TRANSCRIPT OF PROCEEDINGS

HERITAGE REPORTING CORPORATION

Official Reporters

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Washington, D.C. 20005

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IN THE MATTER OF: )

 )

HEARING OF THE ADVISORY )

COMMITTEE ON CIVIL RULES )

 )

Pages: 1 through 294

Place: Washington, D.C.

Date: February 6, 2024
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 ADMINISTRATIVE OFFICE OF THE U.S. COURTS 

IN THE MATTER OF: ) 

 ) 

HEARING OF THE ADVISORY ) 

COMMITTEE ON CIVIL RULES ) 

 ) 

Suite 206 

Heritage Reporting 

Corporation 

1220 L Street, N.W. 

Washington, D.C. 

Tuesday, 

February 6, 2024 

The parties met remotely, pursuant to the notice, 

at 9:30 a.m. 

COMMITTEE MEMBERS AND STAFF: 

HON. ROBIN L. ROSENBERG, Committee Chair 

PROF. RICHARD L. MARCUS, Committee Reporter 

PROF. ANDREW D. BRADT, Committee Associate 

 Reporter 

PROF. EDWARD H. COOPER, Consultant 

HON. CATHY BISSOON 

HON. JANE BLAND 

HON. JENNIFER C. BOAL 

DAVID J. BURMAN, ESQ. 

ALLISON A. BRUFF, ESQ. 

PROF. ZACHARY CLOPTON 

HON. DAVID C. GODBEY 

HON. KENT A. JORDAN 

HON M. HANNAH LAUCK 

HON. R. DAVID PROCTOR 

JOSEPH M. SELLERS, ESQ. 

HON. MANISH S. SHAH 

CARMELITA R. SHINN, ESQ. 

ARIANA J. TADLER, ESQ. 
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HELEN E. WITT, ESQ. 

WITNESSES TESTIFYING: 

KELLY HYMAN 

SETH CARROLL 

BILL ROSSBACH 

BRIAN CLARK 

JONATHAN ORENT 

ANDRE MAURA 

REBECCA PHILLIPS 

JESSICA GLITZ 

ELLEN RELKIN 

JENNIE LEE ANDERSON 

AMY ZEMAN 

ADAM POLK 

ASHLEIGH RASO 

KATE BAXTER-KAUF 

SETH KATZ 

DIMITRI DUBE 

ADAM EVANS 

ROGER MANDEL 

LAUREN BARNES 

ANTHONY MOSQUERA 

KELLIE LERNER 

ROBERT LEVY 

AARON MARKS 

PEARL ROBERTSON 

DAVID COONER 

WILLIAM CASH 

MAX HEERMAN 

MARIA SALACUSE 

AMBER SCHUBERT 

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

2 (9:30 a.m.) 

3 CHAIR ROSENBERG: Okay. Well, welcome, 

4 everyone, and thank you to all of our Committee 

5 members, our witnesses, and our observers who are 

6 joining us on Teams for this public hearing on the 

7 proposed amendments to the Federal Rules of Civil 

8 Procedure. 

9 The current published proposals out for 

10 comment include the privilege log amendments, Rules 16 

11 and 26, and the proposed new rule on MDL proceedings, 

12 Rule 16.1. Today’s hearing is the last of three 

13 hearings on these proposals. 

14 So far, the Committee has heard from 50 

15 witnesses across the first two hearings, and at 

16 today’s hearing, we will hear from approximately 32 

17 witnesses. 

18 We appreciate all of you who have already 

19 testified or submitted public comments and those who 

20 plan to do so before the end of the public comment 

21 period on February 16. Your input is a vital part of 

22 the rulemaking process. 

23 Today’s witnesses, we want to thank you and 

24 look forward to hearing your testimony. Each witness 

25 today will have 10 minutes. We ask that you keep your 
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1 introductory remarks to three to four minutes so that 

2 the Committee members have ample opportunity to ask 

3 questions. We ask that you conclude all comments 

4 within 10 minutes so that we may continue with the 

5 next witness. Allison Bruff, counsel to the Civil 

6 Rules Committee, and I will be keeping time and will 

7 remind witnesses as needed.

8 Finally, please note that the times on the 

9 schedule are approximate and will be adjusted as 

10 needed. 

11 For the witnesses, if you would leave your 

12 video off and your microphones muted until you are 

13 called on to make your formal presentation. And for 

14 Committee members, we welcome Committee members to 

15 have their videos on throughout the hearing if desired 

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

17 ask that you use the Raise Hand feature or physically 

18 raise your hand in the video frame to indicate a 

19 desire to comment or ask questions. 

20 This hearing is being recorded and a 

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

22 Court website. If you do get disconnected, use the 

23 original Teams link to rejoin or use the conference 

24 bridge number located at the bottom of the meeting 

25 invite to join by phone.
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1 Lastly, I want to clarify something I said 

2 at the last hearing on January 16. I believe I 

3 mentioned that the stylists had reviewed the notes to 

4 16.1. I want to clarify that the stylists have 

5 reviewed the proposed Rule 16.1 but not the notes. 

6 So, with that, if we could begin with our 

7 first witness, Kelly Hyman, who will speak to us about 

8 Rule l6.1. 

9 So, Ms. Hyman, you should feel free to turn 

10 your video on and commence your testimony. 

11 MS. HYMAN: Thank you, Your Honor. Good 

12 morning. Thank you for the opportunity to address 

13 this Committee. My name is Kelly Hyman and I am the 

14 founder and managing partner of the Hyman Law Firm, 

15 P.A. I’ve been licensed to practice law over 19 

16 years, with the last 10 years focusing on representing 

17 plaintiffs in mass torts and class actions. I have 

18 represented clients in regards to class actions 

19 involving data breaches and privacy violations against 

20 some of the largest tech companies, including 

21 Facebook, Inc., and Google, LLC.

22 Additionally, I have represented clients in 

23 mass tort litigation, hundreds of claimants in 

24 individual actions filed in federal court involving 

25 transvaginal mesh and bladder slings. I speak to you 
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1 today to provide my perspective as a solo plaintiff2 side practitioner in mass torts and class actions and 

3 to offer comments on the proposed Rule 16.1 

4 multidistrict litigation.

5 While this rule could be helpful to the 

6 courts in clarifying initial objections of parties, as 

7 it stands, the current draft will result in creating 

8 redundancies and potential even more complications 

9 with expenses in the initial formation of the MDL. 

10 The inclusion of the provision for appointment of 

11 coordinated counsel raises concerns to practitioners 

12 like me because the proposal rule text and Committee 

13 notes as written doesn’t provide clear criteria for 

14 who should be selected for this rule. Rather, the 

15 Committee notes provides that the performance in the 

16 role may support consideration of coordinated counsel 

17 for a leadership position. So, without clear 

18 guidance, otherwise, courts maybe appoint the repeat 

19 players, people from big firms, and so small 

20 practitioners and solo firms will not potentially have 

21 the same leadership opportunities. 

22 Moreover, the current draft does not require 

23 the court to appoint a lawyer with a stake in the 

24 litigation to the coordinated counsel position, which 

25 may indicate that the court should treat the role as a 
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1 special master. This doesn’t favor efficiency or cost 

2 consciousness. Each MDL is different: distinct, 

3 complex claims, injuries, products, and parties 

4 involved. Thus, a neutral appointee may be subject to 

5 a steep learning curve and associated with costs and 

6 time could dilute the ultimate compensation available 

7 to the plaintiffs. 

8 I’m also in agreement with the testimony of 

9 Attorney Jose Rojas, who testified on January 16, 

10 2024. I support his proposal change to 16.1, which 

11 allows broadening the Leadership Committee in an 

12 effort to better represent the interests of the entire 

13 client pool and to serve to educate and empower trial 

14 lawyers who care deeply about the litigation outcome, 

15 as well as its procedure.

16 Rather than rely on repeat players from 

17 large firms, it’s in the best interest of all parties 

18 to consider attorneys familiar with the litigation 

19 from smaller firms who could bring practical 

20 experience and real-world insight in the position. 

21 In summary, the discretionary appointment of 

22 the coordinated counsel limits diversification of 

23 practitioners with specialized interests and 

24 experience in the litigation to assume leadership 

25 role. Unless the language is amended to specify the 
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1 distinction between coordinated counsel and the 

2 criteria for the leadership role in the litigation, my 

3 recommendation would be to eliminate this section of 

4 the rule completely as it unnecessarily leads to more 

5 questions and potential conflicts of interest for all 

6 involved.

7 I want to thank the Committee for the 

8 opportunity to speak to you today. 

9 CHAIR ROSENBERG: Okay. Thank you so much, 

10 Ms. Hyman. I’m actually going to ask a question and 

11 then turn it over to our Committee members and 

12 reporters.

13 I’m understanding your testimony to be that 

14 you are recommending to the Committee that the 

15 provision relating to coordinated 

16 counsel -- coordinating counsel is removed. The 

17 Manual for Complex Litigation makes reference to a

18 liaison counsel. What is your view, for example, 

19 hypothetically, if this was referred to as a liaison 

20 counsel and consistent with references in the Manual 

21 for Complex Litigation, which speaks to sort of 

22 administrative duties that the liaison counsel plays 

23 in assisting the court in whatever area the liaison 

24 counsel is appointed? In this instance, it would be 

25 in getting things coordinated to prepare for that 
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1 initial conference. Do you have any thoughts on that?

2 MS. HYMAN: I know, in litigation, they do 

3 have a liaison counsel for the case as well, but then 

4 I go back to my initial thoughts in regards to that of 

5 whether it’s -- is that going to be the liaison 

6 counsel, someone just the court picks, you know, 

7 generally as well if that’s going to be a switch-out 

8 for that and that’s going to do that, is there going 

9 to be more kind of guidance. So just more general 

10 questions about what -- you know, is that going to go 

11 right in the beginning of the litigation that they’re 

12 going to, you know, pick instead of using the 

13 coordinated counsel, have the liaison counsel that way 

14 as well. So that would be my only question or just 

15 basically stick with the liaison counsel, you know, as 

16 it is and currently used. 

17 CHAIR ROSENBERG: In your experience, do 

18 plaintiffs’ counsel generally self-organize prior to 

19 the initial conference such that any kind of counsel, 

20 liaison counsel, coordinating counsel, or whatever you 

21 want to call it, is universally unnecessary? 

22 MS. HYMAN: Your Honor, it depends on the 

23 different type of litigations. You know, it may vary. 

24 In some litigations, there’s multiple slates in it as 

25 well. In some litigations, the plaintiffs will get 
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1 together and have a recommendation for liaison 

2 counsel. It just depends on the different type of, 

3 you know, mass tort or class action. Sometimes I’ve, 

4 you know, seen it happen, and other times there’s 

5 competing slates that go before, you know, the court 

6 as well. 

7 CHAIR ROSENBERG: Okay. And then, lastly, 

8 before I turn it over, you place some emphasis on as a 

9 solo practitioner and repeat players and ensuring a 

10 broad pool of potential applicants or candidates for a 

11 leadership position. What are your thoughts on the 

12 notes to the Rule 16.1(c)(1) and (c)(2), various ways 

13 in which leadership counsel can be appointed and 

14 various things, criteria that transferee judges may 

15 want to take into account in appointing leadership 

16 counsel that is, from the plaintiffs' perspective 

17 reasonably and fairly representing plaintiffs, 

18 experience, skill, knowledge, geographical 

19 distributions and so forth? Do you think that that 

20 addresses that point that you made in reference to 

21 your colleague who made that at a prior hearing in 

22 terms of the broadening and diversity, if you will, of 

23 leadership pools? 

24 MS. HYMAN: I think that it lists some, you 

25 know, important, you know, factors in it as well, but 
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1 I support Mr. Rojas’s, you know, comment about 

2 considering people with the smaller firms and the 

3 practitioners that work on the litigation as well and 

4 to take that into account and start with, as him, 

5 starting on the litigation from the, you know, 

6 beginning. 

7 CHAIR ROSENBERG: Okay. Thank you.

8 So it looks like we have Joe Sellers and 

9 Helen Witt. So Joe, then Helen.

10 MR. SELLERS: Good morning, Ms. Hyman, thank 

11 you for your very thoughtful comments.

12 I’m curious if I can tease out from what 

13 you’ve said whether your concern about the 

14 coordinating counsel is prompted by the lack of a need 

15 for coordinating counsel or the importance of ensuring 

16 that any selection of coordinating counsel take into 

17 account the kind of additional factors that you’ve 

18 identified to ensure it has a fully representative 

19 group of people for whom the coordinating counsel are 

20 selected. 

21 MS. HYMAN: I think the vagueness of the 

22 coordinating counsel, I don’t for clarity understand 

23 if that’s going to be someone who’s a special master; 

24 is that someone that has, you know, worked on the 

25 litigation, is that someone that the court is just 
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1 going to, you know, pick as well, someone that’s, you 

2 know, worked on the litigation. So, because it’s just 

3 so broad, that’s my thought to eliminate it because it 

4 doesn’t really explain, you know, who that role is or 

5 what that role entails. And I worry about it being a 

6 special master and the cost and expense in the 

7 litigation and the special master, you know, getting 

8 up to speed on the litigation and not knowing as well 

9 and, you know, a learning curve or someone that wasn’t 

10 involved in the litigation and learning litigation as 

11 well and then is not involved in litigation or develop 

12 the litigation, depending on who this coordinated 

13 counsel is. 

14 MR. SELLERS: So can I just follow up with a 

15 follow-up question? As I understood it, the purpose 

16 of the coordinating counsel was, given the importance 

17 of addressing these issues as early as possible, 

18 rather than letting a transfer case linger for a while 

19 without any real guidance and direction, my 

20 understanding was it would be -- and maybe we haven’t 

21 said it as clearly as we should -- that it would be 

22 drawn from among the counsel, not a special master, 

23 and that it would be a very preliminary kind of 

24 organizing function that otherwise may be very 

25 difficult for a court to determine who should have 
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1 some responsibility for helping to get this case 

2 organized from at least the plaintiffs' side.

3 So I just -- that may or may not address 

4 your concerns, but I just want to explain my notion of 

5 what this involved. 

6 MS. HYMAN: I understand that and I 

7 appreciate that. And I guess my initial instinct was 

8 instead of it lingering to, you know, set up a hearing 

9 right away on the litigation. And then it makes me 

10 ask more questions: how is the judge going to 

11 determine who they assign; you know, is it going to go 

12 back to the repeat players that, you know, looking at 

13 the people, oh, I know this person or I, you know, 

14 know this firm, that’s -- you know, how is it going to 

15 be decided, how is it going to be, you know, fair.

16 MR. SELLERS: Okay. Thank you. 

17 CHAIR ROSENBERG: Helen, then Ariana. 

18 MS. WITT: I think -- yeah. Good morning. 

19 I think you largely answered my question with 

20 Joe’s -- answers to Joe’s question, but just to make 

21 clear that I’m understanding, it sounds like you’re 

22 more concerned about the lack of specificity with 

23 respect to the coordinating counsel role rather than 

24 really a concern about lack of criteria in the 

25 comments for that selection. In other words, if the 
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1 role of the person was clearer in your mind, a list of 

2 criteria would not be as important.

3 MS. HYMAN: Well, I guess I’m just also 

4 concerned as, you know, I am a solo practitioner of 

5 how that’s going to be decided. You know, is it just 

6 like going back to the repeat players? Is it going to 

7 be, you know, everyone that -- how does the judge make 

8 a determination, just, you know, looking at the 

9 complaints filed and then do it on that, or is it 

10 going to be like, oh, now you have to apply for, you 

11 know, apply for something as well and that, you know, 

12 creates more of a delay in the litigation and more of 

13 a potential, you know, expense as well? How is that 

14 going to be determined? So, you know, that’s another 

15 concern as well just because, in my opinion, it’s 

16 very, very vague and I think that solo practitioners 

17 are going to have a hard time or small firms getting 

18 an opportunity to be the coordinating counsel. 

19 MS. WITT: Thank you. 

20 MS. TADLER: Good morning, Kelly. How are 

21 you? 

22 MS. HYMAN: I’m doing well. How are you?

23 MS. TADLER: I’m good, thank you. So I 

24 wanted to come back to a question that Judge Rosenberg 

25 posed to you about whether you would have less of a 
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1 concern or feel more comfortable with the concept of a 

2 liaison counsel in contrast to this coordinating 

3 counsel, and I have a more pointed question under that 

4 subject, which is, in your experience, is there 

5 already a liaison counsel often chosen by virtue of 

6 the jurisdiction, the specific court, where it’s more 

7 like a local counsel that’s appointed in that capacity 

8 such that do you feel like if we did liaison, there’s 

9 going to be some conflation of this local presence 

10 versus somebody who’s playing the role of what’s being 

11 conceptualized under the coordinating counsel 

12 terminology that we’re using now? 

13 MS. HYMAN: Yes, that’s a really good point. 

14 Yes. Generally, I’ve seen, whether a mass tort is in, 

15 say, you know, Pittsburgh, that the liaison counsel 

16 is, you know, from that area and selected to have that 

17 position. 

18 MS. TADLER: And do those -- I mean, I’m 

19 wondering whether, if you are in a particular 

20 jurisdiction, is it not helpful to have them as a 

21 liaison, coordinating counsel, whatever we call this 

22 person or people or firm, is that not helpful because 

23 they’re familiar with the rules of the court, the 

24 practices of the court, and to get things kind of 

25 launched at the get-go, to keep things moving along 
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1 until a greater set of appointments are made, or do 

2 you have concerns about that consistent with what 

3 you’ve articulated insofar as, you know, the solo or 

4 the smaller firm practitioner not perhaps having the 

5 opportunity to play a material role? 

6 MS. HYMAN: It is concerning from the 

7 standpoint of a, you know, solo practitioner, you 

8 know, of having an opportunity to do that, but I’ve 

9 seen in other cases the liaison is usually from that 

10 jurisdiction and is familiar with the procedures of 

11 the court itself. 

12 MS. TADLER: Thank you. Appreciate it. 

13 CHAIR ROSENBERG: Okay. I don’t see any 

14 other hands and I think we exhausted our 10 minutes 

15 with you, Ms. Hyman, so thank you for being the first 

16 witness and taking the heat. Good to see you. 

17 MS. HYMAN: Good to see you, Your Honor. 

18 Thank you so much for your time. 

19 CHAIR ROSENBERG: Okay. So our next witness 

20 is Seth Carroll on privilege logs.

21 MR. CARROLL: Good morning. Thank you. My 

22 name is Seth Carroll. I am a plaintiff civil rights 

23 lawyer in a relatively small plaintiffs firm in 

24 Richmond, Virginia. My civil rights practice focuses 

25 primarily on police misconduct cases and cases 
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1 involving correctional, constitutional violations. 

2 The majority of my practice is in federal 

3 court, and I offer testimony today in support of the 

4 proposed privilege log amendments to Rule 16 and 26. 

5 In my experience, privilege logs are an important part 

6 of the discovery process, particularly from the 

7 prospective of a smaller plaintiff lawyer firm, where 

8 often we perceive an imbalance in resources and we are 

9 typically not the ones in possession of a large amount 

10 of information, and so it is important for us to be 

11 able to identify and address privilege concerns that 

12 may exist within documents on the other side. 

13 Because of the nature of my practice, I find 

14 that we have widely variant discovery practices. Some 

15 cases involving single excessive force claim against a 

16 single officer may have a relatively small discovery 

17 burden and a relatively few, if any, significant 

18 privilege claims, cases involving conditions of 

19 confinement, for instance, that may implicate multiple 

20 municipalities, private contractors, obviously, 

21 certain government privilege concerns, and then 

22 individual healthcare providers and deputies obviously 

23 implicate a much broader discovery practice and many, 

24 many more privilege concerns.

25 And so it is important, I think, for the 
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1 rule to apply not only in sort of complex situations 

2 but to also have general applicability to the more 

3 routine cases in my experience, and I believe that the 

4 proposed rule does that.

5 Given the fact that the complexity of the 

6 proposed amendments here are not quite as extensive as 

7 they are in Rule 16.1, I do not want to waste a ton of 

8 time on opening comments, and, therefore, I will end 

9 those now and welcome any questions that you all may 

10 have. 

11 CHAIR ROSENBERG: Well, thank you. No, it’s 

12 never a waste of time. And if you just want to like 

13 pass over some of those nice comments to 16.1, you can 

14 do that too. 

15 MR. CARROLL: Well, I just realized in 

16 listening to the first witness that I’m glad I don’t 

17 have to offer any comments at some point to that. 

18 CHAIR ROSENBERG: Okay. So let me see. I 

19 don’t see any raised hands, but -- okay, I do 

20 actually. Judge Boal.

21 JUDGE BOAL: Yes. Thank you for your 

22 comments and your written submission. I had a 

23 question about the tiered logging. What do you mean 

24 by "tiered logging" and have you had experience with 

25 that and if you could tell us a little bit about that. 
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1 MR. CARROLL: I personally have not had any 

2 specific experience with tiered logging in my 

3 practice. 

4 (Timer noise.)

5 MR. CARROLL: I’m sorry. That was my timer 

6 to be brief. I understand that a tiered proposal -- a 

7 proposal for tiered logging has been -- there’s been a 

8 proposal that that be included within the comments in 

9 the rule. And this idea of categorical or tiered 

10 logging sort of goes hand in hand in my understanding. 

11 So my understanding of a tiered logging system would 

12 be one that starts with a more sort of general 

13 explanation of the potential privilege claims that 

14 would then allow opportunity for more specificity to 

15 sort of drill down within those categorical privilege 

16 log disclosures.

17 I think that there certainly are cases in 

18 which categorical, tiered and I know that the comments 

19 presently do include references to rolling logs are 

20 appropriate, particularly in complex cases involving 

21 lots of documents. However, I think that leaving 

22 those issues to the way the rule is currently written 

23 really allows the parties in Rule 26 to examine the 

24 parameters of what might be necessary with the 

25 particular document universe that exists and what type 
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1 of privilege claims are expected. And I think 

2 allowing that flexibility really promotes efficiency 

3 in the judicial process versus having the more 

4 specific references that are created to those sorts of 

5 things and that sort of give an anchor point for the 

6 idea that categorical logs or tiered logging might be 

7 implicitly something that all parties should 

8 participate in from the outset of the discovery 

9 process I think would create more problems with 

10 needing judicial intervention versus a more broadly 

11 applicable rule where the parties could discuss 

12 whether or not they felt like categorical, tiered, or 

13 rolling logs might be an appropriate need for the 

14 circumstances of that case and then, with judicial 

15 input in the Rule 16 conference and afterwards, can 

16 move that forward in the discovery process rather than 

17 trying to have to kind of get the toothpaste back in 

18 the tube with having those sort of concepts as a 

19 starting point. 

20 I don’t see the need for those things in the 

21 vast majority of my smaller civil rights cases. 

22 There’s just no specific burden I think in the vast 

23 majority of those cases. I mentioned in the testimony 

24 Monell claims involve usually a much larger historical 

25 discovery practice. But, in an individual case or a 
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1 case involving relatively few actors in the civil 

2 rights arena, my concern would be that categorical 

3 logging or tiered logging could be used as a way to 

4 really prevent individual litigants from understanding 

5 exactly what documents there might be. When dealing 

6 with government entities, correctional institutions, 

7 and law enforcement agencies, there are already a lot 

8 of impediments to gathering information and there are 

9 legitimate security concerns, deliberative process 

10 concerns, and governmental interests in protecting 

11 certain information in those cases, and I understand 

12 that, but having a baseline of logging where it may be 

13 difficult to understand exactly what documents there 

14 may be would really pose a problem, I think, in many 

15 of the cases in allowing us to understand how to 

16 potentially challenge those claims of privilege. 

17 JUDGE BOAL: Thank you.

18 CHAIR ROSENBERG: Rick?

19 PROFESSOR MARCUS: Thank you very much, Mr. 

20 Carroll. I wonder if you could educate us a little 

21 bit more about the kinds of privilege issues you 

22 encounter. Frankly, I’d say most of the people who 

23 have spoken to us have been maybe in commercial 

24 litigation focused on the attorney/client work product 

25 privileges. I suspect your cases involve other 
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1 privileges, and I wonder how you go about addressing 

2 that in privilege log and discovery of documents terms 

3 because, at least for myself, I don’t know enough 

4 about that and you can teach us. 

5 MR. CARROLL: Yes, thank you very much. 

6 We see a variety of claims that are made and 

7 some of those aren’t necessarily traditional privilege 

8 claims, I would think, that might be specifically 

9 contemplated by the rule, you know, outside of work 

10 product claims and attorney/client privilege claims, 

11 which everybody sees, I think. 

12 We also see claims involving the joint 

13 defense privilege. That might occur when you have a 

14 municipality who owns a correctional facility. They 

15 have in our state a state constitutional officer, like 

16 a sheriff, running the correctional facility and then 

17 private contractors within that facility, all who have 

18 varying interests and aren’t acting in concert with 

19 each other, but all have an interest in protecting 

20 information, and so they may claim a joint defense 

21 privilege in some instances if they have communicated 

22 with each other about certain aspects of the 

23 underlying facts of the litigation.

24 We also see a lot of self-evaluative 

25 privilege claims, particularly with correctional 
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1 medical providers who then attempt to shield root 

2 cause analysis investigations and other sort of 

3 quality assurance investigations from discovery on 

4 claims that they are evaluating themselves and 

5 therefore shouldn’t have to disclose that information.

6 The problem is, in a correctional setting, 

7 there’s relatively unilateral access to information 

8 from those entities that are within the setting. So 

9 correctional medical providers, those operating the 

10 jail, they already have a lot of protection from that 

11 information. It’s literally sort of imprisoned within 

12 the correctional facility, and it’s very difficult for 

13 us sometimes to understand the full scope of what 

14 happened without access to certain information. 

15 Certainly, there is legitimacy in self-evaluative 

16 privilege claims and quality assurance claims, but 

17 couching large, broad categories of documents under 

18 that umbrella presents problems for individual 

19 litigants in the discovery process.

20 And then we also see, you know, claims of 

21 security breach related to law enforcement procedures 

22 and correctional procedures and systems, which are a 

23 little bit different than traditional privilege claims 

24 but often are legitimate claims about disclosing 

25 information that may compromise some sort of law 
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1 enforcement practice or correctional security aspect, 

2 and we need to know what the documents are within 

3 those claims in order to determine which of those 

4 documents might need to be subject to a protective 

5 order or which ones might not be discoverable at all 

6 under certain circumstances.

7 CHAIR ROSENBERG: Okay. Thank you so much. 

8 MR. CARROLL: Thank you. 

9 CHAIR ROSENBERG: Seeing no other questions, 

10 we really appreciate it, Mr. Carroll. 

11 MR. CARROLL: Thank you. 

12 CHAIR ROSENBERG: Thank you, Mr. Carroll.

13 And next we’ll hear from Brian Clark, also 

14 on -- no, I’m sorry. No, no. Bill Rossbach on 

15 privilege logs.

16 MR. ROSSBACH: Hello. Thank you very much. 

17 I think I’m on screen now. Again, thank you very much 

18 for giving me the opportunity. 

19 My credentials are largely spelled out in my 

20 letter. Since law school, I’ve worked in a firm I 

21 founded that never had more than four lawyers. For 

22 the first half of my practice, our practice involved 

23 only single or several plaintiff science-based cases, 

24 medical negligence, automobile defect, toxic torts.

25 About 35 years ago, I was elected to several 
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1 national organizations to leadership in those 

2 organizations and I became more involved in national 

3 cases. As a result of those connections, and I’ve had 

4 now experience in a number of very large cases, the 

5 Exxon Valdez oil spill, a Colorado pollution case 

6 involving 5- or 600 families, 20 chlorine tank car 

7 derailment, diet drugs, and most recently I’ve been 

8 litigating on behalf of various attorney generals in 

9 pharmaceutical cases, such as opioids.

10 My role has always been as a science guy in 

11 these larger cases, and so I have not had the role of 

12 doing battle that I watched my colleagues do. But my 

13 experience is is that there are huge -- these huge 

14 resource commitments in these cases with privilege log 

15 disputes -- excuse me a second. I’m blocking 

16 my -- there. That these discovery disputes over 

17 privilege, when they are not dealt with initially, 

18 lead to literally years of disputes. In the Vioxx 

19 case, I think it took, I don’t know, seven or eight 

20 years before we even got remanded and it was largely 

21 disputes about 18 million documents and went back and 

22 forth to the Fifth Circuit.

23 So even with the evolution of my practice, 

24 I’ve also remained a small firm with significant 

25 individual cases that often involve large volumes of 
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1 internal corporate documents.

2 So, for my personal perspective, handling 

3 the document side of these cases, the resource 

4 asymmetry that Mr. Carroll mentioned where the 

5 resources are on the side of the corporate defendant, 

6 small firms trying to do battle over thousands of 

7 documents, has been a very serious problem.

8 So particularly with when single -- when you 

9 have single issue -- single plaintiff cases, you 

10 generally have short trial dates, short discovery 

11 deadlines, fixed trial dates, and delayed privilege 

12 logs for individual cases. Fighting these satellite 

13 battles over privilege claims is a resource strain 

14 that often results in a small practice like mine 

15 having to forego the privilege dispute, and as a 

16 result, my view is, is that these changes in the rules 

17 are just as important to a small practice like mine as 

18 they are to a large practice that has been addressed 

19 by many of the other MDL mass tort lawyers who have 

20 already testified.

21 There are three major problems that I think 

22 have been identified, but I want to reemphasize 

23 delayed production of privilege logs, incomplete and 

24 inadequate description, and over-designation. These 

25 three elements, I think, are going to be very 
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1 effectively handled by the three essential changes 

2 that I see that these rules make.

3 One is the mandatory and early meetings 

4 under Rule 16 and Rule 26. I think these will go a 

5 long way towards improving the entire process and 

6 eliminating the burden on small practice and eliminate 

7 and clarify from the very beginning what needs to be 

8 done. I think this is absolutely essential and 

9 probably the most important thing that these rule 

10 amendments will give us.

11 The second is flexibility. I initially

12 thought that I had some thoughts about needing more 

13 specificity in the rule, but as I thought more and 

14 read the comments, I thought that the Committee had 

15 done an excellent rule talking about the different 

16 factors that go into making these decisions and that I 

17 agree with Mr. Roberts and others that too much 

18 flexibility and too much -- I mean too much 

19 specificity within the language of the rules would 

20 result in the rules soon to be outdated.

21 As we know, the explosion of AI and large 

22 language modules is going to make a big difference in 

23 these kind of cases, but we’re still -- you know, it’s 

24 still in its infancy and how they are going to play 

25 out and when they’re going to be available in these 
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1 cases, as I’m certain. So leaving flexibility 

2 available is key.

3 The other -- but even with flexibility, I 

4 think that there could be a role for guidance, and I 

5 would suggest that maybe in the comments, the comments 

6 cite to a couple of important treatises in this area 

7 particularly as examples that I have looked at is 

8 Judge Grimms’ ABA publication, Discovery Problems and 

9 Their Solution, has some really good examples that 

10 courts and parties could look to.

11 The other item -- the other document that 

12 I’ve seen that could be really helpful is The Sedona 

13 Principles, particularly the Third Edition. Comments 

14 10(g) and 10(h) I think have a lot of particularly 

15 good procedures that courts and counsel can follow.

16 So I think the rule -- because the rule has 

17 been in the works for several years and I’ve been 

18 watching the changes in the comments, I think the 

19 comments are generally extremely well done and I think 

20 address most of the concerns that you might have. But 

21 there are a couple of words, a couple of sentences, 

22 particularly at the first two paragraphs of the Rule 

23 26 notes, which I think are somewhat unbalanced. The 

24 language, which I’ve quoted in my brief -- in my 

25 letter at page 3, suggests that the burden falls only 
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1 on the corporate defendants resisting disclosure. I 

2 think over-designation and inadequate description of 

3 withheld documents is a huge problem that imposes a 

4 burden on the parties seeking the discovery having to 

5 do these often year-long battles. When logs are 

6 inadequate and designations are untrustworthy, there’s 

7 a huge burden imposed on the parties seeking 

8 discovery. I think --

9 MS. BRUFF: Mr. Rossbach, I’m so sorry to 

10 interrupt. If we might just pause for a moment --

11 MR. ROSSBACH: Yeah.

12 MS. BRUFF: -- I want to check with Judge 

13 Rosenberg and see if she wants to open the floor up 

14 for questions. 

15 MR. ROSSBACH: That’s fine. 

16 CHAIR ROSENBERG: Thank you, Allison, and 

17 thank you, Mr. Rossbach.

18 Let me just survey the group to see if there 

19 is anybody who has a question of Mr. Rossbach and, if 

20 not, I’ll let him make his last concluding remark 

21 before we move on to the next witness. Rick has a 

22 question. 

23 PROFESSOR MARCUS: Thank you, Mr. Rossbach. 

24 Can you hear me now?

25 MR. ROSSBACH: Yeah, I can. 
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1 PROFESSOR MARCUS: I was muted. Sorry. 

2 Something you mentioned I’d like you to 

3 follow up on, and here’s what’s on my mind, this rule 

4 change would command both sides to talk about this 

5 topic up front. My question from your experience is, 

6 have you ever encountered circumstances in which the 

7 other side said, no, we won’t talk to you about that; 

8 you’ll hear from us later when we’re finished with 

9 what we are doing? And, if so, could you tell us a 

10 little bit about that? 

11 MR. ROSSBACH: Well, I mean, I think that 

12 that has -- in my experience since 1993 in those cases 

13 that involve privilege logs, they’re always delayed. 

14 There’s no time frame for them. They answer discovery 

15 and say, we will submit a privilege log. We’re 

16 holding back some documents, and the timing of the 

17 privilege log is always delayed. The time, when it 

18 comes, it’s very -- it’s inadequate. I think -- I 

19 can’t remember. Maybe Judge Grimm had some examples 

20 of that. And then you have to go back and 

21 start -- and then it’s a process of continual

22 iteration of, well, here’s your answers. They’re not 

23 adequate. We can’t quite tell because of inadequate 

24 descriptions. 

25 It’s kind of like not a rolling disclosure. 
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1 It’s you need basically time after time keeping going 

2 back. And in the end, in a couple of cases, we were 

3 never able to get resolution, but before discovery 

4 closed the time for trial came. So we didn’t have the 

5 benefit of those documents as we were litigating the 

6 case going forward, particularly being able to use

7 those documents in discovery of corporate defendants.

8 The early the man -- see, what I think is 

9 hugely important is that this is mandatory. In both 

10 16 and 26, it uses mandatory language that says this 

11 is what is required. And I think, if the courts 

12 impose that mandatory requirement on parties, we’re 

13 going to get these kind of privilege log methods 

14 developed for those cases early on in the process and 

15 it will greatly eliminate many of the problems that 

16 the process has had so far. I think that is the key 

17 element here, mandatory early development and with 

18 court intervention at the Rule 16 conference if 

19 necessary. 

20 CHAIR ROSENBERG: Okay. Terrific. Thank 

21 you so much for your comments. We really appreciate 

22 it. 

23 MR. ROSSBACH: Yeah. Can I make one comment 

24 a little bit on categorical disclosure? I think 

25 it’s -- my experience in three different cases that 
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1 was early on in this, they did -- the outside counsel 

2 were hired in product liability cases to do major 

3 document sweeps, go through every single corporate 

4 office, every engineer’s desk, every place anywhere 

5 with counsel doing the selection of the documents. 

6 They turned around and said, well, counsel 

7 selected these documents, therefore, they’re 

8 privileged. And as a result of that, if you did 

9 categor -- that simple -- that type of disclosure was 

10 done, that type of privilege log was claimed where 

11 they used the name -- where you were searching 

12 categories by those witnesses -- by those lawyers’ 

13 names, those lawyers -- those documents which were 

14 chosen by lawyers would be called privileged 

15 documents. I don’t think they could get away with 

16 that these days with the kind of technologies that are 

17 available, but that’s what happened in two pre18 technology cases I had, and it took years of battles 

19 to get them, and in one case, we never got the 

20 documents and we never even got a privilege log. 

21 CHAIR ROSENBERG: Okay. Okay. Thank you so 

22 much, Mr. Rossbach. Very helpful. We appreciate your 

23 time. 

24 MR. ROSSBACH: Thank you. 

25 CHAIR ROSENBERG: Mr. Clark is on, and you 
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1 can begin, also on privilege logs. 

2 MR. CLARK: Thank you, Judge. 

3 Members of the Committee, thank you for the 

4 opportunity to speak to you today. My name is Brian 

5 Clark. I am a partner at Lockridge Grindal Nauen in 

6 Minneapolis, Minnesota. I have practiced in the area 

7 of antitrust litigation for the past 15 years. I 

8 represent class plaintiffs in all of those cases and 

9 they’re spread out across the country, so I find 

10 myself in federal courts basically across the country.

11 Most recently, most of my cases have 

12 involved a protein of one sort or another, whether 

13 that is peanuts or beef or chicken and many other 

14 types of protein. 

15 I support the changes to Rule 26(f) and Rule 

16 16(b) regarding privilege logs. It has been my 

17 practice for many years to have an early conference 

18 about this and, whether mutual or not, raising these 

19 issues at the 26(f) and raising them at the Rule 16 

20 conference so they get addressed, because we typically 

21 say you do not get a do-over on this stuff without 

22 high cost. So, for that reason, I support these early 

23 conversations.

24 With that said, I do have some concerns on 

25 the notes and I think that kind of the basic issue I 
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1 see kind of coming through the notes, which I really 

2 think will -- anytime there’s a rule change like this, 

3 people are going to pay very close attention to these 

4 notes, and I think the way in which they present the 

5 issues might not be quite balanced in the way I think 

6 is appropriate. So let me give you a couple examples.

7 There’s two sides to the coin on these 

8 privilege issues. On the one side, you have the 

9 producing party and, certainly, they have costs to 

10 review and they also have a privilege, a benefit of 

11 withholding something they view as detrimental to 

12 their ability to give attorney/client advice to their 

13 clients and for many other reasons. 

14 But, on the other side, you have the 

15 requesting party, which is usually me, and you have an 

16 inherent right to discover and seek the truth of what 

17 happened in the case you allege, so there is some type 

18 of balance that needs to happen there.

19 On the cost side, as far as the producing 

20 party, I think what’s missing from the notes right now 

21 is the relevance of Federal Rule of Evidence 502(d). 

22 My understanding of this rule has always been that is 

23 a cost-savings measure for a producing party who might 

24 not want to do a document-by-document review, and they 

25 could focus on the most sensitive privileged documents 
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1 but then run the risk on less sensitive documents, 

2 producing potentially privileged ones. There’s no 

3 recognition of that right now in the notes.

4 Number two, I think the last witness just 

5 referenced the requesting party, there are significant 

6 burdens on us here. When we get dumped with a 3 

7 million entry privilege log, which has happened, that 

8 takes hundreds, if not thousands, of hours of time and 

9 hundreds of thousands of dollars of hard costs as 

10 well. And oftentimes we’re seeing very high overturn 

11 rates. I referenced in my written testimony that most 

12 recently we had overturn rates between 35 and 63 

13 percent in our beef case. So there doesn’t seem to be 

14 a recognition in the notes that the cost issues go 

15 both ways. 

16 Another place you might think about 

17 buttressing the existing notes is on categorical logs. 

18 Certainly, there can be a place for some categories of 

19 logs, but I’m worried about the way in which they’re 

20 presented right now in the notes. I agree and I have 

21 used certain time periods and certain post-lawsuit 

22 involvement of outside counsel as triggers for a 

23 category when that makes sense. Those are a little 

24 less problematic to me.

25 The notes seem to open the door, though, to 
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1 something that’s much more problematic, such as the 

2 involvement of inside, in-house counsel in 

3 communications. We frequently see copies to in-house 

4 counsel where there’s no colorable claim or privilege 

5 and those documents are withheld until we spend 

6 hundreds of hours challenging them. We would have no 

7 ability to cancel those to the extent that people read 

8 into these notes that a category of in-house counsel 

9 or other categories that are problematic are okay to 

10 withhold.

11 With that, I’ll stop my comments and I’m 

12 happy to address any questions. And, again, I 

13 appreciate the opportunity to speak to you. 

14 CHAIR ROSENBERG: Okay. And we appreciate 

15 your comments and your testimony.

16 Any questions for Mr. Clark? Rick. 

17 MR. CLARK: Rick, I can’t hear you. I’m 

18 sorry, Mr. Marcus. I think you’re muted.

19 PROFESSOR MARCUS: Oops. I thought I undid 

20 that. Okay. Sorry. 

21 Quite a few people on what I’ll call your 

22 side, the requester side, have expressed concerns 

23 about the Committee note, and I think you said, oh, 

24 those are bound to be read very carefully.

25 Well, on the other side, one of the things 
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1 we’ve been told repeatedly is, go look at the note 

2 from 20 -- from the rule as adopted in 1993. That 

3 expressed an openness to various methods of complying 

4 which, according to the other side, many judges have 

5 not followed and, instead, they’ve rigidly, we are 

6 told, insisted on document-by-document privilege logs.

7 I’m wondering, since I’m one of the old 

8 folks here, I remember when that rule came in. Do you 

9 really think that people pay that much attention to 

10 notes out there in the world? Sometimes it doesn’t 

11 seem that rule changes even get the attention we were 

12 hoping they would get. So I’m interested in your 

13 experience in the use of notes in your practice -- our 

14 Committee notes, because disputes about whether a 

15 word, one word is used as opposed to another word in a 

16 note might seem relatively unimportant in the grand 

17 scheme of things. So what are your reactions to that 

18 reaction? 

19 MR. CLARK: Yeah, thank you. I think when 

20 there is -- my experience, certainly, in the last 

21 decade is, when there’s any type of rule change, 

22 proportionality would be another one, while the rule 

23 change is kind of above the line, the actual rule 

24 language might seem minor, those can be pitched in 

25 litigation in battles about the meaning of those as a 
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1 sea change and then people look to the notes to say, 

2 well, was this a sea change. 

3 And I think what I would expect to see with 

4 the notes as drafted is the next time I’m fighting a 

5 privilege battle, certainly, the note itself says 

6 early conference. That’s not a substantive change. 

7 Then the note will be cited that, well, this shows 

8 categorical logs were not being used enough. See the 

9 note. It says at least it should be for outside 

10 counsel and time period. 

11 Certainly, the Committee wanted to encourage 

12 the use of these and, indeed, it probably should 

13 involve in-house counsel and those kind of things. I 

14 can see those types of arguments being used and I have 

15 seen them on past seemingly minor, above-the-line rule 

16 changes as I call them and then citing to the note. 

17 So that would be my experience there, Mr. Marcus. 

18 CHAIR ROSENBERG: Okay. Thank you. Thank 

19 you so much, Mr. Clark. We appreciate your testimony 

20 and your comments on the rules. 

21 MR. CLARK: Thank you. 

22 CHAIR ROSENBERG: Okay. Jonathan Orent is 

23 going to speak now on 16.1.

24 MR. ORENT: Good morning.

25 CHAIR ROSENBERG: Good morning.
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1 MR. ORENT: Thank you all very much for 

2 hearing me this morning. I’m going to be speaking 

3 about Rule 16.1. Well, first, I’m a partner at the 

4 law firm of Motley Rice, and my firm and I separately 

5 have shared multiple MDL leadership spots. Currently, 

6 my partner is co-lead counsel of MDL 3047. Another 

7 partner -- the social media MDL. Another partner of 

8 mine is co-lead of the national opioid litigation, MDL 

9 2804. And I was lead counsel in MDL 2754. I submit 

10 this testimony today regarding Rule 16.1 focusing in 

11 on two provisions of the proposed rule. 

12 First, proposed Rule 16.1(b) providing for 

13 the designation of coordinating counsel before the 

14 initial MDL management conference. I respectfully 

15 request that this provision be removed in its 

16 entirety. Although styled as a permissive change 

17 rather than a mandatory procedure, setting forth this 

18 requirement in a formal rule creates the likelihood 

19 that it would become standard practice. The risks of 

20 adding this to standard practice significantly 

21 outweigh its benefits, and that is because, in large 

22 measure, the rule doesn’t define who this coordinating 

23 counsel is, how they’re appointed, whether they have 

24 an interest in the litigation, i.e., represent one or 

25 both of the parties, and exactly what this person’s 
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1 responsibilities are if there’s disagreement among the 

2 parties.

3 What we’ve seen in actual MDL practice is an 

4 extraordinary ability for the plaintiffs to both self5 organize and organize under guidance of the court 

6 following the first case management conference 

7 oftentimes to actually provide much of this 

8 information and work with defense counsel. So, 

9 largely, the creation of this new role serves nothing 

10 other than to add an administrative layer to what is 

11 already happening in MDLs. 

12 Second, the proposed rule also runs counter 

13 to the MDL efficiency set forth in 28 U.S.C. 1407, and 

14 this is because, again, designating coordinating 

15 counsel is a leadership position and then underlying a 

16 large number of items, quite frankly, many of those 

17 items will likely need to be revisited once the 

18 parties actually have a selected lead counsel. So 

19 having someone who is an appointee going in and 

20 talking about items like motion practice, establishing 

21 criteria for cases, roles in settlement is very 

22 problematic if that person is going to have no future 

23 role in the litigation. That would create unnecessary 

24 duplication.

25 Finally, with regard to Rule 16.1(c)(4), I 
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1 find this section problematic in that it really 

2 doesn’t define what it is seeking. Right now, the 

3 traditional discovery rules in MDLs generally have 

4 utilized a large number of procedures and practices to 

5 assure the provision of relevant and responsive 

6 information so that the parties in due course do, in 

7 fact, understand the nature of each others' claims.

8 What’s problematic about this rule is it can 

9 be seen as a one-sided attempt to get plaintiffs who 

10 are injured in the litigation to provide information 

11 before discovery begins. And while it may be useful 

12 to engage in a census process or a plaintiff fact 

13 sheet process, there is a general order which those 

14 likely apply during the course of discovery or during 

15 the course of the development of the case where that 

16 information can be honed, where information can be 

17 decided to be relevant to the cause or action of the 

18 case, as opposed to some basic requirement seen prior 

19 to the first initial conference.

20 So, with that, I’ll open up myself to 

21 questions. Thank you for your time today. 

22 CHAIR ROSENBERG: Okay. Thank you so much, 

23 Mr. Orent. You mentioned that, for the most part, 

24 plaintiffs are able to self-organize. Did you say 

25 that they self-organize before the initial management 
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1 conference or after? In other words, going into the 

2 initial conference, so there is some structure, 

3 organization, certain issues are addressed, is that 

4 where your experience points in the direction of self5 organization? 

6 MR. ORENT: I would say both. It can occur 

7 and it starts very often even before the filing of the 

8 MDL petition. What we have often seen is that there 

9 is a loose affiliation of all of the stakeholders that 

10 begins from the inception of the litigation and will 

11 work its way through to the appointment of leadership.

12 Those people who self-organize do not 

13 necessarily find themselves in leadership positions, 

14 but often they are influential in guiding how the 

15 litigation shapes up at that early stage.

16 Typically, what then happens is we get some 

17 indication from the court what it’s looking for, 

18 whether the court is looking for general applications, 

19 whether the court is looking for plaintiffs to self20 organize and provide a recommended slate, and the 

21 plaintiffs generally organize themselves to meet what 

22 it is that the court is looking for. 

23 CHAIR ROSENBERG: Mm-hmm. So I’ll ask the 

24 same question we asked of Ms. Hyman. The Manual for 

25 Complex Litigation, Section 10.221, and I don’t expect 
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1 you to know that by heart, but generally speaks about 

2 liaison counsel being charged with essentially 

3 administrative matters, such as communications between 

4 the court and counsel, and otherwise assisting in the 

5 coordination of activities and positions.

6 Is this self-organization and this person 

7 who may be self-organizing, is it akin to that kind of 

8 a role, administrative to just literally get things 

9 organized so there is not chaos at that initial 

10 management conference? And, if so, is it the fact 

11 that it just wasn’t made clear in the rule or the 

12 comments that coordinating counsel is more akin to an 

13 administrative liaison counsel, and if it is made 

14 clear, does that become a useful tool? 

15 MR. ORENT: So I guess the problem -- so let 

16 me back up and say generally, in litigation, MDLs that 

17 I’ve been a part of, there’s always been liaison 

18 counsel who is a local counsel to the area, much like 

19 Ms. Hyman talked about. 

20 I would also say that that individual is 

21 often trusted by court appointment with liaising 

22 between both the court and leadership on the plaintiff 

23 side but also the plaintiffs writ large across the 

24 country. That role in facilitating, it's essential 

25 that that individual be close physically, 
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1 geographically to the court and have a understanding, 

2 a crucial key understanding of the local rules. 

3 I think, though, that there needs to be in 

4 any litigation when there is an appointment of a 

5 formal liaison counsel, that there needs to be some 

6 relationship, some working relationship with the lead 

7 counsel, and, generally, that spot can be a highly 

8 coveted position, the liaison counsel role. And so I 

9 think that whether there’s one or multiple liaison, 

10 that normally works itself out during the course of 

11 plaintiffs self-ordering or in the context of 

12 complying with the court’s order.

13 Quite frankly, the way I’ve seen plaintiffs 

14 self-organize for that first conference where there is

15 generally no leadership, I’ve seen individuals sort of 

16 represent factions or groups within the plaintiffs' 

17 bar that share commonalities of interest so that 

18 everybody has someone speaking for their common 

19 interest but not necessarily one person, and having 

20 one person speak for everybody can be problematic. So 

21 you might see three or four people at that initial 

22 conference be representatives of larger groups and 

23 then coalesce and self-order or order how the court 

24 wishes. 

25 CHAIR ROSENBERG: Okay. I see we have a 
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1 couple hands. I just wanted to, I guess, point out 

2 one thing and then ask one more question.

3 I don’t think the rule or the notes say 

4 anything about the coordinating counsel speaking on 

5 behalf of anyone. If you look at it more as what I 

6 was analogizing it to the liaison counsel, it’s really 

7 kind of that administrative coordination to bring 

8 organization but not to be a spokesperson on behalf of 

9 any one party.

10 With respect to subsection (c)(4), the 

11 exchange of information, it does say the factual bases 

12 for their claims and defenses. I don’t think anywhere 

13 in the rule or the notes it points out that it is a 

14 one-sided exchange. And, you know, we know under Rule 

15 26 that there are such things as initial disclosures. 

16 In other words, it’s not coming out of thin air, that 

17 there’s a contemplation that there be some initial 

18 exchange or disclosure of information before formal 

19 discovery begins.

20 In that light and perhaps with 

21 clarification, because I know that came up earlier in 

22 other hearings, that there seemed to be some confusion 

23 was this discovery or not. It is not. (c)(6) is 

24 discovery, but if it was clarified in the notes, what 

25 is it specifically that is problematic about (c)(4)? 
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1 MR. ORENT: Well, I guess the general 

2 concern is that this will be determined, again, based 

3 on the timing, that this would be set up and force a 

4 court to follow some sort of procedure that may or may 

5 not be appropriate for the litigation.

6 One of the things just parenthetically about 

7 MDL courts is that I’ve seen that the MDL judges tend 

8 to be extraordinarily creative and innovative in terms 

9 of problem-solving abilities, and, generally speaking, 

10 understanding that this rule is not a mandatory 

11 provision, I do think that there are enough resources 

12 out there that have provided guidance to courts on how 

13 to proceed.

14 My concern is, is that wording like this 

15 will inevitably be deemed to be (a) mandatory and (b) 

16 seen as something again akin to a Lone Pine or 

17 something like that that is typically entered at the 

18 end of litigation as opposed to being akin to a Rule 

19 26 disclosure. And, generally, those are the concerns 

20 that I share or that I have.

21 I think that allowing the parties and the 

22 court to meet disclosures that are tailored to the 

23 case I think is crucial, and that is part of the 

24 discovery plan, and that’s part of the role that lead 

25 counsel for both parties engage in with the court, and 
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1 I think trying to establish a formulaic method for it 

2 creates problems that actually deprive the courts of 

3 the flexibility that they have developed over the 

4 years. 

5 CHAIR ROSENBERG: Okay. Well, I guess the 

6 last thing I’ll say just in the interest of making 

7 sure there’s clarity is that the whole rationale 

8 behind having this list in subsection (c) and having 

9 the report to the court is so that the court and 

10 counsel can engage in just this type of conversation 

11 so that if, in your personal experience, doing it this 

12 way is not a good way and doing it this way is a 

13 better way and doing it later on is the optimal way, 

14 that is exactly what’s envisioned by this so that 

15 maybe a judge who hasn’t had an MDL or hadn’t had the 

16 benefit of any initial input at an initial conference 

17 might go off in that direction that you don’t think is 

18 a proper one.

19 And lastly, built into the rule and the 

20 notes, but perhaps can be made even clearer, is that 

21 not all issues are appropriate to be figured out or 

22 resolved at that initial conference, that the lawyers 

23 have the ability to say it’s premature to discuss this 

24 for this reason, so then the court will understand 

25 why. So I just wanted to offer that.
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1 But we have, I think, Joe Sellers and Judge 

2 Lauck.

3 MR. SELLERS: Good morning. Thanks very 

4 much for your very thoughtful comments. I want to 

5 focus particularly on the (c)(4) concerns you’ve 

6 raised. I just want you to understand, and perhaps 

7 you already have been following these hearings in the

8 past, that we’ve heard from some of the defense bar 

9 representatives grave concerns about the difficulty in 

10 ascertaining as early as possible even the most 

11 fundamental features of claims as to whether 

12 particular individuals might have even used a 

13 particular product that is the subject of the 

14 litigation. And I understand the concern you raise 

15 about this may be construed to impose requirements on 

16 the plaintiffs that they are not able to meet without 

17 additional fact-gathering through discovery or other 

18 means.

19 Isn’t this something we can clarify in the 

20 notes so that it’s clear that this is not intended to 

21 be a one-size-fits-all you have to do it a certain 

22 way, but rather it’s to flag for the parties the value 

23 of information exchanged on both ends to facilitate as 

24 early as possible the ability to assess the value and 

25 value certain claims? 
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1 MR. ORENT: So I think that I understand 

2 exactly what you’re saying, and the issue that I have 

3 is that all of these things are being done and 

4 prepared as part of a report that is being conducted 

5 by somebody who ultimately is not going to be the lead 

6 counsel in the litigation, and so what we’re having is 

7 we’re creating this process, this dialogue by somebody 

8 who is ultimately not going to have the authority to 

9 take the position on behalf of the plaintiffs.

10 So whether that individual is going to put 

11 their own view forward or whether they’re going to 

12 take an amalgamation of views, there’s not going to be 

13 a single voice that is going to operate on the 

14 plaintiffs' side of the bar. And I think that, quite 

15 frankly, that’s the biggest single problem that this 

16 rule suffers from, is that you need to have buy-in 

17 from the plaintiffs, somebody who’s going to negotiate 

18 fully and fairly on behalf of the interests of the 

19 plaintiffs, and that person should be the person who 

20 designs and who is responsible for guiding the 

21 litigation forward generally.

22 And so having somebody talk about what 

23 information is exchanged and when, well, that’s a key 

24 litigation strategy and it’s key to the development of 

25 the case, just like all of these other items are. 
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1 And I think your general point, though, is 

2 well taken that there should be at some point in the 

3 case, and I personally advocate sooner rather than 

4 later in a case, that there is information that is 

5 provided in the form of a fact sheet or census form 

6 that can be provided, but it should be negotiated by 

7 lead counsel, done in a way that provides sufficient 

8 notice for the parties if they can produce the records 

9 that support the information and done in an orderly 

10 fashion.

11 My concern going back to Rule 16.1 as it’s 

12 currently written is it doesn’t provide for somebody 

13 to articulate the concerns of the party, advocate that 

14 there be enough time to comply, whether that’s 90 

15 days, 120 days after the form comes out.

16 You know, there may be specific instances in 

17 a MDL. For example, if the government is the 

18 custodian of records, like we saw in the 3M earplug 

19 MDL, there, Touhy requests needed to be made of the 

20 government and getting that basic information was 

21 actually a very onerous task. So having a rule that 

22 applies across the board without that piece of 

23 information coming back would be a very dangerous 

24 thing to do and apply. So I think having a plaintiffs 

25 advocate is essential and to be able to speak on the 
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1 voice of all. 

2 MR. SELLERS: Can I just add one follow-up 

3 question quickly? What I hear you saying is that 

4 while you don’t have disagreement with the concept of 

5 the information exchange, you think it shouldn’t be 

6 coordinated by a coordinating counsel. It should be 

7 left to the leadership counsel at a later stage. So I 

8 just want to ask you, on the assumption that there’s a 

9 goal here of having an early coordination of some 

10 portion of the activities of an MDL as soon after the 

11 transfer as possible, how would you propose to do that 

12 if it’s not through coordinating counsel? 

13 MR. ORENT: I mean, to be -- and I do agree 

14 with your underlying policy, which is I think that in 

15 any litigation there needs to be a decision-maker in a 

16 lead on behalf of both sides as soon as possible.

17 And so what I’ve seen is I’ve seen some 

18 courts issue orders before the first case management 

19 conference that says submit leadership applications 

20 over your slate and we’ll deal with that as Item No. 1 

21 on the agenda. And so leadership gets dealt with 

22 first, and I actually would advocate at either a 

23 second or third case management conference that the 

24 newly appointed plaintiffs steering committee, both

25 the leads and the steering committee, be given the 
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1 opportunity to thoughtfully formulate policies that 

2 meet the objectives of this rule and that it be the 

3 plaintiffs' leadership that works to advocate certain 

4 positions, perhaps reaching agreement with defendants 

5 on as many as possible, but at least then having a 

6 single voice from the plaintiffs bar that can be 

7 responded to with a single voice from the defendants 

8 bar. And I think, under that situation, you actually 

9 have the ideal for buy-in and true advocacy on behalf 

10 of plaintiffs. 

11 MR. SELLERS: Thank you. 

12 CHAIR ROSENBERG: Judge Lauck.

13 JUDGE LAUCK: I want to thank you also for 

14 your thoughtful comments. I want to address the fact 

15 that you keep talking about a leader, leadership 

16 counsel, a person. You need someone who’s going to 

17 lead the plaintiffs, and I’m sure you don’t mean just 

18 one person necessarily, of course, so I’m not 

19 presuming that.

20 But we are getting many comments that there 

21 are sometimes, if not consistently, groups who are not 

22 included in leadership counsel. We keep hearing the 

23 phrase "repeat players." And so, if there are law 

24 firms that specialize in MDLs and there is a solo 

25 practitioner who has brought one of the claims that 
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1 eventually become part of the MDL, we are hearing that 

2 often those folks are not considered for leadership 

3 and that some of the purposes of having an early 

4 meeting with not leadership set up is that those who 

5 are not known to the court or to MDL litigation might 

6 have a more significant impact or at least voice in 

7 the litigation itself.

8 And so I want you to please address that, 

9 because we hear obviously that we want folks who are 

10 expert in handling MDLs, but sometimes they're experts 

11 in the making and they also should have an 

12 opportunity. And maybe a single solo practitioner has 

13 a different view than a firm that has specialized in 

14 this, and maybe a fresh voice would be helpful to all 

15 the plaintiffs. So, if you could address that, I’d 

16 appreciate it. 

17 MR. ORENT: Absolutely. And let me start 

18 with the premise of you’re absolutely right. When I 

19 referred to perhaps in the singular, I meant a 

20 committee. I’ve served where there’s three, sometimes 

21 four co-leads and a larger steering committee.

22 I also share your belief and personally, I 

23 believe in a big tent approach to litigation. That 

24 is, the more voices that can be heard, the better for 

25 the ultimate litigation and for the individual 
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1 plaintiffs.

2 I would note several solutions to the issue 

3 that you raise. Number one, I think that there should 

4 be a forum and the court is that forum that people who 

5 either are -- if the court accepts a slate of 

6 leadership, that the court accept applications from 

7 individuals outside the slate so that the court can be 

8 known to them, or if the court is inclined to do 

9 individual appointments, to have everybody submit 

10 separately. But I also think it’s incumbent upon 

11 plaintiffs to publicize and to show that they have an 

12 open-tent policy prior to the organization of a 

13 litigation to actually look at the list of people who 

14 file cases. 

15 And in any litigation that I’ve worked on, 

16 we actively seek input and collaboration with 

17 everybody who has a filed case or everyone who is 

18 known to have cases that are likely to be impacted and 

19 like to meet and understand what the view is of those 

20 individuals before case management conferences.

21 I would also add one other component to 

22 this, which is, because of the specialized practice of 

23 MDLs, I think that there is value in adding leadership 

24 development committees to MDLs, to MDL steering 

25 committees, so that you do actually go out and train, 
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1 whether it be younger lawyers or lawyers who are 

2 moving into the field of MDL practice or people who 

3 have otherwise not been given experiences, and create 

4 opportunities for them where you actually provide 

5 mentorship and guidance, not just a chair at the table 

6 but a meaningful way to grow into an eventual leader 

7 of litigations so that you can truly get diversity at 

8 the bar and really benefit everybody by doing so. 

9 JUDGE LAUCK: So I just want to do one quick 

10 follow-up. I know we’re short on time, but does that 

11 happen in MDLs? Do you have leadership development 

12 committees, and how often, and who appoints them, and 

13 do they participate in the actual discussions? I’d 

14 appreciate hearing about that too. 

15 MR. ORENT: Sure. And this is a relatively 

16 new experience. There are two MDLs that I’m aware of 

17 that have used leadership development committees, so 

18 it’s a relatively new phenomenon and they take a 

19 variety of shapes. 

20 I will tell you that for the next MDL that I 

21 work on, my personal vision of what a leadership 

22 development committee would be is having it be a court 

23 appointment, but allowing anybody who meets certain 

24 general criteria, allowing them to come in so that it 

25 is not an exclusive club.
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1 My thought on it would be that it would be a 

2 approach for individuals to gain mentorship from other 

3 court-appointed members, that they would have an 

4 opportunity not just to participate in certain 

5 decision-making but also be at the table for meet-and6 confers and other sort of more closed conversation 

7 opportunities, but by providing mentorship and 

8 guidance along the way, actually building a leader out 

9 of that person, much like leadership academies do for 

10 other organizations, state bar leadership academies 

11 and the like.

12 I think that those are good working models 

13 where you take highly motivated people who have not 

14 been given a seat at the table previously and provide 

15 them not just the opportunity but additional skills to 

16 thrive and actually be leaders going forward. 

17 CHAIR ROSENBERG: Andrew. 

18 PROFESSOR BRADT: Sorry, I didn’t hear you 

19 say in response to Judge Lauck’s questions what the 

20 MDLs are that have these already. Do you know that 

21 off the top of your head? 

22 MR. ORENT: I believe it was Zantac or it 

23 may have been Zantac, and, certainly, the hair relaxer 

24 MDL that’s currently ongoing right now has one that I 

25 understand has been quite well received. 
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1 PROFESSOR BRADT: Thank you. 

2 CHAIR ROSENBERG: Okay. 

3 MR. ORENT: Thank you. 

4 CHAIR ROSENBERG: Thank you so much. 

5 MR. ORENT: Thank you. 

6 CHAIR ROSENBERG: All righty. We’ll hear 

7 next from Andre Mura on 16.1.

8 MR. MURA: Thank you so much. My name is 

9 Andre Mura. I’m a partner at Gibbs Law Group in 

10 Oakland, California, where I practice in class actions 

11 and mass torts. My recent appointments include in the 

12 social media MDL and the 3M earplugs MDL.

13 So I wrote about the list of considerations 

14 for appointing leadership counsel. I do think that 

15 Rule 16.1(c)(a)’s criteria is a welcome addition, but 

16 my suggestion was that the Committee notes could do a 

17 little more to address the process for appointing 

18 leadership counsel and perhaps provide some examples 

19 of different approaches that seasoned MDL judges have 

20 used as part of that process. And I think I know Mr. 

21 Orent provided some great feedback about that process, 

22 and I’ll hope to do the same as well. 

23 My comments, my first and second comments 

24 reflected a recent trend that I’ve seen. As part of 

25 the sort of written and oral presentations that are 
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1 often accompanied as part of this process for 

2 leadership appointments, courts often ask counsel 

3 whether there is any information about other counsel 

4 applying that might be useful to the court in 

5 selecting counsel for various committees. And my 

6 suggestion was that the Committee note expressly call 

7 that out and also suggest that that information be 

8 communicated ex parte, and I’ll give two examples of 

9 where I think that’s been useful and that’s happened.

10 In the social media MDL, Judge Gonzalez 

11 Rogers, as part of her written application process, 

12 there was an opportunity to list counsel who supported 

13 an individual’s application. My concern with that is 

14 what happened behind the scenes is you pick up the 

15 phone and you call a lot of people and you just get 

16 this list of names and no one's going to say no to you 

17 when you call. And as soon as you call, they’re going 

18 to also support your application. So I’m not sure it 

19 has a lot of utility for courts because it sort of 

20 gets to be a popularity contest. Some attorneys don’t 

21 like to do it, so they don’t list any names because 

22 they want to seem very independent, so in terms of 

23 what the court is receiving, I’m not sure that that 

24 sort of approach is all that useful.

25 But Judge Gonzalez Rogers held a hearing in 
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1 which the attorneys were permitted a few minutes to 

2 provide additional information about their 

3 qualifications, and as part of that process, the court 

4 asked each attorney who was presenting to write down 

5 the names of two attorneys they thought should be in 

6 leadership. And so that was an opportunity for 

7 counsel to at least communicate some information to 

8 the court ex parte.

9 Judge Casey Rodgers in 3M received all her 

10 applications ex parte. So she had specific questions 

11 that she wanted, and as part of that application 

12 process, the court asked each individual to identify 

13 someone else who might be appropriate as a candidate 

14 for either leadership or for a committee. And that 

15 was really an excellent opportunity to call out 

16 especially younger lawyers who might have particular 

17 skills that would be useful to the MDL. For example, 

18 a younger lawyer might be very experienced in ESI or 

19 particular discovery or law and briefing or might be 

20 at a small firm where they’ve gotten to know some 

21 other counsel, but they really haven’t had an 

22 opportunity to participate in large-scale 

23 multidistrict litigation. So that was an opportunity 

24 to communicate to the court and identify particular 

25 skills that attorneys might have. It was, I believe, 
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1 useful to avoid repeat players, to allow the court to 

2 identify fresh voices, and it promoted a candid 

3 conversation about who might be an appropriate 

4 individual to serve in an MDL.

5 My third comment related to the timing. I 

6 think Mr. Orent touched on this as well. I do think 

7 it’s helpful to have leadership appointments to be 

8 dealt with first, although I do understand that in 

9 individual cases, there may be particular needs to 

10 move forward, and so it may be appropriate in those 

11 instances to appoint liaison counsel. I do think that 

12 there is some private ordering that happens behind the 

13 scenes when counsel is sort of investigating the case, 

14 filing cases. There are often conferences to discuss 

15 the ways in which a case is developing, the science 

16 behind it. All of that is useful, and I do think that 

17 our bar is quite good at providing open opportunities 

18 in those areas for different firms to participate, but 

19 I do think that’s why I was suggesting the ex parte 

20 nature of communications with the court. That really 

21 is an opportunity for each individual candidate, and I 

22 know a lot of the MDL process is really focused on not 

23 law firms but individual candidates. I think that’s 

24 useful as well, but it’s really an opportunity for 

25 them to have that interview process.
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1 My fourth comment related to the 

2 reassessment of leadership appointments. I do believe 

3 that the rule touches on this, and I was hopeful that 

4 the Committee note would say a little more. I think 

5 that that’s something that I’ve seen more often in 

6 recent years, an attention to a re-appointment 

7 process. I think that could be incredibly helpful to 

8 the MDL in managing the litigation.

9 I’ve heard MDL courts talk about how the 

10 leadership appointment process is essentially the 

11 court hiring or creating its own law firm, and I do 

12 think it’s helpful for the court, which is oftentimes 

13 periodically receiving information about billing, to 

14 know exactly who is actually doing the work behind the 

15 scenes. There are oftentimes appointments in the 

16 beginning and then there may be a need to readjust, 

17 especially as the case is progressing towards trial. 

18 There may be a need for different skills, different 

19 appointments. 

20 It can also be an opportunity for 

21 individuals. There are oftentimes I see in MDLs that 

22 I participate in, there are wonderful associates and 

23 younger attorneys who are doing a lot of the work who 

24 don’t have formal appointments, and so that might be 

25 an opportunity for a judge to notice that someone who 
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1 has really been doing the work, perhaps appearing at 

2 hearings, writing briefs, doing discovery, taking 

3 depositions, they will see those billable hours and it 

4 may be an opportunity to select that individual and 

5 provide them an appointment on a committee so that 

6 they’re formerly recognized. And that really helps, 

7 because, once you start to get these appointments, 

8 there is a little bit of a snowball effect because you 

9 will just get these resumes with a long list of 

10 appointments. So I do think that’s valuable. It will 

11 increase diversity in MDL appointments. 

12 I’ll stop there. I hope I didn’t talk too 

13 much, but I’m happy to answer any questions. 

14 CHAIR ROSENBERG: Oh, thank you so much. 

15 So I guess, just for the benefit of everyone 

16 to some of your points, the notes do currently speak 

17 to courts have selected leadership counsel through a 

18 combination of formal applications, interviews, and 

19 recommendations from other counsel and judges who have 

20 experience with MDL proceedings. So I think that that 

21 speaks to your issue. I suppose it doesn’t say ex 

22 parte, and maybe that was primarily what you were 

23 trying to emphasize in the interest of getting candor. 

24 And then, in addition, down below, the rule 

25 also calls for a report to the court on whether 
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1 appointment to leadership should be reviewed 

2 periodically. Periodic review can be an important 

3 method for the court to manage the MDL proceeding. I 

4 mean, this is a rule and these are notes. It is not a 

5 manual which, by the way, will be coming out shortly, 

6 an updated manual, so I think we all have to keep in 

7 mind that it can only say so much. And in the 

8 interest of flexibility and creativity, which so many 

9 of you have spoken about, we run the risk, I think, if 

10 we put too much in there, we’re surely going to be 

11 overlooking other things, and so the question would be 

12 raised is this somehow an exhaustive list and we 

13 shouldn’t be considering other things. 

14 So I point that out to say that this is an 

15 example of where the Committee has endeavored to 

16 really highlight some key issues and it’s, again, to 

17 prompt the lawyers to raise the issues with the judge 

18 at the initial conference, including, Judge, we think 

19 you should do an application process and we think you 

20 should do it ex parte at least in part as it relates 

21 to recommendations and here is why, because I’ve been 

22 in cases where that has worked. So that’s exactly 

23 what we have envisioned with this type of language.

24 With that being said, we have Ariana and 

25 then Zach who want to ask questions. 
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1 MS. TADLER: Thank you. 

2 Good morning, Mr. Mura. How are you? Nice 

3 to see you. 

4 MR. MURA: Good morning. Nice to see you. 

5 MS. TADLER: So two questions for you and 

6 Judge Rosenberg just touched upon the ex parte 

7 component. 

8 In your experience, is the ex parte effort 

9 that you’ve seen in certain cases purely a matter of 

10 submissions being made individually to a judge and 

11 that’s it, or is there additional follow-up by the 

12 judge with individual candidates ex parte such that 

13 there are communications with a judge and whoever the 

14 applicant is that are not otherwise sort of full 

15 disclosure, sunshine for others, whether it be across 

16 the plaintiffs' counsel who are seeking positions or 

17 also inclusive of the defense counsel? 

18 MR. MURA: Yes. Thank you for your 

19 question. The processes that I’ve seen, the ex parte 

20 has been through written communications as part of the 

21 application, and then there has been a public hearing 

22 where there’s been an opportunity for the court to ask 

23 questions of individual lawyers. I haven’t seen an ex 

24 parte individual interview process. 

25 MS. TADLER: Thank you. And then, with 
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1 respect to the opportunity, as you were suggesting, 

2 that perhaps over time a later review of a potential 

3 change-up, modification, supplementation of positions 

4 where perhaps certain junior lawyers or other lawyers 

5 who have had less experience prove to be particularly 

6 active and contributing to a case, how is it that you 

7 foresee those lawyers being highlighted or identified 

8 for purposes of modification, supplementation of a 

9 particular leadership setup? 

10 MR. MURA: For that process to work, I do 

11 think there needs to be sort of an annual process for 

12 re-appointments that both allows individuals who have 

13 already been appointed to provide the court with 

14 information about the work that they have performed 

15 during their appointment and also an opportunity for 

16 an invitation for additional individuals to apply.

17 And so not all courts do that re-appointment 

18 process, or the re-appointment process is pretty 

19 automatic. If you send an email to the court on a 

20 certain date, you will get re-appointed. And so I 

21 take Judge Rosenberg’s comments to heart that you 

22 don’t want a rule that’s too prescriptive. But I do 

23 think that’s something that’s a little lost in 

24 translation and it might be helpful to emphasize. And 

25 where I’ve seen greater attention to the re-
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1 appointment process, it has really inured benefits 

2 both to the MDL and the opportunities for diverse and 

3 younger lawyers to become participants.

4 I know, in the Taxotere MDL, there was a 

5 great push by leadership to nominate individuals who 

6 had participated in trials, individuals who had done 

7 some of the work where they hadn’t been appointed, and 

8 the judge did appoint them as part of the plaintiffs' 

9 steering committee or other committees, and so that 

10 was very useful.

11 But I think the re-appointment process 

12 typically is sort of an automatic process, and what I 

13 was trying to highlight was that there should be more 

14 attention to it. 

15 MS. TADLER: Thank you.

16 CHAIR ROSENBERG: And Zach.

17 PROFESSOR CLOPTON: Thanks. I think we 

18 mostly covered what I wanted to get to, but just in 

19 case you have anything more to say, you know, I think 

20 a lot of people -- a lot of witnesses we’ve been 

21 hearing from have emphasized the need to have a more 

22 diverse set of representatives on the plaintiffs' 

23 side, and I guess what I wanted to just think more 

24 about is how that interacts with the timing question.

25 Should we expect that, say, the solo 
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1 practitioner will have a better chance of being 

2 appointed to a committee early in the process, or are 

3 they going to have more of a chance if we kind of push 

4 back in the litigation when certain appointments are 

5 being made? 

6 MR. MURA: I think it probably won’t happen 

7 as often in the re-appointment process if it doesn’t 

8 happen initially just because, especially if you’re a 

9 small firm and you’re not part of the MDL itself, it’s 

10 very hard to sort of work your way in unless you have 

11 a lot of clients, which is unlikely if you’re a small 

12 firm. 

13 There are a lot of financial pressures in 

14 terms of participating in multidistrict litigation. 

15 You have to pay assessments at the end of the day if 

16 you’re not high up in leadership and, for example, the 

17 MDL is not achieving perhaps the results that everyone 

18 thought it might at the beginning. You know, there’s 

19 a common benefit committee and so different people are 

20 treated differently. And so I think a small 

21 practitioner might be concerned about really trying to 

22 become involved in an MDL if they don’t get involved 

23 right at the outset.

24 So I think, to increase diversity, there 

25 really needs to be attention at the initial 
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1 appointment process, and I think that’s really the 

2 opportunity to get involved in the MDL. 

3 CHAIR ROSENBERG: Okay. Thank you so much. 

4 MR. MURA: Thank you. 

5 CHAIR ROSENBERG: We very much appreciate 

6 your comments.

7 Did we fix the audio for Rebecca on behalf 

8 of Mark Lanier, the audio and video? 

9 MS. BRUFF: Yes, we did. 

10 CHAIR ROSENBERG: Okay. So, okay, Rebecca, 

11 we’ll have you come on. I know we’re running a little 

12 behind. We’re supposed to have a break at 10:55. So 

13 let’s hear from you, and it may be that we then take 

14 the break before we go to Jessica Glitz. So you are 

15 speaking on behalf of Mark Lanier about 16.1. Nice to 

16 see you.

17 MS. PHILLIPS: Wonderful. Thank you, Judge 

18 Rosenberg. 

19 So, obviously, I’m not Mark Lanier, but I am 

20 a member of his law firm. My name is Rebecca 

21 Phillips. I am the mass torts director at Lanier Law 

22 Firm. I’ve been practicing for about 13 years since 

23 graduating Yale Law School. I have practiced on the 

24 defense side in complex litigation, including class 

25 actions, but for the past decade, I’ve been practicing 
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1 on the plaintiffs' side primarily in mass torts.

2 I have experience in the TVM litigation, the 

3 opioid litigation. I'm currently a co-lead of an MDL 

4 that is pending in the District of Arizona. And our 

5 firm has been lead counsel in over 30 multidistrict 

6 litigations. As mass tort director, I'm a little bit 

7 involved in all of the litigations that we’re involved 

8 in. So that is my experience.

9 With respect to Rule 16.1, I think we need 

10 to start with the purpose, and my understanding of the 

11 purpose is that we’re trying to give guidance to 

12 judges so that we can handle MDLs more efficiently and 

13 achieve justice for plaintiffs and defendants, right?

14 I think, with that goal in mind, I think 

15 it’s very important that leadership be appointed first 

16 and I think that coordinating counsel complicates the 

17 process. Let me explain a little bit of what I mean, 

18 and I’m going to speak very plainly here because I 

19 think that’s going to best communicate things.

20 Coordinating counsel reduces efficiency. 

21 Respectfully, the only individuals who really 

22 understand what goes into making plaintiffs' 

23 leadership work is the plaintiffs' bar, and it’s a 

24 little bit like herding cats trying to get together 

25 that leadership committee that’s going to run the 
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1 case. There are cases that are coming in from all 

2 over the country, different firms. You all understand 

3 that. But we all have to come together and we all 

4 have to work together for the life of this tort. 

5 That’s for years. We have to create relationships, 

6 and that process is complex to say the least.

7 The Committee notes do a good job of 

8 acknowledging that there can be tension between 

9 approaches that attorneys are going to take, and 

10 because that is true, we really risk sacrificing 

11 justice on behalf of the plaintiffs when we’re asking 

12 coordinating counsel or when we’re asking all the 

13 attorneys who are participating to put together a 

14 joint memo before leadership has been appointed.

15 And I can give you a little bit of personal 

16 experience with this. There’s been a tort that has 

17 gone forward where we were asked to put together a 

18 joint memo with defense counsel before leadership had 

19 been appointed, and it’s always an arduous task to put 

20 together a joint memo with defense counsel, especially 

21 at the beginning of the case when everyone's feeling 

22 each other out, but I do think it’s helpful. It’s a 

23 good process to go through.

24 The problem mostly arose because there were 

25 competing leadership slates, and when you have 
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1 competing leadership slates on the plaintiff side who 

2 are trying to come together and tell the judge what 

3 the case is about in the joint memo or to tell the 

4 judge how discovery should move forward, the joint 

5 memo becomes an opportunity for these plaintiffs' 

6 leadership slates to try to differentiate themselves, 

7 and sometimes that may be appropriate when you’re 

8 discussing leadership, but sometimes it’s not. And 

9 putting together this joint memo before leadership has 

10 been appointed really just encourages diverse 

11 plaintiffs' slates to try to use it as an opportunity 

12 to differentiate themselves.

13 And, you know, I can’t talk to you about the 

14 details of how that occurred in the particular case 

15 that I’m thinking of because it’s still pending, and I 

16 think that the attorneys did a good job for the most 

17 part of trying to keep strategic issues that could 

18 have prejudiced the plaintiff out of the view of the 

19 court. But counsel who were competing in a more 

20 cutthroat fashion may not have considered the best 

21 interests of the plaintiffs and may have considered 

22 just getting themselves appointed and it really could 

23 have prejudiced the plaintiffs. Think things like, 

24 you know, attorneys are still trying to determine 

25 which defects exist in a product to go forward on or 
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1 which injuries are valid injuries to go forward on, 

2 and if these discussions happen in front of the court 

3 prematurely or in front of the defendants prematurely, 

4 that really risks prejudicing the plaintiffs. 

5 Now I can tell you one thing where I think 

6 the conflict did prejudice plaintiffs in how this 

7 played out, it was the scheduling. And in my view, 

8 one group of attorneys trying to please the judge took 

9 a view on the scheduling order that the tort could be 

10 completed in a shorter time frame. That was their 

11 selling point to the judge. They could get this thing 

12 quicker. And in my view, another group of attorneys 

13 took a more reasonable position saying that, you know, 

14 they would get it done in a little bit longer time 

15 frame but in a time frame that was more reasonable 

16 considering the work to be done.

17 And so that conversation had to happen in 

18 front of the court. Before you had leadership 

19 appointed in the case, attorneys were trying to 

20 differentiate themselves on that basis, and it gave 

21 the court a skewed view of what was really possible, 

22 and we ended up with a shorter discovery schedule 

23 because of that, which I think is not good for the 

24 plaintiffs. So those are some of my thoughts. 

25 I do want to say that there was a concern 
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1 about -- Judge Rosenberg asked a question about 

2 whether or not coordinating counsel is speaking for 

3 anyone, and I think that as the rule is currently 

4 drafted, number one, we think coordinating counsel 

5 should go. It’s going to end up in a huge game of 

6 telephone. 

7 But, number two, if coordinating counsel 

8 must stay, and we don’t think it should, but if 

9 coordinating counsel must stay, it needs to be made 

10 clear that coordinating counsel does not speak for 

11 anyone because, as currently drafted, they’re supposed 

12 to assist the court and they’re supposed to assist 

13 with drafting the joint memo. And what does that 

14 mean? Does that mean that they’re the ones who get to 

15 have final say over what’s in the draft memo? I’m 

16 just not sure, and I just think things would be much 

17 more efficient and we would risk prejudicing 

18 plaintiffs less if we did away with the idea of 

19 coordinating counsel. 

20 CHAIR ROSENBERG: Okay. Thank you so much, 

21 Ms. Phillips.

22 Anyone else -- anyone have questions?

23 Seeing no questions. Okay. We appreciate 

24 you stepping in for Mr. Lanier and providing us with 

25 your testimony.
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1 We’re going to take a brief break now. So, 

2 if Ms. Glitz can hold on, we ran just a few minutes 

3 over, so why don’t we return at 11:15.

4 (Whereupon, a brief recess was taken.) 

5 CHAIR ROSENBERG: Okay. Ms. Glitz, thank 

6 you for your patience. Sorry we’re running behind, 

7 but let’s turn it over to you for 16.1.

8 MS. GLITZ: Okay, Your Honor. Thank you so 

9 much for your time. Good morning. 

10 CHAIR ROSENBERG: Good morning. 

11 MS. GLITZ: My name is Jessica Glitz. I am 

12 senior counsel at Johnson Law Group in Houston, Texas, 

13 and I have been practicing in MDLs for over 10 years 

14 now, although I don’t look like it, I’m sure.

15 I’ve had the opportunity of representing 

16 clients both on the defense side and now on the 

17 plaintiff side in complex litigations across the 

18 country. I wanted to briefly step back and all of my 

19 colleagues that have spoken today have spoken about 

20 the specific rules and I want to talk about the 

21 landscape a little bit about MDLs right now. In my 

22 brief testimony/statement, I actually provided just a 

23 table that the JPML provides each month and it’s a 

24 little outdated. It’s from January 2.

25 And so, as of February 1, not much have 
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1 changed. Only one more MDL has been consolidated. 

2 But the numbers have changed slightly, and that is 

3 that out of the 168 cases that are currently pending 

4 right now, 60.1 percent have a hundred plaintiffs or 

5 less. And while I understand in past testimony in 

6 other days there’s been a lot of focus on large MDLs, 

7 what I want to make note of to this Committee today is 

8 out of all of the pending actions, as of right now, 72 

9 percent of those pending actions are just in two MDLs, 

10 and that is in the 3M litigation that I know has been 

11 spoken about before that is right now in a global 

12 settlement, and the other one is the J&J litigation, 

13 the talcum powder litigation in New Jersey, which, as 

14 we all know, was stayed from October 2021 until July 

15 of this past year, and so there was a surge of filings 

16 after that stay was lifted. And while that may seem 

17 not important, I think it is very important when we 

18 talk about these rules as a whole. 

19 I am extremely Type A and I have been in 

20 front of lots of judges and most of them are also Type 

21 A. So, when we’re talking about a set of rules, while 

22 they are suggestions, they are still more likely to be 

23 followed more likely than not in the best way. And 

24 so, while I think some of these suggested rules are 

25 great, I do feel that they’re overambitious for an 
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1 initial conference and they should be focused on as 

2 the litigation continues, but it’s not feasible to 

3 focus on all of these suggested rules at a particular 

4 time. And having a checkbox, which is how I would 

5 feel that I was looking at these rules, just isn’t 

6 feasible at the very beginning of a litigation, 

7 particularly when you don’t have leadership assigned.

8 And I know many of my colleagues before have 

9 already talked about this, but one of the things I 

10 wanted to bring up in particular that Your Honor, 

11 Judge Rosenberg, had suggested is the difference 

12 between maybe semantics of liaison counsel versus 

13 coordinating counsel, and maybe we need to define that 

14 a little differently.

15 First off, because most MDLs are made of a 

16 hundred plaintiffs or less, coordinating counsel most 

17 of the time is obsolete. I have had the fortune of 

18 being a part of many of those MDLs, and one of the 

19 things that is important is that, number one, 

20 plaintiffs' counsel has gotten a lot better at 

21 coordinating themselves. We’ve taken a note as time 

22 has gone on in the last 10 years at least that I’ve 

23 practiced. 

24 And, number two, when an MDL is formed and a 

25 court is defined, if someone that is not a part of 
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1 that case, which usually they are, is not in that 

2 jurisdiction, they will find someone and make sure 

3 that they will be educated on the local rules, the 

4 current case law, and how that judge forms the case. 

5 And so it’s not important for a court to 

6 appoint separate coordinating counsel or even liaison 

7 counsel. Plaintiffs’ counsels knows that every court 

8 is different, every judge is different and, therefore, 

9 it is important to note that plaintiffs' counsel is 

10 smart and diligent and focused and wants to make sure 

11 they put their best foot forward because they’re 

12 representing their clients, and so they will always 

13 reach out to make sure that they have what I think the 

14 terminology has gone to an idea of liaison counsel, 

15 someone who knows the court very well, someone that 

16 has the ability to speak to the court. 

17 But that person also, whoever it is, whether 

18 they be appointed -- that they are being appointed to 

19 leadership knows the case just as well as the other 

20 parties that may not know that court or practice in 

21 that court on an ongoing basis and can’t just step 

22 into the shoes for a little bit.

23 I know we talked a lot about that they just 

24 talk about administratively how the case works, but I 

25 particularly know working in separate MDLs the way 
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1 that one case administratively would work with some 

2 counsel in leadership wouldn’t always work with other 

3 counsel in leadership, particularly with the number of 

4 defendants that are in the case, the number of 

5 plaintiffs, and the different number of injuries that 

6 are in the case.

7 One of the other things I wanted to focus on 

8 that they continue to talk about under Rule 16(c) 

9 about leadership is the different ways that leadership 

10 is defined and appointed. If we were talking about 

11 how large an MDL is and most of them are under those 

12 hundred plaintiffs, you’re only looking at about at 

13 most 10 firms particularly, and so they have already 

14 coordinated very well. In those particular 

15 situations, I have very few scenarios where there’s 

16 been a completely conflicting number of attorneys on 

17 each side in the vast majority of MDLs.

18 And so I wanted to make sure that that was 

19 clear. While there can be an application process and 

20 that may be good and right, in most -- right -- MDLs, 

21 if they are extremely large or there’s this idea that 

22 they’re large or there’s a lot of counsel, in the most 

23 particular situations, because of the smaller group of 

24 cases that are filed, usually that counsel has already 

25 coordinated their experts or at least started 
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1 coordinating their experts and their discovery and how 

2 those cases want to be moved forward.

3 So I will leave the rest of the time for any 

4 questions that may be asked. 

5 CHAIR ROSENBERG: Oh, thank you so much, Ms. 

6 Glitz. 

7 So, to your point about leadership being 

8 appointed first possibly or it’s just premature to 

9 tackle all of these issues in (c), hypothetically, if 

10 there was language along the following lines in the 

11 note relating to this topic that read something like 

12 some of the matters designated by the court, referring 

13 to the lists in subsection (c), the parties may report 

14 that it would be premature to attempt to resolve them 

15 during the initial conference, particularly if 

16 leadership counsel has not been appointed.

17 Rule 16.1(b)(8) or I guess it would be 

18 (c)(8) invites the parties to suggest a schedule for 

19 additional management conferences during which such 

20 matters may be addressed and that the initial 

21 management order would control only until the court 

22 modifies it, something along those lines. Does that 

23 clarify or address some of the concerns that you have 

24 raised about and, quite frankly, that we’ve heard from 

25 others that it just may be too early to address some 
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1 of them and also that maybe leadership counsel needs 

2 to be appointed first? 

3 So, if you had clarifying language, given 

4 what you’re saying as well that every MDL is different 

5 and so what might work for one might not work for 

6 another, and so, if you had that language, would it 

7 prompt the lawyers and/or the judge to sort of 

8 consider, hmm, maybe some of these should be 

9 considered now, not all? Let’s tackle this in a 

10 management conference one month from now, let’s tackle 

11 them after leadership counsel has been appointed. 

12 What do you think? 

13 MS. GLITZ: Yes, Your Honor, I do. I think 

14 that to see where the -- all of these suggestions are 

15 completely correct, that these need to be focused on 

16 as the litigation continues and not one of them can be

17 left alone. But I do agree with you, Your Honor, that 

18 if a judge could provide a roadmap of what’s most 

19 important after leadership is appointed is extremely 

20 important to see the litigation move on in a very 

21 particular manner the way the judge always likes it, 

22 quick, concise, and the ability to get a resolution. 

23 CHAIR ROSENBERG: Okay. All right. Thank 

24 you. Rick.

25 PROFESSOR MARCUS: Just to follow up on what 
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1 was just discussed, it strikes me that at least one of 

2 the things on the list in 16.1(c) probably needs very 

3 early attention and that is are there any scheduling 

4 orders or the like that ought to be modified, vacated, 

5 or something like that. Are you saying that that 

6 should all be postponed until a whole lot later in the 

7 case? That surprises me. 

8 MS. GLITZ: Oh, I apologize, sir. No, sir. 

9 Actually, in my testimony -- and there’s actually five 

10 different parts of the rule, I believe, or there might 

11 be four that I think in the first initial conference 

12 and the first couple initial conferences should be 

13 focused on. Number one is obviously the appointment 

14 of leadership. Number two is a schedule for 

15 additional management conference, as Judge Rosenberg 

16 already mentioned. Number three is the management of 

17 new actions, how they should be filed defining the 

18 local rules. Make sure as an attorney that practices 

19 all over the United States, I am not privy to every 

20 single local rule. I’m getting better but not great.

21 And then number four is the management of 

22 related actions. So to make sure that there’s no 

23 scheduling order that has been defined that could put 

24 a case ahead of others or make it difficult for 

25 leadership later on to define a directed path 
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1 administratively or for discovery, et cetera, for 

2 those cases.

3 Does that answer your question, sir? Okay. 

4 Great, thank you. 

5 CHAIR ROSENBERG: Okay. Thank you so much, 

6 Ms. Glitz. We appreciate it. 

7 MS. GLITZ: Thank you. Have a good day. 

8 CHAIR ROSENBERG: You too.

9 Ms. Relkin on 16.1.

10 MS. RELKIN: My camera. Okay. Am I there? 

11 Yes. Okay. 

12 CHAIR ROSENBERG: There you are. Yeah. 

13 MS. RELKIN: Yes. Good morning. Thank you 

14 for hearing from me. I will reiterate a couple of 

15 things I said in my written submission and then also, 

16 after hearing some of the discussions, just kind of 

17 impromptu address some of the questions I’ve heard.

18 So I agree with some of my colleagues you’ve 

19 heard from about that I do not think there’s a need to 

20 appoint a coordinating counsel. It appears to me to 

21 be this extra step that can ultimately delay getting 

22 the litigation moving expeditiously. People are 

23 thinking about appointment of leadership the second 

24 the MDL is formed. And to have this extra step I 

25 think just can delay things. And, instead, it makes 
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1 more sense just to have the first conference to get to 

2 the heart of the matter with the judge laying out the 

3 criteria that they’re looking for and the process for 

4 selection of counsel. And often, as I indicated in my 

5 papers, from my experience, it happens kind of 

6 organically. You know, sometimes there’s those 

7 contested slates, but often the parties work it out. 

8 So that’s point number one.

9 In terms of one section that I -- the other 

10 section I think really I think should be stricken from 

11 the proposed rules is (c), the role of leadership 

12 counsel regarding any settlement activities, to have 

13 that be discussed or actually denominated as 

14 settlement counsel. I really think that that is 

15 something that should happen at the appropriate time 

16 and, you know, your point co-leads, co-leads are 

17 running the litigation, but they also need to be 

18 intimately involved or at least cognizant of any 

19 settlement activities, and to have other people who 

20 aren’t co-leads have this independent role of 

21 settlement can lead to dissension. It really can lead 

22 to dissension within the leadership team, so I think 

23 that’s counter-productive. If the co-leads think that 

24 they have the perfect person who’s very experienced in 

25 doing settlement, they can point to that. But to have 
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1 the court independently pick who's settlement and have 

2 independent separate leads I think just can lead to 

3 not having a coherent leadership team.

4 So separate from what I’ve written about, 

5 just a few other items really to quickly address. You 

6 know, we’ve heard the term "repeat player" as being 

7 this very disparaging term, but, generally, someone 

8 who’s experienced, that’s a good feature. Of course, 

9 you want to have -- you know, in medical practice, you 

10 have interns and residents, but if anybody on this 

11 Zoom or Teams was having hip surgery or knee 

12 surgery -- that’s what I do most of my litigation 

13 about -- you don’t want the resident doing your 

14 surgery. You don’t want a general practitioner, 

15 orthopedic surgeon who mostly fix broken wrists. You 

16 want someone who does hip and knee arthroplasty every 

17 day, hundreds a year. Medical literature shows those 

18 are the most effective procedures, and I see that in 

19 my medical records I review, the random orthopedic 

20 surgeon who really doesn’t do hip and knees as their 

21 training and primary practice don’t have the best 

22 outcomes.

23 So I think we shouldn’t just disparage 

24 because a law professor coined the term "repeat 

25 player" as being a negative. We shouldn’t disparage 
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1 experience. These are the most complex litigations, 

2 and you need people who have experience and have the 

3 big picture. Of course, you need younger people too, 

4 and, of course, people should be welcomed into the 

5 fold. But to appoint high-level leadership, you know, 

6 with rookies, novices, it’s just not productive. It’s 

7 something defense lawyers would like. I don’t think 

8 corporate counsel would want, you know, to be told who 

9 they get to have as their people at counsel table. 

10 The good thing from what’s happened from 

11 some of the discussion about repeat players and so 

12 forth is the plaintiffs' bar --

13 (Cell phone chimes.) 

14 MS. RELKIN: Oh, my goodness. I’m sorry. 

15 The plaintiffs' bar has listened and it is 

16 remarkable how many more diverse -- how much more 

17 diversity you see within some of the "repeat player" 

18 law firms. You know, they’re not dumb. And, happily, 

19 everyone is hiring more diverse lawyers. So you’re 

20 seeing even within those firms more diverse lawyers 

21 getting submitted for leadership roles. So it is 

22 happening in that context. 

23 In terms of women, I mean, I’ve been -- I 

24 didn’t introduce myself. I apologize, but I had my 

25 bio in there. I’ve been practicing for close to 40 
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1 years. I’ve been doing this type of work for decades 

2 and I’ve been co-lead counsel for four different MDLs, 

3 some very large, the ASR litigation, Depuy ASR 

4 litigation, and the Jewell litigation, and now I’m a 

5 co-lead of a smaller MDL with about 1500 cases, the 

6 Exactech hip MD litigation. 

7 But what I was going to say is, when I was 

8 first appointed as co-lead in the Depuy ASR, there 

9 were very few occurrences where women were co-leads 

10 and it is just fabulous to see that now there’s, you 

11 know, now women being appointed as co-lead or 

12 executive committee is no longer a novelty. It’s 

13 common. So, you know, progress has been made. 

14 The -- let’s see. That’s --

15 MS. BRUFF: Ms. Relkin?

16 MS. RELKIN: Oh, okay. Yes. 

17 MS. BRUFF: I apologize. I might turn it 

18 over to Judge Rosenberg. I'm sorry to interrupt.

19 MS. RELKIN: Sure.

20 MS. BRUFF: I do see we already have one 

21 question. 

22 MS. RELKIN: Sure. I didn’t see it. 

23 CHAIR ROSENBERG: Thank you so much, Ms. 

24 Relkin.

25 Ariana. 
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1 MS. TADLER: Thank you.

2 Hi, Ms. Relkin. How are you? Nice to see 

3 you. 

4 MS. RELKIN: Hi.

5 MS. TADLER: So a question I have for you is 

6 you made a really interesting point, which is let’s 

7 not disparage repeat players, and then you further 

8 noted that, you know, certain firms that may 

9 themselves have had lawyers that are repeat players 

10 have further diversified their ranks, they’re bringing 

11 in more diverse candidates. How would you tackle the 

12 concept of, well, if there’s a firm that’s a repeat 

13 player versus there might be some lawyers that either 

14 have their own firms, maybe they’ve peeled off from 

15 one of the larger firms or maybe they’re just new 

16 lawyers to the practice and they are with other firms 

17 and they too, you know, have a fairly large swath of 

18 plaintiffs that they’re representing and, therefore, 

19 they bring some diversity.

20 I’m trying to understand where you see the 

21 limitations or maybe the opportunity to have just a 

22 broader slate where maybe you have some repeat player 

23 firms and there’s diversity that’s come through by way 

24 of example that you’ve provided, as well as to be 

25 inclusive of other lawyers that are elsewhere that may 
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1 not have been seen as prolifically as others. 

2 MS. RELKIN: Certainly. I mean, I think the 

3 peeling off example that you gave of somebody was at a 

4 bigger firm and then they went off and created and 

5 that happens all the time, which is terrific. Those 

6 folks have experience too because they’ve been in that 

7 field. We’re not just talking about, you know, a 

8 random firm that happens to have a client who walked 

9 in the door who had the product at issue and has the 

10 injury and wants to get involved in the MDL. I think 

11 Professor Bradt was asking a question about the solo 

12 practitioner. The peeling off and experience, that’s 

13 great. 

14 The solo practitioner who has the one case, 

15 I will give you an example that just happened. The 

16 present MDL I have, Exactech, I made an effort, we 

17 made an effort and we have, I think, a very nice 

18 diverse team, you know, gender, ethnicity, race, and 

19 also some smaller firms. But, when we were forming 

20 the committee, there was no contest, reached out to 

21 everyone. Maybe it wasn’t the most popular MDL, so we 

22 didn’t have, you know, the food fight of slates, but 

23 there was one lawyer who had one case who has 

24 practiced a lot in that in the Eastern District of 

25 District, and he came up to me and he said, I have a 
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1 case, I’d like to be involved. I said, okay, great. 

2 You know, send me your resume. We can put you in.

3 But one thing that needs to be understood 

4 is, to participate, people do need to make financial 

5 contributions. These litigations are incredibly 

6 expensive. So the amount that we had is the charge 

7 for anybody to be on a committee, not co-lead or 

8 executive or PSC, but the committee. That’s a smaller 

9 number, it was 50,000. That’s a lot of money. It’s 

10 not as much as the higher levels, but you need the 

11 money to litigate. We’re taking on big corporations 

12 and it’s really, really expensive.

13 He decided, no, it’s not worth his while. 

14 And so is that exclusionary? You know, he thought it 

15 would be nice, but when he realized, eh, I don’t want 

16 to spend that kind of money, he stepped aside. So, 

17 you know, the idea of this, you know, solo 

18 practitioner who’s being excluded, I don’t think that 

19 that’s necessarily accurate.

20 Another example is we do have some smaller 

21 firms on the committees, and one big thing we do is 

22 document review obviously. When we made document 

23 review teams, we asked anybody who’s putting up a 

24 lawyer agree to commit 15 hours a week for document 

25 review. We’ve got to get through, you know, hundreds 
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1 of thousands of documents and you don’t want someone 

2 doing it three, four hours a week. They forget what 

3 they review by the time they go to it the following 

4 week. And some of the smaller firms would not commit 

5 their lawyers to 15 hours a week.

6 So, you know, this is big litigation and it 

7 does require investment, so I just, you know, kind of 

8 the -- I think there’s a little naivety to assume that 

9 a lot of solo practitioners can afford to time 

10 commitment and economically be in high level of 

11 leadership. If they can, great. But I think in 

12 reality that that’s just not that realistic. 

13 MS. TADLER: And just as a clarifying point, 

14 the $50,000 investment that you shared, that was at 

15 the outset of the litigation. To the extent that a 

16 litigation goes on for much longer, there may well be 

17 a further call for additional investment in the case. 

18 Isn’t that true? 

19 MS. RELKIN: Oh, absolutely. In this 

20 litigation, there's a parallel state court litigation 

21 in Florida. The MDL lawyers, we're working with the 

22 Florida lawyers. We’re funding it. We are hiring 

23 experts. You know, those are hips in Florida. We’re 

24 doing the knees in Brooklyn, and we’re writing checks 

25 not to be believed because we’re dealing with lots of 
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1 disciplines. We’re dealing with orthopedic surgeons, 

2 design engineers, polymer experts.

3 CHAIR ROSENBERG: All right. Ms. Relkin, 

4 I’m going to --

5 MS. RELKIN: Thank you. 

6 CHAIR ROSENBERG: -- jump in just because 

7 we’re running tight on time. 

8 MS. RELKIN: Thanks. Sure. 

9 CHAIR ROSENBERG: We have two questions, 

10 Rick and then Judge Proctor. 

11 MS. RELKIN: Sure.

12 PROFESSOR MARCUS: Thank you. I want to 

13 call back -- go back to your mention if I understood 

14 it about the proposal in 16.1(a) that the parties 

15 address the role of leadership in settlement 

16 activities. I don’t think that says and I’m not clear 

17 why you seem to think that says, oh, pick somebody 

18 else who isn’t in leadership at all and say you’re the 

19 one to handle settlement. Isn’t it possible that it’s 

20 valuable for the court to consider whether leadership 

21 should now or when leadership should be dealing with 

22 settlement rather than just saying, oh, I’ll deal with 

23 that with somebody else later and separately? 

24 MS. RELKIN: Oh, maybe I misunderstood what 

25 that said, but my impression and maybe it's because 
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1 I’ve seen several litigations recently where the court 

2 appoints different people to be settlement counsel or 

3 a committee of settlement, and I kind of inferred that 

4 that was what this was referring to. And I think that 

5 that can be counter-productive for the reason I said 

6 and also because I think it can send the wrong message 

7 sometimes. You know, in this world of mass torts now, 

8 there are all these non-lawyers who are out there who 

9 observe MDLs and see what’s going on. And if, oh, 

10 there’s an order saying settlement counsel is 

11 appointed, the markets are saying, oh, the litigation 

12 is settling and things percolate out there that have 

13 no bearing on reality, so, you know, settlement is 

14 inherently usually early on a confidential concept. 

15 It’s great. We love it when the judges encourage it.

16 Often my experience is it’s done in chamber 

17 conferences, although not all MDL judges do chamber 

18 conferences. And there’s sometimes things you don’t 

19 want to say in open court about settlement that can 

20 result in, you know, counter-productive actions. 

21 CHAIR ROSENBERG: Judge Proctor and then 

22 Judge Lauck.

23 JUDGE PROCTOR: Ellen, great seeing you. A 

24 question for you. I know you’ve been leadership in 

25 certain MDLs. I take it there’s been other MDLs where 
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1 you applied for leadership and someone else was 

2 selected. 

3 MS. RELKIN: That’s correct. Yeah.

4 JUDGE PROCTOR: So one of the concerns I 

5 think the subcommittee had when this coordinating 

6 counsel issue was, you know, at least initially 

7 drafted, and I’m going to speak for myself, not the 

8 subcommittee, is, how do you deal with the lawyers who 

9 are not going to have a seat at the table eventually? 

10 How do they have input about the starting point of 

11 litigation? And would coordinating counsel or liaison 

12 counsel reaching out to everyone not bring more 

13 efficiency and more diverse ideas to the table that 

14 the judge should consider, transferee judge should 

15 consider, in plotting a course for the case, including 

16 how to go about selecting counsel because different 

17 courts handle that different ways.

18 So I’ve certainly heard all the push-back on 

19 coordinating counsel. You’ve not hit the dynamite 

20 charge on that completely, so I’m curious what your 

21 view is about, if we were not going to have the 

22 language in the rule we currently have, what could we 

23 do to make sure that every lawyer’s voice gets to the 

24 court at the beginning of the stage, not just those 

25 who are either by slate or otherwise foisted on the 
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1 court as the spokespeople? And I’ll hang up and 

2 listen. 

3 MS. RELKIN: Thank you, Judge. That’s an 

4 interesting question. And, I mean, from my 

5 experience, and I guess it depends on who’s working on 

6 which litigations, is we do have meetings. Anyone who 

7 has a case that was filed before the JPML or early on 

8 before the court conference reach out if there’s an 

9 informal coalition of presumed potential leadership, 

10 reach out and you hold a meeting everybody's invited 

11 to attend. I can’t say that everybody else does that, 

12 but I think that’s pretty customary, and we have often 

13 email listservs going where we’ll do a Zoom. Zoom has 

14 changed a things a lot. It’s made things a lot more 

15 accessible. Is someone missing because they didn’t 

16 get the Zoom invite? I guess that’s possible. But, I 

17 mean, gosh, what is this coordinating counsel going to 

18 do? Pretty much the same thing, look for the list of 

19 who the lawyers are and do that reach-out.

20 I think, generally, if someone -- I mean, at 

21 these initial conferences, if someone feels like they 

22 had a different view and they weren’t sitting at 

23 counsel table, typically, the judge says, does anyone 

24 else have any, you know, thoughts, and they can stand 

25 up and say that if they didn’t. People talk outside 
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1 of the courthouse and mill around and debate whatever 

2 issues they’re going to say. So, I mean, I think it 

3 can be done without that role. 

4 I just think, I mean, maybe it’s a good 

5 idea, maybe. You know, I just think it’s just this 

6 extra step that’s going to delay moving the litigation 

7 along. Maybe liaison should be coordinating. Liaison 

8 is inherently usually the local, not that you need 

9 that proximity anymore because everything's 

10 electronic. It used to be the liaison counsel, you 

11 know, lugged the filings to court. So maybe just have 

12 a liaison counsel that has that role until the formal 

13 appointments are made. But it just seems like, 

14 otherwise, it’s coordinating counsel presumed to be 

15 lead, you know, and how does -- I guess my question to 

16 Your Honor is how is that coordinating counsel 

17 selected to make sure you got the right person for 

18 that role since they need to be inclusive and on the 

19 ball.

20 CHAIR ROSENBERG: Judge Lauck.

21 JUDGE LAUCK: I’ll try to be quick and I 

22 fear I may be misusing folks’ time because I am new to 

23 this process, but what prevents leadership from 

24 allowing a solo practitioner to participate in 

25 leadership without the $50,000 contribution or the 20 
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1 hours a month in docket review? I’m not sure where 

2 that comes from. I don’t think there’s any rule 

3 governing it and so I’d be interested. Maybe there 

4 is, so I’d be interested to know. 

5 MS. RELKIN: Sure. No, no, there is no 

6 rule. It’s just expensive to run this litigation and 

7 someone's got to write the checks to do that. So for 

8 someone who’s not making the contribution of 

9 sufficient time and/or -- and contribution for the war 

10 chest, so to speak, you know, wouldn’t everyone like 

11 to just not have to pay money and get to take 

12 depositions? You know, you need skin in the game, so 

13 to speak. But there is -- it’s custom. It’s not 

14 rule. But then you don't --

15 JUDGE LAUCK: Right. So I think my -- I’m 

16 sorry to interrupt, but I think my question goes to 

17 what Judge Proctor was talking about, which is that 

18 you can have skin in the game in many ways and that if 

19 the coordinating counsel is trying to bring in folks 

20 who are not -- and I won’t say repeat player, more 

21 experienced and have done it before, I’m not sure that 

22 the experienced lawyers wouldn’t benefit from somebody 

23 who might have a slightly different perspective. 

24 And so I think that’s part of what is being 

25 considered with respect to this rule. And if the 
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1 other folks are going to put the skin in the game 

2 anyhow, why wouldn’t they get essentially free advice? 

3 MS. RELKIN: Well, I’ll give an example. 

4 You have a litigation and it’s some toxic component to 

5 the drug or the device or chemical and the medical 

6 literature is strong on a couple of serious injuries. 

7 But this new lawyer who had a very compelling client 

8 walk into her or his office and I was exposed to this 

9 device and I developed that, and this lawyer believes 

10 it and is hell bent on, you know, pursuing that 

11 litigation, and the science isn’t there, and the 

12 experienced lawyers who have done the Daubert battles 

13 are like, no, we can’t litigate this injury, the data 

14 is not there. And that lawyer who's not paying for 

15 experts because they’re not making a contribution is 

16 requiring the leadership to pursue not a strong case 

17 that really shouldn’t.

18 So you need kind of a financial investment, 

19 so to speak, in some part to make important decisions 

20 on, you know, what injuries are going to be pursued, 

21 how strong the case is with regard to different 

22 aspects. 

23 CHAIR ROSENBERG: Okay. Thank you so much, 

24 Ms. Relkin. Very helpful. We appreciate it. 

25 MS. RELKIN: Thank you. Thank you. Thank 
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1 you so much. 

2 CHAIR ROSENBERG: Thank you.

3 Okay. Jennie Anderson, 16.1. Oh, you have 

4 to -- your mute button is on. There you go.

5 MS. ANDERSON: I should have that down by 

6 now. Good morning and thank you so much for having me 

7 here to speak to you about the proposed amendments --

8 CHAIR ROSENBERG: You might just want 

9 to -- your volume, just put it up a little bit so we 

10 can all hear you, or get maybe closer to the mic. 

11 MS. ANDERSON: Is that better? 

12 CHAIR ROSENBERG: I mean, I can hear you. 

13 It’s just it’s faint. 

14 MS. ANDERSON: Okay. I’ll try to speak up. 

15 I think that I just have to speak more loudly. 

16 CHAIR ROSENBERG: Yeah, there you go. 

17 MS. ANDERSON: Okay. I apologize for that. 

18 So good morning. Thank you for the opportunity for 

19 having me here. My name is Jennie Anderson. I am a 

20 partner at the San Francisco law firm of Andrus 

21 Anderson. I have been practicing complex litigation 

22 for more than 20 years, both in class actions and mass 

23 torts. I am probably one of these -- I’m probably one 

24 of the plaintiffs' attorneys from a smaller firm than 

25 you've heard from for the rest of the testimony and I 
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1 apologize for my voice. I am sick, so I will try to 

2 speak up, but I’ve been coughing all morning, so I 

3 apologize for that in advance.

4 So I’d like to talk a little bit today about 

5 16.1(b) and 16.1(c)(1) proposals. I’ll try to be 

6 brief because I know we’re a little bit behind, and 

7 I’ll try not to repeat what I’ve already submitted in 

8 writing.

9 First, I will join the many other 

10 plaintiffs’ counsel you’ve heard from today in the 

11 opinion that adding an additional layer of 

12 coordinating counsel before leadership is appointed to 

13 work with plaintiffs or the defendants on things of 

14 such great importance as preparing the first case 

15 management report is ill-advised.

16 In my opinion, the first order of business

17 should be to take applications for leadership and 

18 appoint leadership. It’s not that much of a delay. 

19 We’re talking about litigation that is going to be 

20 going on for years. So taking the time, a few extra 

21 weeks, for the judge to reach out, require 

22 applications and have that hearing in advance of 

23 requiring the first case management report does not 

24 cause much delay. And everyone’s concern, as you’ve 

25 heard, is that having coordinating counsel in that 
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1 role where things may have to be undone if there 

2 wasn’t agreement on who should be speaking for 

3 leadership on the plaintiffs early on is also 

4 problematic.

5 On that same note, I’m a big proponent of 

6 the individual application process as opposed to the 

7 slate or self-management -- or self-coordination 

8 models of leadership. I think it’s gaining popularity 

9 with federal judges who are presiding over MDLs and it 

10 has increased diversity and, importantly, the pipeline 

11 of younger attorneys managing and having leadership in 

12 MDL roles. And it also is an opportunity for smaller 

13 firms like mine to come in and make an independent 

14 application for leadership where we may not have been 

15 included in the larger meetings with the larger firms 

16 who are known to have many, many cases on file.

17 So that kind of segues into my comments on 

18 16(c)(1). As I mentioned in my written testimony, I 

19 do not think that any of the topics regarding 

20 leadership counsel should be the subject of a joint 

21 meet-and-confer or a report. I think that these are 

22 issues for the judge and for plaintiffs' leadership to 

23 work out. I don’t think that defense counsel 

24 anticipates having a role in dictating what the duties 

25 of lead counsel will be and how lead counsel is 
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1 appointed. So, in my view, while these may be good 

2 checklists for the judge and for plaintiffs' counsel, 

3 it’s not the subject of a joint report.

4 And I mentioned in my comments that in 

5 social media, Judge Gonzalez Rogers, after the 

6 appointment of leadership, the plaintiffs' bar put in 

7 a proposed order for the judge’s consideration setting 

8 forth the duties of plaintiffs' leadership, and the 

9 judge made some adjustments and entered the order, but 

10 defense counsel was not invited to weigh in on the way 

11 plaintiffs' counsel intends to litigate the case.

12 And then, finally, I will just add that if 

13 those elements are maintained for the judge’s 

14 consideration and for plaintiffs' counsels' 

15 consideration, I do think that having some mention of 

16 a procedure for periodic review is important. I’ve 

17 advised young attorneys for years that PSCs are not 

18 written in stone, and I have told many young attorneys 

19 and attorneys from small firms, go in to lead counsel, 

20 volunteer, do the work, and next year, tell lead 

21 counsel you’d like to put in an application for the 

22 PSC and put in an application to be added to the PSC. 

23 They are not set in stone. And I think that’s a good 

24 thing for judges and practitioners to know and to keep 

25 in mind.
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1 Now, of course, that has to be balanced with 

2 maintaining consistency. You know, to have a 

3 completely new leadership each year would be very 

4 disruptive, but I think judges already know that. So 

5 I just wanted to also give a plug for keeping 

6 something of that nature in there but in a different 

7 section that is not a joint statement. 

8 With that, I’ll take questions if there are 

9 any. 

10 CHAIR ROSENBERG: Thank you so much. So I 

11 have a question. You seem to be a proponent of kind 

12 of an interview process. The rules speak -- the notes 

13 as drafted speak to that as being one method of 

14 appointment. Would it not behoove the judge to have 

15 some familiarity, if not as much familiarity as 

16 possible, about the case prior to making leadership 

17 appointment? And to that end, would it not then be 

18 helpful for the judge to receive some type of an 

19 initial report, whether all of the items listed in (c) 

20 are included or not, so that when the judge is 

21 interviewing candidates the judge has a context in 

22 which to know whether these people would be 

23 appropriate candidates? 

24 MS. ANDERSON: Understood. I understand the 

25 question. Frequently the judge will ask for that 
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1 report and at the same time as ordering plaintiffs' 

2 counsel to put in their applications and that tends to 

3 be, you know, sort of a self-ordering type of role, 

4 although I heard another witness say that it can also 

5 be an opportunity for competing factions to put in 

6 competing information and turn that into sort of a 

7 pre-application part of the leadership application 

8 process. 

9 So I really think that, you know, the judge 

10 could ask for joint or separate statements of the 

11 case. I think that the judges are pretty adept at 

12 understanding the general legal theories being 

13 advanced in the case and the size of the litigation as 

14 the cases are being transferred through the JPML. I 

15 think most judges who are of the level they are 

16 getting an MDL of a mass tort are experienced enough 

17 to have an idea of the case at the outset. But, 

18 certainly, it is always a judge’s prerogative to seek 

19 a report. I would just say that the report that’s 

20 being suggested here is extremely substantive and 

21 includes many strategic and important decisions that 

22 are going to set the tone for the litigation.

23 So, if it were a joint report, I would 

24 suggest that it be very basic, setting forth the 

25 allegations that have been made in the complaints in 
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1 general terms, the different parties that may be 

2 coming to the JPML. For example, there may be a class 

3 component, there may be a government entity component, 

4 and there may be individual components. So something 

5 of that nature that’s very simple could be helpful. 

6 The other thing that I’ve seen done, this 

7 was one thing that Judge Gonzalez Rogers did in the 

8 social media case was she asked the parties to the 

9 degree possible to come to that first meeting with a 

10 consensus on liaison counsel so that there would not 

11 be -- you know, if possible, come to a consensus and 

12 propose a liaison counsel that plaintiffs' counsel can 

13 endorse and would like to see act as liaison counsel 

14 so she could appoint that person on the spot even as 

15 she considered applications for other positions.

16 CHAIR ROSENBERG: Okay. Thank you. Rick. 

17 PROFESSOR MARCUS: Thank you. I want to 

18 follow up on one thing you mentioned because I’m not 

19 sure how to interpret it. 

20 As we have worked on this, on occasion, we 

21 have asked defense counsel, do you think you have any 

22 role in this method for content of selection of 

23 plaintiff leadership counsel, and at least defense 

24 counsel have said in those interactions, no, no, we 

25 have no role. And you are interpreting this as 
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1 directing that defense counsel have a role in the 

2 method of selecting leadership counsel. If it were 

3 clear that’s not the objective, do you have a problem 

4 with having a joint report dealing with lots of the 

5 other things in 16.1(c), like are there scheduling 

6 orders that should be modified, what are the factual 

7 and legal issues, things of that nature. And would 

8 you be more comfortable if I just said each side 

9 should present a report of its view on these topics, 

10 with defense counsel not having a view on selection 

11 appointment of leadership counsel. I don't think this 

12 clearly -- the proposal clearly says only defense gets 

13 to pick its opponents, but, surely, the judge does 

14 need a starting point on all these other things. So 

15 what are your thoughts on how this should be handled 

16 and how it has been handled? 

17 MS. ANDERSON: I think a joint report is 

18 appropriate but, ideally, after plaintiffs' leadership 

19 has been appointed. As far as criteria for leadership 

20 is concerned, I think that that is and has been very 

21 successfully the topic of judicial education. I find 

22 the judges I appear before have a very clear idea and 

23 have heard from their colleagues what has worked best 

24 and how they’re going to manage the application of 

25 leadership.
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1 So I don’t know that the judge needs 

2 direction from the parties on what criteria the judge 

3 should be considering when appointing leadership. The 

4 judge will likely get feedback from the parties on the 

5 structure in the applications, for example, whether 

6 the parties believe that there should be co-lead 

7 counsel and then a PSC below co-lead counsel. The 

8 parties will express their views on that during the 

9 application process.

10 As far as the other items in subsection (c), 

11 I think that those are all good things to discuss but, 

12 again, with leadership in place because they’re very 

13 important issues. And so to go through them before 

14 there is leadership that can speak with authority 

15 seems just inefficient in my mind. But, other than 

16 part one, I think that those are good topics for the 

17 first case management report to the court, which I 

18 think is ideally joint. 

19 CHAIR ROSENBERG: Okay. Thank you so much, 

20 Ms. Anderson.

21 We’ll hear next from Amy Zeman on privilege 

22 log.

23 MS. ZEMAN: Good afternoon, and thank you to 

24 the Committee. I am Amy Zeman. I’m a partner at 

25 Gibbs Law Group in Oakland, California. I represent 
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1 plaintiffs, and I practice primarily in complex 

2 litigation doing both class actions and mass torts. I 

3 really appreciate the opportunity to share my feedback 

4 today about the amendments to Rules 16 and 26 

5 regarding privilege logs. 

6 Overall, the proposed amendments are very 

7 well done. They’re very appropriate to facilitate 

8 efficient and effective discovery. Most importantly, 

9 the amendments respond to a real and practical concern 

10 with a universal yet flexible solution that 

11 acknowledges that there really can be no plug-and-play 

12 approach that would work for every single case.

13 Second, ensuring that planning for privilege 

14 logs is addressed early in the litigation process is, 

15 in my mind, a very helpful improvement. Discovery in 

16 complex cases is itself complex. Yet, in case after 

17 case, we are able to work out a sensible discovery 

18 plan early in the process, and there really is no 

19 reason that incorporating privilege logs into that 

20 thought process, you know, can’t work and doesn’t make 

21 sense.

22 To give you an example, I’m being called 

23 upon now to assist in a case where logs were not 

24 discussed early on and there was no agreed protocol 

25 put in place. As I have now begun reviewing the logs 
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1 from defendants, I’m already foreseeing significant 

2 questions back to the producing party that are likely 

3 to result in a redo of those logs or at least a 

4 partial redo, and this inefficiency could have been 

5 avoided with early discussion and consideration as 

6 part of the parties’ discovery plan in order to set 

7 expectations and parameters for those very logs.

8 My primary concern with the amendments is 

9 just the note to Rule 26. It places too much emphasis 

10 on the potential burden of creating privilege logs 

11 while giving insufficient recognition to the danger of 

12 over-designation, which does occur, whether it’s 

13 intentional or inadvertent.

14 Privilege logs do critical work to ensure 

15 that properly discoverable, non-privileged material is 

16 not withheld and hidden. Privilege logs that provide 

17 meaningful information are really the only means for 

18 the propounding party to identify that improper 

19 withholding is happening and to then unravel it. With 

20 that in mind, I would very much like for the proposed 

21 note to provide a more balanced view of what the 

22 parties need to be considering big picture as they’re 

23 negotiating the timing and method for their privilege 

24 logs.

25 Again, I thank the Committee for a 
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1 thoughtful and effective amendment, and I welcome any 

2 questions. 

3 CHAIR ROSENBERG: Thank you, Ms. Zeman. 

4 Are there any questions?

5 No. Seeing no questions. Okay. Thank you 

6 so much. We appreciate your comments. 

7 MS. ZEMAN: Thank you. 

8 CHAIR ROSENBERG: And Mr. Polk on privilege 

9 logs as well.

10 MR. POLK: Good morning. My name is Adam 

11 Polk. I’m a partner at Girard Sharp, a San Francisco 

12 law firm. We represent primarily plaintiffs in 

13 complex litigation nationwide. I myself do both class 

14 actions and mass torts, often in a leadership 

15 capacity. Like Ms. Zeman, I’d like to thank the 

16 Committee for the attention that they’ve given to the 

17 amendments to Rule 26 and 16. I think they reflect a 

18 lot of thinking. 

19 And let me just say, you know, at the outset 

20 I come at this from the perspective when we’re talking 

21 about privilege logs, really, the aim is to allow the 

22 receiving party to assess the claim of privilege. We 

23 need to have enough information to assess the claim, 

24 and through that lens, I fully support the amendments. 

25 Complex litigation is complex. It’s true. In all the 
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1 cases, I think Ms. Zeman said there’s no cookie-cutter 

2 approach. That’s right. And the amendments 

3 underscore the need for flexibility, early engagement 

4 about a plan, and resolving in good faith differences 

5 early. They come up in every case. And I think 

6 discovery and privilege logging in particular, the 

7 conversation that is ongoing over the course of the 

8 case and information as to what is and what is not 

9 privileged is important for the parties to obtain 

10 early. It can reduce burdens and streamline the case.

11 I just want to make three points on these 

12 issues. I’ll be brief. First, on early engagement, 

13 taking in the different comments and testimony 

14 outlines, I think most seem to agree that early 

15 engagement is good. Some take the position that it’s 

16 premature. I practice primarily in the Northern 

17 District of California, though I also practice 

18 nationwide. In the Northern District, privilege is 

19 part of our ESI model order, so it kind of forces the 

20 parties to dialogue early in the case when you’re 

21 negotiating those initial case management orders, and 

22 I've found that incredibly helpful. I have not run 

23 across a Northern District case where either side has 

24 been at a loss to identify the obvious categories of 

25 documents that there may be a dispute about. So clear 
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1 categories are communications with outside counsel 

2 that post-date the filing of the complaint. Other 

3 categories that I see coming up over and over again 

4 are, if there’s a big incident, communications with 

5 investigators or other third parties, and, you know, 

6 the model order forces us to talk about it, and I’ve 

7 come up, you know, been able to kind of land on 

8 approaches that work with the other side. 

9 So I think the upshot is it’s good to come 

10 up with a plan and it avoids the situation that Ms. 

11 Zeman was talking about where you’re stuck late in 

12 discovery, only then realizing that there’s an over13 designation problem.

14 Along those lines, the second point I’d like 

15 to raise is rolling logs. I think those are a good 

16 thing. I think that what I said at the top about each 

17 side obtaining information from the judge about what 

18 is and what is not properly withheld is important and 

19 it can ease burdens over the life of a case. You can 

20 resolve cross-cutting issues that affect broad swaths 

21 of documents early, get answers on what’s properly 

22 withheld and what is not.

23 One real-world example that I’d like to 

24 share, I’ll be very brief on it, is I had a large case 

25 actually with Ms. Zeman about an IVF tank holding 
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1 eggs, human eggs and embryos, that failed. It was big 

2 news in San Francisco. And one cross-cutting dispute 

3 there was whether communications post-incident pre4 litigation between the IVF clinic and PR consultants 

5 were properly withheld as privileged or not. The 

6 presiding judge in that case had a standing order 

7 providing for rolling logs, so that issue was front 

8 and center early. We teed it up. We got an answer 

9 and it informed the rest of the litigation. So, you 

10 know, we were able to use that information in 

11 discovery versus only obtaining it later and then 

12 having to go back, ask witnesses questions, and obtain 

13 central evidence, you know, in hindsight basically.

14 And the last point I’ll make is that I think 

15 that the comments and the proposed amendments to the 

16 rule both reflect the fact that flexibility is 

17 important in complex litigation. Every case is 

18 different. And, yo know, I think, again, taking in 

19 all the comments and notes, you know, there seems to 

20 be kind of a divide, categorical versus document by 

21 document. You know, I don’t look at it in a binary

22 way like that. I think that flexibility means, you 

23 know,, look at the case that you have and if it’s 

24 appropriate, you know, you can implement those types 

25 of practices in a single case.
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1 So, you know, one example, it’s not 

2 appropriate in every case, but, you know, sometimes 

3 I’ve had opposing counsel ask for communications with 

4 house counsel that post-date the filing of a complaint 

5 to be logged categorically, and that’s something that 

6 I have sometimes agreed with. But, you know, again, I 

7 think the parties need the flexibility to problem8 solve in a cooperative way, and I think that the 

9 proposed amendments accomplish that goal.

10 So, again, I want to thank the Advisory 

11 Committee for the work and the thought that’s gone 

12 into these proposed amendments and happy to answer any 

13 questions.

14 CHAIR ROSENBERG: Okay. Thank you, Mr. 

15 Polk.

16 Rick. 

17 PROFESSOR MARCUS: Thank you. I’m hoping 

18 you can educate us about something that has come up 

19 with prior witnesses, and that’s whether technology is 

20 going to be the yellow brick road to the solution of 

21 the problems we’ve been talking about. What’s your 

22 experience been? Generative AI is a big deal not just 

23 in San Francisco but across the world. Where are we 

24 going and what can we expect? 

25 MR. POLK: So, you know, my experience with 
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1 generative AI as it pertains to the law, it’s really 

2 twofold. I don’t think either has, you know, direct 

3 relevance to privilege logs. I think the first is, 

4 you know, continuous active learning. It’s still 

5 coming up in cases. You know, TAR and TAR 2.0, you 

6 know, in the early days, I tried to fight and, you 

7 know, I was unsuccessful and now I’ve kind of dug down 

8 and engaged with the other side. I think it can be a 

9 useful tool if you have appropriate protocols to 

10 validate. 

11 You know, the other use of generative AI 

12 that I have adopted in my practice is, you know, 

13 Westlaw has rolled out a very useful tool and it’s 

14 called Westlaw Precision and you can basically query 

15 it and start your research there, as opposed to 

16 Boolean searching, and it will spit out a memo with 

17 footnotes that is scary detailed. So, you know, I 

18 think it means -- people who are using it, like I am, 

19 some of my partners are, they’re going to be able to 

20 cover more ground. I think it’s going to change the 

21 practice. 

22 CHAIR ROSENBERG: Okay. Seeing no more 

23 questions, thank you so much. 

24 MR. POLK: Thanks, all. 

25 CHAIR ROSENBERG: Ashleigh Raso on 16.1.
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1 MS. RASO: Yes, thanks, Your Honors. Thank 

2 you for allowing me to testify on this very important 

3 issue. My name is Ashleigh Raso, and I’m a founding 

4 partner at Nigh Goldenberg Raso & Vaughn. I currently 

5 serve on several MDLs, including acting liaison in 

6 three different MDLs. I'll rely mostly on my written 

7 testimony, but I want to respond to some questions 

8 that have been asked today. 

9 First, there’s been a question regarding if 

10 coordinating counsel will be the same as liaison 

11 counsel, and my answer would be that I hope it's not. 

12 This rule as written elevates the position of 

13 coordinating counsel and gives them more perceived 

14 power even if it’s unintentional. This will make it a 

15 highly sought-after position. 

16 Liaison is often a thankless job. It 

17 involves organizing many lawyers, documents, making 

18 sure everything runs smoothly. And as my colleague 

19 pointed out, it’s essentially herding cats. It’s 

20 essentially the janitor of the MDL on the plaintiffs' 

21 side. And giving this position more power may result 

22 in neglecting the janitorial duties given the 

23 additional responsibilities as written.

24 Second, is coordinating counsel or liaison 

25 counsel is necessary? In my view, a qualified liaison 
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1 counsel is absolutely necessary. As previously 

2 mentioned, it’s a thankless job and is often 

3 overlooked, and it’s important to appoint someone who 

4 is organized and willing to do the work. It should be 

5 chosen by her colleagues or someone who is familiar 

6 with their work organization or after judicial review.

7 There’s been a question about whether 

8 liaison counsel should be located in the jurisdiction 

9 of the transferee court. I disagree with some of my 

10 colleagues here. I think that there was a time for 

11 that. 

12 However, as you saw in my testimony, I’m 

13 located in Minneapolis, but my liaison positions have 

14 been in Massachusetts, New York, and Florida. And 

15 particularly in this post-COVID world, where many 

16 hearings are done virtually, it’s more important to 

17 have a qualified person who wants this position than 

18 someone in the same ZIP code of the courthouse. This 

19 also furthers the goal of having diverse candidates 

20 and the MDLs usually go with larger cities. But there 

21 are amazing attorneys across the country that are 

22 qualified, including many in rural areas.

23 I also want to touch on self-organization. 

24 It absolutely happens all the time. It’s helpful. It 

25 works. Unfortunately, I think this rule will rush 
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1 that process. The parties will be coordinated quickly 

2 in an effort to bypass a sua sponte coordinating 

3 counsel appointment. This will neglect some lawyers 

4 that would make great candidates. After coordination, 

5 more attorneys may file cases that are unknown to 

6 leadership and potentially leave them out of possible 

7 consideration. 

8 There’s also been a question about whether 

9 coordinating counsel actually further the goal of 

10 having diverse candidates. Unfortunately, I believe 

11 coordinating counsel will have the opposite effect. 

12 First, in (c)(1), having a coordinating counsel 

13 discuss how and if leadership will be appointed, if 

14 this person has that ability, there are likely folks 

15 to be left out. 

16 Additionally, as discussed earlier, there 

17 will be a rush to make appointments that will 

18 eliminate some folks. The cure for this is just 

19 purely logistical. Everyone who has a filed case, 

20 even if it’s a day before the first hearing, will get 

21 the notice of that hearing and have a chance to be 

22 heard.

23 On repeat players, I am in my twelfth year 

24 of practice, but I am on my fifth appointment, so I am 

25 arguably a repeat player at this point. I’d like to 
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1 think that the main reason I get liaison appointments 

2 is because my colleagues know my organization. But I 

3 also try to bring those up under me as plaintiffs have 

4 made huge strides in this area, as Ellen Relkin 

5 pointed out. This is also done through judges, not 

6 liaison or coordinating counsel.

7 Recently, an appointment came up in the CPAP 

8 litigation. I put forth my associate who has done a 

9 great job, and I wouldn’t be able to do that if the 

10 judge had not expressed interest in developing an LDC 

11 committee, which is also another litigation that has 

12 this LDC committee, the CPAP litigation. 

13 Judges play a huge role in this area of 

14 diverse commitments that have nothing to do with 

15 plaintiffs' counsel, in addition to plaintiffs' 

16 counsel making their own strides. They do this 

17 through requiring those who actually wrote the brief, 

18 often an associate, to present oral argument, 

19 presentations at the CNC on the committees, and other 

20 ways that judges have furthered the goal of diverse 

21 candidates.

22 I want to touch on the assessment issue that 

23 was brought up. This is governed by two things. 

24 First, the rule that governs, it’s not really a rule, 

25 but the common benefit order, which will require 
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1 substance be paid and outline what kind of work is 

2 compensated and who is eligible for it. The way 

3 around this or to include diverse members can be done 

4 through a very low assessment on the LDC and sometimes 

5 they are excluded from follow-up cash calls. This 

6 just happened in the CPAP MDL for the LDC.

7 As I touched on my written argument, there 

8 are some instances where it may be particularly 

9 important to consider diverse candidates. As liaison 

10 counsel, I’ve been contacted by pro se clients. I 

11 work mostly in orthopedic device cases. However, if I 

12 had been appointed in the Uber sexual assault 

13 litigation, clergy abuse coordination, or hair relaxer 

14 litigation, certain considerations should be given to 

15 liaison counsel, and that was an important discussion 

16 to be had after at least one hearing. 

17 If the goal of this rule is efficiency, I 

18 believe the rule should be centered around the judge’s 

19 preferences, not any one coordinating counsel. The 

20 most efficient MDLs I have been a part of have nothing 

21 to do with the first report at the first hearing or 

22 liaison counsel, despite my best efforts, but 

23 everything to do with the judge keeping the parties on 

24 task.

25 Recently, in the hair relaxer litigation, 
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1 there was an order entered that required a joint 

2 weekly agenda. I’ve been part of other MDLs where 

3 that is absolutely vital in moving parties along.

4 So, instead of the one person at the first 

5 hearing having that efficiencies, it’s really the 

6 judge who keeps the party on task at the appropriate 

7 time as the case develops. 

8 On the coordinating counsel speaking on 

9 behalf of the larger group, I understand that’s not 

10 what the rule intended. Unfortunately, I think it 

11 will be the impact felt. If 

12 coordination -- coordinating counsel may come to 

13 agreements with defendants in the topics on subsection 

14 (c), then there may be -- even if the agreement is 

15 that it’s premature, that in itself is a decision that 

16 eventual leadership may not agree with and maybe 

17 leadership may be held to those agreements later.

18 I’m happy to talk about (c)(4), but I would 

19 just say that what information is exchanged early is 

20 more important than the quick exchange of irrelevant 

21 information. Coordinating counsel may not have a huge 

22 stake in the litigation or may not know what 

23 information is to be exchanged. For example, in 

24 Stryker Rejuvenate, it was very important to exchange 

25 the results of a cobalt and chromium blood test. In 
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1 the Exactech litigation, it’s important to exchange 

2 the pre-revision X-rays and explant. Both of these 

3 litigations involve hip, but the important information 

4 to be exchanged is different. So it’s important to 

5 agree which information should be exchanged than to 

6 rush to exchange just any information. 

7 I also would rely on some of my colleagues’ 

8 comments about it’s actually the defendants who hold 

9 this information sometime. Anyways, I just want to 

10 touch on those, and thank you for allowing me to 

11 testify, and I welcome any questions. 

12 CHAIR ROSENBERG: Okay. Thank you so much. 

13 That was very comprehensive.

14 Rick. 

15 PROFESSOR MARCUS: Thank you. I want to ask 

16 about one thing I think you said because it surprised 

17 me a little bit.

18 One of the things with regard to selection 

19 of leadership that we address in the rule is whether 

20 and when to establish a means for compensating 

21 leadership counsel. I think you said that sometimes 

22 the judge has a role in determining what assessments 

23 participating counsel contribute, and I’m a little 

24 surprised by that. Can you elaborate, or did I just 

25 mis-hear what you said? 
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1 MS. RASO: No, Your Honor. I’m sorry if I 

2 was confusing. The judge does not have a role in 

3 assessments. What I meant by that is the judges have 

4 a role in diversity and including diversity. In the 

5 example of my associate, for example, I would not have 

6 the opportunity to appoint her to the CPAP litigation 

7 because she has no experience unless there was an LDC. 

8 And then, on top of that, the LDC keeps the assessment 

9 low, which allows them to be involved.

10 But you’re right, Your Honor, the judge does 

11 not have a role in the assessment amount. That is on 

12 the plaintiffs' side. But, as that first step of

13 expressing interest in having an LDC, it allowed her 

14 to be involved. 

15 CHAIR ROSENBERG: Okay. That was actually 

16 Professor Marcus, but I’m sure he doesn’t mind being 

17 called Your Honor. 

18 MS. RASO: Oh, I’m sorry.

19 CHAIR ROSENBERG: Professor Bradt. 

20 PROFESSOR BRADT: Nor would I. But I 

21 thought I heard you -- correct me if I’m wrong -- you 

22 mentioned appointing an acting liaison counsel. I 

23 wonder if you could elaborate on that. Is liaison 

24 counsel typically appointed with the rest of 

25 leadership, or is liaison counsel often appointed 
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1 first, or what is acting liaison counsel? Thanks. 

2 MS. RASO: Yes, Your Honor. That was purely 

3 out of trying to be accurate. For example, in the 

4 Stryker LFIT V40, my role is considered administrative

5 counsel. There is no liaison. I am the liaison, but 

6 Judge Talwani calls it administrative. In Exactech, 

7 it’s plaintiffs' state liaison. So there’s just 

8 different names for it, but no, they were appointed, 

9 with the exclusion of Exactech, which I was added on 

10 to later, they were appointed at the time the entire 

11 leadership group was appointed. And so I just wanted 

12 to be accurate and not call it liaison when, 

13 technically, some judges prefer to call it 

14 administrative or other names for it. 

15 PROFESSOR BRADT: Thank you. 

16 CHAIR ROSENBERG: All right. Thank you so 

17 much. We appreciate your comments.

18 Next, we’ll hear from Kate Baxter-Kauf on 

19 16.1. 

20 MS. BAXTER-KAUF: Good morning. And my 

21 testimony is actually about privilege logs, which is 

22 what was submitted, so I hope that’s okay. 

23 CHAIR ROSENBERG: Oh, that must have really 

24 thrown you. Okay.

25 MS. BAXTER-KAUF: I mean, I can give you my 
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1 contemporaneous thoughts, but --

2 CHAIR ROSENBERG: No, no, no. We’ll stick 

3 with privilege logs. 

4 MS. BAXTER-KAUF: But good morning. Yeah, 

5 thank you so much for allowing me to testify. I’m 

6 Kate Baxter-Kauf. I’m a partner at Lockridge Grindal 

7 Nauen in Minneapolis, and I primarily represent 

8 plaintiffs in class litigation related to data 

9 breaches, data disclosures, and other privacy 

10 litigations. And I think the primary way that I can 

11 be helpful to the Committee is that I’ve spent the 

12 last seven years working with the Sedona Conference on 

13 drafting papers related to attorney/client privilege 

14 and work product in the cybersecurity context, and so 

15 we’ve been working to try to come up with a consensus 

16 on the application of those privileges in that 

17 specific context. 

18 And as an initial matter, I agree with the 

19 previous commentors who have noted that the proposed 

20 amendments to the language of Rules 26(f) and 16(b) 

21 are helpful and likely to aid the parties in 

22 discussing privilege log completion and front-loading 

23 disputes.

24 In data breach and privacy cases, especially 

25 ones involving incident response or whether or where 
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1 there’s an accompanying criminal investigation, i.e., 

2 the FBI is the one who discovered that there was a 

3 breach or some other law enforcement agency is 

4 involved, the contours of what you can withhold or 

5 what’s attorney/client privileged likely influence the 

6 entirety of discovery in the case, and so resolving 

7 that early is really important for contributions to 

8 judicial efficiency and lowering time and cost for all 

9 the parties.

10 That conclusion, from my perspective, is 

11 based on two kind of fundamental competing principles. 

12 One of them is that the attorney/client privilege is 

13 sacred and it ought to be protected, and the second is 

14 that facts themselves are not privileged.

15 When you’re talking about cases involving 

16 technology, i.e., systems, computer systems, that are 

17 breached and especially logs or other kinds of 

18 computer portions that might be ephemeral, what the 

19 facts are is often known at the time of incident 

20 response but might change over time, and so assessing 

21 whether an attorney was involved or what the contours 

22 are of whether something is privileged is going to be 

23 really important in determining how the parties move 

24 forward.

25 There are two points I wanted to make and 
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1 I’m then happy to answer any questions. The first is 

2 that any instruction which requires that privilege 

3 logs short-circuit the process of providing complete 

4 information under Rule 26(b)(5)(A) needs to 

5 acknowledge the asymmetrical information available to 

6 the parties.

7 This is a simple and possibly way over 

8 obvious point, but the requesting party, which is 

9 usually where I find myself but not always, can’t look 

10 at the documents that are being withheld as privileged 

11 and they don’t know the content of those documents. 

12 So that means that the only way that you can assess 

13 facial compliance is through making sure that the 

14 requesting party can properly assess the claimed basis 

15 for withholding communication. 

16 That means that any version of kind 

17 of -- that rolling productions are helpful because you 

18 can get those things up front, especially like an 

19 earlier commentor talked about where there can be 

20 downstream effects, i.e., if we’re going to discuss 

21 whether a forensic report that assesses how a data 

22 breach happened is privileged, knowing whether it is 

23 or not or whether it’s a business communication versus 

24 a legal communication or whether there was waiver 

25 because it was given to third parties or something 
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1 like that will influence whether the public relations 

2 documents or the internal investigations are also 

3 privileged because, if they’re not, then that claim 

4 will change. That means that can be really helpful.

5 But any kind of tiered approach or approach 

6 that requires assessing the importance of the 

7 documents, like how important they are to the claims 

8 or defenses in the litigation, is really hard for the 

9 requesting party because they don’t know what’s in the 

10 documents, so it’s hard to know whether those 

11 documents are important to the claims that they’re 

12 making. And the plaintiffs need to be in a position 

13 to determine the contours of their own case and what 

14 it is that they think the claims are going forward.

15 The second thing is that the inclusion of 

16 other forms of privilege or types of protection 

17 heightens the need for complete and facially compliant 

18 logs. And in earlier discussions with witnesses, 

19 there were a couple of questions about types of 

20 claimed privileges or protections beyond 

21 attorney/client privilege or work product.

22 Someone mentioned an earlier mentioned 

23 witness talked about the joint defense privilege, 

24 which sometimes is a common interest privilege and 

25 there’s a robust academic and jurisdictional 
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1 discussion about whether or not that’s a separate 

2 privilege or whether it’s properly characterized as a 

3 form of waiver, which I’m sure you all -- I’m happy to 

4 discuss if you all are interested in, but -- and this 

5 comes up in my cases a lot. First, for because 

6 forensic companies are usually technology companies 

7 and they’re not lawyers, who are not known for their 

8 ability to assess technical incident response, but 

9 also other types of waiver, right, are really, really 

10 important in these contexts, especially selective 

11 government waiver, which isn’t acknowledged in almost 

12 any jurisdiction, and also other types of -- who 

13 constitutes an agent and those kinds of things.

14 But the other one that comes up a lot is 

15 privileges are protections based on the industry of 

16 the company that was investigated. So, in the Capital 

17 One litigation, which I was involved in the privilege 

18 disputes a lot for, the bank examination privilege was 

19 a really important part of that, which is one that not 

20 a lot of folks have experience with, and that meant 

21 that facially compliant logs were very, very important 

22 for two separate reasons, one of which was that a 

23 claim for -- if a withholding party is making a 

24 simultaneous claim that is that there’s a privilege 

25 claim, a work product claim, and a bank examination 
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1 claim, the requesting party has to be able to assess 

2 all three of them. 

3 And then the second is that in that case, in 

4 the Capital One litigation, the Office of the 

5 Comptroller of the Currency was also involved because 

6 they were doing their own separate investigation of 

7 the breach that had happened and they had their own 

8 separate bank examination privilege for the documents 

9 that they were potentially withholding, which means 

10 that it’s going to be more efficient for the parties 

11 and especially for the court -- because I personally 

12 enjoy a six-hour-long hearing where we go line by line 

13 through an Excel spreadsheet, but I’m not sure that 

14 everybody else does -- that that means that being able 

15 to figure out which documents are the most important 

16 and which communications are the ones that we should 

17 assess that privilege claim for first and then use it 

18 to make other determinations can be really very 

19 helpful. 

20 CHAIR ROSENBERG: Great. Let me just 

21 interrupt if I could. 

22 MS. BAXTER-KAUF: Go ahead. 

23 CHAIR ROSENBERG: Any questions? 

24 MS. BAXTER-KAUF: Yep. 

25 CHAIR ROSENBERG: We just -- okay, we have 
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1 two because we’re trying to get down to the --

2 MS. BAXTER-KAUF: Perfect.

3 CHAIR ROSENBERG: -- lunch hour break, which 

4 is not going to happen at 12:30, but we have two more 

5 witnesses.

6 Rick and then Helen and then -- or, 

7 actually, it’s Helen, then Judge Boal, and 

8 then -- well, Rick, you have your -- you had your hand 

9 up. Okay. I’m just trying to go in order of -- 

10 PROFESSOR MARCUS: Well, I just wanted to 

11 explore your cybersecurity background and your Sedona 

12 background by asking whether you or Sedona has a view 

13 on something I asked about before. Is technology 

14 going to save us from headaches, or is it going 

15 to -- will that be a way to deal with privilege logs 

16 that will be all different in three years from now, or 

17 is it going to be the same thing all over again? 

18 MS. BAXTER-KAUF: That’s a very good 

19 question. So, thus far, I think we are still at the 

20 point where, in my experience, the layer of technology 

21 up front makes things worse before it makes things 

22 better, which is to say we are not to the point where 

23 generative AI or technology can assess whether a 

24 communication is requesting attorney advice. Like, 

25 we’re just not to that point. It can assess whether 
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1 it says attorney/client privilege on the email. You 

2 can give it a list of information of who’s an attorney 

3 and that can be helpful.

4 But the actual assessment of whether 

5 something is privileged or protected still has to be 

6 done by human people who are attorneys who are trained 

7 in that. And I think that the Sedona Conference is 

8 going to keep talking about it. We have a conference 

9 in April that I’m on some panels for, but I think that 

10 right now the real question is there are still going 

11 to have to be human people involved and so how do you 

12 front-load that discussion to make it as efficient as 

13 possible. 

14 CHAIR ROSENBERG: Helen.

15 MS. WITT: I’m going to try to do a Travis 

16 Kelce, two questions in one. You used the term --

17 MS. BAXTER-KAUF: Delightful.

18 MS. WITT: -- at one point, a "facially 

19 compliant log," which sounded to me like you were 

20 talking about a document-by-document log, but then, in 

21 some of your later comments, you referred to things 

22 that sounded to me like perfect opportunities for 

23 categories of things that could be tested and used to 

24 determine a whole range of documents that might fall 

25 into the same category.
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1 So what did you mean by "facially compliant 

2 log" and what do you think about category logs in 

3 those kinds of circumstances? Thank you. 

4 MS. BAXTER-KAUF: That’s a great question. 

5 I really appreciate it.

6 So, in my mind, usually, when we do 

7 privilege disputes and when there’s a long discussion 

8 about a privilege log, the first question is always is 

9 there enough information based on the list of 

10 categories in Rule 26(b)(5)(A) that you can determine 

11 whether a document or a kind of document is 

12 privileged, and in my mind, I don’t know how to do 

13 that except for document by document. And so that’s 

14 usually is there an attorney involved, you know, what 

15 is the communication about, what other people was this 

16 sent to, how many of them are there, what is the 

17 content, et cetera. 

18 And then the second assessment is are there 

19 particular kinds of documents that we should be 

20 assessing together for a privilege discussion. And it 

21 is absolutely the case that usually, you know, we put 

22 together different kinds -- if you look at the two 

23 orders in the Premera data breach litigation, they’re 

24 good examples of this, where it will be documents 

25 related to PR compliance or communications with the 
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1 public or the media, are those privileged or are they 

2 not. And in that situation, I do think that that’s a 

3 helpful thing to discuss.

4 But the only way that you can do that up 

5 front is to make sure that whatever it is that the 

6 requesting party is looking at, we know which 

7 documents it would apply to, and we haven’t figured

8 out a better way to do that besides first figuring out 

9 document by document that the things in all the 

10 different categories are accounted for. 

11 JUDGE BOAL: I guess I’m up next. 

12 CHAIR ROSENBERG: Yeah.

13 JUDGE BOAL: Thank you for your testimony 

14 and also your written submission. I have two 

15 questions.

16 The first has to do with your discussion in 

17 the written document, in the written testimony, about 

18 tiered approach, and it seemed to me that you didn’t 

19 yourself have a definition of a tiered approach, and I 

20 was wondering whether or not you’d actually 

21 experienced a tiered approach in the course of 

22 litigation and what your experience was. 

23 The second question has to do with your 

24 proposals with respect to the comments in the notes. 

25 You had proposed deleting the two paragraphs, one that 
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1 talks about the suitability of a document-by-document 

2 listing and the other talks about the suitability of 

3 categories. Many of the folks on your side of the V 

4 have suggested instead of deleting those two 

5 paragraphs of beefing up the discussion of the 

6 document by document, and I was wondering why you had 

7 proposed deleting those two paragraphs altogether. 

8 MS. BAXTER-KAUF: Thank you. Yeah. So, on 

9 the first question, the only times that I have done 

10 something that might be characterized as tiered 

11 logging are situations where there’s phased discovery 

12 in the first place, so there’s an attempt to produce 

13 only the most important documents up front and then 

14 logs that go related to those.

15 I don’t think that there’s a good -- my 

16 definition of it was just predicated on reading the 

17 comments where people had mentioned what it was. I 

18 haven’t seen a court adopt that, and I don’t think 

19 it’s a particularly good idea because it requires an 

20 assessment of what are the most important documents 

21 categorically up front, which I think is just hard to 

22 know if you’re not the requesting party, and, 

23 certainly, the requesting party can’t know whether 

24 those documents are important before they review them. 

25 So that’s my only experience with that is when it’s 
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1 phased discovery and then rolling logs related to 

2 that, as opposed to this kind of a situation.

3 On the second question, I think I would be 

4 fine with either adding additional commentary or 

5 deleting things the way that I mentioned. I am more 

6 concerned about what my colleague, Brian Clark, 

7 mentioned, which is that if this is the only way the 

8 categorical logs are discussed, that it will be taken 

9 as evidence by courts that we're not trying them 

10 enough and we should see what should happen, as 

11 opposed to mentioning the parts, such as mechanisms 

12 for streamlining logs, i.e., beginning and ending 

13 dates and particular counsel who can be excluded or 

14 particular dates where information after it with 

15 certain parties would be presumptively privileged, 

16 where that is more helpful for the court than the 

17 particular type of log, which I think can be more 

18 flexible for the parties. But I would be fine with 

19 either approach. I just think this is potentially 

20 more streamlined for folks to get instructions. 

21 JUDGE BOAL: Thank you.

22 CHAIR ROSENBERG: All right. Terrific. 

23 Thank you so much. 

24 Yvonne Flaherty is not available now, so 

25 we’ll move to our last witness before lunch break, 
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1 Seth Katz on 16.1. 

2 MR. KATZ: Good morning or afternoon 

3 depending on where you are. Can everybody hear me 

4 okay? Great. 

5 First, let me thank the Committee for their 

6 efforts and for allowing me to give my testimony. My 

7 name is Seth Katz. I am a shareholder at Burg Simpson 

8 Eldredge Hersh & Jardine based in Denver. For the 

9 last approximately 25 years of my practice, I have 

10 been focusing on mostly mass tort MDLs with some large 

11 class actions either in MDL or outside of an MDL. 

12 I’ve been appointed -- I’ve had the honor of being 

13 appointed as lead counsel in the Pradaxa MDL, MDL 

14 2385, as well as served on many MDL committees, 

15 working my way up from steering committee to executive 

16 committee to the role of lead counsel as my hair got 

17 more gray and more thin, along with gaining the 

18 different experiences that’s necessary to lead one of 

19 these massive cases.

20 The MDL rules in practice, while not 

21 perfect, is really a very efficient manner of running 

22 these cases. Nothing is going to be perfect, and as 

23 the Committee notes indicate, nothing can be one size 

24 fits all, including the rules that are being proposed 

25 in 16.1. But I also think it’s important that we try 
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1 to improve this where possible but not look for a fix 

2 to something that is not truly broken. 

3 You’ve heard from many people before me and 

4 I know I’m the last witness before lunch, so I will 

5 try to keep it brief and field questions. 

6 I am fully in support of 16.1(a) and I 

7 strongly believe that holding an initial conference 

8 shortly after appointment by the JPML to the 

9 transferee court will speed things up and will allow 

10 for the foundation of the MDL that’s so important to 

11 be established, and, in my view, perhaps addressing 

12 that quickly, where a leadership appointment is 

13 addressed might obviate the need for the coordinating 

14 counsel, and I have been listening. 

15 And if the point of having the coordinating 

16 counsel was akin to a liaison counsel, I do say that 

17 that escaped me in reading the draft rule and the 

18 Committee notes. I do agree with my colleagues that 

19 have spoken before me that the role of coordinating 

20 counsel is unclear. It could cause a lot of 

21 confusion, a lot of chaos. And if it is intended to 

22 be a non-neutral position leveling for that coveted 

23 role, whereas appointment of leadership, including 

24 liaison counsel, which tends to happen early, will 

25 obviate that.
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1 If that role was designed to be a neutral 

2 who would be able to have ex parte communications with 

3 the transferee court, as I kind of read the rule to 

4 assist the court, how do you assist the court if you 

5 can’t have ex parte communication and know what the 

6 court wants. If that’s the case, it almost can’t be 

7 the plaintiffs' counsel.

8 So I think there’s a lot of confusion where 

9 do those powers begin, where do they end, what’s the 

10 actual selection method, and holding an early 

11 conference and appointing leadership I think obviates 

12 a lot of that.

13 Once leadership is appointed, and I don’t 

14 think there’s a need to handcuff a transferee court on 

15 how to select leadership, I’ve been involved in cases 

16 where it’s been done by self-organization. I’ve been 

17 involved in cases where there’s been no self18 organization and it’s been individual applications and 

19 interviews by the court and everything in between. 

20 I’ve been in cases where I’ve been the winner and the 

21 loser of those appointments. So it does run the 

22 gamut.

23 I do think the current rules allow the 

24 transferee court the flexibility to determine the best 

25 way to do that. So I think, if you do that and you 
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1 have the ability to then build the foundation of the 

2 MDL through the various CMOs that are needed up front, 

3 a lot of things fall into place. And trying to put 

4 some of the new items that are in 16.1(c) is almost 

5 akin to trying to build the roof before you have the 

6 foundation.

7 So, with that, I will cut my comments short 

8 so I can field questions and we can conclude the 

9 morning session. 

10 CHAIR ROSENBERG: Okay. Thank you so much.

11 Are there any questions?

12 No. Seeing no questions. Okay. Well, 

13 thank you for your comments and your time.

14 MR. KATZ: Thank you.

15 CHAIR ROSENBERG: So we are going to break 

16 for lunch. We are going to return at 1:30, so the 

17 lunch is a little bit slightly less than the full 

18 hour. It’s actually closer to 45 minutes, so we’ll 

19 resume at 1:30, and we’ll have our first witness. I 

20 think we had Larry Taylor scheduled, but I believe 

21 somebody -- Dimitri Dube, if I’m pronouncing that 

22 correctly, may be substituting in for Larry Taylor, so 

23 that'll be at 1:30 on Rule 16.1. Feel free to just 

24 turn your camera and your audio off and keep logged in 

25 to make it easier once we get started.
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1 //

2 (Whereupon, at 12:42 p.m., the hearing in 

3 the above-entitled matter recessed, to reconvene at 

4 1:30 p.m. this same day, Tuesday, February 6, 2024.)

5 //

6 //

7 //

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11 //

12 //

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17 //

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1 //
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1 A F T E R N O O N S E S S I O N 

2 (1:30 p.m.) 

3 CHAIR ROSENBERG: Okay. Welcome back. It’s 

4 just about 1:30, and we have Dimitri -- is it Dube? 

5 Did I pronounce that correctly? 

6 MR. DUBE: You did. You did. 

7 CHAIR ROSENBERG: Okay. 

8 MR. DUBE: Thank you. 

9 CHAIR ROSENBERG: We’re off to a good start. 

10 You’re standing in for Larry Taylor on 16.1? 

11 MR. DUBE: Yes, I am. 

12 CHAIR ROSENBERG: Okay. 

13 MR. DUBE: As Judge Rosenberg stated, my 

14 name is Dimitri Dube. I am an attorney with The 

15 Cochran Firm. I work with Larry Taylor primarily in 

16 our Mass Torts Department, where I assist him in his 

17 various roles in leadership in the hair relaxer 

18 litigation, Bard PowerPort litigation, and also opioid 

19 as well. 

20 I’m also a member of Shades of Mass, which 

21 is an organization founded by Ben Crump and Diandra 

22 Zimmermann which works to address the lack of 

23 leadership for minority attorneys and female attorneys 

24 in leadership in MDLs and other mass torts. 

25 It’s in those capacities that I’m testifying 
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1 to highlight the possible unintended consequence that 

2 the proposed Rule 16.1 may have on leadership in MDLs. 

3 Specifically, we think that, you know, one of the 

4 inherent problems with appointing a single firm or a 

5 single person with the role of coordinating counsel is 

6 that you automatically stifle diversity and not just, 

7 you know, diversity in terms of demographics like 

8 gender and race, also diversity of thought. There are 

9 a number of roles and responsibilities in subsection 

10 (c) that the coordinating counsel has, and in giving 

11 that power to a single person, a single firm, you 

12 eliminate or stifle the ability of, you know, other 

13 individuals with other viewpoints to weigh in on some 

14 of those important decisions.

15 As everyone knows, MDLs are comprised of 

16 cases filed all over the country brought by, you know, 

17 attorneys of, you know, different backgrounds, 

18 different experiences, and my personal experience has 

19 been that when the plaintiffs' bar is allowed to self20 organize, they are able to bring in those various 

21 viewpoints, bring in those various, you know, 

22 perspectives in these decisions. 

23 You know, I think my prior colleagues and 

24 especially Ms. Phillips and Mr. Orent from I think 

25 Motley Rice states that early appointment of a 
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1 leadership committee probably serves much of the role 

2 that a coordinating counsel could do while also 

3 reflecting the diversity in the plaintiffs' bar. 

4 CHAIR ROSENBERG: Okay. Thank you so much. 

5 I’m curious what your thoughts are on the notes to 

6 16.1(c)(1) as it relates -- putting aside coordinating 

7 counsel for a moment, just this topic that you speak 

8 about, about diversity, breath of background and 

9 experience that you suggest is beneficial to 

10 leadership. Do you believe the language in the notes 

11 strikes that balance when speaking about the 

12 transferee judge having the responsibility in the 

13 selection process to ensure lawyers appointed are 

14 capable and experienced, fairly represent plaintiffs, 

15 keeping in mind benefits of different experiences, 

16 skill, knowledge, et cetera, et cetera? Do you think 

17 that that addresses that in a productive way? 

18 MR. DUBE: I think the note does address 

19 that in a productive way, but the issue, I think, is 

20 that it’s hard for any single person or any single 

21 firm to be able to do that in the coordinating 

22 counsel’s role. And so whereas where you let the --

23 CHAIR ROSENBERG: Right. No, no, 

24 I’m -- sorry. I don’t want to -- yeah. Let’s -- I’m 

25 just talking about leadership in general. 
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1 MR. DUBE: Yes. 

2 CHAIR ROSENBERG: Let the lead team --

3 MR. DUBE: Yes. I think -- I do think that 

4 that language does serve that purpose. 

5 CHAIR ROSENBERG: Okay. All right. And 

6 Professor Bradt. 

7 PROFESSOR BRADT: Thank you. Thank you for 

8 being here. We’ve heard a lot today about self9 organization and that self-organization can lead to 

10 all sorts of positive things. I wonder why that self11 organization wouldn’t persist and extend to 

12 coordinating counsel. If the parties can self13 organize well enough to get a leadership slate 

14 together early on in the litigation, why should we be 

15 worried that coordinating counsel will make things 

16 worse? 

17 MR. DUBE: Well, I think one of the previous 

18 panelists spoke in terms -- I guess it matters in 

19 terms of the decisions, right, who’s making the 

20 ultimate decisions and whether or not those decisions 

21 are reflecting the views of coordinating counsel may 

22 hear from the slate from others. And there’s no, I 

23 guess, limiting principles in the proposed rule to 

24 make sure that happens. 

25 PROFESSOR BRADT: But, if the judge is going 
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1 to make the ultimate appointment with leadership and 

2 we can trust the judge to do that appropriately, why 

3 shouldn’t we trust the judge to do that equally well 

4 with respect to coordinating counsel? 

5 MR. DUBE: It’s not about a matter of 

6 trusting the judge. I think it’s just an inherent 

7 limitation of having a single person or a single firm, 

8 you know, to trust that with that power and that 

9 authority ultimately to make those decisions. 

10 PROFESSOR BRADT: Thank you. 

11 CHAIR ROSENBERG: Okay. Seeing no other 

12 hands or questions, thank you, Mr. Dube. We 

13 appreciate it very much.

14 MS. BRUFF: Judge Rosenberg, I’m sorry. I 

15 thought Professor Bradt had his hand raised. 

16 CHAIR ROSENBERG: Oh, he did. 

17 MS. BRUFF: Oh, he put it down? Okay.

18 PROFESSOR BRADT: Sorry. 

19 CHAIR ROSENBERG: Okay. 

20 PROFESSOR BRADT: That was vestigial.

21 CHAIR ROSENBERG: Okay. So now Adam Evans 

22 on 16.1. 

23 MR. EVANS: Thank you to the Committee 

24 members for allowing the opportunity to testify today. 

25 My name's Adam Evans. I’m a partner at Dickerson 
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1 Oxton in Kansas City, and I direct the Mass Tort 

2 Department here. 

3 And there have been a lot of valuable 

4 testimony on proposed rules, specifically subsections 

5 (c) and (d). I wanted to talk a little bit about a 

6 few arguments and implications that may get a little 

7 bit less coverage.

8 With regard to the proposed language 

9 appointing coordinating counsel, the main problem with 

10 that rule as written is the timing in which it occurs. 

11 And this follows on to the testimony and a question to 

12 Mr. Dube in that the early appointment of coordinating 

13 counsel is unmoored to all of the concerns that we 

14 think as a bar and the judiciary think are important 

15 in terms of not only diversity, capability, and 

16 leadership experience and things like that. 

17 To respond to Professor Bradt’s question, 

18 the reason that the coordinating counsel position 

19 can’t carry out those same duties in an effective way 

20 as a appointed leadership counsel done even at the 

21 very first case management conference is that there’s 

22 no context in order to make a decision to choose 

23 coordinating counsel.

24 And so, whether we like it or not, the 

25 appointment of coordinating counsel will have an 
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1 effect on the leadership that is ultimately appointed, 

2 and the judges, the transferee judges, they not only 

3 already have the power to issue orders appointing 

4 leadership counsel -- and that comes from Landis 

5 versus North American Company back in the ‘30s -- in 

6 that sense, the rule doesn’t empower the courts to do 

7 anything that they couldn’t do before. The suggestion 

8 of appointing counsel early on in the process, it will 

9 hamstring those judges so that they don’t have the 

10 benefit of the input from all the stakeholders and 

11 future stakeholders in the litigation. 

12 And one of the points that I wanted to focus 

13 on a little bit is how that particular provision would 

14 affect the incentive of members of the plaintiffs' 

15 bar. One thing that has been testified to and I think 

16 is true by both sides of the V is that these 

17 leadership positions, they are sought after. They do 

18 come with benefits to the individuals that seek them 

19 and that are appointed. This is going to affect the 

20 incentives of plaintiffs' counsel in the sense that 

21 whether it’s true or not, there is and will be a 

22 perception that the coordinating counsel role will be, 

23 if not a direct path to a leadership position, it will 

24 be something close to it. And because a judge making 

25 that appointment without the benefit of having an 
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1 initial case management conference first will 

2 oftentimes be considering the filers of the JPML 

3 motion, the plaintiffs’ attorneys that have filed the 

4 most cases, that is going to essentially incentivize 

5 premature JPML motions and filings of the types of 

6 perhaps unvetted, un-meritorious claims that some of 

7 the defense bar complains of.

8 And the other point that I wanted to make is 

9 that it goes again to a timing issue. Making an order 

10 after the first case management conference without the 

11 benefit of the insight of all the stakeholders, the 

12 potential -- the counsel representing all the breadth

13 of the litigants is going to create orders that are 

14 essentially going to have to be substantially modified 

15 or undone once discovery gets underway and the scope 

16 of the litigation is more defined, and what that’s 

17 going to lead to is additional unnecessary motion 

18 practice downstream. 

19 And the same goes for raising the issues of 

20 things like vetting meritorious claims, statutes of 

21 limitations, as the defendants have brought up in 

22 different testimony, that what they’re asking the 

23 courts to do and intend to seek the courts to do is 

24 engage in not only multiple state-specific analyses on 

25 things like statute of limitation but also case-
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1 specific analyses at the front end of a case when 

2 those matters should be planned according to an order 

3 that comes after the case management conference where 

4 plaintiffs' leadership has already been appointed with 

5 the court soliciting submissions from interested 

6 counsel or even just ordering a manner in which those 

7 selections are made.

8 I’m happy to yield back and address any 

9 questions. 

10 CHAIR ROSENBERG: Any questions from anyone? 

11 Rick. 

12 PROFESSOR MARCUS: I think I have two 

13 questions. The second one is premised on my belief 

14 that your experience is on the plaintiff side. So my 

15 first question is you said that 16.1(b) will hamstring 

16 judges. I’m not clear on why it will do that. They 

17 would not be hamstrung if 16.1(b) were not there, but 

18 they are if 16.1(b) is there? I’m not clear on why 

19 that’s true. 

20 Second, you mentioned the concern expressed 

21 by some mainly on the defense side that there are 

22 unvetted claims sometimes included in MDLs. I wonder 

23 if I’m correct that you’re speaking from the plaintiff 

24 side whether your experience is that there actually 

25 are a significant number of those and why you think 
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1 that happens, because we’ve been told a lot about why 

2 it happens but mainly by defense side folks.

3 So question one, hamstring; question two, 

4 vetting. 

5 MR. EVANS: Yeah. I appreciate the 

6 questions and the prompts. The reason that a 

7 transferee judge would be at a disadvantage in 

8 the -- it would come in the selection of a 

9 coordinating counsel partially because that 

10 coordinating counsel is tasked with meeting and 

11 conferring and making representations about the 

12 positions of plaintiffs when that individual may not 

13 and likely does not have the input and the insight of 

14 other plaintiffs' counsel throughout the case --

15 PROFESSOR MARCUS: Well, why do you 

16 assume -- sorry to interrupt, but why do you assume 

17 judges would be hamstrung if we said they can appoint 

18 coordinating counsel but free to act if we don’t say 

19 that? It doesn’t say you have to do something. Why 

20 is this -- why are these handcuffs? 

21 MR. EVANS: They would become 

22 handcuffs -- and your words, not mine -- but they 

23 would through the permissive language in the proposed 

24 rule, it’s going to be adopted because, as you’ve 

25 observed, as the Committee notes have observed, there 
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1 are jurists that do want guidance as to these things.

2 The fact of the matter is the appropriate 

3 timing for selection of counsel. It doesn’t have to 

4 be delayed. It can happen at the very first case 

5 management conference in light of the submissions of 

6 interested counsel that represent various viewpoints, 

7 as Mr. Dube pointed out, that not only do we have 

8 diversity among the -- you know, the personal 

9 diversity among the potential leadership firms but 

10 also what they perceive to be the scope of the 

11 litigation, what the applicable claims are.

12 And so making that selection early in the 

13 process is done in sort of a myopic way if it’s done 

14 prior to the first case management conference because 

15 there won’t be time in order to assimilate all of the 

16 input from the stakeholders in the litigation. Does 

17 that make sense to some extent? 

18 And as to the non-meritorious claims, I’ll 

19 call it an allegation. If it's put in the way that 

20 some of the witnesses put it, I reject the premise 

21 that these MDLs are even close to principally composed 

22 of cases like that, and it’s impossible to determine 

23 at the outset of the litigation what case is un24 meritorious and not. That has to be done through 

25 discovery and development and, frankly, the leadership 
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1 counsel learning about the parameters of the 

2 litigation.

3 The one thing that I will agree with to the 

4 extent that there are firms that file cases that 

5 should have been vetted better and sometimes those 

6 cases proliferate and it’s not those cases that should 

7 drive the train as litigation progresses. And making 

8 the position of leadership -- of coordinating counsel 

9 one that’s appointed early on would incentivize in 

10 some instances the filing of cases quickly, as opposed 

11 to filing cases that are thoroughly vetted and have 

12 gone through some measure of litigation prior to a 

13 JPML motion. 

14 CHAIR ROSENBERG: Okay. Thank you so much. 

15 Any other questions or comments?

16 No. Seeing no hands. Okay. Thank you so 

17 much, Mister -- is it -- it’s Mr. Evans. Yes. 

18 MR. EVANS: Yeah. 

19 CHAIR ROSENBERG: Thank you so much and --

20 MR. EVANS: And thank you to the Committee. 

21 CHAIR ROSENBERG: Yeah. We appreciate your 

22 comments. 

23 Next, Roger Mandel on 16.1. 

24 MR. MANDEL: Thank you for providing me this 

25 opportunity to testify before the Committee on 
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1 proposed Rule 16.1. As Judge Rosenberg said, my name 

2 is Roger Mandel. I’m a partner at Jeeves Mandel Law 

3 Group, a four-lawyer law firm with offices in Tampa, 

4 St. Pete, Florida, and Fort Worth, Texas. I’ve been 

5 practicing complex litigation for almost 37 years now, 

6 and almost a little over 30 of those have been with 

7 specialty and plaintiffs' class action work. And my 

8 testimony is informed today by my extensive class 

9 action experience and also by my experience as being 

10 both co-lead and participating counsel in class action 

11 only MDLs and participating in hybrid class actions 

12 involving both individual cases and class action 

13 cases. I think my testimony today is also informed by 

14 my recent experience at the beginning of the ongoing 

15 In Re: Philips CPAP MDL. 

16 I have submitted to the Committee a proposed 

17 revised Rule 16.1 and Committee note, and what it does 

18 is it proposes a two-tiered approach to early 

19 management conferences in MDLs. First, there would be 

20 a preliminary management conference which would then 

21 be followed by a comprehensive management conference 

22 that takes place after the appointment of leadership 

23 counsel. 

24 Now, at the prelim conference, the court 

25 and the parties would address only objective 
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1 information about the size, scope, and nature of the 

2 claims and defenses involved in the MDL and then any 

3 issues that need not or cannot await entry by the 

4 court of a comprehensive management order. 

5 Now the issues at the preliminary management 

6 conference typically would include, number one, 

7 discussion of the need for appointment of leadership 

8 counsel and the process for appointing them; number 

9 two, whether to stay the actions in whole or in part 

10 pending entry of a comprehensive management order; 

11 and, number three, whether any scheduling orders in 

12 the transferred actions need to be set aside and 

13 stayed.

14 As necessary, the preliminary management 

15 conference might also address issues like, number one, 

16 the need for interim orders for the preservation of 

17 electronically stored information and other 

18 potentially relevant evidence and, number two, for 

19 acceptance of service of process by counsel for 

20 foreign defendants without the need for the plaintiffs 

21 to engage in time-consuming and expensive compliance 

22 with the Hague Convention or other processes but, 

23 again, without the defendants waiving any personal 

24 jurisdiction defenses.

25 Other topics for the initial -- for the 
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1 preliminary management conference would be anything 

2 that can’t await -- that the court or the parties 

3 think can await the entry of a comprehensive 

4 management order.

5 Now the proposed version of the rule that I 

6 provided allows the court to appoint temporary counsel 

7 to assist it with the preliminary management 

8 conference, but I changed the title of that from 

9 coordinating counsel to administrative counsel, and 

10 this title change would emphasize the administrative, 

11 almost ministerial role that such temporary counsel 

12 will play, and the proposed revised Committee note 

13 would make very clear that the court should indulge no 

14 presumption that administrative counsel should be 

15 appointed leadership counsel.

16 Now the proposed Committee note that I’ve 

17 provided recommends appointment of leadership counsel 

18 as soon as possible, as reasonably possible, if 

19 leadership counsel will be appointed. After they're 

20 appointed at the comprehensive management conference, 

21 the court and the parties, by and through leadership 

22 counsel who have been authorized by the court to make 

23 binding agreements on behalf of the plaintiffs' side 

24 or the defense side, would address all the issues 

25 listed in the current version of the rule and any 
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1 other topics that the court and the parties believe 

2 necessary for management of the MDL.

3 And I believe that the proposed revised rule 

4 and Committee note would almost entirely alleviate the 

5 three principal concerns of the plaintiffs' bar that I 

6 think you heard back in January and you’ve heard 

7 today.

8 First, I think they alleviate the concern 

9 that most of the topics in the current version of the 

10 rule should await discussion until after leadership 

11 counsel have been appointed and can offer their 

12 binding input on those issues.

13 Second, I think it alleviates the concern 

14 that the appointment of coordinating counsel with 

15 undefined powers and responsibilities who have not 

16 been demonstrated through any deliberative process to 

17 have the expertise to well represent the plaintiffs, 

18 that allowing coordinating counsel to do too much may 

19 lead to increased costs because, if leadership counsel 

20 has to revisit what administrative counsel did, then 

21 we’re going through the same hoops twice, and it also 

22 could lead to premature and ill-advised management 

23 orders.

24 Third, I think that the proposed rule and 

25 Committee note will alleviate the concern that the 
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1 current version of the rule and the Committee note 

2 focus overwhelmingly on product liability MDLs with 

3 huge numbers of individual plaintiffs and that they 

4 don’t sufficiently address the many permutations of 

5 MDLs, particularly those involving class actions, 

6 which are necessarily subject to Federal Rule of Civil 

7 Procedure 23. 

8 Finally, I have seen no comment or testimony 

9 by anyone on the defense side suggesting that almost 

10 all the topics a court needs to address for effective 

11 management of an MDL cannot await disposition until 

12 entry of a comprehensive management order following 

13 appointment of leadership counsel.

14 So I believe that the goals of achieving 

15 giving guidance to judges about how to effectively 

16 manage MDLs can be balanced with alleviating the 

17 overwhelming number of stakeholder concerns on the 

18 plaintiff side and without causing any undue stress on 

19 the defense side. So I thank you again for the 

20 opportunity to testify, and I welcome any questions 

21 about the proposal that I’ve made to the Committee. 

22 CHAIR ROSENBERG: Okay. Thank you so much.

23 Andrew, did you have a question or comment? 

24 PROFESSOR BRADT: Yeah, thank you very much. 

25 At the preliminary status conference, the first tier 
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1 one, whom does the judge speak to? 

2 MR. MANDEL: Well, if --

3 PROFESSOR BRADT: I mean, I’m just trying to 

4 figure out how it looks because --

5 MR. MANDEL: Right. I --

6 PROFESSOR BRADT: -- a lot of it loops back 

7 on coordinating counsel. It seems somebody has got to 

8 be able to talk to the judge during the first status 

9 conference, so who is it? Is it self-appointed? 

10 MR. MANDEL: Well, it depends. It could be 

11 easily self-organized. I was chief -- I was lead 

12 counsel years ago in an antitrust MDL and there were 

13 essentially eight or nine class actions that composed 

14 the MDL and it was easy enough for the plaintiffs' 

15 counsel to simply show up to the initial hearing and 

16 express their viewpoints. If you’ve got a much larger 

17 MDL, then I think the court would have some need to 

18 appoint administrative counsel. 

19 But the most important thing about that is 

20 that it would be very clear that these administrative 

21 counsel have a very limited role, an almost 

22 ministerial role of providing objective information to 

23 the court about the size, scope, and nature of the MDL 

24 and then addressing only issues that need to be 

25 addressed, that can’t wait for leadership counsel, and 
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1 then the further implementation in the note that, hey, 

2 there’s no presumption that you’re going to get 

3 leadership counsel if you get the position of 

4 administrative counsel. And I think, with those 

5 changes, the overwhelming concern you’ve heard about 

6 the appointment of coordinating counsel will largely 

7 be alleviated. 

8 CHAIR ROSENBERG: Let’s see. Judge Proctor

9 and Ariana. 

10 JUDGE PROCTOR: So is your assumption or 

11 proposal that in virtually every -- in every MDL there 

12 would be this two-tiered management conference 

13 approach?

14 MR. MANDEL: I think that in most of them 

15 there would because the first management conference, 

16 the primary purpose is to provide the judge with 

17 objective information, what’s the size and scope of 

18 the MDL litigation, what are the types of claims and 

19 types of defenses and objective, informative approach. 

20 And then I think it’s probably worthy in most MDLs for 

21 there to be a discussion of does there need to be 

22 leadership counsel and what’s an appropriate selection 

23 process.

24 And I think, in almost every case, there’s 

25 going to be this issue as what happens in these cases. 
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1 Are they stayed or are they going to continue moving 

2 forward while we’re waiting for a comprehensive order 

3 and what do we do about case management orders that 

4 have already been issued and these other things.

5 So I think there’s a few core preliminary 

6 issues that in the majority of class actions you’re 

7 going to want to have an initial conference on. If 

8 you have something with five or six class actions and 

9 that’s the entire MDL, maybe you don’t need that. 

10 But then the key thing is the court should 

11 expeditiously appoint leadership counsel, and then we 

12 move on to a representative group of attorneys who 

13 have been appointed through a deliberative process and 

14 not simply somebody the judge just happens to know and 

15 appoints as administrative counsel because they’ve had 

16 these lawyers before them. And then you’ve got people 

17 who have solicited a wide variety of inputs and who, 

18 you know, can make binding decisions.

19 I don’t think defense counsel are going to 

20 like it if there’s coordinating counsel who engage in 

21 this extensive discussion with them and then the court 

22 enters some sort of an order based upon that and then 

23 leadership counsel has to come back to the court and 

24 say, look, those administrative counsel didn’t 

25 understand X, Y, and Z, they didn’t get input from 
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1 these various groups, and we need to revisit the whole 

2 thing. And that would be --

3 JUDGE PROCTOR: Well, yeah, my reaction to 

4 this concern and most of the concerns I’ve heard about 

5 coordinating counsel is it just doesn’t fit with the 

6 realities of what I think the proposed rule suggests 

7 and what would actually play out. So two reactions.

8 First, I sat on a panel for nearly seven 

9 years. I could tell you in most MDLs when they came 

10 on petition the demographic and statistical and other 

11 information about the MDL. It’s only a handful of 

12 MDLs that came through that you didn’t know those 

13 things, so that’s the first reaction.

14 The second is what prevents counsel from 

15 saying at the management conference itself, the report 

16 that you received from coordinating counsel, liaison 

17 counsel needs to be tabled or addressed differently 

18 for these reasons. That’s the point of the 

19 management -- that’s the point of getting this 

20 information to the judge. And I just keep hearing 

21 this assumption built in all these questions that 

22 there’s going to be -- the train is already going to 

23 be left the station before the management conference 

24 ever begins with the transferee judge, and I just 

25 don’t think that’s a reality that we’re dealing with.
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1 Now there may be other reasons we need to 

2 tweak or even revise substantially this coordinating 

3 counsel, but the fact that the judge is going to end 

4 up being in a management conference, transferee judge, 

5 and not have a handle on things and we’re going to 

6 enter an order that’s got to go back and get flipped 

7 around later just doesn’t seem realistic to me, but 

8 I’d be glad to hear your defense of that argument. 

9 MR. MANDEL: Well, I think it’s two things. 

10 I think with an experienced -- a well experienced 

11 transferee judge, the probabilities of a significant 

12 problem may be lessened. But, as I recall, in some of 

13 the early meetings that you were kind enough to have 

14 with AAJ, there was an experience -- there was a 

15 perception on the part of the Committee that we have a 

16 whole lot of new judges who have never handled 

17 anything like an MDL and they need guidance.

18 And so I think there is that danger as 

19 expressed to me by the Committee and by us that this 

20 could happen, number one, and number two, that this 

21 rule is going to be taken as gospel and not 

22 implemented without the necessary flexibility. And I 

23 think the proposal of the two-tiered procedure makes 

24 more clear what comes first, what’s chicken and what’s 

25 egg, but then there’s another opportunity beyond the 
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1 objective, what would the rule actually do, is I think 

2 the Committee has been commendably concerned about 

3 stakeholder perception and stakeholder buy-in to this 

4 rule. And as you’ve heard over and over, whether you 

5 agree with these concerns as an objective manner, 

6 there is an extreme concern about these issues among 

7 the plaintiffs' bar.

8 And so one of the goals with my proposed 

9 revised rule is to do something that achieves the goal 

10 of the rule of giving effective guidance to judges 

11 while alleviating stakeholder concerns and hopefully 

12 getting buy-in. And I think getting that buy-in is a 

13 worthy goal for the Committee, and I think that’s 

14 something that this proposed rule could help do. 

15 CHAIR ROSENBERG: Ariana.

16 MS. TADLER: Yes, thank you. And good 

17 afternoon, Mr. Mandel. Nice to see you. 

18 Two questions, one piggybacking on what 

19 Judge Proctor was just chatting with you about. I 

20 think his question was do you foresee this 

21 administrative position happening in all MDLs or most 

22 of them, and I guess my sub-question for that would be 

23 you gave examples of cases where there might just be a 

24 select few. Maybe there’s nine, 10 cases. 

25 If the parties, the plaintiffs' counsel were 
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1 able to show up at the very first conference and say, 

2 look, we’ve already figured it out among ourselves, 

3 we’ve got a plan, does that obviate the need for the 

4 position that you’re talking about under your 

5 proposal? 

6 MR. MANDEL: I think it would. Here’s the 

7 concern. The way to me the rule reads and the way it 

8 seems like everybody in the plaintiffs' bar has been 

9 reading it is that the court would 

10 appoint -- remember, it talks about appointing a 

11 administrative counsel to assist with the initial 

12 management conference and to confer with the 

13 defendants to prepare a report before the initial 

14 conference. So there’s never going to be that initial 

15 conference where people show up and say, hey, we can 

16 work this thing out and we don’t need any 

17 administrative counsel.

18 The way the rule reads to me and I think to 

19 almost everybody else is the court is going to 

20 unilaterally appoint administrative counsel before 

21 there’s ever been a single hearing in front of the 

22 court at which people could express that there is no 

23 need for administrative counsel, and so I think that 

24 is the problem, and if that’s the way that it’s going 

25 to read, then I think we need these limitations on 
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1 administrative counsel. Otherwise, what needs to 

2 happen is to say that there needs to be a conference 

3 first before any appointment of administrative counsel 

4 and before anybody designated administrative counsel 

5 meets with defense counsel.

6 But, right now, the way the rule's written 

7 it appears to say go ahead and appoint these people 

8 before you’ve ever heard from anybody, and that’s the 

9 problem that scares everybody. 

10 MS. TADLER: So thank you. And then my main 

11 question was one I posed to a prior person, which is, 

12 do you have any strong sense one way or the other as 

13 to whether the administrative counsel should be 

14 somebody who is local, which we often see in these 

15 MDLs. Do you have a position on that one way or the 

16 other? 

17 MR. MANDEL: You know, I don’t think I have 

18 a position necessarily on who it should be, but I 

19 think your question points out the problem inherent in 

20 that position, which is, if the judge is just going to 

21 appoint these people before there’s ever been any 

22 hearing to help with the initial hearing, what options 

23 does the judge have for picking these people.

24 And I think you’re absolutely correct that 

25 the inclination of the judges is going to be to pick 
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1 somebody they’re familiar with, who's appeared before 

2 them many times and who they feel is trustworthy, 

3 which is probably going to be somebody local.

4 But that isn’t necessarily the type of 

5 person who would be picked as leadership counsel 

6 through a deliberative process which the court had 

7 come up with with the assistance of the parties and 

8 counsel. And so, if we’re going to have 

9 administrative counsel before there’s ever an initial 

10 hearing, then I think the limitations on their 

11 abilities in the two-tiered approach is the way to go. 

12 MS. TADLER: Thank you. I just wanted to 

13 thank you also for coming up with something creative 

14 as an alternative. Thank you very much. 

15 MR. MANDEL: You’re welcome. I appreciate 

16 that. 

17 CHAIR ROSENBERG: Has it ever been your 

18 experience that in an MDL where there’s a 

19 slate -- that is, the slate process is utilized for 

20 appointment of leadership, that that happens before 

21 there’s ever a hearing or a conference? 

22 MR. MANDEL: Yes. And particularly in class 

23 action MDLs, I think it wasn’t infrequent that people 

24 would start filing motions for appointment of interim 

25 counsel under Rule 23(g) before there was ever a 
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1 hearing, and then it was possible for the judge then 

2 to actually take those things up at the initial 

3 management conference. And that’s one of the points I 

4 wanted to make in the Committee note that currently is 

5 not, which is that when you have class action counsel 

6 involved, Rule 23(g) needs to be controlling rather 

7 than some sort of a, you know, tabula rasa process 

8 come up with by the judge.

9 But I think that sort of thing gets a lot 

10 harder in a large hybrid class action with thousands 

11 of individual cases and, you know, perhaps you’ve got 

12 merchant -- you’ve got all these different sub13 classes. It’s a lot harder to do that before. And, 

14 again, that seems to be at odds with the way the rule 

15 is written, which seems to contemplate the judge 

16 immediately appointing some sort of administrative 

17 counsel before there’s ever a hearing and perhaps 

18 before there’s ever a motion filed. 

19 CHAIR ROSENBERG: So the slate -- there's no 

20 hearing in the example you gave, but there's a motion, 

21 and so the concern here you’re raising is that there 

22 would be neither a hearing nor a motion practice?

23 MR. MANDEL: Yes. I mean, that is exactly 

24 to me and I think to most of the plaintiffs' lawyers 

25 you’ve heard testify how the rule reads, and I don’t 
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1 think that even having the motions -- having some 

2 motions would solve the problem because there needs to 

3 be a hearing and a chance for people to be heard. And 

4 if it were just class actions, you know, the

5 interim -- the Rule 23(g) motions might be sufficient.

6 But, in other types of class actions, hybrid 

7 class actions with mass torts, I don’t think that’s 

8 going to be sufficient and there’s going to need to be

9 a substantive discussion of what’s the process going 

10 to be. 

11 CHAIR ROSENBERG: Okay. Judge Proctor, is 

12 this another question or from before? From before. 

13 Okay. And Rick. 

14 PROFESSOR MARCUS: Mr. Mandel, thank you for 

15 these comments, and I’m picking up on your reference 

16 to interim class counsel under Rule 23(g), which I had 

17 a role in drafting 20-plus years ago, and I’m 

18 wondering, since that didn’t really handcuff or direct 

19 judges on when and whether and how to do that, is it 

20 your experience that they’ve gone helter-skelter and 

21 just made interim appointments at the drop of a hat? 

22 Something in me says the worries about 16.1(b) could 

23 equally have been expressed about interim counsel 

24 appointments back 20-plus years ago, and maybe the 

25 experience suggests that the risks are not as great as 
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1 some people worried that they are. What are your 

2 thoughts? 

3 MR. MANDEL: You know, Professor, I think 

4 it’s exactly the opposite because what happened before 

5 Rule 23(g) was that -- Rule 23(g) sort of adopted a 

6 best practices version of what was already occurring, 

7 which was that people were filing motions for a 

8 position, you know, of class counsel or interim class 

9 counsel even though that hadn’t been officially 

10 designated in the rule, but at least there was a 

11 motion practice going on.

12 But, here, where there’s not currently such 

13 a thought process of going ahead and sua sponte 

14 appointing some administrative or coordinating counsel 

15 before there’s been any motions or any hearing, that 

16 has not been the case in MDLs. But this rule seems to 

17 propose, you know, propose that as a fundamental part 

18 of the process that go ahead and appoint somebody to 

19 help you prepare for the initial conference. And who 

20 is going to be -- who is that going to be and what’s 

21 the process going to be and what are the implications 

22 for that down the road for if there’s disagreement 

23 between these people who have been appointed with no 

24 deliberative process other than whatever the judge 

25 came up with and who may not have as been well 
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1 qualified to formulate agreements. 

2 And then there’s the worry about does the 

3 judge want to keep these people in place because, if 

4 the judge keeps these people in place, there’s less 

5 likely that some other leadership counsel is going to 

6 come in and try to redo something that the court has 

7 already ordered as a result of the advice of 

8 administrative counsel.

9 And I would think this would be a worry for 

10 defense counsel too that they’re going to have to go 

11 through this thing twice, conferring with 

12 administrative counsel and then conferring with 

13 leadership counsel on some of the same issues. And, 

14 you know, I don’t think there’s any reason that you 

15 could have an initial conference and within, you know, 

16 30 to 90 days, even if you have a very deliberative 

17 process with interviews, that you can’t have 

18 leadership counsel appointed.

19 And so my question to the Committee is, what 

20 is so urgent that in most class action -- I’m sorry, 

21 most MDLs that the comprehensive management order or a 

22 significant management order can’t await the 

23 appointment of leadership counsel? Why can’t it wait?

24 And in case there are a few things that 

25 can’t wait, that’s why I've proposed the two-tiered 
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1 approach with a preliminary one first where the judge 

2 could take up issues that need not or cannot await a 

3 comprehensive management order. But the bottom-line 

4 question here is, why do we need to address all of 

5 these issues which ought to be addressed by leadership 

6 counsel before they can even be appointed? I don’t 

7 see any reason for that level of hurry in a process in 

8 an MDL that’s probably going to take years, why we 

9 can’t wait 90 days or 120 days to get the right people 

10 in through a deliberative process that’s fair, that 

11 honors diversity, and then have those people who have 

12 the mandate from the court to solicit input and to 

13 make binding decisions on the court weigh in on these 

14 issues so that the court can issue a well-thought-out 

15 comprehensive MDL order. 

16 CHAIR ROSENBERG: I have a couple follow-up 

17 questions. Number one, would, in your view, it make 

18 more sense to consider if one were to consider a 

19 coordinating or administrative or liaison counsel that 

20 it not be a position designated by the court for 

21 purposes of getting organization before the initial 

22 conference but that perhaps in the note it makes 

23 reference to counsel for defense and plaintiffs may 

24 want to consider but must not whether they want to 

25 appoint an administrative or coordinating or liaison 
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1 counsel to help the parties organize and orchestrate 

2 their presentation to the court at the initial 

3 management conference? That’s number one.

4 Does that make a difference? In other 

5 words, taking it out of court appointment and leaving 

6 it in the hands of the attorneys to decide whether

7 that might be helpful or not since we’re hearing a lot 

8 about that there’s a lot that goes on with self9 organization anyway. 

10 MR. MANDEL: You know, I think that that 

11 might be helpful, but I think what you’re doing is 

12 you’re delaying the inevitable and you're duplicating 

13 process. That time that was spent in self-organizing 

14 for this temporary counsel might be better spent self15 organizing trying to come up with the leadership 

16 counsel. 

17 CHAIR ROSENBERG: Well, but it’s 

18 not -- they’re not mutually exclusive. One of the 

19 points of the rule is to get input from somebody as to 

20 whether leadership is needed and how leadership should 

21 be appointed. I mean, if this initial conference 

22 takes place two weeks after the case is transferred or 

23 one month and we do hear a lot that cases should be 

24 initiated by the judge early, so now I’m sort of 

25 hearing what’s the harm in delay. I don’t know. 
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1 Maybe everybody has a different definition of delay 

2 and speed, but let’s just say you have a judge who 

3 wants to be responsive. She gets the transfer order. 

4 She’s ready to have the conference. She knows a 

5 little bit but not a lot. She wants to hear -- let’s 

6 say the first thing she wants to hear about is how 

7 leadership should be appointed. She’s got to hear at 

8 an initial conference. Otherwise, how else would she 

9 or he hear that?

10 So is there anything wrong with that 

11 approach, which isn’t really inconsistent with what 

12 the rule is saying. But let’s just say it was 

13 reversed a little bit, that there’s not the 

14 appointment of the leader, of coordinating counsel, 

15 maybe a suggestion in the note that the parties might 

16 want to consider that, but if they don’t want to, show 

17 up in two weeks and, you know, here are some things 

18 that we’re going to talk about. Give me your rough 

19 ideas about these 12 points, eight points, nine points 

20 and some of those rough ideas may be, Judge, we think 

21 the leadership counsel should be appointed first and, 

22 therefore, we would have a better idea then about a 

23 discovery plan and exchange of information.

24 But other smaller MDLs may be already so 

25 self-organized they come in and they say, Judge, you 
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1 know, there’s a dispositive motion to dismiss on 

2 preemption. We think you need to get to that first, 

3 and if things don’t go the way, you know, for the 

4 defendants, then we want to revisit discovery.

5 I mean, there’s such a wide latitude of what 

6 can be brought to the court’s attention in this 

7 report. Maybe that’s being lost on people as 

8 if -- and you kept making reference to comprehensive 

9 management plan. I mean, I don’t think any big MDL 

10 just has one order setting out discovery.

11 I mean, you know, there could be an order, 

12 this is what the motion to dismiss practice looks 

13 like, this is an order on depositions, this is fact 

14 discovery. I mean, it’s just an iterative process. 

15 Do people actually think that what’s intended by the 

16 rule is that the comprehensive plan that you refer to 

17 is set in stone, which, by the way, the language 

18 doesn’t say that, and that every last line item of 

19 depositions completed by this date, which is two-and20 half years down the road, I mean, if that’s what’s 

21 being understood, then I suppose I can understand the 

22 alarm of how can anyone two, three, four weeks, but 

23 particularly without leadership? This is a get the 

24 MDL off the ground, up and running, which we have 

25 heard for five years, if not longer, is important to 
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1 both sides of the V. Not to be hasty, not to be 

2 careless, not to make mistakes. Judges don’t want to 

3 make mistakes any more than lawyers do. Judges 

4 actually bear a lot of the burden if mistakes are 

5 made, so I don’t know that too many judges are going 

6 to hastily enter an order committing the parties and 

7 the court to something that they themselves don’t 

8 fully understand. If they’re not satisfied with the 

9 report, I don’t think just because the rule says you 

10 might want to consider entering a discovery plan 

11 you’re going to put pen to paper and put a plan in 

12 place that makes absolutely no sense to the judge. 

13 MR. MANDEL: Judge, I think I heard really 

14 two different questions within what you just stated. 

15 The first was would it be better to have a Committee 

16 note that, I guess, prompts the judge in their order 

17 setting the initial conference to request the parties 

18 to try to organize and perhaps appoint somebody to 

19 speak on their behalf at the initial conference as 

20 opposed to having appointment by the judge of the 

21 administrative counsel. And the answer to that 

22 question is yes, that would be a preferable approach.

23 Okay. Second, what I heard was that people 

24 may be misreading the rule and thinking that what it 

25 requires is a comprehensive management order resulting 
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1 from either the initial conference or the second 

2 conference that addresses every single issue in great 

3 detail. And I think there is some concern about that, 

4 yes. In reading the rule, it has this, you know, list 

5 of topics that are suggested to be covered, and then 

6 it becomes -- and then it says an order about those 

7 topics and possibly other topics that are set forth in 

8 Rule 16 ought to be entered as a result of that 

9 conference. And I think the listing of all the topics 

10 and then the suggestion of an order addressing these 

11 and other things does tend to make people think that 

12 what is intended and what may happen with some judges 

13 is this very comprehensive rule which some judges may 

14 be reluctant to revisit as with enough flexibility 

15 going forward. So I think that is a concern among --

16 CHAIR ROSENBERG: Let me interject. So I 

17 posed a hypothetical to somebody else who testified 

18 and said what if language along the lines of the 

19 following were added, for example, to the note 

20 consistent with this point. 

21 Regarding some of the matters designated by 

22 the court, the parties may report that it would be 

23 premature to attempt to resolve them during the 

24 initial management conference, particularly if 

25 leadership counsel has not yet been appointed. Rule 
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1 16.1(c)(8) invites the parties to suggest a schedule 

2 for additional management conferences during which 

3 such matters may be addressed.

4 Would language like that clarify a 

5 misperception that everything must in all 

6 circumstances in all cases be finalized, binding, not 

7 to be revisited at that first initial management 

8 conference? 

9 MR. MANDEL: I think that language or 

10 something very similar would be helpful. 

11 CHAIR ROSENBERG: Okay. All right. 

12 MR. MANDEL: And I think it would help 

13 alleviate some concerns. I’m not sure it eliminates 

14 them, but I think it would help. 

15 CHAIR ROSENBERG: Okay. All right. Well, 

16 seeing no other questions or comments, thank you so 

17 much, Mr. Mandel. We appreciate your time and your 

18 thoughtfulness. 

19 MR. MANDEL: You’re welcome. Thank you all 

20 for hearing me. I appreciate it. 

21 CHAIR ROSENBERG: Lauren Barnes on 16.1.

22 MS. BARNES: Thank you, Your Honor. A hot 

23 bench. I hope to be less controversial. So my name 

24 is Lauren Barnes, and I’m a partner with the Boston 

25 office of Hagens Berman Sobol Shapiro. I very much 
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1 appreciate the work that the Committee has done, 

2 particularly looking at the issues that are animating 

3 this potential Rule 16.1, and I’m here to offer very 

4 brief testimony about proposed revisions to the rule 

5 to address the presence of class actions in MDLs.

6 I apologize, first of all, that my comments 

7 were only submitted this morning, so you may not even 

8 have them in front of you right now. Blame trial 

9 practice for that. It's been --

10 CHAIR ROSENBERG: Let me -- I’m sorry. Let 

11 me just interrupt. I think that we’re having some 

12 audio issues. I’m not sure if it’s on our end or your 

13 end. It’s just breaking up a little bit, and I don’t 

14 want to miss any of your testimony.

15 MS. BARNES: Certainly.

16 CHAIR ROSENBERG: Yeah, no, it’s not. 

17 MS. BARNES: Are folks about to hear me now?

18 CHAIR ROSENBERG: Now we are. Now we are. 

19 MS. BARNES: Okay. 

20 CHAIR ROSENBERG: Let’s see if that works. 

21 Yeah. 

22 MS. BARNES: I’ll try to keep it -- maybe I 

23 was speaking -- I started racing. Maybe that was it. 

24 Okay. So I wanted to provide a little bit of context 

25 for my comments and I’ll share that I’ve been 
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1 practicing for about 20 years now primarily as a class 

2 action litigator. Most of the cases that I have been 

3 involved in over the last decade or more have been 

4 pharmaceutical antitrust cases, which are primarily 

5 class cases alleging that direct purchasers or 

6 indirect purchasers often which were businesses 

7 suffered overcharges for prescription drugs.

8 Now members of my office or I have been 

9 involved in leadership in one way or the other of the 

10 vast majority of these cases that have been brought 

11 over the last 15 to 20 years, usually serving as lead 

12 counsel or co-lead counsel for one class or another in 

13 these circumstances.

14 There’s a relatively discrete number of 

15 firms that do these --

16 CHAIR ROSENBERG: I’m sorry, Ms. Barnes. 

17 Yeah, you’re freezing. Is everybody else hearing the 

18 breaking up, or is it -- oh. 

19 PROFESSOR BRADT: That may just be on your 

20 end, Judge Rosenberg. 

21 CHAIR ROSENBERG: Yeah, maybe it’s on my 

22 end.

23 PROFESSOR MARCUS: Yeah, she’s coming 

24 through clear, clear to me.

25 MS. BARNES: I’m not experiencing any 
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1 problem, Your Honor. 

2 PROFESSOR MARCUS: Yeah. 

3 CHAIR ROSENBERG: Okay. Okay. Sorry. Then 

4 maybe it’s on my end. I’m going to look on my end. 

5 Okay. Continue. 

6 MS. BARNES: Certainly. Sorry that the 

7 Judge isn’t able to catch that.

8 So, as I was saying, there are a number 

9 of -- there are a relatively discrete number of firms 

10 that do these kinds of cases, and yet they're still, 

11 by my count, six MDLs of the current 168 that are 

12 pending that are these kinds of cases, these 

13 particular kinds of antitrust pharmaceutical cases. 

14 Sometimes these cases are formally consolidated into 

15 an MDL; sometimes they are not.

16 Usually, we are talking about somewhere 

17 between five and 30 cases that actually get filed. 

18 Most of those are class cases representing one class 

19 or another. There usually are two classes that end up 

20 in these situations, and we sometimes see opt-outs 

21 that file alongside, maybe businesses that want to 

22 individually litigate alongside the class but not 

23 inside the class.

24 I noticed in looking at this, I did the same 

25 thing that Ms. Glitz did earlier is in looking at what 
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1 the statistics are right now, and about half of the 

2 currently pending MDLs fall into this, you know, not 

3 that many actions category that I would be talking 

4 about. About 50 percent of the currently pending MDLs 

5 have never had more than 50 actions filed within them. 

6 Again, many of those kind of fall into this -- whether 

7 they’re antitrust cases, they may be securities cases 

8 that are primarily proceeding along on a class basis, 

9 again, maybe sometimes in this hybrid MDL situation 

10 but, for the most part, involving class issues.

11 So, when we’re talking about the fact that 

12 many of these MDLs have primarily class cases, that 

13 means Rule 23 is implicated. And Rule 16.1 as it’s 

14 drafted right now seems to conflict with that in some 

15 ways. I think that there’s a little bit of drafting 

16 tweaking that can be done that would help alleviate 

17 some of that maybe not quite getting in the same 

18 place.

19 As everyone here is very familiar, right, 

20 class counsel has obligations to represent the best 

21 interests of the class, and Rule 23(g) lays out 

22 explicit considerations for a court to consider in 

23 selecting class counsel. Those considerations, of 

24 course, are mandatory at the selection of final class 

25 counsel, for lack of a better word, and in practice, 
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1 they are realistically used for the selection of 

2 interim class counsel much earlier in the case.

3 I’m not wading into the thicket about the 

4 roles and responsibilities of coordinating counsel in 

5 the mass tort proceedings that I know has been 

6 discussed with a number of commentators today, but 

7 Rule 16.1 seems to add yet kind of another layer of 

8 leadership that’s not contemplated by Rule 23 and that 

9 simply isn’t necessary in the kinds of class cases 

10 that I’m talking about.

11 So I have proposed two suggestions in the 

12 alternative. One is that the Committee consider 

13 revising the rule and the note to say explicitly that 

14 it does not apply to MDL proceedings made up of 

15 exclusively or primarily class actions or, in the 

16 alternative, I’ve provided some written -- again, some 

17 tweaking primarily to Rules 16.1(b) and to 

18 16.1(c)(1)(B) about the fact that coordinating counsel 

19 is not a substitute for class counsel and the 

20 requirements of Rule 23 and that coordinating counsel, 

21 to the extent that it’s used in an MDL that includes 

22 class actions, the coordinating counsel role should be 

23 limited to the ministerial duties pending appointment 

24 of interim class counsel, so there are a number of 

25 things that they would not be addressing in that 
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1 context.

2 The suggestions that I’ve offered largely 

3 echo those that were offered by Dina Sharp and Norm 

4 Siegel earlier this month. And, with that, I will 

5 yield back and see if there are any questions. 

6 CHAIR ROSENBERG: Okay. Thank you so much.

7 Are there any questions? Oh, Ariana.

8 MS. TADLER: Just a quick question, Ms. 

9 Barnes. Nice to see you this afternoon. 

10 Is what you’re proposing -- I haven’t had an 

11 opportunity to read what you’ve submitted -- is what 

12 you’re proposing in any way aligned with what Mr. 

13 Mandel has been talking with us about? He offered an 

14 alternative solution, and I don’t know whether you had 

15 the opportunity to hear what he just shared with us or 

16 what he had actually submitted in writing. 

17 MS. BARNES: I did listen to his testimony 

18 before this and I glanced briefly at what he had 

19 written, his written proposal. What I’m proposing is 

20 not in alignment with that. I think, you know, 

21 without going too far down that road, whether a two22 tier is necessary or not, I think, depends in large 

23 part upon the size, the structure, what the issues are 

24 that may be impacted. I would say, from our 

25 perspective in the cases that we do, we typically come 
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1 into that first hearing with agreements, with having 

2 had discussions among the class counsel, even among 

3 the counsel who are representing different classes, 

4 about how we can coordinate what makes sense. And we 

5 are, frankly, at that point, ready to be out the door. 

6 Recognizing particularly the backlog that judges tend 

7 to have, it’s sometimes hard to get one hearing, let 

8 alone two.

9 But I say that from the perspective of 

10 somebody who has been doing these kinds of cases for a 

11 very long time with a small number of firms, again, 

12 often in an MDL setting, but they don’t raise the same 

13 kinds of issues that we might see in much larger ones 

14 where something else may be appropriate. 

15 MS. TADLER: Thank you. 

16 CHAIR ROSENBERG: Rick. 

17 PROFESSOR MARCUS: Ms. Barnes, thank you 

18 again for your contributions. I’m pretty sure I 

19 remember seeing you at prior hearings on prior 

20 amendment proposals. And I’m going back to some 

21 priors also.

22 One of the things I remember the plaintiffs' 

23 bar saying about the Class Action Fairness Act is that 

24 it brought too many class actions into federal court. 

25 And one of the things going back 50 years with regard 
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1 to MDL practices is that the panel then would almost 

2 invariably transfer all the class actions if they were 

3 potentially overlapping to one judge for kind of 

4 consistent, organized treatment. And the question 

5 whether a class action is certified as a class action 

6 usually is not resolved right up front, I would think. 

7 It takes a while.

8 So, in terms of hybrid or multiple class 

9 action situations where some of the plaintiffs' bar 

10 said CAFA caused judges, federal judges, to deny class 

11 certification because it’s just too complicated with 

12 50 different state laws being presented -- I’m not 

13 going to debate that, I’m just saying that’s a

14 report -- how does an MDL transferee judge go about 

15 organizing without first deciding class certification, 

16 or is it mandatory that you appoint interim class 

17 counsel since I don’t think that’s what Rule 23(g) 

18 said when it was originally written? So how does this 

19 all work, and isn’t it necessary that 16.1 has to 

20 apply to cases that include class actions and cases 

21 that don’t include class actions because there’s a 

22 whole lot of bumps in the road going forward?

23 So that’s a collection of considerations 

24 that seem to address the kinds of situations you’re 

25 talking about, and I’m interested in how you would 
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1 resolve those, particularly since you’re interested in 

2 federal claim antitrust class actions, where you at 

3 least don’t have the different state law problem. 

4 MS. BARNES: You’re right. Well, some of 

5 them don’t have the different state law problem, 

6 right? In the indirect purchaser realm, you have --

7 often, right, we may have -- we have our injunctive 

8 relief claims, but the damages claims arise under 

9 state law, and so we still often have those issues 

10 that arise.

11 I guess what I’d say is that in practice,

12 what I’ve seen over the years is that when -- and, 

13 again, I recognize that I’m speaking from the 

14 experience of a bar that is relatively small, 

15 relatively known players. Even though there are more 

16 coming up, they tend to be in the same firms. There 

17 are kind of barriers to entry to be bringing these 

18 cases in some ways. And so I think those structural 

19 issues lend themselves to earlier organization by 

20 plaintiffs' counsel than maybe some of these others.

21 I do think that interim class counsel needs 

22 to be appointed at a much earlier stage. We do have 

23 to have people who are helping lead the charge even in 

24 these hybrid situations, but that means it’s interim 

25 class counsel for a particular class, right? They are 
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1 not speaking -- if I’m speaking on behalf of the 

2 direct purchaser class, I’m not speaking on behalf of 

3 the indirect purchaser class except to the extent that 

4 we have self-organized in a way, much as plaintiffs' 

5 executive committee, right? That’s kind of the -- I 

6 guess that’s the other way I would think about it, 

7 though we don’t usually call them that, that we are 

8 aligning ourselves in a way to get through the 

9 discovery to address the issues that are coming up for 

10 the court.

11 Many of the things that I see on the Rule 

12 16.1(c) list are things that do get addressed to some 

13 extent, whether it’s through a judge’s local practice 

14 or through, frankly, our Rule 16 and 26(f) reports. 

15 So, again, I’m not suggesting that these -- I think 

16 it’s a -- I would encourage you to talk to people who 

17 are spending more time in these larger MDLs for the 

18 impact of what’s been laid out for 16.1 on those 

19 cases.

20 In the setting in which I operate, which I 

21 do think reflects a not insignificant number of cases 

22 on the MDL docket, these things do get addressed and 

23 relatively early to some extent but I think 

24 without -- in the context of people who have put 

25 themselves forward as interim class counsel or are 
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1 seeking that appointment. 

2 CHAIR ROSENBERG: Joe.

3 MR. SELLERS: Thanks for your remarks. I 

4 want to pose the following scenario, which sort of 

5 follows up on something Ariana asked, and that is, if 

6 you assume for the moment that we have a hybrid MDL 

7 where there are some class cases and some non-class 

8 cases, I recognize that 23(g) presumably governs 

9 appointment of at least liaison counsel, eventually 

10 class counsel, but they interact, have to interact, in 

11 some way with the rest of the case.

12 So I think an answer to the question Ariana 

13 asked before is whether you were in accord with Mr. 

14 Mandel’s proposal and I think you said you were not. 

15 And I understand that to the extent you’re being asked 

16 about whether it applies to class actions, your view 

17 is it does not, and I tend to agree with that.

18 But you would agree, wouldn’t you, that in a 

19 hybrid-type case, you may have class claims and we 

20 have to make clear that those are governed by Rule 23, 

21 and then we have another mechanism to deal with 

22 coordination, whether it’s coordinating counsel or 

23 administrative counsel, whatever the term is, for the 

24 remainder of the case. And there has to be some 

25 coordination amongst all the leaders of the individual 
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1 cases so we don’t have 15 people getting up and all 

2 speaking on the same subject with different 

3 perspectives. How would you propose to deal with 

4 that? 

5 MS. BARNES: Well, I think that often, even 

6 though you have leadership, you still get a lot of 

7 people standing up with different perspectives, Joe, 

8 but I guess what I would say on that front is I agree 

9 that the plaintiffs need to be coordinated in what 

10 they are doing. I don’t know that I agree completely 

11 that there has to be some kind of coordinating or 

12 liaison or administrative counsel or whatever it’s 

13 being called now in every MDL that includes something 

14 other than class actions. I think it is very case15 specific.

16 So, in the cases that we do, typically, the 

17 non-class cases that are there, they can be large 

18 insurers or third-party administrators of healthcare 

19 benefits. Sometimes there may be a large -- that may 

20 bring direct purchaser claims or indirect purchaser 

21 claims, so sometimes, for example, United will show up 

22 in these cases by themselves or Humana might show up 

23 by themselves. 

24 Sometimes we will have large companies, like 

25 CVS, Walgreen’s, Rite-Aid, that opt out of the class 
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1 and have their counsel that they do it. But, in those 

2 situations, we’re typically talking about two law 

3 firms that represent most of those additional 

4 individuals. So, again, in the cases that I’m talking 

5 about, I don’t see a need for these, and so having 

6 language that makes perhaps a little bit clearer that 

7 Rule 23(g) is not being supplanted in some way and 

8 that what is being outlined by 16.1 may not apply in 

9 all settings, and I know that that kind of language is 

10 there. I’m just highlighting the class piece of this.

11 But I do take your point, Joe, that there 

12 may be in other settings, maybe when you have more, 

13 maybe when you have additional governmental actors who 

14 have also brought claims, that you may need some kind 

15 of coordinating counsel or liaison, whatever it is, 

16 alongside class counsel, but, again, I think that 

17 that's left to the discretion of the judge who is 

18 trying to figure what it is that he or she has before 

19 him. 

20 MR. SELLERS: Okay. Thanks, Lauren. 

21 CHAIR ROSENBERG: Andrew. 

22 PROFESSOR BRADT: I’m sorry. I 

23 just -- excuse me. If I could follow up on that just 

24 slightly and wonder if you could say a little bit more 

25 practically about what the relationship is between MDL 
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1 leadership and those who represent putative classes 

2 because, as we know, as Joe said, MDL includes both, 

3 and so there is leadership and then there are also 

4 potentially folks who will be class counsel, and often 

5 we see MDLs transmogrified from non-class actions to a 

6 class action for settlement reasons.

7 And so I’m just wondering if you’ve ever 

8 encountered the issue of how practically lead counsel 

9 and class counsel interact with one another if they 

10 are, in fact, different people or are lead counsel 

11 tend -- do they tend to be the people who would be 

12 putative or interim class counsel? How do those 

13 things work in your experience? 

14 MS. BARNES: Well, I think the answer, 

15 Professor, is, you know, it’s a good lawyer answer. 

16 It depends and it depends -- so, in some of these 

17 circumstances where we’re talking about kind of a 

18 hybrid MDL that I’ve been involved in, we have not had 

19 MDL lead counsel in the way that it’s envisioned in 

20 mass torts, right, or in some of the larger cases. 

21 What we end up having is interim class counsel and 

22 eventually class counsel for the direct purchaser 

23 class, interim and eventually class counsel for the 

24 indirect purchaser class, and to the extent that there 

25 are additional opt-outs or maybe a couple of 
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1 governmental actors, there is no formal leadership 

2 that’s set up among those. Instead, the firms that 

3 have been retained by those work hand-in-glove with 

4 class counsel on this front.

5 I do know that there are many other 

6 settings, again, with larger groups, maybe more 

7 disparate interests again because most of what I’m 

8 talking about, everybody's bringing an economic harm 

9 claim. When you were talking about something where 

10 you might have economic harm claims as well as 

11 personal injury claims as well as something else, then 

12 I think you are looking at a situation where you may 

13 have class counsel that’s been appointed for the 

14 economic harm claims and you have leadership otherwise 

15 that’s been appointed.

16 Often, I think you end up with this class 

17 counsel may be involved at a PEC level, right, but, 

18 again, or a plaintiff steering committee level and 

19 they sometimes may reside in the same person and 

20 sometimes they don’t. Again, this is, I think, the 

21 difficulty with MDLs in general, is that it’s a 

22 very -- it’s a term that encompasses everything from 

23 something that has two cases up to something that has 

24 more than 300,000 cases filed and all the different 

25 kinds of claims that can fall inside. 
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1 CHAIR ROSENBERG: Okay. Thank you so much. 

2 MS. BARNES: Thank you. 

3 CHAIR ROSENBERG: We appreciate your 

4 comments, Ms. Barnes. 

5 Now we are going to go to Anthony Mosquera, 

6 who is appearing by phone and no audio, and we just 

7 want to remind you, Mr. Mosquera, to hit 6, asterisk 

8 6, to unmute yourself. Oh, we can’t --

9 MR. MOSQUERA: Hello. Can everyone hear me?

10 CHAIR ROSENBERG: Yes, now we can hear you. 

11 Yeah, you’re addressing privilege logs, and you may 

12 proceed. 

13 MR. MOSQUERA: Yes. Thank you and good 

14 afternoon, everyone. My name is Anthony Mosquera, and 

15 I am a senior counsel at Johnson & Johnson, where I 

16 lead the company’s discovery practice.

17 I want to thank the Committee for the 

18 opportunity to provide Johnson & Johnson’s perspective 

19 over the topic of how we can update the rules 

20 governing privilege logging for the benefit of all 

21 parties. 

22 I begin with sharing my unique perspective 

23 with this Committee. J&J has a diverse litigation 

24 portfolio that includes symmetrical and asymmetrical 

25 litigation and discovery, of course. Over the past 
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1 five years, J&J has drafted 250,000 individual 

2 privilege log entries across 52 matters. The company 

3 uses approximately 120 attorney reviewers a year to 

4 draft such entries.

5 Over the same period of time, J&J has worked 

6 to develop and introduce more efficient and modern 

7 approaches to privilege logging. Unfortunately, our 

8 litigation teams routinely litigate with parties that 

9 are inflexible or unwilling to engage to consider 

10 modern approaches to the format of privilege logs, and 

11 that’s, in essence, what my testimony is about, is the 

12 format of privilege logs.

13 We continue to encounter presumption that 

14 the company must provide manually generated document15 by-document privilege logs, this particularly in large 

16 product liability and consumer fraud matters. 

17 Frankly, the insistence on traditional logs with its 

18 associated burdens can be weaponized by non-producing 

19 parties in matters with more or less unilateral 

20 discovery. Moreover, while burdens continue to 

21 increase in step with growing volumes of data 

22 requested and produced, there’s a low return on 

23 investment for the efforts creating traditional logs 

24 as particularly only a fraction of log entries is ever 

25 challenged, even cases with significant privilege 
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1 disputes.

2 My position is that the Committee should 

3 update the rules to establish a presumption of the 

4 sufficiency for alternate formats to generating 

5 privilege logs, what I would call modern logs.

6 The traditional practice of writing a 

7 description on a document-by-document basis is 

8 burdensome, it’s inefficient, and it provides little, 

9 if any, value to the receiving party.

10 For the purpose of this testimony, I define 

11 modern logs as metadata logs, categorical logs, or 

12 hybrid approaches. Hence, updates to Rule 26 would 

13 allow for such formats.

14 Of course, changes should also presume that 

15 traditional logging is appropriate for certain 

16 scenarios. Modern logs have been enabled through 

17 advancements in technology and the evolving 

18 sophistication of supplier workflows. Modern logs 

19 represent a solution to logging burdens, which again 

20 balance against exponentially growing volumes of data 

21 that are requested, reviewed, and produced in 

22 litigation. 

23 Importantly, a rule change should also allow 

24 for additional suitable approaches that will surely 

25 arise with advancements in technology, including as 
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1 technology evolves and can be validated.

2 To establish a presumption that alternate 

3 formats for privilege logs may be sufficient, I 

4 recommend that the Committee adopt something akin to 

5 what was submitted in the LCJ’s August 4, 2020, letter 

6 for which I propose one additional final sentence, 

7 which would be information furnished may be delivered 

8 in a format sufficient to support the claim.

9 Acknowledgment within Rule 26(b)(5) of the 

10 sufficiency of modern privilege log formats would 

11 better enable parties to explore the fit of such 

12 logging methods for a particular matter without 

13 assuming, of course, at the beginning of negotiation a 

14 primacy of traditional logging methods.

15 I’d like to thank the Committee members for 

16 your time and for allowing me to share Johnson & 

17 Johnson’s perspective. 

18 CHAIR ROSENBERG: Thank you, Mr. Mosquera. 

19 Are there any questions? Rick.

20 PROFESSOR MARCUS: Thank you. I’m wondering 

21 on a couple of levels what your feelings are. One is, 

22 does J&J presently raise, attempt to resolve and bring 

23 to the court if not resolved the question of how 

24 privilege logging is to occur in a given case right up 

25 front, or is that deferred until considerably later? 
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1 And then, secondly, you are endorsing a 

2 change also to Rule 26(b)(5)(A) which others have 

3 recommended to us. Do you think it would be enough 

4 and wouldn’t it perhaps be enough to have just a 

5 cross-reference and maybe to quote what the Committee 

6 note said in 1993 about flexibility in designing 

7 logging methods? Particularly since, if we’re going 

8 to be technology-neutral, we can’t very easily say 

9 here’s what to do because five or 10 years from now 

10 things will be done very differently.

11 So I’m interested in J&J’s experience up 

12 front in discussing these matters with opposing 

13 counsel, and I’m also interested in what beyond a 

14 cross-reference to our published proposals should be 

15 added to 26(b)(5), which just says talk about this up 

16 front. 

17 MR. MOSQUERA: Yes. Thank you for your 

18 question. The issue is not so much that the parties 

19 aren’t talking about it. The issue is that the 

20 plaintiffs' bar and many courts incorrectly presume 

21 that traditional line-by-line logging is the standard 

22 or preferable methodology. That is really the crux of 

23 the problem we’re encountering. And there are many 

24 reasons for that, right? In part, it could be 

25 tradition. Many judges are used to the format, 
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1 understand that from their own practices as attorneys.

2 But technology has moved forward, and I 

3 think that there is still a bit of our -- the parties 

4 we litigate against, an unwillingness to sit -- to put 

5 a -- you know, a willingness to put a stake in the 

6 ground and to, in essence, say, if you want to bring 

7 it to the court, bring it to the court -- at any given 

8 time is litigating across the country and, you know, 

9 in many districts in many jurisdictions. That’s not a 

10 model that I think would be optimal, is to clog the 

11 courts and judges’ time with these types of disputes, 

12 and that is really the basis for my recommended 

13 changes.

14 CHAIR ROSENBERG: Okay. If there are no 

15 other questions? Thank you so much, Mr. Mosquera. 

16 And we’ll turn to Kellie Lerner on privilege 

17 logs. 

18 MR. MOSQUERA: Thank you.

19 MS. LERNER: I don’t see myself. 

20 CHAIR ROSENBERG: We can hear you, though. 

21 MS. LERNER: I wonder what I’ve done wrong 

22 with my camera. Oh, you know what? Let’s see. I 

23 think I may have two --

24 CHAIR ROSENBERG: Two devices? 

25 MS. LERNER: Yep. Let me just see if I can 
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1 fix that quickly. I know there may be testimony 

2 fatigue by the panel, so I will try to fix this 

3 quickly. 

4 CHAIR ROSENBERG: Do you want us to go to 

5 the next one and come back? 

6 MS. LERNER: That’s okay.

7 CHAIR ROSENBERG: Okay. 

8 MS. LERNER: Let me just try it one more 

9 time. I think maybe if I switch here. 

10 CHAIR ROSENBERG: Oh, there you go. Yeah, 

11 we can see you now. 

12 MS. LERNER: Okay. So now just if I switch 

13 to my laptop you can see me. A little awkward, but I 

14 can make it work. 

15 Well, good afternoon. My name is Kellie 

16 Lerner. I am a partner and co-chair of the antitrust 

17 practice at Robins Kaplan, and I also serve as 

18 president of COSAL, which is the Committee to Support 

19 the Antitrust Laws, and my testimony today is on 

20 behalf of myself, as well as COSAL. And I know you 

21 have heard a tremendous amount of testimony on your 

22 proposed Rule 16.1, so I’m going to keep my comments 

23 brief and focus on three main points.

24 The first is that there truly is no need for 

25 coordinating counsel in antitrust class actions. As I 
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1 stated in my written testimony, the average time for 

2 interim lead counsel to be appointed once an MDL 

3 decision is decided is approximately three months. 

4 And to a point made earlier in today’s hearings, at 

5 least in my nearly 20 years of experience -- over 20 

6 years of experience litigating almost exclusively 

7 antitrust class actions, I cannot think of a single 

8 antitrust MDL where lead counsel was not -- interim 

9 lead counsel was not appointed. When it’s appointed, 

10 it’s done under a clear set of criteria under Rule 

11 23(g) and the process works. 

12 My second point relates to the report 

13 contemplated by Rule 16(c) and, as I stated in my 

14 written testimony, that could lead to incredible 

15 inefficiency, and to provide some more color to that, 

16 I just want to walk through what that would look like 

17 in practice. And I have had the unfortunate 

18 experience a few times where lead counsel wasn’t 

19 appointed right away, where the court either called in 

20 all the parties or required some kind of joint report 

21 with defense counsel, and what that leads to is a 

22 courtroom where you have plaintiffs’ lawyers that not 

23 only fill up every seat in the courtroom, but they 

24 also have to use the jury box for places to sit. And 

25 on meet-and-confers, to create that joint status 
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1 report, you have roll call for plaintiffs’ lawyers 

2 taking longer than the substance of the meet-and3 confer. And all of that time gets charged to the 

4 class, and it’s inefficient because all of this can be 

5 done by lead counsel, who importantly has the 

6 decision-making authority to make the final decision 

7 on these important points that would go into this 

8 report.

9 The other reason why the report is premature 

10 is because, in class actions, once lead counsel is 

11 appointed, there’s a consolidated amended complaint. 

12 That’s a critically important process for antitrust 

13 class actions because you could have dozens of 

14 complaints on file with different claims against 

15 different defendants with different class definitions, 

16 and then the consolidated amended complaint drafted by 

17 co-lead counsel, interim co-lead counsel, gets to make 

18 the final decision about what are the operative claims 

19 in the case.

20 If some coordinating counsel is responsible 

21 at the outset before lead counsel is appointed to put 

22 all of plaintiffs' positions in this interim report, 

23 it puts plaintiffs in this unenviable position of 

24 showing all of their differences and pitting them 

25 against each other to the benefit of the defendants, 
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1 and that process is eliminated if you have one 

2 consolidated amended complaint chosen by the lead 

3 counsel, and then, once that’s on file, then you have 

4 a single set of decision-makers that lays with 

5 defendants to come up with the items that are in this 

6 proposed Rule 16(c) report.

7 My one last comment is that I do think that 

8 the concept of an early initial status conference 

9 could increase the efficiency of class actions, MDL 

10 class actions, if the premise of that initial 

11 conference was to focus explicitly on selecting lead 

12 counsel. I heard some comments earlier about, you 

13 know, well, who does the court speak to in these 

14 conferences, and I’ve seen that play out. Although it 

15 sounds like it can be very inefficient, it plays out 

16 very efficiently either because the court only has to 

17 hear from lawyers who -- or, you know, there’s just a 

18 natural cropping up of lawyers as questions are asked 

19 and, you know, it’s efficiently managed that way.

20 But to make it even more efficient -- can 

21 you hear me? I’m getting a poor network quality on my 

22 laptop. Okay. Good.

23 But, to make it even more efficient, if that 

24 initial status conference could be specifically 

25 dedicated to the selection of interim lead counsel on 
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1 class actions, it could expedite that already pretty 

2 reasonable three months to something even quicker.

3 So those are my comments, and I’m happy to 

4 answer any questions from the panel. Thank you again 

5 for the opportunity today. 

6 CHAIR ROSENBERG: Okay. Thank you. Thank 

7 you so much.

8 Andrew. 

9 PROFESSOR BRADT: Thank you so much. I 

10 asked this at the prior hearing of somebody who was 

11 making a similar point. Is it fair to say that the 

12 concern is not so much about MDLs that may have class 

13 actions in them but MDLs in subject matter areas that 

14 are primarily class actions, like antitrust? 

15 MS. LERNER: So I’d like to hear -- I wasn’t 

16 present for this earlier question, so I’d like to hear 

17 more of what you mean by MDLs that also have class 

18 actions in them. But, certainly -- because, in 

19 antitrust MDLs, for example, you similarly have -- you 

20 can have class actions, you can have individual 

21 actions, you can have opt-outs, et cetera, so there 

22 could be a variety of different types of plaintiffs.

23 But across the board, this idea of 

24 coordinating counsel, it would apply to the class 

25 action plaintiffs, who already have a system that 
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1 works for selecting lead counsel with decision-making 

2 authority, and so, for that, I would request a 

3 carveout.

4 PROFESSOR BRADT: Sure. It just seems to me 

5 that any MDL could include class actions as cases that 

6 are transferred into them. 

7 MS. LERNER: Yes. 

8 PROFESSOR BRADT: And so, really, the 

9 concern is that in antitrust there seems to be an 

10 established set of procedures among a relatively 

11 discrete bar that are understood and that you would 

12 prefer to see not loused up in some way by a new rule. 

13 It’s not really about class actions per se entirely. 

14 It’s about the particular practices and folk ways that 

15 have developed in antitrust. 

16 MS. LERNER: I can’t be sure that that’s 

17 entirely the case because I have occasionally 

18 litigated plaintiff class actions in other spaces, and 

19 in those cases, the process worked very efficiently as 

20 well. Once there was an MDL transfer decision, the 

21 first order of business was selecting lead counsel.

22 So, while I don’t have the breadth of 

23 experience as someone who does other types of class 

24 actions day in and day out, when I have practiced, 

25 it’s been an efficient process. 
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1 PROFESSOR BRADT: So I guess my question is, 

2 is that if there is an efficient established process 

3 in antitrust cases that don’t require coordinating 

4 counsel and coordinating counsel isn’t made mandatory 

5 by the rule, why would -- is there anything in the 

6 rule that would prevent the attorneys from convincing 

7 the judge that coordinating counsel just may not be 

8 appropriate in antitrust cases? 

9 MS. LERNER: I think that the confusion is 

10 what concerns us the most because there is -- it would 

11 be a new rule with a lot of -- with some ambiguity as 

12 to what the coordinating counsel does, and it leaves a 

13 lot of room for interpretation that could go awry 

14 with, you know, in particular, a new judge who’s just 

15 not quite sure what to do.

16 And so, to eliminate that confusion, if 

17 there could just be an express carveout for MDL class 

18 actions, I think we would be in much better shape than 

19 going through this inefficient process of then trying 

20 to explain why coordinating counsel isn’t necessary 

21 or, in even a worse case, you know, maybe there’s some 

22 reason at some point that there’s a disagreement of, 

23 you know, whether we need coordinating counsel, and 

24 then we’re delaying what is already a pretty tried and 

25 true process of selecting interim lead counsel within, 
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1 you know, a mere matter of months once a transfer 

2 order is issued. So it just -- it creates an 

3 opportunity for dispute and confusion that could just 

4 be entirely eliminated with an added census, 

5 hopefully, to exclude class actions. 

6 PROFESSOR BRADT: This is purely 

7 informational. Have you ever had any antitrust class 

8 action -- or antitrust MDL assigned to a first-time 

9 transferee judge? 

10 MS. LERNER: I’m sure I have. You know, 

11 that is something that I think, you know, some MDL 

12 judges looked -- you know, the panel looked for, is to 

13 give a new judge an opportunity to have an MDL. Can I 

14 give you a specific example right off the top of my 

15 head? Probably not. But I could supplement my 

16 testimony with one if needed. 

17 PROFESSOR BRADT: Thank you. I appreciate 

18 the testimony. 

19 CHAIR ROSENBERG: Okay. Thank you very 

20 much, Ms. Lerner. 

21 MS. LERNER: Thank you for the opportunity. 

22 Have a good day, everyone. 

23 CHAIR ROSENBERG: You too. 

24 Robert Levy is next from Exxon, and I think 

25 you’re going to be addressing privilege logs, is that 
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1 correct?

2 MR. LEVY: Correct. 

3 CHAIR ROSENBERG: Okay. 

4 MR. LEVY: Can you hear me? 

5 CHAIR ROSENBERG: We can. Thank you. 

6 MR. LEVY: Great. Thank you for the 

7 opportunity to testify. My name is Robert Levy, and 

8 I’m executive counsel at Exxon Mobil, where I focus on 

9 legal policy issues and advise on e-discovery and 

10 information governance.

11 I wanted to give you a perspective of a 

12 party that spends considerable sums in preparing for 

13 privilege logs in federal court litigation, and much 

14 of that burden and expense really is wasted and 

15 unnecessary. The cost of preparing privilege logs is 

16 probably the most expensive feature of many of our 

17 larger cases, and it can approach a million dollars or 

18 more in an individual case.

19 And one comment that I wanted to offer is 

20 that our discovery system is built on trust and 

21 duties, particularly that the producing party will 

22 produce all of the responsive materials. There has 

23 been testimony by some of the witnesses as to why 

24 privilege logs are so important to avoid a situation 

25 where somebody might over-withhold. But, if 
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1 inappropriate withholding were really the issue here, 

2 the answer is not requiring a party to produce a 

3 privilege log because people, presumably, if they 

4 didn’t want to disclose the document, they’re not even 

5 going to log it. And, in fact, document-by-document 

6 logging really doesn’t make compliance more likely. 

7 It might make it less likely.

8 The rules proposal discussing early 

9 engagement will not really address the underlying 

10 issue, which is that presumption that courts often 

11 apply, as mentioned by Anthony, that all withheld 

12 documents have to be logged. And while early 

13 engagement can be beneficial, it’s really so early in 

14 the process that the proposed amendments provide that 

15 it’s not going to give courts -- or, I’m sorry,, the 

16 parties, particularly producing parties, the 

17 opportunity to really understand the scope of the 

18 privilege issues because they’re often done before 

19 discovery has been propounded and the producing party 

20 has a chance to review all the documents.

21 And there have been questions asked about 

22 the advent of new technology and the possibility that 

23 that will help reduce the costs of preparing privilege 

24 logs. One of the ironies is that the more technology 

25 that we have, the more records are created. In fact, 
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1 I was reviewing the issue of producing information 

2 about artificial intelligence and the requests that 

3 those will -- create technology might help, it --

4 CHAIR ROSENBERG: Is anybody else having 

5 difficulty hearing Mr. Levy? 

6 FEMALE VOICE: Yeah. 

7 CHAIR ROSENBERG: Okay. 

8 MR. LEVY: One of the suggestions is 

9 that -- I’m sorry. You’re having difficulty? 

10 CHAIR ROSENBERG: You froze there for a 

11 moment, so I think --

12 MR. LEVY: Is that better? 

13 CHAIR ROSENBERG: Yeah, I think you’re 

14 freezing. Oh, okay. 

15 MR. LEVY: All right. Apologies about that.

16 CHAIR ROSENBERG: Okay. That’s better. 

17 MR. LEVY: Is this --

18 CHAIR ROSENBERG: Yeah.

19 MR. LEVY: Great.

20 The suggestion has been offered that the 

21 rule should have a default standard that in certain 

22 categories of information you don’t have to provide a 

23 log simply because it’s almost never, but not never, a 

24 need to review that. And, therefore, we suggest that 

25 there should be this de facto standard that you don’t 
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1 have to log communications with outside counsel or 

2 communications post-suit being filed.

3 There clearly have been points made earlier 

4 about where those documents might be appropriate and 

5 necessary, and that is perfectly fine, but those are 

6 the cases where the requesting parties should make a 

7 case for why they need those documents, but not in 

8 every case because, in, let’s say, 90 percent of 

9 cases, those documents are never disputed.

10 We also have concerns about the amendments 

11 not being incorporated in 26(b)(5) versus in Rules 16 

12 and 26(f) simply because 26(b)(5) is where parties go 

13 to understand their obligations about withholding and 

14 how they address that withholding. We also have 

15 suggested in the past through LCJ that Rule 45 should 

16 also be amended to address this issue, particularly 

17 because third parties that are required to produce 

18 information in a case are particularly prejudiced and 

19 have to deal with the cost and expense of the process 

20 when they have to produce a log, and there should be 

21 consideration to try to minimize the cost and burden 

22 to third parties wherever possible.

23 One of the other quick points that I’ll 

24 mention is about the reference to rolling logs. The 

25 problem with rolling production and logging as you go 
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1 along is that if you do a rolling production simply by 

2 custodian, you might have Custodian No. 1 that has 

3 communications with Custodian No. 10, and so you’re 

4 going to end up having to log all of those documents 

5 in the first instance and then you’re going to have a 

6 problem in figuring out that you duplicated those 

7 documents on the log for Custodian No. 10.

8 So rolling logs really can create more 

9 problems, and that’s why we suggest moving towards 

10 tiered logging or categorical loggings and even a 

11 suggestion has been made about metadata logging, which 

12 would be a way to kind of provide a broad overview of 

13 the information without having to provide details 

14 about each and every document. So we think that those 

15 steps will help make the process much more efficient. 

16 I’m happy to answer any questions. 

17 CHAIR ROSENBERG: Thank you, Mr. Levy. 

18 Any questions? Judge Boal and then Rick.

19 JUDGE BOAL: Yes. Thank you for your 

20 testimony and your written submission.

21 On the tiered logging, how do you define 

22 "tiered logging"? 

23 MR. LEVY: I think tiered logging really can 

24 depend on every case. And so the idea would be coming 

25 up with a plan to try to approach potentially issues, 
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1 the key issues in the case or the key timelines, or 

2 sometimes you can approach it dealing with key 

3 custodians, but you’re focusing on broad parameters 

4 and you could look at narrowing where possible the 

5 types of documents that would be needed at least early 

6 on. And then, as the discovery process continues, you 

7 can address potentially expanding it to additional 

8 timelines or additional issues, additional parties. 

9 And as you deal with categorical logging in terms of 

10 the types of records, you can also use that as a way 

11 to create efficiencies. 

12 JUDGE BOAL: And do you view that the tiered 

13 logging determination would be made unilaterally or in 

14 consultation with the opposing side sort of --

15 MR. LEVY: Oh, absolutely.

16 JUDGE BOAL: -- opposing -- sorry, go ahead. 

17 MR. LEVY: Yeah. I apologize for 

18 interrupting you. Yeah. None of this would be done 

19 categorically. It’s always presumptively based upon 

20 communication and agreement with the requesting party 

21 and, in fact, all parties in the case, and, hopefully, 

22 you know, if there are disputes, the judge can get 

23 involved as well, but this is always a collaborative 

24 process. 

25 But the importance is that the presumption 
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1 in Rule 26(b)(5) is document-by-document logging. So 

2 the challenge for a producing party today is that 

3 you’re going to have to fight against that presumption 

4 to get anywhere and oftentimes it’s not successful.

5 JUDGE BOAL: Because the other side of the V 

6 has criticized the idea of tiered logging, and part of 

7 it has been I think they view it as a unilateral 

8 determination and that -- I’m quoting here from one of 

9 the other parties -- there's no explanation of who 

10 would make this subjective determinations or how. But 

11 I guess you’re envisioning it as a collaborative one 

12 that may result in additional disputes, but you’re 

13 previewing that with the other side first? 

14 MR. LEVY: Correct, and collaborating to 

15 discuss what are the important issues. The requesting 

16 party is the one that’s asking for the information, so 

17 you want to get them to the information that they need 

18 and do it the most effective and efficient way 

19 possible. But the proposal is that the rule itself or 

20 at least the Committee note should provide guidance on 

21 that determination. 

22 JUDGE BOAL: Thank you. 

23 CHAIR ROSENBERG: Okay. Rick, did you have 

24 a quick question? 

25 PROFESSOR MARCUS: I think I have two quick 
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1 questions. One is about Rule 45, which, Mr. Levy, you 

2 mentioned, and we’ve seen you around the rulemaking 

3 process for a long time, and that is 26(f) calls for 

4 the parties to meet and develop a discovery plan. I’m 

5 not aware of anything in Rule 45 that says there’s got 

6 to be some kind of get-together of that sort when a 

7 subpoena is served, so I’m wondering how do you create 

8 a parallel event under Rule 45.

9 And then I’ll call it your side, the defense 

10 side has urged an amendment, as you just did, to 

11 26(b)(5)(A). Some on that side have said the problem 

12 is people weren’t paying attention to what the 

13 Committee note in 1993 said. So is there any -- if we 

14 were to do that, do we need any more than to say 

15 there’s this new requirement in Rule 26(f) and here’s 

16 a reminder of what was said in 1993 about 26(b)(5)(A)?

17 So I think those are two very specific 

18 questions. I wonder how you come back to answer them.

19 MR. LEVY: I’ll start with the second 

20 question first and try to be quick.

21 I have a challenge with the Committee notes 

22 generally, particularly Rule 26, because, to find a 

23 Committee note in Rule 26, you have to know the year 

24 that that specific sub-part of 26 was adopted or 

25 amended and then go to the year to find the 
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1 appropriate Committee note. And it’s just -- people 

2 are not effectively able to find the Committee notes. 

3 So I urge that the issue should be addressed in the 

4 rule and in Rule 26(b)(5) itself about this 

5 presumption. 

6 The issue about Rule 45 is that the 

7 solutions in 16 and 26(f) that are proposed will not 

8 help you in Rule 45. I think Rule 45 should either in 

9 Rule 45 or 26(b)(5) include a presumption that 

10 producing parties, third parties, are not required to 

11 develop a log unless there’s a specific finding by the 

12 court that a log would be necessary because creating a 

13 log de facto is going to be very expensive for a third 

14 party, and, therefore, they should not be required to 

15 log absent some finding that it’s going to matter.

16 Apologies for the longer answer, Judge. 

17 CHAIR ROSENBERG: Okay. No problem, Mr. 

18 Levy. Okay. Well, thank you so much, and we 

19 appreciate your comments. 

20 We’ll go to Aaron Marks next on privilege 

21 logs.

22 MR. MARKS: Thank you, Your Honor. Good 

23 afternoon. My name is Aaron Marks, and I want to 

24 thank the Committee for all of the thoughtful hard 

25 work that’s gone into these proposed amendments and 
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1 for the opportunity to testify today.

2 I’m an attorney at the law firm Cohen 

3 Milstein, where I represent plaintiffs in federal 

4 antitrust litigation across the country. I also have 

5 several years of experience at a corporate defense 

6 firm and as a law clerk to a district judge, so I like 

7 to think that I have seen these issues from all sides.

8 I’m here testifying today not only for 

9 myself but also for the Committee to Support Antitrust 

10 Laws, COSAL, which is an organization of firms that 

11 practice antitrust law principally on behalf of 

12 plaintiffs across the nation. I’ll be addressing the 

13 privilege log amendments.

14 With respect to the text of the rule, we 

15 commend the proposed amendment and support its 

16 adoption. Encouraging discussion of privilege log 

17 formatting and procedures during the time that the 

18 discovery plan is being formulated is beneficial. In 

19 my experience, these types of discussions happen 

20 already informally at this stage in the case, and 

21 codifying this in the rule is likely to have a 

22 laudatory effect.

23 I’m going to focus my testimony today on the 

24 proposed Committee note which, in our view, raises 

25 several concerns which could undermine the 
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1 appropriately balanced nature of the amendment to the 

2 rule itself.

3 First, the Committee note addresses burden 

4 several times, but the only burden that it addresses 

5 is that of a producing party that would seek to 

6 withhold otherwise discoverable information. It’s 

7 black letter law that the burden is always on the 

8 withholding party to justify its assertion of 

9 privilege, and at the same time, we know from 

10 experience that the way logs are formatted, the way 

11 that the procedures around logs are set up can impose 

12 great burdens on requesting parties and on the court. 

13 I am happy to give my perspective on that having 

14 personally dealt with some of the burdens and issues 

15 that can arise from an inadequately presented log.

16 The Committee note also states -- the 

17 proposed Committee note, I should say, also states 

18 that document-by-document logs, traditional logs, are 

19 "often associated with very large costs." In our 

20 view, this is likely to be interpreted by courts as 

21 expressing a preference against traditional logs, but 

22 this would run counter to the flexible approach that 

23 the rule itself takes. Additionally, in my 

24 experience, document-by-document logs are not 

25 associated with very large costs. 
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1 Professor Marcus, you’ve asked today several 

2 times about the use of technology and how that is 

3 affecting things in practice. In practice, what 

4 technology does today is it enables the very quick 

5 generation of document-by-document logs. These logs 

6 are often populated with fields, such as the author of 

7 a document, recipients of an email, subject line, 

8 date. All of that is largely populated automatically 

9 these days using e-discovery software. I have an 

10 experience in a Southern District of New York case 

11 where the court ordered a party to produce such a log 

12 and it was able to create it for thousands of 

13 documents in a matter of I think it was two or three 

14 weeks. This is something that can be done very 

15 quickly through the use of technology even when there 

16 are large volumes of documents in the case.

17 Lastly, the concern we have -- the last 

18 concern we have with the proposed Committee note is 

19 that it will likely increase the use of alternative 

20 log formats. 

21 And, Judge Boal, you were asking about 

22 tiered logging. There’s been discussion today of 

23 categorical logging.

24 Our experience with these logs is that they 

25 suffer from very serious shortcomings that impose 
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1 substantial burdens on both sides of the case and 

2 ultimately on the court. That’s for a few reasons.

3 First, a categorical log involves, rather 

4 than disclosing a document-by-document identification 

5 of the reason for the withholding, parties lump vast 

6 quantities of documents into categories. That makes 

7 it very difficult to actually assess the basis for 

8 privilege, which is what Rule 26(b)(5) requires. This 

9 hamstrings parties that have to scrutinize the 

10 privilege logs, and, ultimately, what it leads to is 

11 wide-ranging motions being filed with the court 

12 because the parties are not able to narrow issues 

13 themselves using the document-by-document log.

14 So, in our experience, document-by-document 

15 logs lead to narrower motions presented to the court. 

16 The motions that do end up before the court are better 

17 briefed because the requesting party has better 

18 information about what to challenge and why.

19 The other principal issue is that 

20 categorical logs lead to improper withholdings, and 

21 this is not only a deliberate withhold -- improper 

22 withholdings but also inadvertent withholdings. This 

23 is a pervasive problem. There’s been some testimony 

24 today from my friends on the other side of the bar 

25 that only a fraction of log entries are ever 
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1 challenged. That’s not been our experience. It’s 

2 routine in our cases that hundreds of documents are 

3 challenged from privilege logs and are subsequently 

4 produced often without going to the court.

5 We will notice something on the log. It may 

6 have been inadvertent. A contract attorney or a 

7 junior attorney didn’t understand how to categorize a 

8 particular set of documents. We challenge these and 

9 hundreds of documents are routinely produced. That 

10 becomes extraordinarily difficult to do in a 

11 categorical log regime. And so our concern with the 

12 proposed Committee note is that it really seems to put 

13 its thumb on the scale for a particular type of log 

14 when the rule itself encourages flexibility, which we 

15 think is entirely appropriate.

16 So, if the Committee were to reconsider the 

17 proposed note, I think the final two paragraphs 

18 reflect the flexible approach that is proposed in the 

19 rule itself, and we would suggest removing the earlier 

20 paragraphs, which seem to disfavor traditional 

21 document-by-document logs.

22 I know the Committee has heard a lot of 

23 testimony today. I’ll stop there and would welcome 

24 any questions.

25 CHAIR ROSENBERG: Judge Boal.
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1 JUDGE BOAL: Thank you for your testimony 

2 and your specific suggestions with respect to the 

3 Committee note. I’m going to go back to one sentence 

4 that you had raised concerns with. That’s in the last 

5 sentence in the first paragraph that says compliance 

6 with Rule 26(b)(5)(A) can involve very large costs. 

7 And then you objected to the often including a 

8 document-by-document privilege log continuation of 

9 that sentence, which I took from your testimony 

10 suggests that we think that’s the only basis that’s 

11 driving up the costs or suggestion.

12 Would it satisfy some of your concerns just 

13 to take out the end of that sentence saying the "often 

14 including a document-by-document privilege log"? 

15 Actually, the costs on both sides is one of the 

16 reasons why this amendment is here. 

17 MR. MARKS: Judge Boal, I think that really 

18 it would be a step in the right direction but would 

19 not address the overarching concern, which is that the 

20 only cost which is discussed in the proposed Committee 

21 note as of now is that of a withholding party when, in 

22 fact, what we’ve seen -- I had one recent case where I 

23 want to say hundreds of hours were spent resolving a 

24 problematic categorical log. Briefing the issue, 

25 meet-and-confers, argument before the court, I know 
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1 this because I argued some of these motions myself. 

2 All of that could have been avoided by sticking to a 

3 traditional document-by-document log. And I’ll say 

4 that one -- so that one clause at the end of a 

5 sentence being excised would be a step in the right 

6 direction certainly, but there are other references in 

7 the proposed Committee note as well, for example, the 

8 third-to-last paragraph's reference in the first 

9 sentence to "relieve the producing party of the need 

10 to list many withheld documents." The reason that --

11 JUDGE BOAL: But the --

12 MR. MARKS: I apologize. Please.

13 JUDGE BOAL: No, no. So, from what I’m 

14 hearing you saying, if it said compliance with Rule 

15 26(b)(5)(A) can involve very large costs on both 

16 sides, for both sides or something like that? Not 

17 really. 

18 MR. MARKS: Well, I appreciate the 

19 suggestion. I think that again would be a step in the 

20 right direction. It would not address the other 

21 paragraphs which --

22 JUDGE BOAL: Got it. 

23 MR. MARKS: -- also reference the burden on 

24 a withholding party, but I think that it’s certainly a 

25 fair statement to say that substantial costs can be 
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1 imposed on requesting parties when privilege logs are 

2 not adequately detailed. 

3 JUDGE BOAL: Thank you. 

4 CHAIR ROSENBERG: Okay. Thank you so much, 

5 Mr. Marks. 

6 MR. MARKS: Thank you. 

7 CHAIR ROSENBERG: All right. We’re going to 

8 have our last witness before the break, which we are 

9 running a little behind. I apologize. 

10 Pearl Robertson is going to address 

11 privilege logs, and then we will take a short break 

12 and resume after that.

13 MS. ROBERTSON: Good afternoon. Can 

14 everyone hear me? 

15 CHAIR ROSENBERG: Yeah. 

16 MS. ROBERTSON: Looks like it. Okay. Hi. 

17 My name is Pearl Robertson. I’m a partner at Irpino 

18 Avin Hawkins Law Firm. Yes, I’m here today to talk 

19 about some privilege logs. Thankfully, my colleague, 

20 Mr. Aaron Marks, just pretty much covered nearly on 

21 the nose what my concerns are with the draft Committee 

22 note. 

23 While I don’t think the text, the proposed 

24 text, in the rule is not problematic in any way, I 

25 think it’s largely what parties are already doing and 
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1 it’s just consistent with our practices, it is the 

2 Committee note that I agree reads particularly one3 sided. It seems to really kind of pick and maybe in a 

4 way give the defense bar a little -- or I guess I 

5 shouldn’t say defense bar -- the producing party of a 

6 privilege log a little bit more ammunition to point to 

7 more things as to why it’s so burdensome to create a 

8 log when ultimately it’s a problem they create, right?

9 Like, I have been on both sides. The opioid 

10 litigation, we did producing party logs and we were 

11 the receiving party logs. I did both sides for the 

12 entire MDL litigation of my law partner, Anthony 

13 Irpino. When we made the privilege log for the 

14 plaintiff counties, it was tens of thousands of 

15 entries. It was not an insignificant number of 

16 privilege entries. What we did as any -- you know, 

17 you negotiate the search terms. You respond to the 

18 RFPs. You collect those documents. They go into the 

19 document platform. You then have them sifted out for 

20 privilege. When you’re ready, within that document 

21 review program, you click the description, like, 

22 basically, I’ll say attorney/client privilege, work 

23 product relates to this litigation with outside 

24 counsel, all of that information I’m clicking on gets 

25 exported into the log itself. No more is someone 
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1 going through and writing in individually a 

2 description each time. It’s all done by technology. 

3 And there’s no doubt that that’s what the defendant in 

4 the MDL litigation for MDL 2804 did as well. 

5 So I don’t think that really the document6 by-document privilege log is really the problem here. 

7 I think the bigger problem is, frankly, the 

8 alternative logs and the alternative unique ways it 

9 gets -- when we get into the issue of litigating 

10 privilege, you have the true problem of trying to tell 

11 the producing party, hey, this is your burden and you 

12 haven’t supported the privilege. I can’t do that 

13 without a document-by-document log because, by and 

14 large, what’s going to happen is they're going to be 

15 like there’s outside counsel on it. That’s the end of 

16 the story.

17 Well, unfortunately or fortunately, 

18 depending on how you want to look at it, there are 

19 lots of big MDL litigations where consultants, PR 

20 firms, experts, non-litigating -- non-testifying 

21 experts are hired by outside counsel and sifted 

22 through outside counsel and, therefore, then a 

23 privilege is attached.

24 Well, thankfully for the MDL, MDL 2804 in 

25 the opioid litigation, we were able to see through 
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1 that, but we couldn’t have done it without a document2 by-document log if categorically it's like outside 

3 counsel, 50,000 emails. There’s way to get after 

4 that, and then you’re just stuck litigating and it 

5 really does hide a lot of the privilege that’s 

6 asserted. I kind of went off on a tangent, but I just 

7 listened to like the last six people testifying, so I 

8 apologize. You know, I’m happy to answer any 

9 questions. To be clear, I do only do, like, MDLs. 

10 It’s where I’ve been the last 11 years. 

11 CHAIR ROSENBERG: Okay. Thank you so much. 

12 We have Rick and then Helen. 

13 PROFESSOR MARCUS: Thank you. We have heard 

14 repeatedly that not surprisingly, let’s call it your 

15 side of the V is content with the rule but unnerved by 

16 the note, and I think you said that too. Let me read 

17 you the note from 1993 when the rule was adopted: 

18 "This rule does not attempt to define for each case 

19 what information must be provided when a party asserts 

20 a claim of privilege. Details concerning time, 

21 person, general subject matter, et cetera, may be 

22 appropriate if only a few items are withheld but may 

23 be unduly burdensome when voluminous documents are 

24 claimed to be privileged or protected, particularly if 

25 the items can be described by categories."
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1 Do you like that? And if you don’t like 

2 that, how come the "traditional document-by-document 

3 method" has become traditional since that’s what the 

4 Committee note said when 26(b)(5)(A) was adopted? 

5 MS. ROBERTSON: Understood. I do think that 

6 there are -- as other colleagues have said, the 

7 technology has changed a little bit of the operation 

8 of the rule, and that’s why the document-by-document 

9 approach perhaps could be a little bit more 

10 traditional.

11 I think we can agree in 1993, if you’re 

12 looking at hard-copy documents and these collections 

13 and you have the file that's coming from the general 

14 counsel to the compliance officer, that those 

15 potentially could go in like that, like category. 

16 Companies were a bit more defined. Litigation was 

17 like a little bit smaller, but, certainly, in the 

18 present MDL space, when you have so many different 

19 departments that are going to touch and concern in20 house counsel, outside counsel, consultants, auditors 

21 and et cetera, down the line, the categorical approach 

22 just is untenable because there’s no way for a 

23 receiving party to understand or know exactly what is 

24 caught by that category.

25 Sure, we can meet and confer about it. We 
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1 can say, all right, well, all of these documents 

2 include the general counsel, but at the same time, 

3 there are multiple times where the general counsel 

4 isn’t always operating with their "lawyer hat on" and 

5 may not be driven, predominantly driven by -- they may 

6 be predominantly driven by business instead of maybe 

7 part of the business function. And in order to get 

8 really at that, you have to see that pattern on the 

9 logs. I just think categorical logs in the present 

10 day just -- it just doesn’t work with the volume of 

11 documents. And I think even the Exxon Mobil attorney 

12 talked about the volume of documents and, 

13 unfortunately, yes, we get more. Whether it’s 

14 produced on a log or produced otherwise, you get more.

15 But, at the same time, you can still use the 

16 tools to go through more. It’s just kind of the 

17 nature of the beast. But categorical logs at this 

18 juncture I think would really just unwind the case law 

19 that’s already established out there. It would put a 

20 whole wrench in the side of really what is the 

21 predominant purpose test provided that jurisdiction 

22 adopts the predominant purpose test, and I think it 

23 does lead to a ton more litigation. 

24 CHAIR ROSENBERG: Helen.

25 MS. WITT: I just wanted to ask about your 
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1 view that technology can do the vast majority of 

2 what’s necessary for a document-by-document log. And 

3 maybe just to take the example of the last -- one of 

4 the examples you gave, in a situation where a lawyer 

5 is not acting with her lawyer hat on, don’t you agree 

6 that at that point some lawyer has to add the 

7 description of the document on the log that describes 

8 why that document is nonetheless privileged?

9 In other words, I’m struggling with the 

10 piece of the log that isn’t just author, recipient, 

11 subject line but is the essence of the reason for the 

12 privilege that still has to be done in the vast, vast 

13 majority of cases unless there’s an agreement for 

14 metadata logs by a lawyer. But it sounds like you 

15 think that there can be all of the elements that you 

16 want to see in a log done mechanically. 

17 MS. ROBERTSON: I think that largely you can 

18 do it mechanically. When we did it as a producing 

19 party, of course, you export all the metadata and 

20 we’re really talking about the description or the 

21 basis for the privilege asserted.

22 When we have our reviewers set up to go 

23 through the documents, there is a review panel where 

24 there is -- I think we must have had like 50 different 

25 options to click on, you know, email and attachment 
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1 from in-house counsel describing compliance with the 

2 FDA regulations, for example, and you click on those 

3 documents. That gets exported and populates the 

4 privilege description on a privilege log and it’s 

5 still considered a traditional privilege log, not a 

6 metadata log.

7 The reason that’s -- I’m pretty sure the 

8 defense bar isn’t too far afield from doing that same 

9 exercise because, as a receiving party and a 

10 challenger of privilege claims, I can go into a log 

11 that I’ve received that’s a traditional log that has a 

12 privilege description, I can filter that privilege 

13 description column and get the same description based 

14 on certain types of documents anyway.

15 But what I don’t -- what is better about 

16 that traditional log still than the categorical log is 

17 I’m getting exactly who is on the communication. I’m 

18 getting the dates of the communication. I’m likely 

19 getting the subject of the email or the title of the 

20 document. There is just simply more information in 

21 addition to just the description that you’ll get out 

22 of the traditional log as compared to the categorical 

23 log. 

24 CHAIR ROSENBERG: Okay. All right. Thank 

25 you so much. We don’t have any other questions. 
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1 MS. ROBERTSON: Thank you, Your Honor. 

2 CHAIR ROSENBERG: All right. We’re going to 

3 take a break. I think we’re going to keep it a little 

4 bit short. So it’s 3:30. We’ll come back at 3:35. I 

5 understand if some people don’t want to turn their 

6 video on right away.

7 (Whereupon, a brief recess was taken.) 

8 CHAIR ROSENBERG: Okay. David Cooner on 

9 16.1.

10 MR. COONER: Are we ready? Should I start? 

11 Can you hear me? 

12 CHAIR ROSENBERG: Hello. We're good to go. 

13 Yeah. 

14 MR. COONER: Okay. Well, good afternoon. 

15 It’s been a long day for you all and I understand this 

16 is not the first time that you’ve convened to talk 

17 with folks, so let me begin by just thanking you for 

18 taking the time to listen to me and to talk with me. 

19 And also, thank you also for your efforts here because 

20 I know that it’s a lot of work, and it’s really an 

21 important moment because it’s a key time where we have 

22 to really express an opportunity to talk about some of 

23 these rules.

24 I’m here on behalf of PLAC, which I’m sure 

25 you’re familiar with. It’s Product Liability Advisory 
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1 Council. I’m also chief litigation counsel at Beckton 

2 Dickinson & Company. Beckton Dickinson is known as 

3 BD, so I’ve been with BD for three years. And before 

4 that, I spent more than 30 years at McCarter & English 

5 in New Jersey as a partner in the product liability 

6 group.

7 And I just want to really make two points 

8 and I’ll try to make them very briefly. You have my 

9 statement and I will not go through all that. I’m 

10 assuming that that’s part of the record.

11 But the two things that I want to really 

12 talk about is, one, really what I’ll call the 

13 mandatory establishment of bona fides of a case in the 

14 MDL and how that is something that I think really 

15 needs to be added to the current rules, and two is 

16 really why the current landscape is inadequate. 

17 So I’m speaking now primarily in the product 

18 liability space because that’s the area where I have 

19 the most experience both as a private practitioner and 

20 also in my role at BD, and it is also something that 

21 is a challenge for many of the companies that are part 

22 of the PLAC organization. But we think the rule 

23 should really require three things at the outset, and 

24 they're proof of product use or exposure, proof of 

25 injury, and information as to date of injury. 
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1 Now we shouldn’t just have this as proof of 

2 product use, but we really should have some kind of 

3 medical documentation to support this. 

4 Do I already see a question, Richard? 

5 PROFESSOR MARCUS: Well, I didn’t mean to 

6 interrupt. I just put my hand up, but if I could ask 

7 this. PLAC attended and spoke at our discovery 

8 conference at Boston College in September 1997. One 

9 of the things we were told then was that we would get 

10 data about the burdens of document production. That's 

11 was what was being discussed then.

12 This time around, we have been told by 

13 someone, I think the PLAC side of the V, that we would 

14 get some hard data about the number of whether they’re 

15 called unsupportable or something like that claims 

16 that you think should be identified earlier on, and I 

17 think that’s what you’re talking about.

18 I wonder if you know whether somebody's 

19 going to provide that data sometime soon because we’ve 

20 heard a lot of assertions, but we haven’t seen very 

21 much hard data. So I apologize for popping my hand up 

22 too soon, but I’m remembering PLAC's offer 27 years 

23 ago and it prompts me to ask you about it today. 

24 MR. COONER: Well, I can’t speak of anything 

25 from 27 years ago for sure, and, as far as data today, 
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1 I don’t have the hard data. I can try to get that for 

2 you if we've got it. I can tell you just it’s been my 

3 experience in terms of dealing with cases that there’s 

4 an enormous number in terms of raw number of cases and 

5 in terms of percentages on the order of 20 to 30 

6 percent of cases that don’t have any meaningful proofs 

7 as it relates to either the product, proof of injury, 

8 or even date of injury. I mean, I see that not just 

9 in my own experience but also in talking with MDL 

10 mediators who I’ve been dealing with, and they have 

11 frequently pointed to the fact that there is a 

12 significant bolus of cases that are being advanced by 

13 firms that are generally free riders in the process 

14 and they are not adequately vetted, they are not 

15 supported by medical records, medical evidence.

16 And, Andrew, do you want me to jump to you? 

17 I mean --

18 CHAIR ROSENBERG: You can finish, you know, 

19 your comments and then --

20 MR. COONER: Okay. 

21 CHAIR ROSENBERG: -- everybody puts their 

22 hand up in the order to ask questions.

23 MR. COONER: Okay. All right.

24 CHAIR ROSENBERG: But we do like to get our 

25 questions answered, so we’re trying to keep everyone’s 
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1 comments to three to four minutes. 

2 MR. COONER: Okay. Well, I will then just 

3 buzz through then with your permission. 

4 CHAIR ROSENBERG: Yeah. 

5 MR. COONER: So, I mean, all I would want is 

6 just some basic bona fides for cases, you know, 

7 medical records showing product use, medical record 

8 identifying an injury and its association with the 

9 product, information about a date when an injury 

10 occurred so I could see when it was diagnosed. And 

11 this is not some kind of oppressive discovery. To put 

12 it in like a college vernacular, these are the 101s of 

13 a case. This is beginner’s level. These are the 

14 basics to have these kind of facts. And this kind of 

15 compliance to ask of the plaintiffs' bar is not 

16 something that is onerous in any sense of the word.

17 As a matter of fact, as compared to the 

18 defense, who are dealing with MDLs where the discovery 

19 startup costs are enormous, this is a very modest 

20 amount of investment on their part, and what we see 

21 here is that there are those who are the freest of the 

22 free riders not doing any of this kind of pre-case 

23 vetting.

24 And, again, I’ve seen estimates, 20 to 30 

25 percent. I’ve seen MDL mediators acknowledging this. 
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1 I’ve seen it in my own experience, dubious claims 

2 being purchased from lead finders and thrown into 

3 court. I know that there’s concern about Rule 26, but 

4 Rule 26 is generally not followed in MDLs. We’ve had 

5 several MDLs at this company where we have not had 

6 Rule 26, and we also have these profile forms and 

7 they’re not uncommon in these litigations, but the 

8 profile forms are inadequate. They’re largely 

9 toothless and they’re frequently just checklists 

10 without backup, and there are deficiencies all over 

11 that are almost impossible to challenge.

12 On top of that, there’s a cost to doing 

13 business the way we’re currently doing it. There’s a 

14 cost to the defendants in terms of discovery, 

15 litigation reserves, proportionality. Discovery is 

16 clearly triggered by volume. It’s a cost to the 

17 plaintiffs also. We have legitimate claims being 

18 delayed. And it’s also a cost to the courts where you 

19 have the transactional costs associated with filings 

20 of what I’ll call thinly supported or unsupported 

21 cases.

22 So, in short, we urge a formalized mandatory 

23 process requiring claimants to establish the bona 

24 fides of their claims to alleviate the burdens on the 

25 courts, to thin the dockets of dubious claims, to 
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1 allow plaintiffs with supported claims to advance them 

2 in a more timely manner, and to permit defendants to 

3 better evaluate and address the claims asserted 

4 against them.

5 CHAIR ROSENBERG: Okay. Thank you. 

6 Andrew, then Judge Proctor. 

7 PROFESSOR BRADT: Thank you so much. I’m 

8 trying to understand a little better why mandatory 

9 disclosures under Rule 26(a) are not used in MDLs, and 

10 would you prefer a world in which both sides were held 

11 to the 26(a) obligations?

12 MR. COONER: Well, I think that in terms of 

13 our 26 obligations, the defense is engaged most often 

14 in the beginning of an MDL in an incredibly expensive 

15 undertaking. I’ll speak from experience here at the 

16 company. We are in an MDL that was created a couple 

17 of months ago in the port MDL, and we have spent an 

18 enormous amount of money dealing with the discovery 

19 and putting up information and gathering information. 

20 Claims come in and we have scant information about the 

21 claims. So all I want is that there be better vetting 

22 of the cases so that way the energy of -- and this is 

23 not all firms.

24 PROFESSOR BRADT: Why don’t -- I understand 

25 that, but my impression was that you just said that 
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1 many of those downstream costs are motivated by the 

2 number of claims that are asserted in the MDL. So I 

3 guess I’m trying to understand a little better why you 

4 don’t insist on mandatory disclosures early on in the 

5 litigation if that will ultimately produce a 

6 significant cost savings. 

7 MR. COONER: We have asked time and again to 

8 have additional information on cases. It’s been our 

9 experience in prior litigations that that is not what 

10 is afforded to us, and it’s not just us. I’m speaking 

11 not on behalf of BD alone but on behalf of PLAC member 

12 organizations, and that’s the experience, broadly 

13 speaking, of the PLAC member organizations. 

14 PROFESSOR BRADT: Can you tell me, is it the 

15 experience of the PLAC member organizations that the 

16 world would be better in MDL if both the plaintiffs 

17 and the defendants were required to comply with Rule 

18 26(a) at the outset of the litigation? I guess what 

19 I’m trying to figure out is that if 

20 plaintiffs -- you’re asking for more information from 

21 the plaintiffs. Are defendants prepared to engage in 

22 that reciprocally? 

23 MR. COONER: The suggestion in the question 

24 is that the defendants aren’t. 

25 PROFESSOR BRADT: No, that’s not the 
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1 suggestion. I’m just trying to figure out whether or 

2 not you think that would be better. 

3 MR. COONER: Well --

4 PROFESSOR BRADT: I’m not making any 

5 insinuation that the defendants are or are not doing 

6 anything. I'm just trying to figure --

7 MR. COONER: Okay. Well, I’m going 

8 to -- I’ll say the answer to that question is yes, but 

9 I want to put it through the lens of what is actually 

10 happening. What I see happening is I see cases being 

11 filed and I can’t tell you a lot of information about 

12 the cases and I can’t find medical support for them. 

13 I can’t find information about statute of limitations. 

14 I can’t find the basic information about a case, and 

15 that’s happening on one side, whereas, on our side, I 

16 have been gathering with scores of custodians and 

17 outside vendors and the infrastructure and expense on 

18 our side has been enormous, and to me, the request to 

19 say, when you file your complaint, also provide this 

20 kind of basic, basic information I think is 

21 fundamental. 

22 CHAIR ROSENBERG: Judge Proctor.

23 JUDGE PROCTOR: Yes. Thank you.

24 So twice during your opening remarks you 

25 referenced the responses or reactions from mediators 
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1 to this problem, and there’s a view that it is 

2 incorrect to say that MDLs don’t permit the testing of 

3 unsupported claims. We, of course, know that there’s 

4 many opportunities in the MDL process to test an 

5 unsupported claim. 

6 Now some of those may occur as late as a 

7 post-remand summary judgment motion. Right now, I 

8 just received cases from the panel on remand in 

9 Taxotere, and I’ve got three claimants that we’re in 

10 motion practice on whether their claims survive. So 

11 there are exit ramps. 

12 What I really hear your argument and the 

13 argument of others that we heard particularly in the 

14 first hearing is that we don’t have that information 

15 in time to really have a meaningful opportunity to 

16 resolve these cases. And I guess my question is this. 

17 First, do you disagree with any of those points? 

18 MR. COONER: I don’t disagree with either. 

19 Certainly, the second one in terms of having adequate 

20 data to resolve cases for sure, but as to the first 

21 point that you made in that there is an off ramp as, 

22 for example, the post-remand summary judgment off 

23 ramp, I can’t disagree with that because that’s, in 

24 fact, the case. 

25 But what I am saying is that that’s way too 
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1 late to wait until I go through the entire cost of the 

2 MDL and deal with all that and then, finally, after a 

3 remand have an opportunity to really put the case’s 

4 feet to the fire is I’ve already spent tens of 

5 millions of dollars, if not more, in terms of 

6 defending the cases, dealing with the cases. I’ve got 

7 SEC obligations in terms of reporting about 

8 litigation. It’s just way too late for my docket to 

9 be --

10 JUDGE PROCTOR: Well, let me --

11 MR. COONER: -- larded up with things that 

12 don't belong there. 

13 JUDGE PROCTOR: Way too late to resolve 

14 these claims, but not way too late to walk through the 

15 process that 1407 always contemplated and that is we 

16 deal with across the board general issues that affect 

17 everyone to some degree before we start diving into 

18 how we’re going to treat each tree of the forest.

19 So I guess my question is this. Isn’t that 

20 what the 1407 framers contemplated all along? That we 

21 were going to sacrifice individual attention to 

22 claimants and defenses, individualized defenses that 

23 defendants could raise because there may be plaintiffs 

24 who would be interested in defeating those out of the 

25 block but don’t have the opportunity to do so because 
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1 we’re dealing with structured data. We’re dealing 

2 with Daubert issues. We’re dealing with experts. 

3 We’re dealing with general causation. We’re dealing 

4 with all sorts of different things that each case 

5 uniquely brings to the table and the menu that that 

6 particular case or litigation delivers. 

7 So I’m still struggling with the argument 

8 that we ought to create a rule that always requires a 

9 claimant to do X that would apply to an antitrust 

10 claimant or a patent claimant or a smaller MDL 

11 claimant or an airline crash claimant, and just I 

12 think that’s the problem with the argument that I’ve 

13 struggled with all through, is we have given you every 

14 tool in the box, I think, if this rule passes, to go 

15 and make these individualized arguments about what you 

16 need in your particular MDL to the transferee judge 

17 and convince the transferee judge to do that in that 

18 case rather than convince the Committee that we ought 

19 to do that in every case. 

20 So I’ll stop talking and let you respond. 

21 MR. COONER: Yeah. I mean, sacrificing 

22 individual attention is the phrase that really struck 

23 me there, Your Honor. And what I would say is I’m not 

24 looking to sacrifice individual attention. What I’m 

25 looking for instead is just the basics. I’m just 
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1 looking for the most rudimentary information about a 

2 case because what happens -- and this happens every 

3 day -- is that cases are thrown into the pool of the 

4 MDL and they are supported by a thin profile form 

5 often checklist and there they sit where they for all 

6 intents and purposes cannot be challenged, and that 

7 is I don’t believe what 1407 was created to deal with.

8 True, let’s deal with things in broad 

9 strokes and there is definitely going to be some 

10 sacrifice of the individual, but I’m talking about you 

11 should have to have a certain bona fides in order to 

12 even get into the litigation game, and what’s 

13 happening is that too often that that’s not there, and 

14 this is not asking, I don’t believe, too much to just 

15 provide me with the basic medical records that support 

16 that you even used my product. 

17 CHAIR ROSENBERG: Joe. 

18 PROFESSOR MARCUS: Can’t hear. 

19 MR. COONER: I think, Joseph, you’re on 

20 mute. I’ve left you speechless. 

21 CHAIR ROSENBERG: Oh, no, I was saying, Joe, 

22 maybe you want to get off and get back on? We can’t 

23 hear you. Can you hear us? Yes? 

24 MR. COONER: Thumbs up if you can hear us. 

25 CHAIR ROSENBERG: Well, what about language, 
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1 for example, in a note, let’s just say, relative to 

2 16.1(c)(4) hypothetically something along the lines 

3 of, in some MDL proceedings, concerns have been raised 

4 on both the plaintiff side and the defense side that 

5 some claims and defenses have been asserted without 

6 the inquiry called for by Rule 11(b) and suggesting 

7 that methods can be used early on when information is 

8 being exchanged between the parties?

9 In other words, highlighting maybe for the 

10 judges and the parties that there is this expectation 

11 that, well, first of all, that the Rules of Civil 

12 Procedure apply and that compliance with Rule 11(b) is 

13 expected. 

14 MR. COONER: I think that that’s a very good 

15 step in the way. I would, with respect, I would say 

16 we just need to go a slight bit further and just 

17 require that the bona fides be produced. I mean, I am 

18 responsible for literally tens of thousands of hernia 

19 cases and there are many that I am wholly lacking 

20 information about. 

21 CHAIR ROSENBERG: I think Joe is back on. 

22 Let's see if we can hear you now. No? Oh, darn. Mm23 hmm. Okay. 

24 MR. COONER: So --

25 CHAIR ROSENBERG: Do you want to chat the 
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1 question? Maybe put it in the chat? No?

2 MR. COONER: Okay. Well, I mean --

3 CHAIR ROSENBERG: Yeah, okay. 

4 MR. COONER: -- I don’t think I’m speaking 

5 on a topic that you haven’t heard before, and I hope 

6 that in either what I’ve said or in what has been 

7 submitted on behalf of PLAC that there’s some kernel 

8 of newness or some different perspective that can 

9 maybe underscore the points that we’ve tried to make, 

10 and for that, I just thank you all for your 

11 consideration. 

12 CHAIR ROSENBERG: And we very much 

13 appreciate your comments and give them very serious 

14 consideration, as we do all of the info we’ve been 

15 receiving. 

16 MR. COONER: I appreciate it. It’s a long 

17 day for you all, so thank you.

18 CHAIR ROSENBERG: Oh, wait, wait, wait. I 

19 can ask Joe’s question, which is, why can’t the 

20 flexible approach that has been proposed in the rule 

21 permit the bona fides to be requested at the outset of 

22 cases where it applies? In other words, we are, I 

23 think, universally in agreement. Everyone we’ve heard 

24 from, the judges, the lawyers, plaintiffs, defense, 

25 that no one size fits all. There needs to be 
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1 flexibility, and we’re not going to be looking at 

2 separate rules for separate kinds of cases. This is a 

3 MDL rule.

4 So, given that not all MDLs are the same, no 

5 one size fits all, the intent behind this 16.1 is to 

6 raise precisely these issues early on. So (c)(4), how 

7 would information be exchanged? Is that not the 

8 perfect opportunity for you and your clients to stand 

9 up before the court day one, two weeks in, three weeks 

10 in with that initial conference and say, Judge, there 

11 appears to be 10,000 claims. It’s very important to 

12 at least our client, maybe all the parties, that we 

13 have a vetting procedure in place early and active, 

14 this is what we propose, these three things are what 

15 we would like to endeavor to obtain. Then the judge 

16 can hear from the plaintiff why that’s possible, why 

17 that’s not possible. The judge can inquire of 

18 plaintiffs' counsel, can you do this, if not now, how 

19 long. I mean, isn’t that exactly the kind of 

20 conversation that should take place, and doesn’t the 

21 flexibility of 16.1, specifically (c)(4), raising that 

22 topic give you the opportunity to raise it? 

23 So perhaps a step shy of what you’re asking. 

24 We hear what you’re saying, but does that not also 

25 achieve the goal? 
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1 MR. COONER: It moves the ball further down 

2 the court or down the field. Forgive my metaphor, but 

3 it doesn’t close the deal. It doesn’t make it 

4 mandatory, which is what I think that -- I mean, we 

5 spoke earlier about Rule 11. I mean, why can you file 

6 a lawsuit involving one of PLAC’s company’s products 

7 and not provide to the defendant some kind of 

8 documentation proof that, in fact, you used the 

9 product? I mean --

10 CHAIR ROSENBERG: Well, I mean, does that 

11 happen in your non-MDL single plaintiff and defendant 

12 case? Are complaints being filed with documentation? 

13 And if not, is the judge dismissing the case and 

14 saying, re-file when you have the documentation? 

15 Probably not. 

16 MR. COONER: Right. I will say -- yeah. I 

17 will say this, that the -- I couldn’t say to it being 

18 a null set that it never happens, but it is extremely, 

19 extremely rare and it is something that is addressed 

20 in the short run. Some MDLs go on years without that 

21 kind of core information. 

22 CHAIR ROSENBERG: Right. But you get that 

23 in discovery in your single plaintiff, single 

24 defendant cases, correct? You get it in discovery, so 

25 a few months into the process, is that correct? 
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1 MR. COONER: Arguably, I would try to get it 

2 in in some of the initial disclosures, and it would be 

3 something in a Rule 16 conference with the court. 

4 CHAIR ROSENBERG: So you’re saying that’s 

5 what you want? 

6 MR. COONER: I’m going back to myself as 

7 litigator and lawyer with a firm, but that’s what we 

8 would ask for. 

9 CHAIR ROSENBERG: You would ask for.

10 MR. COONER: Yes.

11 CHAIR ROSENBERG: And so I guess just think 

12 of 16.1(c)(4) as that opportunity, as that’s what 

13 you’re asking the court for, and maybe, you know, 

14 you’d see it just from a slightly different 

15 perspective. But, in any event, we do need to move 

16 on. 

17 MR. COONER: Yeah. I know you do and I 

18 appreciate everyone’s time and attention. 

19 CHAIR ROSENBERG: So thank you so much. 

20 MR. COONER: Thank you. 

21 CHAIR ROSENBERG: Okay. Thank you. 

22 MR. COONER: Bye. 

23 CHAIR ROSENBERG: We’re not sure if William 

24 Cash is on. Can -- if William Cash -- oh, you are. 

25 Okay. 
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1 MR. CASH: Hi. 

2 CHAIR ROSENBERG: I didn’t see you earlier, 

3 so you are here to speak about 16.1. 

4 MR. CASH: Yes, I am, and I want to thank 

5 everyone for allowing me to speak today. I’m Bill 

6 Cash. I am a member of Levin Papantonio Rafferty in 

7 Pensacola. We do a lot of MDL work. We are a 

8 plaintiff side firm. We focus a lot on prescription 

9 drug products and medical device cases. And so I 

10 submitted a comment on 16.1 and pretty much am willing 

11 to just focus my comments on the role of the 

12 coordinating counsel, but I’m happy to take questions 

13 on any part of my comment or anything else.

14 And I guess the only point I’d really like 

15 to make is, in our view, the coordinating counsel 

16 position seems a bit unworkable and it seems like it 

17 would be duplicative and it would, in fact, increase 

18 and not reduce some of the paperwork in an efficiency 

19 that our colleagues and our frequent opponents have 

20 complained about with MDLs.

21 One of the things that is not clear to us 

22 from the way the rule is read is how does the 

23 coordinating counsel position actually get selected. 

24 And under 16.1(c), the coordinating counsel would have 

25 a great deal of topics to discuss, but it looks like 
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1 the court would generally follow the rule's suggestion 

2 to appoint coordinating counsel and have all those 

3 discussions, including the sum that we just heard, 

4 before plaintiffs' leadership is selected. That 

5 really puts us at a disadvantage because defendants 

6 will have their leadership obviously in place. 

7 They’re not going to change lawyers between the 

8 preparation of the report and the first real hearing 

9 in the MDL. But plaintiffs might because there’s not 

10 a mechanism for the court to appoint final plaintiff 

11 leadership before the coordinating counsel. It’s just 

12 not clear who is going to be coordinating counsel, how 

13 coordinating counsel is going to be selected.

14 And as I suggest in my letter, there’s even 

15 a way to read the rule that coordinating counsel 

16 doesn’t have to be an attorney in the case at all. It 

17 could be for the plaintiffs. There could be people 

18 who do not have a stake in the litigation. I don’t 

19 think in practice that would happen, but I think 

20 that’s a possibility. 

21 So I think there’s a concern that 

22 coordinating counsel be in the position to make the 

23 first presentation to the court speaking on behalf of 

24 plaintiffs but not be the people who ultimately have 

25 the stake in the case, and that concerns us. 
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1 You know, we were just talking about (c)(4) 

2 and fact sheets, you know, and there’s a role for fact 

3 sheets and there’s a reason we use them, but how much 

4 detail there should be is something that both sides 

5 have concern about. You know, the Committee’s note 

6 would say the level of detail called for by such 

7 methods should be carefully considered to meet the 

8 purpose served and avoid undue burdens. Who will 

9 speak up for that if it’s not leadership?

10 I think one of the things that the 

11 coordinating counsel role also is going to do is 

12 however the judge selects the coordinating counsel, if 

13 they’re plaintiffs' lawyers, when those people then 

14 come to seek formal leadership positions, they’re 

15 going to say, well, I was at the coordinating counsel 

16 discussions. I’ve already been part of this case. 

17 You already picked me. 

18 So I think, to the extent that we’re trying 

19 to promote transparency and fairness in selecting 

20 plaintiffs' leadership, you’re just sort of shifting 

21 the problem around. So we now have a transparency 

22 issue in selecting coordinating counsel instead of 

23 selecting plaintiffs' leadership.

24 I’m also concerned that essentially you 

25 would have to redo some of the work that’s been done 
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1 after leadership is selected if the people who are 

2 leaders are not ultimately -- were not the people who 

3 prepared the report from the coordinating committee. 

4 And, again, that puts us at a disadvantage because 

5 defense will not change and it will be the same 

6 defense lawyers.

7 As I wrote also, I’d be concerned that 

8 without a formal designation of who’s in charge, 

9 defense will have an incentive to select the 

10 friendliest plaintiff lawyers, the worst plaintiff 

11 lawyers that they can work with, the easy ones, to 

12 get, you know, the report to be as favorable toward 

13 defense as possible, and I don’t think that serves the 

14 goal in justice. 

15 So that is what I would have to say about 

16 the coordinating counsel role, and I’d be happy to 

17 answer any questions from the Committee that you might 

18 have about this or about anything else. 

19 CHAIR ROSENBERG: So are you of the view 

20 then, as some have put forth -- and I don’t know if 

21 you’ve been on for what portion of the day -- that a 

22 model of self-organization is workable and to show up 

23 at the initial conference, the rule should contemplate 

24 not that there’s a coordinating counsel or liaison 

25 counsel. We’ve talked about different terms today, 
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1 but leave it to counsel to self-organize and just make 

2 sure when you come to that initial conference it’s not 

3 utter chaos and that that report gets submitted and 

4 there’s some order to the process?

5 MR. CASH: Yes. And, I mean, I think, by 

6 and large, that’s working. 

7 CHAIR ROSENBERG: Okay. 

8 MR. CASH: I think, you know, the lawyers 

9 who have been hired by the clients should be the 

10 people to self-organize and I don’t think there’s any 

11 shortage of MDL plaintiff lawyers in the world who are 

12 reluctant to step out when they feel they were not 

13 part of the self-organization process. I’ve been to 

14 many hearings where people say, look, I’ve got 200 

15 clients and I’m a part of this case and they’re 

16 squeezing me out, I’m not part of leadership on their 

17 slate and I don’t like it. And I think judges are 

18 receptive to that and I think that’s appropriate. 

19 I also know there’s a focus in the courts 

20 more and more every year on ensuring diversity of 

21 backgrounds, of experience. I think that’s entirely 

22 appropriate. I think every MDL judge pays attention 

23 to that and that’s effective. I think one of the 

24 knocks on plaintiffs essentially self-organizing is 

25 that it was a boys club and it helped the boys club 
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1 stick together, but I can’t think of an MDL judge that 

2 doesn’t push back on that role, and so I don’t know 

3 that, you know, that’s the concern that it used to be.

4 But, in any event, having the district judge 

5 sort of arbitrarily select the coordinating counsel 

6 without openness or scrutiny, it just sort of shifts 

7 the problem around. You’re still ultimately having to 

8 have the court make these unilateral decisions. So 

9 the self-organization model I think does work, and 

10 when it doesn’t, their squeaky wheels do know what to 

11 say and I think it works. 

12 CHAIR ROSENBERG: Any other questions or 

13 comments? Seeing none. Okay. Thank you so much. 

14 MR. CASH: My pleasure. 

15 CHAIR ROSENBERG: Max Heerman on 16.1.

16 MR. HEERMAN: Yeah, good afternoon. Can you 

17 hear me? 

18 CHAIR ROSENBERG: We can, thank you. 

19 MR. HEERMAN: Yeah, great. Thank you and 

20 thank you for the opportunity. My name is Max 

21 Heerman. I’m with Medtronic. Medtronic is a member 

22 of PLAC and is also a member of LCJ. I’m not speaking 

23 on behalf of either of those organizations, but I 

24 certainly agree with most, if not all, of what other 

25 members of those organizations have said to the 
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1 Committee.

2 I wanted to limit my comments to Rule 

3 16.1(c)(4) or proposed Rule 16.1(c)(4). I did submit 

4 written comments. I’m not going to read those. And I 

5 also want to agree with Mr. Cooner from BD and the 

6 position that he took just a few moments ago. And 

7 also, I want to endorse the proposed change to the 

8 rule that LCJ has made about requiring a proof of 

9 exposure and injury at the outset of an MDL in cases 

10 where exposure and injury is at issue.

11 There was a question raised when Mr. Cooner 

12 was before the Committee about, well, is there really 

13 evidence that there are a large number of 

14 unsubstantiated claims in the litigation. It’s very 

15 challenging to produce that evidence in all cases. It 

16 may be possible to produce it in some.

17 But let me just provide one anecdote that 

18 might be helpful to the Committee. One of our 

19 subsidiary or affiliated companies is currently in an 

20 MDL involving hernia mesh, as Mr. Cooner’s company is. 

21 And prior to the MDL being established -- bear with me 

22 if my numbers -- they may not be exactly precise 

23 because sometimes it depends on, you know, whether 

24 orders were with prejudice and people got to replead 

25 and things of that nature -- but I believe we had 32 
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1 hernia mesh cases that were filed in federal courts 

2 before the MDL. We filed motions to dismiss in all of 

3 those cases. In 17 of them, the motions were fully 

4 granted, and in two cases, the plaintiffs voluntarily 

5 dismissed the lawsuits with prejudice, so 19 out of 32 

6 were dismissed, 60 percent.

7 We now have an MDL where there’s 920 cases 

8 at my last count. So, if that same rate was applied 

9 to the MDL, it would be down to 546 cases. But we 

10 don’t get that opportunity in the MDL because, 

11 essentially, Rule 12(b) is not applied in MDLs. So, 

12 at least, you know, based on that small sample size 

13 and that one example, I think it is apparent that some 

14 claims that certainly wouldn’t survive as one-off 

15 claims in federal court do survive for a long period 

16 of time in MDLs, and, in my view, they distort the 

17 MDLs in ways that’s to the detriment certainly of 

18 defendants but also to the detriment of the court 

19 system and even to the plaintiffs who might have 

20 meritorious claims.

21 CHAIR ROSENBERG: Okay. Thank you. We have 

22 Andrew and then Judge Proctor. 

23 PROFESSOR BRADT: Thank you very much. I 

24 just want to know if you’re prepared to say that that 

25 19 out of 32 should be extrapolated to the full number 
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1 of claims in the MDL and on what basis you'd make that 

2 claim. 

3 MR. HEERMAN: Well, I mean, that’s a hard 

4 question to answer. Certainly, once there’s an MDL, 

5 maybe it’s the rules that change or maybe a better way 

6 of saying it is the process changes. But I do think 

7 it’s an indication that non-meritorious claims, maybe 

8 it’s not 60 percent. Maybe it’s 40 percent. Maybe 

9 some of those are just inartfully pled by law firms, 

10 and if you had a better law firm that was a more 

11 artful pleader, they would survive. 

12 But a large percentage of claims, you know, 

13 a federal district court judge thought did not 

14 have -- couldn’t even be pled. They didn’t even have 

15 a theory that belonged in federal court, and very 

16 similar claims are now proceeding in an MDL. 

17 PROFESSOR BRADT: Can you elaborate on that 

18 because not having a theory that belongs in federal 

19 court sounds different to me from not having evidence 

20 to prove you took the product. 

21 MR. HEERMAN: Well, primarily --

22 PROFESSOR BRADT: I guess one of the things 

23 that we’re trying to drill down on is how many of 

24 these supposedly meritless claims are because the 

25 plaintiff can’t prove that they took the product 
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1 versus other reasons that a claim might get dismissed, 

2 of which, of course, you know there are many. 

3 MR. HEERMAN: The primary reason those 

4 claims were dismissed, if my recollection serves, is 

5 that the plaintiffs were pleading that they had a 

6 certain type -- that the product had a certain type of 

7 design defect that caused a certain type of injury and 

8 they didn’t actually have that injury. So, for 

9 example, they might have pled that your design causes 

10 infection, but then, when they alleged their injury, 

11 they said they had chronic pain, not infection.

12 So they weren’t tying their alleged -- the 

13 injury that was allegedly caused by the defect to 

14 their actual injury that they were pleading in the 

15 case. That seems like something that could be teased 

16 out early on in the litigation and should be so that 

17 claims that can’t be substantiated do not muck up the 

18 litigation process for years and years and years on 

19 end. 

20 CHAIR ROSENBERG: Judge Proctor.

21 JUDGE PROCTOR: Yes. Thank you for 

22 appearing today. 

23 In the past, has Medtronic taken the 

24 position early in litigation that the plaintiffs' 

25 claims are preempted by federal preemption doctrine? 
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1 MR. HEERMAN: Yes, we do when we have pre2 market approved devices that are at issue, but --

3 JUDGE PROCTOR: All right. When that 

4 occurs, what would be Medtronic’s response while that 

5 motion was pending if the plaintiffs wanted to take 

6 discovery regarding the science or some other 

7 technical factual basis for their claims against 

8 Medtronic? Would Medtronic not say to the court, we 

9 need to stay discovery until our motion to dismiss 

10 based on preemption grounds is ruled upon? 

11 MR. HEERMAN: Yes, but I’m not sure what 

12 you’re getting at. 

13 JUDGE PROCTOR: Well, what I’m getting at is 

14 there are reasons that a court may choose to order the 

15 litigation of legal issues ahead of the litigation of 

16 factual issues. And I would, in light of your answer, 

17 I would say it seems to me that a mandatory vetting 

18 process for want of a better term or a mandatory 

19 disclosure process doesn’t make sense in every case 

20 for the reason you’ve just said. There are certain 

21 times when you would deny plaintiffs the right to do 

22 what would otherwise be straight for discovery under 

23 the rules because you want to have a legal issue teed 

24 up and ruled upon.

25 So why would it make sense for us to mandate 
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1 that every transferee judge do what you’re asking to 

2 do if there may be situations in which even your 

3 position would be it doesn’t make sense? And I’ll 

4 hear your response. Thank you. Thank you again for 

5 appearing before us. 

6 MR. HEERMAN: Thank you. Well, I certainly 

7 agree that you could not have a rule that is absolute 

8 in the sense that in all MDLs, no matter what the 

9 circumstances, the judge has no discretion and must 

10 require certain bona fides, as Mr. Cooner put them, be 

11 disclosed or the case will be dismissed.

12 But I do think a rule could be crafted that 

13 says that in cases where exposure and proof of injury 

14 will be necessary in order to substantiate a claim, 

15 the judge should, absent extraordinary circumstances, 

16 require that those be documented before the case can 

17 proceed, something of that nature. 

18 CHAIR ROSENBERG: Okay. If there are no 

19 more comments or questions, thank you so much for your 

20 presentation. 

21 MR. HEERMAN: Thank you. 

22 CHAIR ROSENBERG: We’ll hear from Maria 

23 Salacuse on the privilege log. 

24 MS. SALACUSE: Good afternoon. My name is 

25 Maria Salacuse, and I’m the Assistant General Counsel 
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1 for Technology at the Equal Employment Opportunity 

2 Commission. EEOC’s General Counsel, Carla Gilbright, 

3 has requested that I testify on behalf of EEOC 

4 consistent with the letter she previously submitted 

5 and the letter which was, of course, incorporated into 

6 the record.

7 Because I did not submit a bio or a bio was 

8 not submitted, I’ll tell you a little bit about myself 

9 just for context. I serve as EEOC's lead e-discovery 

10 counsel and I advise senior leaders and I also provide 

11 strategic litigation advice on all sorts of e12 discovery matters to trial attorneys across the 

13 country.

14 But prior to this, prior to assuming this

15 position, I did litigate individual and systemic cases 

16 on behalf of EEOC for 20 years, so I am well familiar 

17 with the discovery battles dealing with privilege 

18 logs. I should also mention that I am a board member 

19 of the Maryland chapter of the FDA and a very active 

20 member in the e-discovery community, and I currently 

21 serve on the steering committee for the Working Group 

22 1 of the Sedona Conference.

23 As you are probably likely aware, EEOC does 

24 have a very active litigation program and we enforce 

25 six employment discrimination statutes, including 
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1 Title VII, ADA, ADEA, the EPA, the Genetic Information 

2 Non-Discrimination Act, and now the Pregnant Workers 

3 Fairness Act. We have currently about 205 lawsuits 

4 across the country in 68 federal district courts, of 

5 which 90 are systemic, meaning they’re pattern and 

6 practice cases or class cases. So these systemic and 

7 class cases is, you know, where we see heavy e8 discovery and we probably see more of the battles 

9 regarding privilege logs.

10 We certainly appreciate the opportunity to 

11 comment on the proposed amendments. You know, I’ve 

12 sat through and I did hear testimony from other 

13 plaintiffs' counsel, and our testimony is fairly 

14 consistent with what has been said, so I’ll just try 

15 and keep it short.

16 We think that the amendments as written, you 

17 know, providing for the -- or requiring the parties to 

18 discuss the timing, the means, and the format of the 

19 privilege logs will minimize discovery disputes and 

20 also ensure more of a timely and complete production 

21 of privilege logs.

22 Where we have concerns is dealing with more 

23 the notes, at least the language in the notes, and we 

24 have two primarily that we are focused on. And as you 

25 heard previously from witnesses, we believe that there 
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1 may be an unintended focus on the burden on the 

2 producing party as the sole basis for the amendment, 

3 even though there’s been plenty of testimony talking 

4 about the burden on a receiving party to assess 

5 adequately the claim of privilege. 

6 For that reason, we have proposed a 

7 modification just to balance it out. The first 

8 sentence really focuses on why the amendment is 

9 happening, and it talks about costs, and we propose 

10 that we add a sentence after that also acknowledging 

11 the burden on receiving parties, and we think that 

12 that would provide a really good balance for both 

13 producing parties and receiving parties.

14 The other issue is that throughout we just 

15 wanted -- we thought it would be important to note in 

16 the notes that whatever privilege log is ultimately 

17 agreed upon, the burden is still going to remain on 

18 the producing party or the one who’s invoking the 

19 privilege, so we did provide certain language. We 

20 proposed some language to be added to that effect just 

21 to make sure that that is clear.

22 I did want to -- I heard earlier a question 

23 to I believe it was Brian Clark about maybe the 

24 importance of the advisory notes, and I just wanted to 

25 highlight that as a former law student of Judge Grimm, 
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1 as well as a lawyer who has practiced before him, I 

2 have certainly learned the importance of these notes, 

3 and I do find that they're often overlooked by lawyers 

4 and sometimes by courts and we do find them very 

5 useful.

6 One great example is with the 2015 

7 amendments regarding proportionality. We do get 

8 arguments made by defendants in our cases, you know, 

9 proportionality arguments and, for example, if there’s 

10 a small amount in controversy, things like that, and 

11 we will look at those Committee notes. There’s great 

12 language in there regarding public policy-type cases, 

13 employment practices, free speech, things like that 

14 that may have importance beyond the monetary amount 

15 involved.

16 So I just point that out just to say that, 

17 you know, we do find these notes and we do look at 

18 these notes very carefully and we do think that they 

19 are important, and so that’s why we look so carefully 

20 at what has been proposed. But thank you for the 

21 opportunity to testify, and I certainly welcome any 

22 questions. 

23 CHAIR ROSENBERG: Thank you. Any questions 

24 or comments? No. I think you covered it all, so 

25 thank you so much. We appreciate it. 
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1 MS. SALACUSE: Thank you. 

2 CHAIR ROSENBERG: All right. Amber Schubert 

3 on 16.1.

4 MS. SCHUBERT: Thank you. Good afternoon. 

5 My name is Amber Schubert. I’m a partner at Schubert 

6 Jonckheer & Kolbe. We’re a small firm that 

7 specializes in consumer and data breach privacy class 

8 actions. And I really appreciate the Committee’s hard 

9 work on Rule 16.1, much of which -- in fact, I think 

10 the bulk of which is helpful.

11 I’m testifying today in opposition to 

12 Section B in particular designating coordinating 

13 counsel. I believe Section B is unnecessary and 

14 counterproductive. By encouraging judges to designate 

15 coordinating counsel prior to leadership counsel, the 

16 rule would, as a practical matter, do one of two 

17 things. It would either create two separate 

18 overlapping leadership processes, one for coordinating 

19 counsel and the other for leadership counsel, or 

20 collapse that entire inquiry into just the 

21 coordinating counsel question. Get picked for 

22 leadership counsel and you’ve likely got a 

23 ticket -- or excuse me -- get picked for coordinating 

24 counsel and you’ve likely got a ticket for leadership 

25 counsel.
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1 By making that selection so early, it 

2 wouldn’t allow time for any self-ordering, a process 

3 that in recent years has been helpful to encouraging 

4 new lawyers as judges have promoted diversity and 

5 encouraged any self-organizing to include those 

6 concerns in the selections. And the proposed Rule 

7 16.1(b) would create all sorts of new problems. 

8 In my experience in MDL class actions, 

9 judges who designate coordinating counsel tend to 

10 select those same lawyers for positions as leadership 

11 counsel, so the inquiry really focuses on getting 

12 picked for coordinating counsel, and those lawyers who 

13 get picked in that initial selection tend to be repeat 

14 players whom they know.

15 Yet the rule provides no process, no 

16 criteria to judges as to how to select coordinating 

17 counsel. It’s essentially silent on the method for 

18 doing so. So judges would be left to pick lawyers who 

19 they already know or have these two separate and 

20 entirely duplicative processes for selecting counsel, 

21 creating all sorts of new inefficiencies. Those 

22 processes could have separate applications or motions, 

23 separate hearings or interviews. There would be a lot 

24 of redundancy.

25 That would simply perpetuate the repeat 
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1 player problem in MDL leadership, which would also 

2 further hinder our efforts at diversity. As I 

3 explained in my written testimony, according to an ABA 

4 survey, men are three times more likely than women to 

5 be appointed lead counsel in MDLs and women made up 

6 just 16.5 percent of all plaintiffs' leadership 

7 appointments in MDL cases. People of color, disabled 

8 individuals, and LGBTQ lawyers fare even worse, not to 

9 mention those from small firms and those with less MDL 

10 experience.

11 The creation of a brand new coordinating 

12 counsel position appointed before the litigation even 

13 gets off the ground would create hurdles for younger 

14 diverse lawyers from smaller firms with fewer 

15 leadership appointments and it would enshrine repeat 

16 players. So, in my view, Section B simply creates too 

17 many unintended consequences and too many risks. I 

18 therefore ask the Committee to remove Section B, and 

19 I’m happy to answer any questions that you may have. 

20 CHAIR ROSENBERG: Thank you. Any questions 

21 or comments? 

22 Okay. Well, thank you so much.

23 MS. SCHUBERT: Thank you.

24 CHAIR ROSENBERG: We very much appreciate 

25 your comments and your testimony. 
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1 I believe Christopher Seeger is not 

2 presenting today. I’ll just call his name out to be 

3 sure. And am I also sure that Yvonne Flaherty is not 

4 appearing and filling his slot. So that brings us 

5 then to our last witness, Lexi Hazam, who will speak 

6 on 16.1.

7 MS. HAZAM: Thank you, Your Honor. My name 

8 is Lexi Hazam. Can you hear me okay? 

9 CHAIR ROSENBERG: Yes. 

10 MS. HAZAM: Okay. Excellent. I am pleased 

11 to be here today testifying before the panel, and I 

12 appreciate the flexibility as to the timing of my 

13 testimony. I have just gotten out of court before the 

14 judge overseeing the social media addiction MDL, where 

15 I am co-lead counsel. 

16 So I chair the mass torts practice at Lieff 

17 Cabraser Hyman & Bernstein and I have experience at 

18 all levels of MDL leadership, as do many of my 

19 partners, and we are leading some of the major mass 

20 tort MDLs today. We also have lawyers who are working 

21 in MDLs involving class actions, and I’m here to 

22 testify as to certain concerns I have with regards to 

23 the new proposed Rules 16.1(b) and 16.1(c)(4). 

24 Before I do that, though, I'd like to thank 

25 the Committee for all of their amazing work to date, 
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1 and I think much of these proposals is called for and 

2 will be extremely helpful to the Bar going forward. 

3 My concerns have to do with Rule 16.1(b), as I 

4 indicated, and its provision that the MDL court may 

5 designate coordinating counsel prior to the initial 

6 case management conference. I have concerns relating 

7 to that on the level of it being premature and leading 

8 to a restricted pool for potential leadership. I also 

9 have concerns that it may be inefficient.

10 I do believe, as the person who testified 

11 just before me said, that it is likely to lead to 

12 courts most often appointing individuals with whom 

13 they are already familiar because they have not had 

14 the opportunity to conduct any fulsome vetting process 

15 and that that represents a lost opportunity to draw 

16 from a wider and more varied pool and achieve various 

17 kinds of diversity through that manner.

18 I also think it may, in effect, preempt some 

19 efforts among the Bar themselves to self-organize and 

20 present to the court in a unified or at least more 

21 informed manner as to leadership. On the front of the 

22 potential inefficiency to this proposed provision, I 

23 am concerned that you will inevitably have a situation 

24 where either the attorney who's appointed as the 

25 coordinating counsel will, in essence, automatically 
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1 carry over into leadership again without necessarily 

2 more fulsome vetting along the way or, if they do not, 

3 you’ll have a challenging transition where you have 

4 one person who’s been interacting with the court, 

5 interacting with opposing counsel, interacting with 

6 other counsel on their same side, and perhaps starting 

7 to take important steps in the case that will shape it 

8 going forward. Strategic decisions, the provisions 

9 called for in the initial case management report deal 

10 with very important and consequential topics, such as 

11 facilitating early discussion of settlement, a 

12 discovery plan, et cetera. And so you’ll have one 

13 person who’s headed down those roads only to need to 

14 pass the baton, and that, to me, sounds like it will 

15 be disruptive, potentially duplicative, cause I think 

16 an inefficiency and a potential change of course at 

17 that juncture.

18 I think the better route is the one that I 

19 see many MDL judges engaging in today, including in 

20 the social media MDL that I co-lead, which is for an 

21 MDL judge to issue an initial order setting up a 

22 leadership procedure and then devote some or all of 

23 the initial case management conference to addressing 

24 the issue of leadership, whether that be through 

25 taking presentations of counsel or any other manner, 
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1 and then have the report that is more substantive come 

2 thereafter once leadership is appointed and the next 

3 case management conference address those substantive 

4 issues in the report. I think that’s a more efficient 

5 way to proceed and I think what’s important is getting 

6 all of those steps on calendar quickly in an MDL.

7 The other provision that I’ve raised some 

8 concerns about is 16.1(c)(4), which says that the 

9 parties will address in the initial case management 

10 report exchanging information on the factual bases for 

11 their claims and defenses. The wording there struck 

12 me as rather vague and also potentially unnecessary or 

13 duplicative of the discovery provisions already in the 

14 Federal Rules and the other sub-part of the rule that 

15 says that the parties shall discuss a discovery plan 

16 and report on it to the court. 

17 The comment has some language that suggests 

18 to me that this may be anticipating early attempts at 

19 dismissal of claims or we enter into the discovery 

20 process in the case where that would normally occur 

21 and is essentially a side track of litigation outside 

22 of the normal motion practice and discovery practice, 

23 which does often involve exchanges that start early 

24 on.

25 It also struck me as potentially burdensome 
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1 and unfair in cases where, if the defendants, who may 

2 have much more ready access to some of the evidence 

3 needed to prove plaintiffs' cases -- and that is the 

4 case in the MDL I currently co-lead, where the 

5 plaintiffs do not have access to all of the account 

6 data that the social media platforms do, and so that 

7 resides entirely with them, and having a early 

8 opportunity for dismissal might essentially cut the 

9 plaintiffs off at the pass in being able to access 

10 that information.

11 Thank you. I’m happy to take any questions. 

12 CHAIR ROSENBERG: Thank you. Andrew. 

13 PROFESSOR BRADT: Thank you so much.

14 Can I follow up with you about your position 

15 on mandatory disclosure and the degree to which it’s 

16 used in MDL and, if not, why not? 

17 MS. HAZAM: You’re talking about initial 

18 disclosures under Rule 26, I assume? Thank you. It 

19 actually has come up in my case just last week. It’s 

20 a very interesting situation. I think it varies. 

21 You’ll see in some MDLs both sides may think it’s 

22 appropriate to engage in initial disclosures. In 

23 other cases, it may be appropriate mainly for the 

24 defendants because the plaintiffs’ initial disclosures 

25 generally come through a fact sheet kind of process. 
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1 That process may be staged such that there’s a 

2 preliminary fact sheet that is much briefer and comes 

3 very quickly and then a more extensive one with more 

4 information. But it generally is duplicative of the 

5 fact sheet process to require every individual 

6 plaintiff in a mass tort MDL to do an initial 

7 disclosure. It may be a different situation in a 

8 class action context where there are a limited number 

9 of class representatives. 

10 PROFESSOR BRADT: Can you help me 

11 understand, though, why it would be duplicative? It 

12 seems to me that what’s required in 26(a)(1) to 

13 produce may go beyond what’s typically required on 

14 fact sheets, although I know they vary quite a lot 

15 depending on the case. So I guess I’ll ask you the 

16 same question I asked Mr. Cooner. Would you prefer a 

17 world in which the default was that plaintiffs and 

18 defendants would both just follow 26(a)(1)? 

19 MS. HAZAM: Good question. What I would say 

20 to that is the plaintiff actually does almost always 

21 much more extensive than what initial disclosures 

22 would look like coming from each plaintiff. You know, 

23 a typical fact sheet in an MDL these days, at least in 

24 a mass tort context, it’s 50 pages long or more than 

25 that, and when it’s completed, it’s definitely more 
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1 than that because you can’t complete it in the space 

2 that’s provided in the actual form, so you will be 

3 expanding and attaching things to it. It calls not 

4 only for all the people who have knowledge of your 

5 claim, whether they be healthcare providers or family 

6 members or other witnesses, but all kinds of 

7 information about your injuries and damages. It 

8 usually is much more extensive than what an initial 

9 disclosure would look like. 

10 So, if I had to choose my worlds, I would 

11 probably choose a plaintiff fact sheet and a defense 

12 fact sheet that both happen relatively early on. That 

13 said, if an initial disclosure is happening at the 

14 beginning of a case, on the plaintiff side, it is 

15 going to be duplicative of what comes later. 

16 PROFESSOR BRADT: Do the fact sheets 

17 typically require a copy of the documents -- 

18 MS. HAZAM: Yes. 

19 PROFESSOR BRADT: -- that you would use to 

20 support your claims? 

21 MS. HAZAM: Anything that is in the 

22 plaintiffs' possession they generally do require and, 

23 typically, these days a plaintiff fact sheet has a 

24 good two pages of document requests that encompass all 

25 kinds of relevant documents to the case, so not just 
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1 medical records but employment, education, other 

2 things. And then, on top of that, they usually 

3 require authorizations to potentially obtain even more 

4 of those records if the defendants so desire and the 

5 plaintiffs don’t already have them in their 

6 possession. 

7 PROFESSOR BRADT: So it’s just odd to me 

8 that -- I mean, you’ve heard a lot of this today. You 

9 haven’t heard very much of this today because I guess 

10 you’ve been in court, but it seems to me that we have 

11 two totally different planets that the plaintiffs' 

12 side and the defense side are coming from. The 

13 defense said there’s never any documentation for these 

14 claims, 40 to 60 percent of them are meritless, and 

15 yet it sounds like from the plaintiffs' side that 

16 you’re producing way more than would be required in a

17 regular case under Rule 26.

18 Can you explain the discrepancy between the 

19 descriptions of the world that we’re getting? 

20 MS. HAZAM: I can try. I do think that 

21 there are different viewpoints on this obviously. I 

22 don’t think -- I mean, it’s easy enough to pull 

23 plaintiff fact sheets from any number of MDLs. You 

24 could ask, you know, either side of the Bar to provide 

25 you with any number of examples so you can see how 
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1 detailed they are. So I’m not sure that the debate is 

2 about how detailed a fact sheet is. I think that 

3 where the defense bar is coming from in large part on 

4 this is their belief that there may turn out to be 

5 what in their view is a significant number of 

6 plaintiffs who can’t provide what they believe is the 

7 necessary level of support to ultimately proceed with 

8 their claims. 

9 We believe that the fact sheet is designed 

10 precisely to accomplish that and it will demonstrate 

11 that. All courts that I’ve been in who work with 

12 these fact sheets allow for deficiency processes. I

13 think they’re actually often abused by the defense 

14 bar, but, nonetheless, there is that opportunity to 

15 seek additional information that they don’t believe 

16 was adequately provided as part of that.

17 I also think part of what you’re seeing from 

18 the defense bar is just an effort to back that process 

19 up to make it even earlier in the litigation. I would 

20 note, however, that PFSs -- that’s our world of 

21 acronyms -- happen generally very quickly. I mean, 

22 they happen in the first months of an MDL and they 

23 happen generally about as quickly as they can for 

24 plaintiffs to gather that kind of information. They 

25 are meant to alleviate burden in the sense that they 
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1 generally substitute for interrogatories and for 

2 written discovery. Doesn’t mean there can’t possibly 

3 be any additional written discovery thereafter, 

4 usually if you’re selected for bellwether treatment of 

5 some kind, so I do think they happen early. I do 

6 think they provide a lot of information that 

7 defendants can look to for vetting of claims purposes, 

8 and I think to push that aside with some kind of 

9 earlier process is likely to be duplicative, 

10 burdensome, and unfair to the plaintiffs' side of the 

11 equation. 

12 CHAIR ROSENBERG: Is there another question? 

13 No. I didn’t see.

14 How early did you say in your experience 

15 that the plaintiff fact sheets were completed and 

16 exchanged? 

17 MS. HAZAM: So sometimes it’s a two-stage 

18 process, but let’s just take for a moment a one-stage 

19 process. This is the case I’m in right now.

20 So, in the case I’m in right now, we have an 

21 implementation order for the fact sheet that is going 

22 to require it to be produced together with all the 

23 records that are in the plaintiffs' possession and all 

24 the authorizations for potentially obtaining 

25 additional records within about 60 to 75 days. I 
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1 think that’s generally a time frame you see. I think 

2 sometimes it’s 90 or a little longer. 

3 CHAIR ROSENBERG: From the inception of the 

4 case or from the initial conference? 

5 MS. HAZAM: From the order being entered. 

6 CHAIR ROSENBERG: Oh. 

7 MS. HAZAM: You really can’t do a PFS until 

8 an order is entered --

9 CHAIR ROSENBERG: Right. So -- 

10 MS. HAZAM: -- that has the time. 

11 CHAIR ROSENBERG: -- how long -- what are 

12 you generally seeing? I mean, I’m just talk -- how 

13 far into the case? 

14 MS. HAZAM: Right, right. So some judges 

15 don’t want to do that until you’ve gotten through 

16 dispositive motions. That’s very much up to the 

17 court. So, in my current MDL, our judge didn’t want 

18 us to get there until we’d gotten past certain 

19 threshold motions under Section 230 in the first 

20 amendment. 

21 But, in the absence of those kinds of early 

22 dispositive motions that result in a discovery stay, I 

23 would say you have an initial conference with the 

24 judge. You have initial orders. I would say within 

25 the next two months you get to a point of having an 
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1 order about these kinds of fact sheets approximately. 

2 The parties try to negotiate them. They sometimes 

3 have disputes as to what they should contain that the 

4 court then must resolve. But I would say that’s 

5 usually a couple months and then that sets off the 

6 process of them needing to be completed, which is 

7 another couple months. 

8 CHAIR ROSENBERG: So what do you say to the 

9 defense bar or a portion of the defense bar that says 

10 20 to 30 percent of cases filed in products liability, 

11 why is it that they can’t from the get-go just at 

12 least tell us the product they took --

13 MALE VOICE: I don’t think she’s like some 

14 golden child. 

15 CHAIR ROSENBERG: I think somebody is 

16 talking. 

17 MALE VOICE: But, at any rate, one of the 

18 things very --

19 MS. HAZAM: Sorry. 

20 CHAIR ROSENBERG: Oh, somebody’s 

21 got -- okay.

22 Proof of product, date of injury, what the 

23 injury is, how do you respond to that and that that 

24 creates an inordinate burden on the defense, a cost to 

25 the defense for public companies reporting 
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1 requirements of arguably non-meritorious claims? Why 

2 do they need to wait to post-dispositive motions? Why 

3 do they need to wait to remand to ferret out claims 

4 that maybe shouldn’t have been there in the first 

5 place? If you were drafting a rule, how would you 

6 address that? 

7 MS. HAZAM: So, personally, I think that the 

8 process that already exists that we’ve just discussed 

9 and described is key to being able to assess the basis 

10 for the claims and inform the defense about them, 

11 including whether there might be some that don’t have 

12 a basis. If you fill out a plaintiff fact sheet and 

13 it turns out that you don’t have proof of ever having 

14 used that product, they’re going to know about it 

15 pretty quickly.

16 What then happens as a result of that is a 

17 matter of case management by the court. In other 

18 words, I have certainly seen cases where courts 

19 contemplate not only deficiencies but ultimately an 

20 order to show cause. That could be the case. I think 

21 that what I often hear from the defense is something 

22 more than this, which is the equivalent of what you 

23 may know and we sort of in our bar know as a lone pine 

24 order, which is not simply proof of use of a product, 

25 which is not obviously an issue in every MDL, but just 
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1 using that kind of more standard, say, drug or device 

2 case model. What they’re looking for is more than 

3 that, not just that you used it but early expert 

4 reports supporting it, and there’s a strong body of 

5 case law, including a recent -- as well as some recent 

6 law review articles that are very interesting about 

7 that.

8 I do not think that is appropriate at an 

9 early phase. I do think the fact sheet process is and 

10 that most MDL judges can exercise their discretion 

11 informed by the parties as to what should happen to 

12 PFSs where that basic level of proof does not seem to 

13 be provided. 

14 CHAIR ROSENBERG: Do you find in your 

15 experience that there is often a dispute between the 

16 plaintiff and the defense in the case as to what 

17 "quickly" means? You mentioned we get to it quickly 

18 and that you say the fact sheet sort of accomplishes 

19 the purpose of this early exchange. How often, if at 

20 all, do you see a difference, a strong difference of 

21 view as to when that process should take place? And 

22 if you’ve seen it taking place sooner rather than 

23 later, what, if any, advantages have you seen? 

24 MS. HAZAM: Right. Another good question. 

25 So I have been able to agree with the other side 
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1 ultimately on my cases as to what the schedule should 

2 be. That doesn’t mean we didn’t start from somewhat 

3 different places, but the orders I’ve had entered are 

4 ultimately by agreement as to the time frame. I do 

5 think that may at times be disputed.

6 I do think that, however, the defense bar 

7 also has an interest in these plaintiff fact sheets 

8 being done well. Sometimes it feels like a little bit 

9 of a catch-22 from the plaintiff side where it has to 

10 be determined very early on, and, yet, then, if we do 

11 things very early on, we get just a sea of, you didn’t 

12 dot this I or cross this T. I’m sure they’d see it 

13 differently, but this deficiency process that often 

14 seems fairly pro forma, and so I think there is an 

15 interest in allowing enough time for that information 

16 to be gathered and those increasingly detailed because 

17 they are only growing, not shrinking, fact sheets to 

18 be completed. 

19 CHAIR ROSENBERG: So doesn’t (c)(4) allow 

20 for exactly that process? I mean, is it --

21 MS. HAZAM: We haven’t -- oh, sorry. Excuse 

22 me. 

23 CHAIR ROSENBERG: Oh, no. Yeah. I mean, 

24 doesn’t -- isn’t that exactly the opportunity for, in 

25 advance of the report to the court, when defense is 
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1 working with plaintiff, to discuss, not iron out the 

2 details necessarily that early on of the plaintiff 

3 fact sheet, but to present to the court we’re thinking 

4 this is the kind of case that lends itself as far as 

5 an early exchange at least from the plaintiff of a 

6 plaintiff fact sheet. Of course, we need to go back 

7 and go to the drawing board and draft it and see if we 

8 can agree with the defense as to what goes in it and 

9 what amount of time is needed.

10 I mean, is there anything about (c)(4) that 

11 isn’t conducive to exactly that process? 

12 MS. HAZAM: So I wasn’t -- to me, reading 

13 (c)(4) sounded like it was seeking to perhaps supplant 

14 what these practices often involve. And so, to answer 

15 your question, there’s nothing strange about parties 

16 putting in one of their initial reports, you know, we 

17 anticipate that there will be PFSs in this case and we 

18 intend to engage in negotiations shortly. In some 

19 cases, maybe in that initial report, you can even get 

20 to the point of proposing a schedule or some level of 

21 additional detail. I think part of, for me, the 

22 confusion of (c)(4) is, is it proposing something 

23 earlier and different than that? It seems vague and 

24 potentially duplicative of those processes that I 

25 already see happening in my cases -- 
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1 CHAIR ROSENBERG: But the note -- yeah, the 

2 notes make reference to some courts have utilized fact 

3 sheets or a census as methods to take a survey of the 

4 claims and defenses presented, largely as a management 

5 method for planning and organizing the proceedings.

6 I’m just wondering how can it be clearer 

7 that it’s not the only way, but fact sheets are one of 

8 the ways in which this exchange of information can 

9 take place?

10 MS. HAZAM: I appreciate that and I do see 

11 that language. I think, for me, the confusing 

12 sentence is the whether early exchanges should occur 

13 may depend on a number of factors. It wasn’t clear to 

14 me that early exchanges were essentially a reference 

15 to things like fact sheets and a census. I don’t know 

16 if there’s a way to make that clearer. I think that 

17 would be helpful in avoiding the ambiguity and 

18 potential duplication that I thought might be present 

19 here.

20 I would also just note that part of the 

21 concern about this is also that this report under 

22 these rules may be within the charge of that 

23 coordinating counsel who would be designated even 

24 before we have our initial case management conference. 

25 And so having -- the concerns I mentioned earlier are 
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1 kind of layered over this, if that --

2 CHAIR ROSENBERG: Yeah. 

3 MS. HAZAM: -- if that is the way this would 

4 work. 

5 CHAIR ROSENBERG: I guess I have one last 

6 question. We heard in one of the hearings that it was 

7 confusing to mention fact sheets and census in (c)(4) 

8 because that’s usually done at discovery stage, and it 

9 was confusing to certain of the presenters as to what 

10 we meant by (c)(4) and how that is distinct from 

11 (c)(6). And do you have experience that it is more 

12 common that fact sheets are considered in the common 

13 parlance in the MDL world as discovery or as something 

14 different and perhaps earlier than discovery? 

15 MS. HAZAM: They’re absolutely considered 

16 discovery. I think that’s true for both sides, and 

17 for the MDL judges I practice before, they are part 

18 and parcel of discovery. Discovery needs to be open 

19 for this to be happening and it needs to contemplate 

20 it being two ways. So, if you’re doing fact sheets, 

21 then you would anticipate there be a defense fact 

22 sheet and other forms of fact discovery that have 

23 gotten underway. That doesn’t mean it isn’t an early 

24 phase of --

25 CHAIR ROSENBERG: It's an early phase of 
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1 formal discovery, but it’s not its own thing. So, 

2 really, you don’t see it as (c)(4) was envisioned as 

3 an early exchange pre-discovery. You see it and your 

4 experience is that it is discovery. But, if it’s a 

5 tiered or phased discovery, it would be on the earlier 

6 side of the formal discovery as we know it under the 

7 rules of procedure. 

8 MS. HAZAM: Exactly. And I think that’s why 

9 (c)(4) was confusing to me. 

10 CHAIR ROSENBERG: I understand. Okay. I 

11 know Rick's patiently had his hand up. 

12 PROFESSOR MARCUS: Well, I have a very 

13 focused question that is not about the sequencing 

14 discussion you mentioned with regard to coordinating 

15 counsel. I think you said that one of the roles of 

16 appointed leadership counsel may be sometimes to 

17 facilitate early discussion of settlement. Our 

18 proposal calls for an order appointing leadership 

19 counsel to address the role of leadership counsel in 

20 settlement activities. Some have said, oh, that 

21 shouldn’t be there. 

22 I’m wondering if you have a view on whether 

23 it’s inappropriate or premature for the initial 

24 appointment of leadership counsel to include some 

25 attention to prospective settlement activities. 
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1 MS. HAZAM: Thank you, Professor Marcus. I 

2 don’t think it’s inappropriate. I do have qualms 

3 about that being done by designated coordinating 

4 counsel put in place prior to an initial --

5 PROFESSOR MARCUS: Yeah. I’m trying to skip 

6 that. Skip that. 

7 MS. HAZAM: Right. I want to make sure 

8 we’re on the same page. Thank you.

9 When it comes to permanent -- I’ll put it in 

10 quotes -- "permanent leadership" for the case, which I 

11 would also envision being put into place relatively 

12 early on, just not prior to this initial conference, I 

13 don’t have qualms about it being part of their 

14 portfolio to have discussions about how early 

15 resolution could be facilitated.

16 MDL judges increasingly these days also 

17 appoint settlement masters, mediators, they’re called 

18 various things, almost from the get-go, so that would 

19 be consistent with that practice also. 

20 CHAIR ROSENBERG: I have one last question. 

21 So you want coordinating counsel out and you said, in 

22 your experience at least in this current case you’re 

23 in, that the very first conference is really to set up 

24 leadership.

25 Have you ever had an experience in an MDL 
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1 where something other than appointment of leadership 

2 occurred at the very first conference? In other 

3 words, is it viable in your experience to actually 

4 have an initial conference and talk substance of some 

5 sort to get organized? I guess to start organizing 

6 the MDL along the lines of the checkpoints that are in 

7 subsection (c), in other words, talking about them, 

8 some can maybe be addressed in greater details than 

9 others before leadership has been appointed. 

10 MS. HAZAM: It’s a tough question. I think 

11 it’s possible to start having conversations since I’ve 

12 seen judges do that artfully where they know they 

13 aren’t necessarily talking to people on the 

14 plaintiffs' side who have authority, but they at least 

15 start putting certain things on the table. It’s often 

16 effective as something that's judge-initiated. If the 

17 judge is communicating to the parties, these are some 

18 things that I would like to see, these are some 

19 questions I have, to me, that’s not inappropriate.

20 But I think you do need on the plaintiff 

21 side, particularly in some of these larger MDLs where 

22 you will otherwise have many, many stakeholders and 

23 potential talking heads, to have leadership in place 

24 pretty quickly in order to really take positions, have 

25 the authority to do so.
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1 So an initial conversation, for example, in 

2 my current MDL, we did have a very initial 

3 conversation about things like should we have phasing 

4 in the case given these defenses that were in the 

5 nature of claimed immunities, right, should we have a 

6 phasing where those motions are heard before discovery 

7 opens and before other matters are heard.

8 But it was done in a way that I think 

9 reflected the fact that we didn’t have leadership 

10 appointed and then it was done in a much more fulsome 

11 way --

12 CHAIR ROSENBERG: Right. So --

13 MS. HAZAM: -- where people take positions.

14 CHAIR ROSENBERG: Okay. So you had that in 

15 an initial conference before leadership was appointed. 

16 You were actually discussing phasing of discovery and 

17 certain kind of motion practice because there were 

18 enough people who are organized enough, who at least 

19 knew enough at that early stage to raise that with the 

20 court and/or the court knew enough to ask those 

21 questions. Is that --

22 MS. HAZAM: The court knew enough to ask 

23 about it. 

24 CHAIR ROSENBERG: To ask those questions. 

25 MS. HAZAM: And we were organized enough 
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1 that it wasn’t chaos in trying to respond to them, but 

2 we were careful, as was the court, to not take actual 

3 positions, and it was really phasing of motion 

4 practice to be clear. 

5 CHAIR ROSENBERG: So, if 16.1 was understood 

6 as not taking positions, the attorneys aren’t 

7 necessarily taking positions. They are raising 

8 issues. They are educating the judge through that 

9 report. And, therefore, the judge’s order would 

10 reflect that, that whatever that order looks like it 

11 would be as committed or not committed to issues or 

12 positions as the input from the attorneys, one of 

13 those issues being, what does leadership look like? 

14 Is this a case that lends itself to leadership? What 

15 do you all think? Slates, interviews, what kinds of 

16 cases so that if one were to consider the judge 

17 appointing leadership, do you need personal injury 

18 leaders? If this is class action, should you have 

19 some representatives?

20 I mean, if 16.1 was looked upon in that 

21 light, not committing to positions but educating, does 

22 that change anything? Is it not understood that way? 

23 Is that why there is a fear that there is so much on 

24 the plate so early that there is this -- I think 

25 people have used the word "binding" and, you know, 
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1 things would be set in stone so early that couldn’t be 

2 changed or won’t be changed or otherwise, you know, 

3 whatever some of the other descriptions have been? 

4 MS. HAZAM: So I am certainly not in the 

5 business of telling a judge who wants to discuss 

6 issues right off the bat that they shouldn’t be 

7 discussed, so I don’t have objections to doing that.

8 I think that some of these matters could 

9 certainly be discussed in the absence of a 

10 coordinating counsel, which I think builds in a tone 

11 of you are taking positions in something more 

12 authoritative. So I think some of these things could 

13 be part of a discussion. I think that the inevitable 

14 thing that happens is, if you don’t have leadership in 

15 place, it is very preliminary and you have to come 

16 back to it right away, but that may not be a bad 

17 thing. At least there’s an early, you know, surfacing 

18 of perhaps what some of the issues may be. It may be 

19 a courtroom where you’ve got different plaintiffs 

20 saying different things because you can’t and don’t 

21 have, I think, a well vetted leadership at that point.

22 Just as a matter of interest, what happened 

23 at our first hearing in the social media MDL is we 

24 spent the first hour and a half doing our leadership 

25 positions. Our applications, of course, had already 
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1 been in. She then appointed us and it was the second 

2 half of the hearing where we had the initial 

3 discussions on those topics. So we actually had 

4 essentially been appointed even though it happened a 

5 few minutes before. 

6 CHAIR ROSENBERG: Understood. Okay. With 

7 that, any further comments or questions? 

8 Okay. Well, Ms. Hazam, thank you so much 

9 for being our last witness and being patient with a 

10 lot of questions, so we really -- and also straddling 

11 this with your court obligations, so we appreciate it 

12 very much. 

13 MS. HAZAM: No problem. Thank you. 

14 CHAIR ROSENBERG: Okay. All right. Ladies 

15 and gentlemen, I think that concludes our day at 5:00 

16 and our recording is showing that at least this has 

17 been recorded for a little over eight hours, so it 

18 has, indeed, been a long day. I want to thank all of 

19 the Committee members and members of the staff at the 

20 Administrative Office of the Courts, of course, the 

21 participants. It takes a lot of effort and energy and 

22 attention and focus and, quite frankly, concern that 

23 this process is done correctly, thoroughly, and we 

24 could not do it without everybody collectively.

25 So, on behalf of all of us, I want to thank 
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1 you. I’ll remind everybody that the deadline for 

2 submission of any public comments, which, of course, 

3 we will continue to review, is February 16. At this 

4 point, there are no other public hearings scheduled, 

5 so this was the last one. 

6 So, with nothing further, we will conclude 

7 the hearing for today. Thank you all so much. 

8 (Whereupon, at 5:00 p.m., the hearing in the 

9 above-entitled matter was adjourned.)

10 //

11 //

12 //

13 //

14 //

15 //

16 //

17 //

18 //

19 //

20 //

21 //

22 //

23 //

24 //

25 //
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REPORTER'S CERTIFICATE 

DOCKET NO.: N/A 

CASE TITLE: Hearing of the Advisory Committee 

on Civil Rules 

HEARING DATE: February 6, 2024 

LOCATION: Washington, D.C. 

I hereby certify that the proceedings and 

evidence are contained fully and accurately on the 

tapes and notes reported by me at the hearing in the 

above case before the Administrative Office of the 

U.S. Courts. 

Date: February 21, 2024 

 

David Jones 

Official Reporter 

Heritage Reporting Corporation 

Suite 206 

1220 L Street, N.W. 

Washington, D.C. 20005-4018