think that the initial 

8 conference can be that opportunity, Judge Proctor, I 

9 agree. I think my pause and concern relates to 

10 coordinating counsel and sort of what that does, but 

11 the parties, I believe, could come together, create a 

12 report from the plaintiff's side and the defense side, 

13 and present that to the judge. And potentially they 

14 could hear -- the judge could hear from a number of 

15 parties on the plaintiff side and get a broader 

16 perspective. I would disagree with that. 

17 JUDGE PROCTOR: Yeah. Perhaps we need to be 

18 more clear in maybe the commentary, I'd be interested 

19 to hear what my colleagues and friends on the 

20 Committee think. But the idea was, it's hard to hear 

21 -- we want to hear all the voices, but it's hard to 

22 hear in organized presentation of all the voices.

23 Not surprisingly, the focus of this entire 

24 day has been on pharmaceutical or other mass tort 

25 cases. I want everyone to bear in mind, we're trying 
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1 to draft a rule for all MDLs. We weren't tasked with 

2 being the products liability MDL subcommittee, we were 

3 tasked with being the MDL subcommittee. So when you 

4 have, for example, dueling patent cases that come in,

5 it probably makes sense to have them walk through 

6 these issues and perhaps, the more that are unique to 

7 patent litigation. 

8 If we have an antitrust case that rolls in 

9 and there's, for example, in my situation, 90-some odd 

10 class actions filed around the country challenging the 

11 same or some Venn diagram of the same practices, how 

12 do you fashion a rule that lets the transferee court 

13 get a head start hearing from the parties and 

14 designing a litigation plan that's going to advance 

15 the Rule 1 purposes of the MDL?

16 So that's just my final thought is, I think 

17 we've been really focusing on, obviously, what is the 

18 largest number of cases on the MDL docket, but not the 

19 largest number of MDLs on the docket. 

20 MS. O'DELL: Understood, Judge. Thank you.

21 CHAIR ROSENBERG: Did you have a question?

22 PROF. MARCUS: Well, I think I want to 

23 follow up or say something along the lines that Judge 

24 Jordan was addressing. And we have heard repeatedly, 

25 and we asked for specifics about ill-founded, 
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1 unfounded, inappropriate, call it what you will claims 

2 that show up seemingly in large volume, just in 

3 absolute numbers, not perhaps as percentages. And 

4 also, just a personal note, I've never used Round-Up 

5 or Zantac to the best of my knowledge, but I've 

6 received several automated robo calls asking me if I 

7 have and telling me to push number one to speak to 

8 someone. So I've done that and I've gotten a person 

9 and I asked is this a law firm. And no, it isn't. 

10 We're a referral agency. 

11 Something we heard a long time ago, but 

12 haven't heard as much more recently, but maybe had 

13 discussed today is I thought some on the plaintiff 

14 side actually thought that getting the chaff out of 

15 the way early on would be beneficial to those with 

16 valid claims. And I'm wondering is the plaintiff side 

17 resistant to some kind of minimal showing up front? 

18 I don't think it necessarily has to adopt 

19 Rule 11 and take an off with your head approach, but 

20 is the plaintiff side really that reluctant? Are they 

21 all resistant to this sort of inquiry because I would 

22 think somebody who does what you do might be upset 

23 that somebody else waltzes in with 1,000 alleged 

24 claims that are just cluttering the landscape of your 

25 MDL.
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1 MS. O'DELL: You know, when you ask a 

2 question to speak for all plaintiffs lawyers for all 

3 times, there's no real right perspective on that.

4 PROF. MARCUS: Yes, I understand. 

5 MS. O'DELL: I don't know what some of my 

6 brothers or sisters would say about that issue. I 

7 will say for myself and what I believe to be the 

8 general consensus is that plaintiff's lawyers are not 

9 against an appropriate vetting of claims at an 

10 appropriate time. And I'm not saying years, I'm just 

11 saying not the day you file your case. I mean we're 

12 talking a matter of degree, there's not an -- there is 

13 not a firm belief that that's somehow improper.

14 That's appropriate. That's how cases are 

15 put forward. I will say there are concerns on the 

16 plaintiff side that relate to a process. It's onerous 

17 and really sucks the life out of the leadership team. 

18 I think secondly, there's concern on the plaintiff 

19 side that sometimes when it does come down to the 

20 settlement process, that there is an approach that 

21 deals with claim averages, and so they are concerned 

22 about only having pristine claims and somehow being 

23 disadvantaged at the settlement process. 

24 I don't necessarily share that view, but I 

25 think it requires discipline on the defense side to 
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1 only pay claims that are actually viable claims. And 

2 so, to answer your question, Professor, I mean, there 

3 isn't resistance on the plaintiff side to the concept 

4 or to it being early in the case, what we are 

5 resistant to is something that's so onerous in terms 

6 of timing and the amount of material that would need 

7 to be put forward.

8 CHAIR ROSENBERG: Judge Boal and then 

9 Ariana. 

10 JUDGE BOAL: I had a question about your 

11 comment that Section 12 should be eliminated and 

12 that's the part that talks about whether matter should 

13 be referred to magistrate judge or a master. I know 

14 some of the written submissions took issue with a 

15 master at this stage, but my question is focused on 

16 the reference to a magistrate judge. And I'm 

17 wondering why you think it might not be helpful at 

18 this stage for a reminder to both the parties and even 

19 the district judge, that use of a magistrate judge 

20 might be an efficient use in preliminary matters to 

21 expedite and help the parties resolve case issues?

22 MS. O'DELL: I agree that magistrates are 

23 extremely helpful. And so I wasn't commenting that 

24 that aspect of the proposed rule should be eliminated. 

25 What I was suggesting is it might not be right for 
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1 discussion in the initial conference, but that as to

2 -- as it reads whether matters should be referred and 

3 what matters, it not might not be -- the litigation 

4 might not be mature enough to understand what those 

5 matters are and when they should be referred.

6 That was my only comment. I definitely 

7 believe magistrates play a huge role and I appreciate 

8 all that they do to make the litigation reform.

9 MS. TADLER: So Ms. O'Dell, I'm going to 

10 pick up on Judge Proctor's last round with you when he 

11 was talking about the extent to which perhaps, given 

12 the fact that we use the word parties in that initial 

13 conference, do you have any thoughts, concerns about 

14 whether that initial conference might somehow go off 

15 the rails or become a bit of some chaos with lots of 

16 people popping up?

17 Do you have any concern about that? Or is 

18 it your sense that at that point in time before 

19 leadership is appointed, that's an appropriate time if 

20 somebody is representing clients, they should be 

21 heard?

22 MS. O'DELL: There's always concern that 

23 something could go off the rails, particularly at that 

24 early stage, but I do think it's an opportunity, 

25 particularly for those who are going to be in 
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1 leadership, those that are investing in their time and 

2 their energies or resources into a litigation, that 

3 they'll be a part of a process to, at least on the 

4 plaintiff side, make that as coordinated as possible. 

5 It certainly could. I think if I weighed my concerns, 

6 I have a little greater concern in and having a 

7 competition for coordinating counsel at the beginning 

8 of a case. And if it -- what my position is, I'd 

9 rather take that, put that to the side, let 

10 plaintiff's lawyers organize themselves for that 

11 presentation to the court. And it's in everyone's 

12 best interest that that be an appropriate, cogent 

13 presentation.

14 So I'd rather have that situation than have 

15 a situation where you've got coordinating counsel 

16 that's going to be appointed by the court and, all of 

17 a sudden, you have another sort of leadership 

18 competition round.

19 MS. TADLER: Thank you.

20 CHAIR ROSENBERG: Any more questions?

21 Andrew?

22 PROF. BRADT: Just to circle back on Judge 

23 Jordan's initial line of questioning and your 

24 discussion about fears the coordinating counsel might 

25 unfairly or inappropriately bind leadership. That 
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1 sounds somewhat similar to what we heard from your 

2 friend on the other side of the "v.", Mr. Beisner, 

3 earlier today about leadership counsel with respect to 

4 individually appointed attorneys. And so I wonder if 

5 you could speak to his argument about the potential 

6 problems with leadership counsel and why those are --

7 the arguments made coordinating counsel don't apply to 

8 leadership?

9 MS. O'DELL: You know, as I heard Mr. 

10 Beisner's argument, what I heard him saying is 

11 leadership does set the direction of the litigation; 

12 leadership does bind the party, the plaintiffs, if you 

13 will, on the direction. And he has a concern about 

14 that from an ethical standpoint. I don't share that 

15 concern because just because leadership is appointed 

16 and you have a plaintiff steering committee or a co17 lead counsel, doesn't mean you refuse to listen to 

18 counsel that are not appointed to leadership. I spend 

19 a tremendous amount of my time having forums for non20 leadership counsel to hear from them so they can have 

21 input into the process. 

22 They're invited to do work if they would 

23 like to, it's not just the plaintiff's steering 

24 committee. So I don't have that concern. I do think 

25 it's incumbent on leadership in carrying out their 
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1 duties in an effective way, to create a process where 

2 that happens, that we're communicating sort of 

3 outbound communication, but we're also hearing from 

4 them and we're also inviting them in. I think that's 

5 critical and that's why I'm not as concerned about 

6 what Mr. Beisner had to say.

7 CHAIR ROSENBERG: Joe?

8 MR. SELLERS: Since you were talking about 

9 leadership counsel, let me ask a different kind of 

10 question. I assume you heard earlier today, I think 

11 it was, again, Mr. Beisner's questions about the 

12 extent to which the appointment of leadership counsel 

13 might encroach on the relationships of the counsel for 

14 representing individual members of the of the MDL. 

15 Are there steps that are normally taken to address 

16 that, protect against it or is that a common problem?

17 MS. O'DELL: I don't view leadership as 

18 impinging on non-leadership counsel in their 

19 fundamental duties to their individual clients. I 

20 don't see that at all, you're still required to comply 

21 with all the court's orders. You still are 

22 responsible for recommending to your client, whether 

23 they -- for example, in terms of settlement, whether 

24 they accept a settlement or not, I mean there's not an 

25 interference with that individual client's lawyer and 
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1 their duty, and there shouldn't be.

2 Once a settlement is either accepted or 

3 rejected, it's up to the individual counsel to take 

4 the necessary steps for that client, so that's not 

5 something that I find to be a concern. And, frankly, 

6 it's sort of in the papers for this meeting was sort 

7 of a new concern, as I read about it. That's not 

8 something that I've seen be a problem. 

9 MR. SELLERS: So would you agree that one of 

10 the prerogatives of a court in and appointing 

11 leadership counsel might be to establish the 

12 boundaries of the responsibilities of the leadership 

13 counsel visa vie the individual client claimant 

14 counsel?

15 MS. O'DELL: I think the court often does 

16 that with the appointment order as to what the role is 

17 of leadership and what it's not, I think that's often 

18 very well defined. And it's focused on those common 

19 issues where you get economies of scale and 

20 efficiency, whether it be discovery, whether it be 

21 experts, whether it be some of the briefing that is 

22 involved. And very frankly, I think that if an 

23 individual lawyer representing clients is invited into 

24 the process, and you have leadership doing their job 

25 appropriately, it really works quite well and they're 
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1 happy to have some lawyers, particularly, some lawyers 

2 that are very skilled at certain areas, and they may 

3 not have that skill. And so it's a good synergistic 

4 relationship if it works correctly.

5 CHAIR ROSENBERG: Judge Lauck?

6 JUDGE LAUCK: So I don't want you to take 

7 time to answer this question if I'm only asking it 

8 because I'm a neophyte, we can speak later. I want to 

9 understand what the role of leadership counsel is now 

10 with respect to vetting cases. So what we're hearing 

11 from the other side is that we can get nine months 

12 into this or two years into it or five years into it, 

13 and we have these meritless cases. And what I hear 

14 you saying is that we just need a reasonable amount of 

15 time, so the other side is suggesting 30 days. You 

16 mentioned 30 or 60 or 90 days. And a gentleman 

17 speaking about a case earlier said they had a monthly 

18 status conference, during which they went through 

19 several cases and got rid of them. 

20 So if folks know exactly how this works, I'd 

21 like to know, but is it part of the role of leadership 

22 counsel to get rid of those cases? 

23 MS. O'DELL: It's not to get rid of them, 

24 but it's a great question. I mean what the focus of 

25 leadership counsel should be on discovering the case, 
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1 not only the liability, but there are aspects of 

2 liability discovery that impact on the causation case, 

3 what is a claim that should be put forward as part of 

4 the criteria of the of the MDL? And so these things 

5 are inextricably intertwined in many instances. And 

6 so leadership has the role of doing that discovery, 

7 particularly as it relates to causation. When we 

8 think about vetting, I'm thinking about causation, and 

9 then also developing experts for the general causation 

10 case that will really be bringing that evidence for 

11 the overall MDL. 

12 And so, from my perspective, our leadership 

13 group, we had that responsibility. We did those 

14 activities. We came to a conclusion about what was 

15 supported by the science and the liability in the 

16 particular case that I'm involved in --

17 JUDGE LAUCK: Can I interrupt you just a 

18 second because --

19 MS. O'DELL: Can I just say one really quick 

20 -- no, please, I'm sorry, Your Honor.

21 JUDGE LAUCK: You can finish about causation 

22 later. I understand the issue of causation. That is a 

23 longer term concern. What I'm talking about getting 

24 rid of obviously wouldn't be those cases that require 

25 some kind of discussion. I'm talking about the cases 
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1 that these folks are complaining about where they say 

2 they never had the prescription. They never took the 

3 drug and that isn't a causation issue. That's just a 

4 basic factual pleading foundation.

5 MS. O'DELL: Understood. 

6 JUDGE LAUCK: And so that's what I'm trying 

7 to ask you about.

8 MS. O'DELL: I'm sorry. I misunderstood. 

9 And that issue of whether they've used the product or 

10 they've been prescribed the drug, from a leadership 

11 standpoint, all I can do or other leaders can do is 

12 say this is what's required, you must have used this 

13 product, and there may be many products involved, and 

14 you must have this proof to establish it. That's the 

15 best I can do. And I have to communicate that loudly 

16 and often. And then it's incumbent upon that lawyer 

17 to work with their clients to establish that proof.

18 I'm sorry, I went to another place, but it's 

19 equally important in the vetting process. And that 

20 is, what's your injury? You know, there could be 

21 numerous injuries alleged, and, at some point, the 

22 leadership has to put forward what are the experts 

23 going to support? These injuries. And then that, it 

24 seems to me beyond that, if you had an injury that 

25 didn't fit within that criteria, then what would need 
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1 to happen is that individual lawyer would need to put 

2 up an expert to support that case, or there'd need to 

3 be a process for that case to be dismissed.

4 PROF. MARCUS: That would not mean it's a 

5 groundless case, it's just there's been learning since 

6 the case was filled.

7 MS. O'DELL: Absolutely not. There could be 

8 things learned in discovery, new science that's 

9 published. That's a totally different case. I just 

10 would be remiss if I didn't say this before I sat 

11 down, too, there was a lot of discussion about you 

12 can't find the client. You can't talk with them. You 

13 know, I represent ovarian cancer victims, and very 

14 frankly, a lot of my clients have died. Sometimes I 

15 might be able to reach them for a little while. 

16 There are a lot of very valid, credible 

17 reasons that there might be a breakdown in 

18 communications. And then, frankly, there are reasons 

19 that can't be justified, but you cannot put everything 

20 in the same bucket. And I think that's important.

21 CHAIR ROSENBERG: Thank you so much, Ms. 

22 O'Dell.

23 MS. O'DELL: Thank you, Judge.

24 CHAIR ROSENBERG: You fielded a lot of 

25 questions, so --
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1 MS. O'DELL: Thank you. My pleasure. Thank 

2 you.

3 CHAIR ROSENBERG: Thank you. So a couple of 

4 obvious points. We're not 3:30, at the adjournment 

5 time, just in case anyone hasn't checked their watch, 

6 it's 4:30. But I think we did pretty well, 

7 nevertheless, even though we skimped on lunch.

8 But this has been incredibly valuable. Now 

9 I know I asked a couple of you in the beginning 

10 whether you were going to still be here. It didn't 

11 mean we wanted to call you back up, but I did confer 

12 with a couple of our committee members and there may 

13 be a question or two that we do have. I am going to 

14 ask Mr. Dahl to come back up. That is the only person 

15 I have identified. I'd reiterate that Mr. Dahl, in 

16 his work on behalf of the LCJ, was referenced 

17 repeatedly by many, many, many other witnesses. And 

18 so that likely is one reason why he is being called 

19 back up now and he also came in the very beginning. 

20 So I think there is a question or two directed to him 

21 that we'd just like to conclude with.

22 So thank you for staying around, Mr. Dahl, 

23 for the duration of the day, as with all of the 

24 others. We so appreciate it. So Mr. Dahl, if you 

25 could come forward, and I'm just going to open it up. 
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1 I'll begin with Judge Jordan, if you have a question 

2 that wasn't previously asked, so we can hear that from 

3 Mr. Dahl. And then if anybody else has a question, 

4 please let me know. 

5 JUDGE JORDAN: Thanks. I'm going to ask you 

6 the better than nothing or worse than nothing 

7 question. As drafted, not as though you would have it 

8 in your ideal world, but as drafted, is Rule 16.1 --

9 well, A, is it a rule? Because you seem to have 

10 expressed some disagreement with that, and B, whether 

11 it's a rule or not, is it better than nothing? Or 

12 would you rather see nothing than this, on behalf of 

13 the LCJ?

14 MR. DAHL: Thank you, Judge. I appreciate 

15 the question and it's a little difficult to answer, 

16 but I'd say at very least, it's a close call. I think 

17 that as written, the utility, particularly on the

18 unvetted claim problem, is not where it needs to be 

19 and that some of the discussion -- in particular, some 

20 of the discussion in the notes is more likely to cause 

21 confusion than to clarify.

22 JUDGE JORDAN: But I'm going to push you, 

23 right? I'm asking you, like if you say I just can't 

24 answer it, I'll accept that. But this is like an on25 off switch, not a rheostat. If it was up to you, 
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1 would you say look, this isn't what I want, but it's 

2 better than nothing and I can build on it? Or would 

3 you say this is actually going to cause more trouble 

4 than it's going to be a benefit? We shouldn't do this 

5 at all and it should be back to the drawing board 

6 completely or forget it, just do best practices?

7 MR. DAHL: Oh, I thought I was going to be 

8 to answer until you changed the question like that. 

9 If it's a stark question of something or nothing, I 

10 just think that's different. I very much believe that 

11 there needs to be further definition in the rules. 

12 And that the committee should go forward and write 

13 better rule and it's very important to do that. But 

14 if you asked me today --

15 JUDGE JORDAN: Yes, go ahead. If you're 

16 getting to the yes or no, that's what I'm waiting for.

17 MR. DAHL: All right. I mean I didn't want 

18 you to push me like this, but since you did, I would 

19 probably say no, that as written, it's not going to 

20 provide more clarity than problems.

21 CHAIR ROSENBERG: Any other questions? I'll 

22 just ask one question. I asked it of a couple of the 

23 witnesses, the addition to the notes -- well, no, let 

24 me ask the question first. Do you think that there is 

25 confusion in the bar as to whether the rules of 
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1 procedure apply in MDLs? 

2 MR. DAHL: Yes. 

3 CHAIR ROSENBERG: There's confusion?

4 MR. DAHL: Yes. 

5 CHAIR ROSENBERG: Some people think they 

6 don't apply? I'm not saying that they actually --

7 what happens in practice, but is there actually 

8 confusion as to whether Rule 8 applies to what you do 

9 in a Rule 12 in an MDL?

10 MR. DAHL: Yes. And I think that, you know, 

11 I didn't invent the phrase MDL exception, I heard 

12 that. And I think people have used it. And I think 

13 there is some sense that MDLs are so much different, 

14 that the rules don't apply. But let me give this a 

15 huge asterisk. If pushed, probably people would say 

16 the rules do apply, but what we're trying to engage 

17 with and where we think the Committee is in solving 

18 this problem, there are some rules that work in non19 MDL cases that don't seem to be working in MDL cases.

20 Why is that? What is the difference? And 

21 can there be a different rule definition or rule 

22 framework that brings those same principles that 

23 already exist in the rules for other cases into the 

24 MDL context? That's the basis of our proposals, 

25 particularly on the claims efficiency issue. 
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1 CHAIR ROSENBERG: Do you think that some of 

2 the comments that Mr. Halperin made about

3 adding to the notes to make clear that -- I think he 

4 was the one and some of the others that Rule 8, and 

5 this was also raised, I think, by others, but that 

6 that Rule 8 applies, that Rule 9(b) applies, that Rule 

7 11 applies. In other words, whether it's the master 

8 or the short form or the combination of the two, does 

9 that -- would that help? Would that clarify that the 

10 rules of procedure are alive and well and they apply? 

11 And oh, by the way, so does Rule 12 and motions to 

12 dismiss, to make clear what maybe some think is not 

13 clear?

14 MR. DAHL: Yes.

15 CHAIR ROSENBERG: Would that help in terms 

16 of that gate-keeping, that sending the message out to 

17 those potential frivolous filers, beware, don't file 

18 if you don't have a Rule 8 claim? 

19 MR. DAHL: Yes. 

20 CHAIR ROSENBERG: Would that send a message 

21 to the defense that you've got that Rule 12 capability 

22 to seek dismissal? 

23 MR. DAHL: Yes. I think all of that would 

24 be very helpful.

25 CHAIR ROSENBERG: So with that modification 
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1 to a note, hypothetically, would you answer Judge 

2 Jordan's question differently?

3 MR. DAHL: Yes. The reason I didn't want to 

4 answer directly is that I think that there is a lot of 

5 good things in the rule, in the draft, and that it can 

6 be easily edited to change my answer and to be a rule 

7 that provides much more clarity than unintended 

8 consequences. And that is a very important principle 

9 that I think would help a great deal.

10 CHAIR ROSENBERG: Thank you. Any other 

11 questions? Okay. Thank you, Mr. Dahl. We appreciate 

12 you coming back up.

13 Well, on behalf of all of us, and for those 

14 of you who have stayed with us throughout the day, and 

15 those of you who are appearing remotely and anyone 

16 else who will ultimately read the transcript and read 

17 the next agenda book where some of this will be 

18 published, as you know, we have two more sets of 

19 hearings, but this was the first. And, as of right 

20 now, this was the only one scheduled in-person.

21 So this was highly important for us, and I 

22 want all of you to know how much we appreciate the 

23 time that you put in, just as all of us put in time, 

24 time away from what we do day-to-day, so have you, not 

25 just appearing here today, but all of the comments 
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1 that you have submitted. But not just the comments 

2 for today because most of you have been meeting with 

3 us for five years. So we really appreciate it, and to 

4 the extent that any question appeared as if we weren't 

5 listening, or we were pushing back, or minds were made 

6 up, that is absolutely not the case.

7 We're just all so invested in this and we 

8 want to get it right. And so it's a collaborative 

9 process that we couldn't do without you. So thank you 

10 for helping us start this notice and comment period 

11 off on such a -- what I think is a successful note, a 

12 helpful note, and we really appreciate it. So I think 

13 without anything further, that does conclude our 

14 hearing for today.

15 (Whereupon, at 4:40 p.m., the meeting in the 

16 above-entitled matter was adjourned.)

17 //

18 //

19 //

20 //

21 //

22 //

23 //

24 //

25 //
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REPORTER'S CERTIFICATE

DOCKET NO.: N/A

CASE TITLE: Proposed Amendments to the

Federal Rules of Civil Procedure

HEARING DATE: October 16, 2023

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: October 30, 2023

Angela Brown

Official Reporter

Heritage Reporting Corporation

Suite 206

1220 L Street, N.W.

Washington, D.C. 20005-4018