ADVISORY COMMITTEE ON CIVIL RULES

HEARING ON PROPOSED AMENDMENTS TO CIVIL RULES 16, 26, AND

PROPOSED NEW RULE 16.1

October 16, 2023 

Testimony Summaries

Tab 

Number

Name Organization

1 Robert Keeling Sidley Austin

2 Douglas McNamara Cohen Milstein

3 Mary Massaron Plunkett Cooney

4 Alex Dahl Lawyers for Civil Justice

5 Kaspar Stoffelmayr Bartlit Beck

6 John Beisner Skadden

7 Jonathan Redgrave Redgrave LLP

8 Christopher Campbell DLA Piper

9 James Shepherd Shook Hardy & Bacon

10 Christopher Guth Bayer

11 Fred Haston International Association of Defense Counsel

12 Markham Leventhal Carlton Fields

13 Amy Keller Dicello Levitt

14 Lana Olson Lightfoot

15 Amy Larson Bush Seyferth

16 John Guttmann Beveridge & Diamond

17 Gregory Halperin Covington

18 Harley Ratliff Shook Hardy & Bacon

19 John Rosenthal Winston & Strawn

20 Sherman Joyce American Tort Reform Association

21 Deirdre Kole Johnson & Johnson

22 Leigh O’Dell Beasley Allen
TAB 1 

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TAB 1A

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SIDLEY AUSTIN LLP 

1501 K STREET, N.W. 

WASHINGTON, D.C. 20005 

+1 202 736 8000 

+1 202 736 8711 FAX 

AMERICA  ASIA PACIFIC  EUROPE 

+1 202 736 8396 

RKEELING@SIDLEY.COM 

Sidley Austin (DC) LLP is a Delaware limited liability partnership doing business as Sidley Austin LLP and practicing in affiliation with other Sidley Austin partnerships. 

October 5, 2023 

SUMMARY OF TESTIMONY BEFORE THE 

ADVISORY COMMITTEE ON CIVIL RULES 

Committee on Rules of Practice and Procedure 

Judicial Conference of the United States 

Washington, D.C. 20544 

Re: R. Keeling Testimony Regarding Proposed Amendments to Civil Rules 16 and 26 

Relating to Privilege Logging Practice 

Dear Members of the Advisory Committee: 

I am a partner at Sidley Austin LLP with a practice specializing in discovery and have 

wide-ranging experience with privilege issues in large, complex litigation.1 On September 8, 

2023, I submitted a Comment on the Proposed Amendments to Civil Rules 26(f)(3) and 16(b)(3), 

to provide my informed perspective on the excessive burdens and costs of document-bydocument privilege logs in high-volume cases and to make specific recommendations to help the 

Advisory Committee as it continues its work to modernize privilege logging practice. 

I am scheduled to testify at the public hearing on the Proposed Amendments to Civil 

Rules 16 and 26, which is scheduled for October 16, 2023 in Washington, DC. I have 

summarized my planned testimony below, which follows my submitted Comment. Primarily, I 

would like to explain to the Advisory Committee, based on my significant experience working 

on privilege logs in document-intensive cases, why the proposed changes do not adequately 

address the challenges of privilege logs in modern litigation, and may even make the problems 

worse. 

1. First, I plan to speak about the broad consensus that reform is necessary to alleviate 

the burdens of outdated privilege logging practices. 

Privilege log rules are outdated and are ill-suited to address the massive volume of ESI in 

modern litigation. There is a consensus among the legal community that reform is needed in this 

area of discovery, and the question now is what this reform should look like. I believe that my 

1

 The views and opinions expressed in this Comment are those of the author only and do not reflect in any way the 

views and opinions of any law firm, company, agency, or other entity to which the author is affiliated. 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 4 of 177
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considerable work on privilege logs in large, complex cases makes me well-positioned to offer 

guidance on this issue. 

Our outdated privilege logging practice frustrates the goals of Rule 1. In large cases, the 

privilege log can easily reach tens of thousands (if not hundreds of thousands) of log entries, 

require thousands of hours of attorney time, and cost more than a million dollars. In some cases, 

this process can turn an otherwise reasonable discovery request into one that is disproportionate 

to the case. I will share my own experience, which confirms these points. Since January 2022, I 

have managed large-scale document reviews in five separate matters. Collectively, the privilege 

log entries that were compiled in just these five matters totaled more than 250,000 log lines. The 

process of conducting the privilege review cost more than $1 million for each of these matters. 

This kind of tremendous effort is required in many large cases even though, in my 

experience, privilege logs provide relatively minimal value to parties or courts. In the matters 

discussed, for example, I received no substantive follow-up on the privilege log from the 

receiving party, confirming my view that the receiving party rarely reviews the majority of 

entries in large logs. Moreover, many courts have recognized that the traditional privilege log is 

often useless in furthering discovery. Rather, preparation of a traditional log in these cases is 

usually a substantial waste of resources for all involved. 

2. Second, I plan to explain, based on my significant experience, why the proposed 

amendments to Civil Rules 16 and 26 will not alleviate privilege logging burdens. 

I believe that changes to the proposed amendments and Advisory Committee Notes are 

necessary to achieve the legal community’s shared goal of privilege log reform. Specifically, the 

proposed amendments do not address the heart of the problem—the need for clarity on the 

substantive standard for asserting privilege—and they may even be counterproductive and create 

new logging burdens in some cases, as I will discuss in further detail. 

Fundamentally, the proposed amendments are insufficient because the meet and confer 

requirement does not correct the misapplication of Rule 26(b)(5) or clarify the legal requirements 

for asserting a claim of privilege. The Rule itself does not define what is required. And although 

the Advisory Committee Note to the 1993 Amendment expressly states that document-bydocument logs may be too burdensome in large volume cases, the traditional log has become 

entrenched as the standard, both in practice and the caselaw. Even today, courts are 

misinterpreting the rule and ignoring the 1993 Advisory Committee Note by insisting on a 

traditional log in every case. The proposed amendments are insufficient because they do not 

clarify that Rule 26(b)(5)(A) does not require a traditional privilege log in every case. 

Importantly, given the massive increase in documents and privileged communications since the 

time of the 1993 Advisory Committee Note, a privilege log that would have been considered 

“voluminous” in 1993 would now be considered relatively small. 

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In addition, the proposed amendments are likely to be unworkable in many cases. Parties are 

usually not in a position to fully discuss and negotiate privilege logging issues at the outset of the 

case. Based on my experience, at this early stage, producing parties will not know their full 

custodian list, the prevalence of privileged communications in the production set, or the 

complexity of privilege issues that are likely to arise once the review really begins. The parties 

will not be able to meaningfully discuss burdens or costs, and the lack of certainty may cause 

needless disputes. Even if the parties can agree on certain aspects of a privilege protocol at this 

point, it may be too generic to be helpful and unanticipated factors are certain to arise and cause 

issues as the review progresses. Further, if the court gets involved in resolving these disputes, it 

will be challenging because key information, such as the number of privileged documents and 

the cost of production, will be missing at this stage of the case. 

Moreover, a substantial concern that the proposed amendments does not address is the 

fact that current privilege logging practice places disproportionate discovery burdens on 

producing parties in asymmetric litigation, where one party has few privileged documents and 

the other party has a large number of privileged documents. This often happens in class action 

litigation, where individual plaintiffs have significantly fewer privileged documents than 

corporate defendants. The proposed amendment does not address this concern because there is 

no incentive for a party to agree to reasonable privilege logging requirements where the burdens 

will unevenly fall on his opponent who has many more documents to review, produce, and log. 

3. Third, I plan to testify that the call for rolling privilege logs in the Advisory 

Committee Notes is inconsistent with modernizing privilege logging practice, and to 

suggest alternatives to rolling logs. 

The proposed guidance on rolling privilege logs is contrary to Rule 1, and I respectfully 

encourage the Committee to remove or modify the proposed Notes that call for rolling logs. 

Based on my extensive experience, rolling privilege logs are ineffective and inefficient. They 

cause delay, increase costs, and result in lower quality logs, particularly in large document cases 

where resources are intensely focused on the document production itself. In addition, rolling logs 

often must be corrected and reproduced later based on new information from subsequent 

document review, which wastes time and money. Parties may initially over-withhold because 

they are not familiar enough with the documents to make informed decisions, especially when 

juggling the production and the log. Having to correct and redo prior logs (and make 

supplemental productions) is extremely inefficient and costly. Finally, rolling logs increase the 

risk that privileged communications will be inadvertently produced because parties are unable to 

complete sufficient quality control in favor of preparing productions and logs simultaneously. It 

is most efficient to compile the privilege log after the majority of documents have been reviewed 

and the lawyers are most familiar with the relevant facts, issues, and players involved. 

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Instead of calling for rolling logs, the Advisory Committee should consider alternatives 

that would better address the need to reduce burdens, achieve proportionality, and provide 

flexibility in modern privilege logging practice.

One possible modification may be to call for “tiered” or “staged” logs (rather than 

“rolling” logs) in the Advisory Committee Notes. This would have the benefit of prioritizing 

both the production and logging of key documents and resolving potential disputes early in the 

discovery process. Moreover, this approach would generally give the court an opportunity to 

provide early guidance on issues and documents likely to be most relevant to the case. 

In addition to a tiered approach, there are two general principles that have been embraced 

in other areas of modern e-discovery that would be equally applicable and beneficial here. First, 

the Committee should embrace Sedona Principle 6, which gives responding parties relative 

autonomy in the procedures, methodologies, and technologies appropriate for producing 

documents and logically extends to privilege logging. As with document production, the 

withholding party is in the best position to determine how to establish its claim of privilege and 

should have the flexibility to decide what type of log is best suited to meet the needs of the case. 

Second, and relatedly, the Committee should endorse standards that focus on whether the 

party claiming privilege engaged in a reasonable process for logging privileged documents, and 

not whether every document was perfectly logged. It is well-established that the standard in 

modern e-discovery is reasonableness, not perfection. But some courts continue to impose an 

incredibly high burden—something akin to perfection—in the logging process. Expressly 

adopting a reasonableness standard for privilege logs would bring privilege logging practice in 

line with modern principles of e-discovery. 

I look forward to addressing the Advisory Committee at the upcoming public hearing and 

appreciate the opportunity to share my views on this important discovery issue. 

Sincerely, 

 Robert D. Keeling 

Partner 

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TAB 1B 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 8 of 177
SIDLEY AUSTIN LLP

1501 K STREET, N.W.

WASHINGTON, D.C. 20005

+1 202 736 8000

+1 202 736 8711 FAX

AMERICA • ASIA PACIFIC • EUROPE

+1 202 736 8396

RKEELING@SIDLEY.COM

Sidley Austin (DC) LLP is a Delaware limited liability partnership doing business as Sidley Austin LLP and practicing in affiliation with other Sidley Austin partnerships.

September 8, 2023 

COMMENT TO THE ADVISORY COMMITTEE ON CIVIL RULES 

Committee on Rules of Practice and Procedure

Judicial Conference of the United States

Washington, D.C. 20544

Re: R. Keeling Comment Regarding Proposed Amendments to Civil Rules 16 and 26 

Relating to Privilege Logging Practice

Dear Members of the Advisory Committee: 

I am a partner at Sidley Austin LLP with a practice specializing in discovery and have 

wide-ranging experience with privilege issues in large, complex litigation. I have managed 

document productions that have resulted in the compilation of hundreds of thousands of privilege 

log lines. I serve as the co-chair of my firm’s e-discovery team and have published extensively in 

the area of e-discovery, including on privilege issues.

1

 

In response to the Advisory Committee’s Invitation for Comment on Privilege Log 

Practice, I submitted a Comment dated July 30, 2021, in which I outlined the excessive burdens 

and costs of document-by-document privilege logs in high-volume cases. I also recommended

several specific, potential reforms to Rule 26(b)(5) to modernize privilege logging practice. 

Specifically, I suggested that the amended Rule include: (1) a presumption that document-bydocument logs are not required in large document matters and may violate proportionality; (2) a 

presumption that categorial or metadata logs are acceptable in large document matters; (3) a 

presumption that redacted documents do not need to be logged where the face of the document 

provides sufficient information to assess the claim; and (4) a rule that allows threading of email 

or chat messages for logging purposes. 

In October 2022, the Advisory Committee on Civil Rules initially proposed amendments 

to Rules 26(f)(3) and 16(b)(3), as well as proposed Advisory Committee Notes to accompany the 

proposed amendments. The proposed amendment to Rule 26(f) would require parties to discuss 

and include in their discovery plan the timing and method for complying with Rule 26(b)(5)(A) 

related to privilege claims. The proposed amendment to Rule 16(b) would give the court 

1

 The views and opinions expressed in this Comment are those of the author only and do not reflect in any way the 

views and opinions of any law firm, company, agency, or other entity to which the author is affiliated.

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 9 of 177
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discretion to address the timing and method of such compliance in its scheduling order. Neither 

proposed rule amendment, however, addresses the substance of Rule 26(b)(5)(A)’s directive that 

a producing party describe the nature of documents withheld as privileged in a way that 

“enable[s] other parties to assess the claim.” 

Based on my review of the current proposed rule amendments and accompanying 

Advisory Committee Notes, as well as my significant experience working on privilege logs in 

document-intensive cases, I believe the proposed changes do not adequately address the 

challenges associated with privilege logs in modern litigation, and in fact certain Committee 

Notes will make the problem worse. I respectfully submit this comment on the proposed 

amendments to Rules 16 and 26 to share my views and to assist the Advisory Committee as it 

continues to discuss and refine the proposed amendments and Advisory Committee Notes. 

I. There is Broad Consensus that Reform is Needed to Address the Burdens of 

Outdated Privilege Logging Practices. 

Privilege log rules were developed in a paper world and are ill-suited to address the 

massive volume of electronically stored information (“ESI”) that practitioners routinely must 

handle as part of discovery in litigation today. Although many other aspects of discovery practice 

have been modernized to account for the ease and prevalence of electronic communication and 

the staggering growth of ESI that has followed,2 privilege logging norms and rules have not been 

addressed. Thus, there has been a growing consensus among the legal community—as has been 

recognized by the Advisory Committee—that reform is needed in this area of discovery.3

As explained in my July 2021 letter, the failure to bring privilege logging practice in line 

with modern times routinely frustrates the goals of Rule 1 to facilitate the just, speedy, and 

inexpensive resolution of litigation, particularly in large document cases. Specifically, the size, 

complexity, and cost of the privilege log can easily reach tens of thousands (if not hundreds of 

thousands) of log entries, require thousands of hours of attorney time, and often cost more than a 

million dollars. Moreover, with such enormous costs and burdens, the privilege logging process 

itself may render an otherwise reasonable discovery request disproportionate to the needs of the 

case. The tedious nature of compiling detailed information about each privileged document is 

2 See, e.g., Fed. R. Civ. P. 37(e) & advisory committee’s note to 2015 amendment (related to spoliation of ESI); Da 

Silva Moore v. Publicis Groupe, 287 F.R.D. 182 (S.D.N.Y 2012) (approving use of technology-assisted review in 

document review), adopted, No. 11 Civ. 1279(ALC)(AJP), 2012 WL 1446534 (S.D.N.Y. Apr. 26, 2012).

3 See, e.g., Letter from Hon. John M. Facciola (ret.) and Jonathan M. Redgrave to H. Thomas Byron, III, Committee 

on Rules of Practice and Procedure (Jan. 31, 2023), available at https://www.uscourts.gov/file/62395/download

(noting “a broad (but not universal) consensus” that amendments to the privilege logging rules could be beneficial); 

Electronic Discovery Reference Model, EDRM Streamlined Privilege Log Protocol 1 (Nov. 30 2020), 

https://edrm.net/wp-content/uploads/2020/11/EDRM_Privilege-Log-Protocol_Draft-as-of-11_30_20.pdf (“In cases 

with large productions and a significant number of privileged documents, the traditional preparation of privilege 

logs is burdensome, time consuming, and frequently not particularly useful for requesting parties to evaluate the 

privilege claims.”). 

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Page 3 

 

heightened not only where there is a substantial volume of documents, but also in complex cases 

where documents often involve numerous individuals from various corporate entities. Quite 

simply, compiling a document-by-document privilege log in large, complex cases is not only 

burdensome but can often become unmanageable.

The burdens of document-by-document privilege logging are not merely hypothetical or 

hyperbole. Since January 2022, I have managed large-scale document reviews in five separate 

matters. Collectively, the privilege log entries that were compiled in just these five matters 

totaled more than 250,000 log lines. The process of conducting the privilege review alone—

including identifying privileged documents, composing document-by-document log entries, and 

performing quality control privilege review by outside counsel—cost more than $1 million for 

each of these matters. 

In comparison to these tremendous costs, in my experience, the relatively minimal value 

privilege logs provide further underscores the need for reform. In four of the five matters 

discussed above, I received no substantive follow-up on the privilege log entries from the 

receiving party. 

Similar to my recent experience and despite the overwhelming effort and resources that 

must be dedicated to completing a document-by-document privilege log in large cases, numerous 

courts have recognized that such a log is often “on the whole useless.”4 Moreover, in my 

experience, the receiving party (including its attorneys) virtually never reviews the majority of 

individual privilege log entries in large logs—because they simply do not have the time, money, 

or resources to do so—making the preparation of a traditional log in these cases a substantial 

waste of resources for both parties. 

Having reviewed the current proposed rule amendments and Advisory Committee Notes 

with these points in mind, I respectfully submit that the Advisory Committee’s proposed 

amendments fail to remedy the significant burdens of privilege logs in modern e-discovery and 

that additional changes are necessary to achieve the goals of such reform. The Committee’s 

recognition of modern privilege log challenges and its efforts to address them are laudable. But 

the proposed amendments do little to address the crux of the problem—the need for clarity on the 

substantive standard for asserting privilege—and they may even be counterproductive and create 

new logging burdens in some cases, as outlined below. To that end, I believe the following 

observations may be helpful for the Committee to consider as it continues to discuss the 

proposed rule amendments and Advisory Committee Notes. 

4 Covad Commc’ns Co. v. Revonet, Inc., 267 F.R.D. 14, 28 (D.D.C. 2010) (citing Mitchell v. Nat’l R.R. Passenger 

Corp., 208 F.R.D. 455, 461 (D.D.C. 2002)). See also In re Rail Freight Fuel Surcharge Antitrust Litig., No. 07-

489(PLF/JMF/AK), 2009 WL 3443563, at *10 (D.D.C. Oct. 23, 2009) (“Too often I have found the traditional 

privilege log useless.”).

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II. The Advisory Committee’s Proposed Amendments Fail to Remedy the Significant 

Burdens of Privilege Logs in Modern e-discovery. 

A. The proposed meet and confer requirement does not clarify the substantive 

standard for asserting privilege. 

Fundamentally, the proposed amendments are insufficient because they fail to correct the 

misapplication of Rule 26(b)(5) or clarify the legal requirements for asserting a claim of 

privilege. As the Committee is aware, the 1993 Amendment to Rule 26(b)(5) set the requirement 

that litigants must “provide sufficient information to enable other parties to evaluate the 

applicability of the claimed privilege or protection,” but it did not “define for each case what 

information must be provided.”5 The Advisory Committee Note to the 1993 Amendment, 

however, expressly contemplated a flexible standard based on the needs of the case, noting that 

document-by-document logs may be too burdensome in large volume cases. 

Despite this guidance, the traditional, document-by-document privilege log emerged as 

the default expectation and has become entrenched, both in practice and in caselaw, over the past 

30 years, notwithstanding the 1993 Advisory Committee Note. Although the proposed 

amendments to Rules 16(b) and 26(f) call on parties and the courts to address the “timing and 

method of complying with Rule 26(b)(5)(A),” they fail to provide much-needed clarity directing 

the parties and courts that Rule 26(b)(5)(A) does not require a specific method of compliance—

namely, a traditional privilege log—in every case. Just like the failure of the 1993 Note to clarify 

the requirements, the proposed new amendments will likely miss the mark. 

Without this clarification, there is no reason to believe that parties and courts will not

continue to insist on the status quo of traditional privilege logging, thwarting the goal of 

modernizing privilege logging practice. In short, while the proposed amendments add procedural 

requirements that direct parties and courts to address privilege logging as part of the discovery 

plan, they fall far short of correcting the prior misapplication of Rule 26(b)(5)(A) or clarifying 

that the standard for asserting privilege does not require a traditional log. This is especially 

problematic because, even today, courts continue to misinterpret the rule and ignore the 1993 

Advisory Committee Note, insisting instead on document-by-document privilege logging in all 

cases.6

 

5 Fed. R. Civ. P. 26(b)(5) advisory committee’s note to 1993 amendment. The Committee thought that the 

requirement of providing “pertinent” information would “reduce the need for in camera examination of ... 

documents.” Id. 6 See, e.g., Metz Culinary Mgmt., Inc. v. OAS, LLC, 2022 WL 17978793, at *2-3 (M.D. Pa. Dec. 28, 2022) (ordering 

party “to provide a privilege log asserting any of its objections to each request and as applying to each document, 

rather than as a general, blanket assertions” and citing multiple Third Circuit cases for the proposition that “claims 

of privilege ‘must be asserted document by document, rather than as a single, blanket assertion’”) (citations omitted; 

emphasis added).

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B. The proposed amendments are insufficient because the burdens of creating a 

privilege log are not ascertainable at the outset of discovery and often prove to be 

disproportionate to the requested discovery.

Another significant challenge of the current proposed amendments is that parties 

typically are not in a position to fully discuss and negotiate privilege logging issues at the outset 

of the case, as required by the proposed rules. Indeed, Rule 26(f)(1) requires that the parties’ 

discovery conference takes place “as soon as practicable” and in any event at least 21 days 

before a scheduling conference is held or a scheduling order is due under Rule 16(b).

7 At this

early stage of the case, however, parties generally do not have a complete picture of what will be 

required during discovery, including as it relates to privilege logs. For example, producing 

parties will not know their full custodian list, the prevalence of privileged communications in the 

production set, or the complexity of privilege issues that may arise once the review begins. Thus, 

at the time of the Rule 26 and 16 conferences, parties lack critical information about the scope of 

discovery, including privilege, and they will be unable to predict the burden or cost of the 

forthcoming privilege review. 

Given these uncertainties, the proposed amendments may prove to be unworkable in 

many cases. Without “a full appreciation of the factors that bear on proportionality,” producing 

parties will be unable to meaningfully participate in discussions about what is reasonable in 

terms of privilege logging.8 Disputes may therefore arise at the outset before the parties have an 

informed view of what is likely to be proportional discovery requests. Even if the parties are able 

to reach agreement on a privilege protocol at the outset, it may be so generic as to be unhelpful in 

establishing key aspects of the privilege review. Further, unanticipated factors may arise during 

the privilege review that requires—perhaps in the eyes of only one party—changes to the 

privilege protocol in order to maintain proportionality and address undue burdens. At this point, 

discovery disputes are likely to arise. 

If the parties cannot resolve these discovery disputes, the court will step in and consider 

the questions of proportionality and undue burden.9 But the analysis will similarly be difficult for 

the court when the number of privileged documents is unknown and the cost of production is still 

theoretical. Some logs may take “thousands of hours and hundreds of thousands of dollars to

prepare,”10 but it usually will not be apparent that a logging protocol is non-proportional until the 

7 Fed. R. Civ. P. 26(f)(1). 8 Fed. R. Civ. P. 26(b)(1) advisory committee’s note to 2015 amendment. 9 Id. (“But there will be important occasions for judicial management, both when the parties are legitimately unable 

to resolve important differences and when the parties fall short of effective, cooperative management on their 

own.”).

10 Order, Cooper v. IBM Pers. Pension Plan, No. 3:99-cv-829-GPM, at 4 (S.D. Ill. Oct. 31, 2002), ECF No. 139; see 

also CS Bus. Sys., Inc. v. Schar, No. 5:17-cv-86-Oc-PGBPRL, 2017 WL 8948376, at *4 (M.D. Fla. June 15, 2017) 

(permitting categorial privilege log based on defendants’ argument that “creating a privilege log collecting the 

relevant emails ... would be unduly burdensome and expensive—exceeding one-hundred-thousand dollars in costs 

and over four-hundred hours in time ....”).

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parties are nearing the end of a review. Many responding parties encounter unexpectedly large 

numbers of privileged communications in their review universe, exponentially increasing the 

expense and burden of complying with otherwise proportional discovery requests. The proposed 

rule amendments simply do not take into account these challenges of modern e-discovery, 

especially in large, complex cases, and they are likely to prove unworkable in many cases. 

C. The proposed amendments do not address the burdens of asymmetric litigation.

Nor do the proposed amendments to Rules 16(b) and 26(f) account for the fact that 

current privilege logging practice places disproportionate discovery burdens on producing parties 

in asymmetric litigation. Many privilege disputes in civil litigation involve asymmetrical 

litigation, where one party has few, if any, privileged documents and the other party has a large 

number of privileged documents that it must log. Courts have recognized that “asymmetric 

discovery burdens are often the byproduct of asymmetric information.”11 

In class action litigation, for example, plaintiffs often have fewer documents to produce 

and log, while defendants typically have large amounts of ESI and bear most of the privilege log 

burden.12 As the Seventh Circuit has observed, these plaintiffs sometimes “us[e] discovery to 

impose asymmetric costs on defendants in order to force a settlement advantageous to the 

plaintiff[s] regardless of the merits of [their] suit.”13 The burdens of current privilege log practice 

are particularly unjust in this situation, where one party holds the majority of relevant documents 

and the opposing party insists on burdensome privilege log requirements.

In contrast, in large, complex corporate litigations—where both sides possess significant 

volumes of privileged documents—the parties are typically more cooperative and practical in 

their privilege log requests. In those cases, full document-by-document privilege logs are rarely 

used because privilege logs would impose an undue burden on both parties. 

The proposed amendment requiring parties to meet and confer about the method of 

compliance for asserting a privilege claim does not address the realities of asymmetric litigation. 

Under the amended rules, there is no incentive for a party to agree to reasonable privilege 

logging requirements where that party knows the discovery burdens will unevenly fall on his 

opponent who has many more documents to review, produce, and log. In this situation, at best, 

the parties are likely to meet and reach an impasse that requires judicial intervention regarding 

what is a reasonable privilege logging protocol in light of the circumstances of the case. And, at 

worst, one party will be able to leverage the asymmetric privilege log burdens to its strategic 

advantage at the outset of the case, violating the principle of Rule 1 that calls for the just, speedy, 

and inexpensive resolution of every matter. Without proscribing a one-size-fits-all approach to 

privilege logging, the amended rules could provide some general guidelines, along the lines of 

11 McCleary-Evans v. Md. Dep’t of Transp., 780 F.3d 582, 591 (4th Cir. 2015) (Wynn, J., dissenting in part). 12 See, e.g., Babare v. Sigue Corp., No. C20-0894-JCC, 2020 WL 8617424, at *2 (W.D. Wash. Sept. 30, 2020) (“It 

is well-recognized that discovery in class actions is expensive and asymmetric, with defendants bearing most of the 

burdens.”). 

13 Am. Bank v. City of Menasha, 627 F.3d 261, 266 (7th Cir. 2010).

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 14 of 177
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those suggested in my July 2021 letter, that would help parties in asymmetric litigation to level 

the playing field in terms of privilege logging burdens. 

III. The Advisory Committee Notes Encouraging the Production of Rolling Privilege 

Logs are Inconsistent with Modernizing Privilege Logging Practice.

A. Requiring the production of rolling privilege logs is contrary to Rule 1. 

As explained above, despite the tremendous effort and resources required to compile a 

privilege log in large document cases, courts have recognized the relatively minimal benefit it 

confers in return.

14 Moreover, despite the significant time and careful attention required to draft 

individual log lines for each privileged document—which often number in the tens or hundreds 

of thousands—the majority of individual privilege log entries in traditional logs are never

reviewed by the receiving party or its attorneys. It simply is not feasible for attorneys to review 

all (or even most) individual entries on lengthy privilege logs, given the limited time and 

resources available and the high costs of litigation. Rather than alleviate these concerns, the 

proposed Advisory Committee Notes calling for the production of rolling privilege logs will 

magnify them. 

Based on my extensive experience managing large document productions and the 

compilation of privilege logs, providing multiple privilege logs on a rolling basis is an

ineffective and inefficient process that leads to even more needless waste and costs. Because the 

proposed Advisory Committee Notes encourage the use of rolling privilege logs, they are 

contrary to the mandate of Rule 1.

15 Thus, the Committee should remove or modify the proposed 

Advisory Committee Notes on this point. 

The proposed Advisory Committee Note to accompany the proposed amendment to Rule 

26(f)(3)(D) recommends that a producing party provide discovery, including privilege logs, on a 

rolling basis. Specifically, it states: “Often it will be valuable to provide for ‘rolling’ production 

of materials and an accompanying listing of withheld items. In that way, areas of potential 

dispute may be identified and, if the parties cannot resolve them, presented to the court for 

resolution.” (emphasis added). Similarly, the proposed Advisory Committee Note to the 

proposed amendment to Rule 16(b) encourages the use of rolling privilege logs: “It may be 

desirable for the Rule 16(b) order to provide for ‘rolling’ production that may identify possible 

disputes about whether certain withheld materials are indeed protected.”

14 In re Rail Freight Fuel Surcharge Antitrust Litig., No. 07-489(PLF/JMF/AK), 2009 WL 3443563, at *10 (D.D.C. 

Oct. 23, 2009) (“[T]oo often I have found the traditional privilege log useless.”); see also Lurensky v. Wellinghoff, 

271 F.R.D. 345, 355 (D.D.C. 2010) (finding “privilege logs to be on the whole useless”); Marshall v. D.C. Water & 

Sewage Auth., 214 F.R.D. 23, 25 n.4 (D.D.C. 2003) (finding privilege logs are “useless”); Mitchell v. Nat’l R.R. 

Passenger Corp., 208 F.R.D. 455, 461 (D.D.C. 2002) (“While Fed.R.Civ.P. 26(b)(5) requires what lawyers call a 

‘privilege log,’ I have held that such logs are nearly always useless.”). 15 Fed. R. Civ. Proc. 1.

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The Advisory Committee guidance encouraging the provision of rolling privilege logs

will have the opposite of the intended result of streamlining the process; the guidance will lead to

delay, increased costs, and lower quality logs in many large document cases. Foremost, the 

document production process is itself incredibly burdensome, and having to provide privilege 

logs at or near the same time as corresponding document productions will compound those 

burdens, decreasing the quality and accuracy of the privilege log. Resources are not infinite. 

Providing privilege logs on a rolling basis substantially delays the completion of document 

productions to the other side because it pulls resources away from finalizing the document 

production, directing them instead toward the completion of privilege log entries. Similarly, 

attention spent on ensuring the document production is of high quality takes away attention spent 

improving the quality of the privilege log. 

Further, more often than not, rolling log requirements create needless “fire drills” where 

not enough time (or resources) exists to simultaneously provide quality productions and quality 

log entries. Because document productions are more immediate and may be subject to court 

order, the privilege log often suffers between the two. Parties typically care much more about 

receiving documents than receiving a privilege log, and therefore it is more important to the 

efficient management and resolution of cases to prioritize productions over logging. This results 

in privilege logs of inferior quality, which often leads to disputes (including motion practice 

requiring court attention) where the receiving party objects to various log entries. 

 Second, privilege logs that are produced on a rolling basis often must be corrected and 

reproduced later in the process based on newly discovered information from subsequent 

document review that sheds light on the privilege claim. For example, the question of whether an 

individual copied on a communication is a third-party recipient who breaks privilege may not be 

clear from review of a single document, but subsequent review of additional documents may 

assist lawyers in making the correct privilege determination in the first instance. As another 

example, an email discussion that may, at first glance, seem legal in nature may actually be about 

a business issue that becomes apparent only when the document review is far enough along to 

put certain conversations into context. In these instances, and many others, parties may overwithhold because they cannot engage in sufficient due diligence about these issues when 

juggling the production and the log. Having to correct and redo prior logs (and make 

supplemental productions from documents in the previous log population) is extremely 

inefficient and costly. 

Finally, rolling logs increase the risk that privileged communications will be 

inadvertently produced because parties are unable to complete sufficient quality control in favor 

of preparing productions and logs simultaneously. Because many litigations proceed without a 

Rule 502(d) order in place, the proposed rule will lead to needless sideshows on whether the 

producing party took reasonable steps to prevent the disclosure of privileged information. This 

will further delay the resolution of the matter on the merits, in violation of Rule 1. 

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In contrast, it is far more efficient, from both a time and cost perspective, to compile the 

privilege log after the majority of documents have been reviewed and the reviewing lawyers are 

most familiar with the relevant facts, issues, and players involved. Completion of one or more 

privilege logs towards the end of the production process saves the producing party from wasting 

time and money. It also will result in a higher-quality privilege log—one that is based on a more 

comprehensive understanding of the case and therefore contains the most accurate information 

possible. Without the burden of simultaneously producing documents, parties can devote 

dedicated resources to improve the quality of the log. As discussed above, compiling privilege 

logs later in the litigation also reduces the risk of clawbacks. 

B. The Advisory Committee should consider alternatives to recommending rolling 

privilege logs.

The proposed Advisory Committee Notes present a risk that parties or courts will point to

the guidance on rolling privilege logs as a basis for arguing that the production of rolling logs is 

required in every case, even where the circumstances make rolling logs unduly burdensome or 

impractical. In light of the significant inefficiencies and burdens of rolling logs, as explained 

above, the Committee should modify the Advisory Committee Notes to reflect principles that 

will better address the need to reduce burdens, achieve proportionality, and provide flexibility in 

modern privilege logging practice. 

One possible modification may be to substitute the word “rolling” with “tiered” or 

“staged” in the comments, as it relates both to the production of documents and accompanying 

privilege logs. This modification would align with the Advisory Committee’s desire to prioritize 

the production and logging of documents that are most likely to contain information that is 

material to the issues in the case. Thus, the Advisory Committee Notes could encourage an 

agreement or court order that prioritizes production and logging for certain priority documents

(e.g., tier 1 / stage 1 documents) so that any potential disputes related to such claims could be 

resolved as early as possible in the discovery process. Moreover, the tiered approach would not 

only allow for early resolution of disputes, but would generally give the court an opportunity to 

provide early guidance to the parties on the issues and documents likely to be most relevant to 

the case.

In addition to encouraging a tiered approach, there are two general principles that have 

been embraced in other areas of modern e-discovery that would be equally applicable and 

beneficial in the context of privilege logging guidance and would be an alternative to suggesting 

that parties should provide rolling logs. First, the Committee should embrace Sedona Principle 6, 

which states: “Responding parties are best situated to evaluate the procedures, methodologies, 

and technologies appropriate for preserving and producing their own electronically stored 

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information.”16 Numerous courts have cited Sedona Principle 6 for the proposition that 

responding parties should have relative autonomy in the procedures, methodologies, and 

technologies appropriate for producing documents.17 This principle logically extends to privilege 

logging since the production of documents necessarily includes the decision to withhold 

documents deemed privileged and to defend that privilege claim. Thus, Sedona Principle 6, 

which affords deference to the producing party to determine the best method for complying with 

production requirements, should apply equally to privilege logging practice. In other words, 

courts should recognize that the withholding party is in the best position to determine how to 

establish its claim of privilege and should have the flexibility to decide what type of log is best 

suited to meet the needs of the case. 

Second, and relatedly, the Committee should adopt rules and standards that focus on 

whether the party claiming privilege engaged in a reasonable and defensible process for logging 

privileged documents, and not whether every individual document on a log with hundreds of 

thousands of entries has been perfectly logged. The standard in modern e-discovery is 

reasonableness, not perfection.18 Indeed, there are several examples within the Federal Rules that 

16 Sedona Conf., The Sedona Principles, Third Edition: Best Practices, Recommendations & Principles for 

Addressing Electronic Document Production, 19 Sedona Conf. J. 1, 118 (2018), 

https://thesedonaconference.org/sites/default/files/publications/The%20Sedona%20Principles%20Third%20Edition.

19TSCJ1.pdf. 

17 See, e.g., Hyles v. New York City, 10 Civ. 3119 (AT)(AJP), 2016 WL 4077114, at *3 (S.D.N.Y. Aug. 1, 2016) 

(citing Sedona Principle 6 when declining to “force the City as the responding party to use TAR when it prefers to 

use keyword searching”); Nichols v. Noom Inc., No. 20-CV-3677 (LGS) (KHP), 2021 WL 948646, at *2 (S.D.N.Y. 

Mar. 11, 2021) (stating that a responding party “could use its preferred software to collect email documents, finding 

that method reasonable and deferring to the principle that a producing party is best situated to determine its own 

search and collection methods so long as they are reasonable”); see also Kleppinger v. Tex. Dep’t of Transp., No. L10-124, 2013 WL 12137773, at *3 (S.D. Tex. Jan. 24, 2013) (“Rule 26 provides very little guidance on discovery of 

ESI, and courts have used the ESI discovery principles published by the Sedona Conference as a guide in resolving 

ESI discovery disputes.”).

18 See, e.g., Malone v. Kantner Ingredients, Inc., No. 4:12CV3190, 2015 WL 1470334, at *3 (D. Neb. Mar. 31, 

2015) (“The discovery standard is, after all, reasonableness, not perfection.” (quoting Sedona Conf., The Sedona 

Conference Best Practices Commentary on the Use of Search and Information Retrieval Methods in E-Discovery, 8 

Sedona Conf. J. 189, 204 (2007))); Da Silva Moore, 287 F.R.D. at 191 (“[T]he Federal Rules of Civil Procedure do 

not require perfection.”). See also Sedona Conf., The Sedona Conference Commentary on Defense of Process: 

Principles and Guidelines for Developing and Implementing a Sound E-Discovery Process, at 5 (Sept. 2016 Public 

Comment Version), 

https://thesedonaconference.org/sites/default/files/publications/The%2520Sedona%2520Conference%2520Commen

tary%2520on%2520Defense%2520of%2520Process_Public%2520Comment%2520Version_Sept%25202016.pdf 

(Principle 1) (“An e-discovery process is not required to be perfect, or even the best available, but it should be 

reasonable under the circumstances.”); Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., 

LLC, 685 F. Supp. 2d 456, 461 (S.D.N.Y. 2010) (“In an era where vast amounts of electronic information is 

available for review, discovery in certain cases has become increasingly complex and expensive. Courts cannot and 

do not expect that any party can meet a standard of perfection.”), abrogated in part on other grounds by Chin v. Port 

Auth. of N.Y. & N.J., 685 F.3d 135 (2d Cir. 2012).

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illustrate this principle.19 Moreover, courts have repeatedly explained in the context of ediscovery that perfection is not attainable and not required: “Courts cannot and do not expect that 

any party can meet a standard of perfection.”20 

Despite the overwhelming consensus that perfection in e-discovery is not the standard, 

some courts continue to impose an incredibly high burden on parties and require a standard akin 

to perfection in the logging process. Bringing privilege logging practice in line with modern 

principles of e-discovery, the Committee should adopt the same reasonableness standard in the 

context of privilege logs that applies to the discovery process generally. There is no basis for 

holding privilege logging to a higher (and unachievable) standard than other aspects of modern 

e-discovery. 

Sincerely,

 Robert D. Keeling

Partner

19 E.g., Fed. R. Civ. P. 26(g)(1) (requiring that certification of discovery responses be informed by “a reasonable 

inquiry”). 

20 Firefighters’ Ret. Sys. v. Citco Grp. Ltd., No. 13-373-SDD-EWD, 2018 WL 276941, at *6 (M.D. La. Jan. 3, 2018) 

(alteration omitted) (quoting Enslin v. Coca-Cola Co., No. 2:14-cv-06476, 2016 WL 7042206, at *3 (E.D. Pa. June 

8, 2016)) (denying motion to compel production where defendants’ efforts were reasonable).

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My name is Doug McNamara, and I am a plaintiffs-side attorney specializing in consumer 

class actions in products cases, data breaches, and environmental litigation.1

 I have served various 

leadership roles in multidistrict litigations on the plaintiffs’ side. Before that, I was public defender 

in Brooklyn, and then spent a few years defending pharmaceutical companies while at Arnold & 

Porter. I have also taught as an adjunct at George Washington University School of Law on 

environmental and toxic torts. 

I support the proposed amendments to Rules 16 and 26 because they will aid the courts and 

parties to address privileged claims surrounding documents. The new language will focus the 

parties and court to resolve the timing of the production of logs and the method of the log format 

at the beginning of a case, hopefully avoiding unnecessary delays and costs associated with late 

production of inadequate logs or belatedly discovered over-withholding of documents as 

privileged. 

Changes to Rule 16 and 26 – the Benefits of Early Discussion of Logs and Their Production 

First, timing. The sooner is better. It is very common that producing parties sit on producing 

a privilege log until “substantial completion” of documents which may be right before the end of 

fact discovery. This is consistent with how document productions often go, with junior lawyers or 

contract attorneys – who may not know what a legitimate claim for attorney client privilege or 

work product is – making the first cuts. By the time senior counsel review the logs, depositions 

may have already been taken. Then with the log, deprivileged documents are produced, and 

redepositions may be needed, adding additional time and expense to the litigation. 

This was my experience recently in In re Marriott International Customer Data Sec. Breach 

Litig., MDL No., 19-md-2870, where the parties have been aided by retired Magistrate Judge John 

Facciola2 as a Special Master. The parties met and conferred on categorical logging for months 

but could not agree on the scope and descriptions. Special Master Facciola suggested the parties 

just proceed with traditional logging. Then between March and July of 2021—supposedly after

the bulk of documents had been produced and several depositions had already been taken—

Marriott produced over 13,000 “de-privileged” documents. The documents included incident 

timelines, risk assessments, and nonlawyer emails that Plaintiffs relied on in their recently filed 

class certification brief. These documents would have likely remained unproduced, having fallen 

within the broad categories suggested for logging. The late production necessitated creativity 

between the parties through interrogatories or 30(b)(6) depositions, to avoid re-deposing key 

witnesses. Earlier direction from the Court on the log format and timing of its production would 

have avoided this. 

Committee Note on Log Formats – Categorical Logs Exacerbate Over-Withholding 

Secondly, I would like to discuss the Committee’s note on log formatting. My experience 

1

 My full bio is at https://www.cohenmilstein.com/professional/douglas-j-mcnamara. 

2

 Judge Facciola has written on the topic of categorical logging. John M. Facciola & Jonathan M. 

Redgrave, Asserting and Challenging Privilege Claims in Modern Litigation: The FacciolaRedgrave Framework, 4 Fed. Cts. Rev. 19 (2009). 

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2 

with categorial logging is categorically bad. The reasons are two-fold: first, producing parties 

tend to over-designate documents as privileged, and second, categorical logs make it harder to 

catch such over-designation. 

Over-designation or over-withholding of documents has long been a problem. That was 

my experience as a junior associate at a defense firm in the 1990s, reviewing documents for my 

pharmaceutical client for relevance and privilege. No one wanted to be the lawyer who gave 

plaintiffs a really hot document. So, you put in the “maybe privileged” pile as instructed for now 

until someone more senior eventually made the decision or came up with a basis to withhold it. 

Though I have changed since then, the eternal worries of junior lawyers have not. In 

February of this year, Judge Chhabria in the Northern District of California considered a sanctions 

motion against Facebook and Gibson Dunn in the Cambridge Analytica case. Facebook and 

Gibson Dunn produced a 180,000 document log. After a 3,062 document sampling was reviewed, 

Gibson de-privileged 63% of the docs.3 In re Facebook, Inc. Consumer Priv. User Profile Litig., 

No. 18-MD-02843-VC, 2023 WL 1871107, at *19 (N.D. Cal. Feb. 9, 2023). 

At the sanctions hearing, Gibson admitted to rampant over-withholding of documents as 

privileged for the same reasons 25-year-old Doug McNamara flagged hot docs to withhold: 

Second, Gibson Dunn designated a massive number of documents as privileged, 

even though for many of them it’s difficult to imagine any conceivable argument 

in support of that assertion. Gibson Dunn’s only response is that nervous 

associates over-designated the documents to avoid waiving privilege. But 

Gibson Dunn has an obligation to ensure that even its nervous associates follow the 

law. 

Id. at *27 (emphasis added). 

Categorical logging cannot correct over-withholding and can only exacerbate it. To 

simplify things, privilege claims4 can boil down to four questions and five scenarios: 

 

3 In re Facebook, Inc. Consumer Priv. User Profile Litig., No. 18-MD-02843-VC, 2023 WL 

1871107, at *19 (N.D. Cal. Feb. 9, 2023). 

4

 For attorney client privilege, the producing party must show: “(1) the asserted holder of the 

privilege is or sought to become a client; (2) the person to whom the communication was made (a) 

is a member of the bar of a court, or subordinate and (b) in connection with this communication is 

acting as a lawyer; (3) the communication relates to a fact of which the attorney was informed (a) 

by his client (b) without the presence of strangers (c) for the purpose of securing primarily either 

(i) an opinion on law or (ii) legal services or (iii) assistance in some legal proceeding, and not (d) 

for the purpose of committing a crime or tort; and (4) the privilege has been (a) claimed and (b) 

not waived by the client.” United States v. Jones, 696 F.2d 1069, 1072 (4th Cir. 1982). 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 22 of 177
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Questions as to 

Privilege 

Likely Result 

1. Who sent the 

document? 

2. Who got the 

document? 

3. When was it sent? 

4. What was in it? 

1. Not written by a lawyer, probably not legal advice.5

2. Sent to many non-lawyers, probably business 

advice; 6

 Sent outside the company, unlikely meant to 

be confidential or privilege is waived.7

3. Created well before a case was filed, probably not 

done in anticipation of litigation.8

4. Recapitulating underlying facts, probably not work 

product.9

With categorical logging, who sent it, who received it, what was it and when is often 

reduced to generic buckets like, “communications between client and outside counsel” with an 

appendix that may list who is included. Lumping documents together by category complicates or 

prevents an opposing party from to competently assessing the legitimacy of an asserted privilege, 

5 Neuder v. Battelle Pac. Nw. Nat’l Lab., 194 F.R.D. 289, 295 (D.D.C. 2000) (“[D]ocuments 

prepared by non-attorneys and addressed to non-attorneys with copies routed to counsel are 

generally not privileged since they are not communications made primarily for legal advice.”). 

6 Compare Wengui v. Clark Hill, PLC, 338 F.R.D. 7, 10-11 (D.D.C. 2021) (finding forensic report 

created for remediation discoverable as primary purpose not litigation advice), with In Re Experian 

Data Breach Litig., No. 15-01592-AG, 2017 WL 4325583, at *3 (C.D. Cal. May 18, 2017) 

(shielding third-party forensic report commissioned by outside counsel where it was only shared 

with legal team and not with entire incident response team). 

7 See, e.g., In re Columbia/HCA Healthcare Corp. Billing Practices Litig., 293 F.3d 289, 304, 306 

(6th Cir. 2002) (finding a party’s voluntary disclosure of protected documents to the federal 

government, even under a confidentiality agreement, constituted a complete waiver of privilege); 

In re Premera Data Breach Litig., 329 F.R.D. 656, 662–66 (D. Or. 2019) (finding draft documents 

regarding customer notification, press, and timelines for remediation distributed among company 

employees or to third-party vendors for general discussion, with an attorney merely copied were 

not privileged). 

8 Hertzberg v. Veneman, 273 F. Supp.2d 67, 75 (D.D.C. 2003) (“While litigation need not be 

imminent or certain in order to satisfy the anticipation-of-litigation prong of the test, this circuit 

has held that at the very least some articulable claim, likely to lead to litigation, must have arisen, 

such that litigation was fairly foreseeable at the time the materials were prepared.” (internal 

quotations omitted)); In re Dominion Dental Services USA, Inc. Data Breach Litigation, 429 F. 

Supp. 3d 190, 194 (E.D. Va. 2019) (finding the fact that a report was done by third-party vendor 

with pre-breach obligation to conduct such forensic reports contradicted claims it should be 

shielded by the attorney work product doctrine). 

9

 “The privilege only protects disclosure of communications; it does not protect disclosure of the 

underlying facts by those who communicated with the attorney[.]” Upjohn Co. v. United States,

449 U.S. 383, 395 (1981). 

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4 

giving the producing party a massive adversarial advantage.10 Further, if privilege designations are 

challenged, a producing party may end up belatedly creating a document-by-document log anyway 

so the court may assess the propriety of the asserted privilege.11 Thus any supposed efficiency is 

lost. For example, while the Southern District of New York includes categorical logging as a 

presumptively permissible option in its Local Rule 26.2,12 there are many decisions finding in 

practice such logs are inadequate.13

Some corporate defendants bemoan the costs associated with a document-by-document 

log. These concerns are overblown. First, technology assisted review can easily capture the 

metadata of authors, recipients, and dates or communications to help with log creation. This data 

10 2 Paul R. Rice et al., Attorney-Client Privilege in the U.S. § 11:8 (2022) (noting “categorical 

privilege logs have been accepted only in the limited circumstances that such a format can provide 

sufficient information for a party to determine that the communications would be privileged, as 

required by Rule 26(b)(5)”). 

11 NLRB v. Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir. 2011) (“Because Interbake has not 

presented a document-by-document privilege analysis of the reply e-mails or offered a specific 

reason why the e-mail string should be treated as a group, we conclude that the district court must 

assess the privilege claim with respect to each e-mail in the string to determine whether Interbake 

has carried its burden.” (citations omitted)). 

12 Local Civil Rule for the U.S. District Courts for the Southern and Eastern Districts of New York 

26.2(a)(2)(A) permits the parties to agree to exchange categorical privilege logs, which group like 

documents into categories, instead of listing each document individually. U.S.Dist.Ct. Rules 

S.&E.D.N.Y., Civ. R. 26.2(a)(2)(A). It explains that such information includes: 

(i) the type of document, e.g., letter or memorandum; 

(ii) the general subject matter of the document; 

(iii) the date of the document; and 

(iv) the author of the document, the addressees of the document, and any other 

recipients, and, where not apparent, the relationship of the author, addressees, and 

recipients to each other[.] 

Id. 13 See, e.g., Aviles v. S&P Glob., Inc., 583 F. Supp. 3d 499, 504 (S.D.N.Y. 2022) (rejecting a 

categorical log for grouping documents with date ranges exceeding six months and the failing to 

identify the roles of non-attorney individuals); U.S. Bank Nat’l Ass’n v. Triaxx Asset Mgmt. LLC,

18-cv-4044 (BCM), 2021 WL 1968325, at *4 (S.D.N.Y. Mar. 31, 2021) (noting local rule permits 

categorical logging – which parties agreed to – but finding log’s categorical descriptions vague 

and repetitive and the categories prevented the receiving parties from any evaluation of the asserted 

privilege); Auto. Club of New York, Inc. v. Port Auth. of New York & New Jersey, 297 F.R.D. 55, 

63-64 (S.D.N.Y. 2013) (requiring a categorical log to be supplemented to provide lists of the 

authors and recipients of documents, or exemplars of such, and the number of documents in each 

category); Deutsche Bank Sec. Inc. v. Kingate Glob. Fund Ltd., No. 19-cv10823 (ER), 2022 WL 

3644822, at *8 (S.D.N.Y. Aug. 24, 2022) (rejecting categorical log that grouped the 

communications of 11 lawyers and 7 nonlawyers over a nine-year period into three broad 

categories and included no titles or roles of non-lawyers). 

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5 

can then be converted from CSV files into spreadsheets and exported.14 Second, the Federal Rules 

of Evidence 502(d) already precludes inadvertent waiver as risk to a producing party, and 

producing parties can clawback privileged documents. 

The Committee Should Consider Giving Examples in its Note for Adequate Logs 

Finally, if the Committee is considering revisions to the Committee Note, I suggest giving 

examples of competent logs. Very often there is a needless exchange of vituperative emails about 

the adequacy of the log, or even sanctions for failing to contain necessary information.15 A 

privilege log “must set forth specific facts which, taken as true, establish the elements of the 

privilege for each document for which privilege is claimed. A privilege log meets this standard, 

even if not detailed, if it identifies ‘the nature of each document, the date of its transmission or 

creation, the author and recipients, the subject, and the privilege asserted.’”16 The Committee could 

consider quoting from former federal judge Paul Grimm: 

To properly demonstrate that a privilege exists, the privilege log should contain a 

brief description or summary of the contents of the document, the date the 

document was prepared, the person or persons who prepared the document, the 

person to whom the document was directed, or for whom the document was 

prepared, the purpose in preparing the document, the privilege or privileges 

asserted with respect to the document, and how each element of the privilege is 

met for that document.17

Judge Waxse also gave a useful template for a privilege log.18 He wrote for a documentby-document log, the log should provide: “1. A description of the document (e.g., correspondence, 

memorandum); 2. Date prepared; 3. Date of document (if different from # 2); 4. Identity of the 

person(s) who prepared the document [and their role] ... 5. Identity of the person(s) for whom the 

document was prepared and to whom the document was directed (including all copies), including 

14 See, e.g., Everlaw, Creating Privilege Logs, 

https://youtu.be/oHrvFUAQUoM?si=A3pLULuwFEweVot7 (last accessed Sept. 22, 2023). 

15 See, e.g., RG Abrams Ins. v. L. Offs. of C.R. Abrams, 342 F.R.D. 461, 496-97, 501 (C.D. Cal. 

2022) (sanctioning defendant for logs that repeatedly failed to include information needed to assess 

the assertion including document type, date, subject matter); Johnson v. Ford Motor Co., 309 

F.R.D. 226, 235 (S.D.W. Va. 2015) (denying sanction of waiver of privilege, but ordering Ford to 

supplement its log within 10 days with more detailed descriptions of the withheld documents so 

the parties could evaluate the asserted claims, and awarding fees and expenses); Williams v. Taser 

Int'l, Inc., 274 F.R.D. 694, 697-98 (N.D. Ga. 2008) (awarding sanction of waiver of all privilege 

claims where, after two years, Taser had failed to provide an adequate log identifying who sent or 

received the logged documents, information about its actual contents, and only withdrew privilege 

assertions or provided additional information after multiple motions). 

16 Clark v. Unum Life Ins. Co. of Am., 799 F.Supp.2d 527, 536 (D. Md. 2011) (quoting N.L.R.B. v. 

Interbake Foods, LLC, 637 F.3d 492, 502 (4th Cir.2011)) (citation and footnote omitted). 

17 Paul W. Grimm, Charles S. Fax, & Paul Mark Sandler, Discovery Problems and Their Solutions,

62 (2005). 

18 Hill v. McHenry, No. CIV.A. 99-2026-CM, 2002 WL 598331, at *2–3 (D. Kan. Apr. 10, 2002). 

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6 

information sufficient to allow the Court to determine whether the document is a communication 

to the client; 6. Purpose of preparing the document; 7. Number of pages of the document; 8. Basis 

for withholding discovery of the document, i.e., the specific privilege or protection being asserted; 

and 9. Any other pertinent information necessary to establish the elements of each asserted 

privilege.” 

Considering the above, I suggest the following edit to the Draft Committee Note (page 108 

of 157): 

In some cases, it may be suitable to have the producing party deliver 

a document-by-document listing with explanations of the grounds for 

withholding the listed materials. privilege log. Courts have found as 

adequate privilege logs that provide a brief description or summary of the 

contents of the document; the number of pages and type of document; the 

date the document was prepared; who prepared and received the documents; 

the purpose in preparing the document; and the specific basis for 

withholding the document. See, e.g., Paul W. Grimm, Charles S. Fax, & 

Paul Mark Sandler, Discovery Problems and Their Solutions, 62–64 (2005); 

Hill v. McHenry, No. CIV.A. 99-2026-CM, 2002 WL 598331, at *2–3 (D. 

Kan. Apr. 10, 2002). 

Thank you for this opportunity to be heard on this important matter, and I am happy to 

answer any questions. 

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TAB 3 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 27 of 177
A T T O R N E Y S & C O U N S E L O R S A T L A W 

38505 Woodward Ave., Suite 100 • Bloomfield Hills, MI 48304 • T: (248) 901-4000 • F: (248) 901-4040 • plunkettcooney.com 

TESTIMONY OF MARY MASSARON 

TO THE 

ADVISORY COMMITTEE ON CIVIL RULES 

October 5, 2023 

Mary Massaron submits this written testimony to the Advisory Committee on Civil Rules in 

response to the Judicial Conference Committee on Rules of Practice and Procedure’s 

Request for Comments on the proposed new Rule 16.1. 

As an appellate lawyer with an abiding faith in the importance of the judiciary and civil 

justice system to our democracy, I offer some thoughts about the need for rules to govern 

multi-district litigation and a critique of the current proposal. 

The Federal Rules of Civil Procedure have formed the underpinnings to a civil litigation 

system that has been the envy of the world. Since the rules were first adopted in 1937, they 

have governed civil litigation in the district courts of the United States. They have provided 

parties to litigation with an understanding in advance of what will and won’t be allowed, of 

how the litigation will advance to a judgment, and of the procedural vehicles for trying to 

prevail on the claims at issue. Ad hoc decision-making is the antithesis of a rules-based 

system. A recognition that judges need “discretion” does not justify the lack of governing 

rules. The federal rules were initially adopted to provide for uniform procedure and to end 

the “chaotic and complicated condition” caused by the lack of rules. Burbank, Stephen B., 

The Rules Enabling Act of 1934 (1982), 

http://scholarship.law.upenn.edu/faculty_scholarship/1396. The idea was to make 

litigation move more quickly, to allow for a reduction in expense, and to ensure that artifice 

and technicalities would not be used to deprive litigants of a just result. Id. 

While this may seem so basic as not to deserve saying, I repeat it here because it is crucial 

to the fundamental fairness that is a hallmark of the American judicial system. I believe the 

lack of rules in multidistrict litigation imperils this system. “In a democracy, citizens and 

litigants must have confidence in the rule of law, which requires that a judge’s decisions 

must not be – and must not seem to be – arbitrary, based on personal preferences, or 

unbounded.” Rupert Cross, Precedent in English Law 14 (1968). Under the rule of law, the 

judiciary must provide a “system characterized by fidelity to rules of principled 

predictability derived from valid authority external to individual government decision 

makers.” Ronald A. Cass, The Rule of Law in America, pp 4-22 (2001). 

When Congress enacted 28 U.S.C. §1407 to provide for multidistrict litigation, it sought to 

allow coordinated pretrial proceedings to enhance the “convenience of the parties and 

witnesses” and to “promote the just and efficient conduct of such actions.” Id. It sought to 

ensure that the multidistrict litigation was not slowed by appeal, limiting review of the 

orders of the judicial panel that would decide whether cases would be transferred to be 

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A T T O R N E Y S & C O U N S E L O R S A T L A W 

38505 Woodward Ave., Suite 100 • Bloomfield Hills, MI 48304 • T: (248) 901-4000 • F: (248) 901-4040 • plunkettcooney.com 

part of coordinated or consolidated pretrial proceedings. Review could be had only by 

extraordinary writ under 28 U.S.C. §1651. 

But in my work as an appellate lawyer, I have seen all too often that judges (like all people) 

make decisions that are sometimes wrong as a matter of fundamental fairness. And in 

many areas in which the rules normally guide litigation, courts have issued decisions in 

multidistrict litigation that departs from the federal rules or that deprives parties of the 

benefits of those rules. We have seen these problems in the obligation to discern whether a 

plaintiff has a good-faith basis to bring a claim, in the defendant’s ability to seek a speedy 

and inexpensive end to the suit by filing an early motion to dismiss or for summary 

judgment, in excessive discovery that extends beyond what the rules permit, and in other 

areas. 

In circumstances in which the litigation goes awry, the current system depends on the 

parties succeeding with an extraordinary writ and on the appellate courts stepping in to 

correct the error. In egregious instances, they sometimes do. See, e.g., In re National 

Prescription Opiate Litigation, No. 20-3075, 956 F.3d 838 (6th Cir. 2020). 

But using the appellate courts as a backstop for failings created by the lack of rules is not a 

sound solution. Rather, rules need to be enacted that assure that the basic parameters of 

litigation under the purview of multidistrict litigation are clear and enforceable. I will focus 

on these principles and some problems with the proposed rule during my presentation at 

the hearing on October 16, 2023. 

Sincerely, 

PLUNKETT COONEY 

MARY MASSARON 

Direct Dial (313) 983-4801 

mmassaron@plunkettcooney.com

MM/slp 

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1

COMMENT

to the

ADVISORY COMMITTEE ON CIVIL RULES

A RULE, NOT AN EXCEPTION: HOW THE PRELIMINARY DRAFT OF RULE 16.1 

SHOULD BE MODIFIED TO PROVIDE RULES RATHER THAN PRACTICE ADVICE 

AND TO AVOID THE CONFUSION OF ENSHRINING PRACTICES INTO THE FRCP 

THAT ARE INCONSISTENT WITH EXISTING RULES AND OTHER LAW

September 18, 2023

Lawyers for Civil Justice (“LCJ”)1 respectfully submits this Comment to the Advisory 

Committee on Civil Rules (the “Committee”) in response to the Judicial Conference Committee 

on Rules of Practice and Procedure’s Request for Comments on the proposed new Rule 16.1 (the 

“Preliminary Draft”).

2

 

INTRODUCTION

The Preliminary Draft of Rule 16.1 for multidistrict litigation proceedings (“MDLs”) is unusual 

in three important respects. First, unlike other provisions of the Federal Rules of Civil Procedure 

(“FRCP”), the Preliminary Draft contains no requirements; to call it a “rule” is aspirational.

3

Second, the proposed accompanying committee note (“Draft Note”) does not explain why the 

1 Lawyers for Civil Justice (“LCJ”) is a national coalition of corporations, law firms, and defense trial lawyer 

organizations that promotes excellence and fairness in the civil justice system to secure the just, speedy, and 

inexpensive determination of civil cases. For over 36 years, LCJ has been closely engaged in reforming federal 

procedural rules in order to: (1) promote balance and fairness in the civil justice system; (2) reduce costs and 

burdens associated with litigation; and (3) advance predictability and efficiency in litigation.

2 Preliminary Draft, Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, and Civil Procedure

(Aug. 2023), https://www.uscourts.gov/sites/default/files/2023_preliminary_draft_final_0.pdf.

3 Draft Minutes, Civil Rules Advisory Committee, March 28, 2023, Agenda Book, Committee on Rules of Practice 

and Procedure, June 6, 2023, at 855 (“In a sense, the rule offers the judge a ‘cafeteria plan’ to direct counsel to 

provide needed input up front without constricting the judges flexibility....”); January 2023 Standing Committee 

Meeting Minutes, Agenda Book, Committee on Rules of Practice and Procedure, June 6, 2023, at 37 (“The draft rule 

is designed to maintain flexibility.”).

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Committee is proposing an FRCP amendment in the manner envisioned by the Rules Enabling 

Act4 and in accordance with the Committee’s custom,5 but merely offers advice and options to 

judges.

6 Third, the Preliminary Draft and Draft Note include topics that are not suitable for 

FRCP rulemaking because they are either unsettled matters of law or disallowed by (or in serious 

tension with) existing FRCP provisions. 

If the shibboleth that “there’s no one-size-fits-all” is steering the Committee to eschew a bona 

fide rule or any genuine structure in a Rule 16.1, then the Committee should re-think this 

presupposition. The FRCP govern “all civil actions and proceedings in the United States district 

courts,”7 and the Committee’s fundamental responsibility is to maintain and update the rules to 

serve this purpose. No one could doubt that MDLs are included within “all civil actions and 

proceedings,” and that MDLs already have rules.8 The problem—the reason the Committee’s 

work on this topic is so needed and important—is that some FRCP provisions are not working to 

provide reasonable guidance in MDLs as they do in all other proceedings. As a consequence, 

MDLs suffer from too little structure, predictability, and uniformity.

9

 The most serious problems 

in MDLs result from ad hoc practices invented to fill gaps in the FRCP, not from overly stringent

procedural rules.

10 The FRCP have never fastened a straightjacket on district court judges’ 

4 28 U.S.C. § 2073(d) (“the body making that recommendation shall provide a proposed rule, an explanatory note on 

the rule, and a written report explaining the body’s action, including any minority or other separate views”).

5 See section I.C., below.

6 Draft Minutes, Civil Rules Advisory Committee, March 28, 2023, Agenda Book, Committee on Rules of Practice 

and Procedure, June 6, 2023, at 855 (“The basic concept is to give the transferee judge a set of prompts....”).

7 FED. R. CIV. P. 1.

8 In re National Prescription Opiate Litigation, No. 20-3075, 956 F.3d 838, 844 (6th Cir. 2020) (“MDLs are not 

some kind of judicial border country, where the rules are few and the law rarely makes an appearance. For neither 

§1407 nor Rule 1 remotely suggests that, whereas the Rules are law in individual cases, they are merely hortatory in 

MDL ones.”).

9 The 1926 Senate Judiciary Committee Report on the Rules Enabling Act stated the following reasons for the need 

for federal rules governing civil procedure:

First, to make uniform throughout the United States the forms of process, writs, pleadings, and motions and 

the practice and procedure in the district courts in actions at law. It is believed that if this were its only 

advantage that lawyers and litigants would find, in uniformity alone, a tremendous advance over the present 

system.

Second, these general rules, if wisely made, would be a long step toward simplicity, a most desirable step 

in view of the chaotic and complicated condition which now exists. 

Third, it would tend toward the speedier and more intelligent disposition of the issues presented in law 

actions and toward a reduction in the expense of litigation. 

Fourth, it would make it more certain that if a plaintiff has a cause of action he would not be turned out of 

court upon a technicality and without a trial upon the very merits of the case; and, likewise, if the defendant 

had a just defense he would not be denied by any artifice of the opportunity to present it.

Burbank, Stephen B., The Rules Enabling Act of 1934 (1982),

http://scholarship.law.upenn.edu/faculty_scholarship/1396.

10 The work of the first Advisory Committee provides useful insight about the Committee’s work on proposed Rule 

16.1. A major focus of the original drafting enterprise was to fix the problem that parties and lawyers did not know 

what procedures would govern a case until the judge told them how things ran in that particular courtroom. Only 

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discretion, and neither will the new provision for early MDL management even if the Committee 

revamps it into a rule.

The concept underpinning the Preliminary Draft is that “a rule could assist the transferee court in 

addressing a variety of matters that often proved important in MDL proceedings.”11 This 

explains why the Preliminary Draft is fashioned as a list of topics that might be important for a 

newly appointed MDL judge to consider and obtain counsels’ views on early in the proceeding.

Although this concept holds merit, its breadth is a temptation to veer away from rules of practice 

and procedure and instead take the FRCP into a novel venture of providing practice options, a

prospect that is concerning to Committee members.12 The tension is this: Not every topic that 

comes up in court is appropriate for incorporation into the FRCP. Rule amendments are justified

when a “rules problem” exists and an amendment will help solve it without causing 

countervailing negative consequences. When a particular technique—even if commonplace in 

MDL practice—is not appropriate to be a rule, then it should not be incorporated into the FRCP.

An FRCP amendment providing guidance about MDL management is greatly needed. However, 

the Preliminary Draft and Draft Note should be revised to provide rules guidance to ensure claim 

sufficiency and to remove the subsections that could do more harm than good by enshrining into 

“repeat players”—the lawyers who routinely appeared in front of the assigned district judge—could know what 

pleadings, motions, and discovery devices would be allowed. The effect was confusion, complexity, delay, and 

injustice. To solve these problems, the first Advisory Committee drafted rules (and inspired future rules 

amendments) that provide clear guidance on procedures, including rules that:

• Specify what pleadings are allowed (Rule 7);

• Prescribe the standards for pleadings (Rules 8, 9, 10, and 11);

• Allow dismissal of pleadings that do not meet the rules’ standards (Rule 12);

• Define the permissible discovery devices (Rules 26 through 36); and

• Delineate how discovery obligations are enforced (Rule 37).

This precedent is directly analogous to the Committee’s effort to provide guidance about the procedural needs of 

today’s MDLs, which resemble pre-1938 practices in material ways.

11 Agenda Book, Advisory Committee on Civil Rules, March 28, 2023, at 111. 

12 Draft Minutes, Civil Rules Advisory Committee, March 28, 2023, Agenda Book, Committee on Rules of Practice 

and Procedure, June 6, 2023, at 858-60:

A judge on the full Committee warned of “mission creep.” This is not really a rule; there is only one “must” 

in it. This proposal seems almost entirely to be a best practices guidance document. And beyond that, it seems 

that the idea is that the Note is equally as important as the rule. That seems backward; the Note ought only 

provide commentary, and is not of equal dignity. Courts have to follow rules; they do not have to follow 

Notes. 

Another Committee member agreed. This is really a “best practice” guide. It is not giving new authority or 

commanding judges to do anything....

A consultant noted that the proper role of the Note raises jurisprudential issues. For one thing, one must be 

careful about giving advice in a Note, in part because there is a risk of a negative pregnant. In this proposal, 

we have only one “must,” and even it is contingent....

A judge observed that this proposed rule could be put out for comment, but continued to believe that was 

really just a best practices item. 

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the FRCP concepts that raise complicated or undecided questions about existing FRCP or 

statutory provisions. Section I describes how Rule 16.1’s subsection (c)(4) and the 

accompanying note should alert the MDL judge to take action to avoid the management 

problems that follow from the mass filing of unexamined claims. Subsection (c)(6)’s prompt to

develop a proposed discovery plan is a separate matter. These provisions should not conflate the 

problem of claims sufficiency, which is the reason the Committee took up the topic of MDLs,13

and discovery.

Because it is far from clear that federal MDL courts have authority to appoint leadership counsel 

to supplant (in whole or in part) an MDL plaintiff’s own lawyer, it would be imprudent to 

enshrine this ill-defined concept in the FRCP (Section II). Similarly, the FRCP should not be in 

the business of suggesting ways for courts to facilitate settlement (Section III). Three other 

topics—consolidated pleadings, “direct filing,” and appointing masters—also do not belong in 

the FRCP because they pertain to matters that are already governed by FRCP provisions and 

laws (Sections IV, V, and VI). All five of these topics should be removed from the Preliminary 

Draft.

I. RULE 16.1 SHOULD ADDRESS THE OVERRIDING CHALLENGE OF MDLS –

CLAIM INSUFFICIENCY – AND SHOULD NOT CONFLATE FOUNDATIONAL 

PLEADING REQUIREMENTS WITH THE “EXCHANGE” OF DISCOVERY

The mass filing of unexamined claims undermines transferee courts’ ability to manage MDLs by 

complicating early case management decisions, slowing the litigation, impeding bellwether case 

selection,14 and thwarting the possibility of timely resolution by depriving counsel and parties of 

the information they need to assess litigation risks and valuation. In addition, unexamined 

claims prevent transferee judges from fulfilling their obligation to ensure standing and subject 

matter jurisdiction.15 As the MDL Subcommittee reported to the Committee, a significant 

number of MDL claims do not belong in the litigation and are found to be meritless much later in 

the case.16 

13 The MDL Subcommittee reported to the Committee:

The unfortunate reality that confronts experienced lawyers in MDL proceedings is that a significant number 

of claimants in those proceedings turn out not to have supportable claims. Were there no MDL 

centralization, arguably, this would not be a problem. Defendants would have an opportunity to challenge 

individual claims one by one. Indeed, but for the MDL centralization order, many of those claims might 

not have reached court at all.

MDL Subcommittee Report, Advisory Committee on Civil Rules, Agenda Book, Nov. 1, 2018, pp. 142, 143

https://www.uscourts.gov/sites/default/files/2018-11_civil_rules_agenda_book_0.pdf.

14 See Judge M. Casey Rodgers, Vetting the Wether: One Shepherds View, 89 UMKC L. Rev. 873, 873 (2021) 

(explaining that “high volumes of unsupportable claims ... interfere with a court’s ability to establish a fair and 

informative bellwether process.”).

15 “The federal courts are under an independent obligation to examine their own jurisdiction, and standing is perhaps 

the most important of the jurisdictional doctrines.” U.S. v. Hays, 515 U.S. 737, 742 (1995) (cleaned up) (quotations 

and citation omitted).

16 The MDL Subcommittee of the Advisory Committee on Civil Rules explained that: 

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5

Transferee courts and counsel need rule guidance because the FRCP provisions that function to 

enforce the basic elements of a legal claim in unconsolidated cases have proven impractical in 

MDLs with hundreds or thousands of claimants.

17 Protecting courts and parties from nonmeritorious claims is the heart of the FRCP, including rules 3, 7, 8, 9, 10, 11, and 12; and 

ensuring that every plaintiff has Article III standing and an actual case or controversy is a 

constitutional requirement. But many MDL courts regard the FRCP provisions as impractical in 

MDLs with hundreds or thousands of claims.

18 This absence of functional rules is what beckons

masses of unexamined claims—hence the MDL Subcommittee’s reference to the “Field of 

Dreams” phenomenon, which is: “If you build it, they will come.”19 The unaddressed FRCP 

problem is “building it” because it causes the amassing of unexamined claims;

20 it invites 

counsel to “get a name, file a claim.” Transferee judges, particularly first-time transferee judges, 

should understand this phenomenon and how to avoid it.

21

A. Subsection 16.1(c)(4) Should Provide a Tool for Handling—and Forestalling—

Claim Insufficiency

Rule 16.1 should provide judges and parties a tool for handling—and more importantly, 

averting—the phenomenon of claim insufficiency and the problems it engenders. As drafted, 

subsection (c)(4) is inadequate for the task, primarily because it conflates the foundational

problem of claim insufficiency (the rules problem) with managing discovery. The Preliminary 

Draft has a separate discovery provision, subsection (c)(6), but any distinction between the two 

There seems to be fairly widespread agreement among experienced counsel and judges that in 

many MDL centralizations -- perhaps particularly those involving claims about personal injuries 

resulting from use of pharmaceutical products or medical devices -- a significant number of 

claimants ultimately (often at the settlement stage) turn out to have unsupportable claims, either 

because the claimant did not use the product involved, or because the claimant had not suffered 

the adverse consequence in suit, or because the pertinent statute of limitations had run before the 

claimant filed suit. The reported proportion of claims falling into this category varies; the figure 

most often used is 20 to 30%, but in some litigations it may be as high as 40% or 50%. ...

Agenda Book, Advisory Committee on Civil Rules, Nov. 1, 2018, pp. 142, 143 available at 

https://www.uscourts.gov/sites/default/files/2018-11_civil_rules_agenda_book_0.pdf.

17 One federal judge explained that the usual procedural safeguards that test claims sufficiency are “difficult to 

employ at scale in the MDL context, where the volume of individual cases in a single MDL can number in the 

hundreds, thousands, and even hundreds of thousands.” Judge M. Casey Rodgers, Vetting the Wether: One 

Shepherds View, 89 UMKC L. REV. 873, 873 (2021).

18 Abbe R. Gluck, Unorthodox Civil Procedure: Modern Multidistrict Litigation’s Place in the Textbook 

Understandings of Procedure, 165 U. PA. L. Rev. 1669, 1674 (2017).

19 Agenda Book, Advisory Committee on Civil Rules, Nov. 1, 2018, 142-43.

20 In re Mentor Corp. Obtape Transobturator Sling Products Liability Litigation, Case No. 4:08-MD-2004, 2016 

WL 4705827, at *2 (M.D. Ga. 2016) (“MDL consolidation for products liability actions does have the unintended 

consequence of producing more new case filings of marginal merit in federal court, many of which would not have 

been filed otherwise.”).

21 Id. (“At a minimum, transferee judges should be aware that they may need to consider approaches that weed out 

non-meritorious cases early, efficiently, and justly.”). See also Nora Freeman Engstrom & Todd Venook, 

Harnessing Common Benefit Fees to Promote MDL Integrity, 101 TEX. L. REV. 1623, 1628 (2019) ( “the mass tort 

MDL process distorts contingency-fee-fueled screening incentives”).

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6

provisions is lost because draft subsection (c)(4) prompts the parties to discuss “how and when 

the parties will exchange information about the factual bases for their claims and defenses”

(emphasis added). The word exchange connotes discovery, so this language is easily misread as 

prompting a discussion about mutual discovery rather than a plan for ensuring that plaintiffs’

claims meet their essential requirements. A modest edit to draft subsection (c)(4) would avoid 

confusion with subsection (c)(6) by prompting transferee judges and parties to craft a procedure 

for an early check into the most basic elements of the claims. A revised subsection should look 

like this:

B. The Draft Note to Subsection 16.1(c)(4) Should Avoid Conflating Claim 

Insufficiency with Discovery

As with the text of subsection 16.1(c)(4), the Draft Note should also be revised to correct its

misidentification of the claim insufficiency problem as a discovery matter. The Draft Note uses 

the word “exchange” five times, refers to information about claims and defenses, and specifically 

promotes the use of abbreviated discovery methods such as fact sheets and census orders. 

Moreover, the Draft Note conveys the sense that requiring claims to meet the most basic 

requirements of standing and stating a claim could be an “undue burden[]” and “unwarranted.” 

This language destroys the whole point of subsection (c)(4) by conveying that courts should 

likely ignore the mass filing of unexamined claims—the Field of Dreams problem—because 

discovery will take care of it. But if fact sheets were an effective means of addressing claim 

insufficiency, surely there would not be a problem; as the Committee well knows, fact sheets are 

widely used,

22 yet lack of standing and the meritless claim problems persist. The MDL 

22 Research by the Federal Judicial Center (“FJC”) shows that plaintiff fact sheets (“PFS”) are “already used very 

frequently in larger MDL proceedings, and used in virtually all of the ‘mega’ MDL proceedings with more than 

1,000 cases.” Agenda Book, Advisory Committee on Civil Rules, Oct. 29, 2019, at 192, 

https://www.uscourts.gov/sites/default/files/2019-10_civil_rules_agenda_book.pdf; Meeting Minutes, Civil Rules 

Advisory Committee, Oct. 29, 2019, Agenda Book, Advisory Committee on Civil Rules, April 1, 2020, at 74, 

https://www.uscourts.gov/sites/default/files/04-2020_civil_rules_agenda_book.pdf (“Plaintiff fact sheets ... have 

come to be used in almost all of the largest MDL proceedings.”). See also, Paul D. Rheingold, Plaintiff's fact 

sheets; use of a census, in LITIGATING MASS TORT CASES § 8:9 (August 2023 Update) (“In recent years, the use of 

routine interrogatories for the plaintiff to answer has become replaced by a plaintiff's fact statement (PFS).”).

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Subcommittee acknowledges the view that fact sheets are “not really a screening method so 

much as a useful way to ‘jump start’ discovery . . . .”23 Moreover, because “months may be 

needed to develop the [fact sheet] form,” the inherent delay in using fact sheets “can impede the 

next steps in managing the proceeding.”24

In contrast to subsection (c)(4)’s focus on claim insufficiency, the purpose of subsection (c)(6) is 

to prompt the MDL court and parties to develop a discovery plan. Subsection (c)(6) should be

distinct from (c)(4) rather than redundant or confusing to it. Subsection (c)(6) could help newly 

appointed MDL transferee judges and counsel understand the potential advantages and 

disadvantages of various discovery instruments in the MDL.25 For example, a well-designed fact 

sheet could help group cases for motions practice or into litigation tracks, identify cases for 

targeted discovery, select bellwether cases, and facilitate settlement negotiations.26 On the other 

hand, as the Federal Judicial Center has recognized, deficient or missing plaintiff fact sheets can 

be a “recurring issue” that requires “substantial judicial resources” to manage through a “slow 

and costly” enforcement process.27

Properly revised, subsections (c)(4) and (c)(6) would facilitate rather than trip over each other. 

Initial information disclosed to establish the fundamentals of standing and the sufficiency of 

claims under section (c)(4) will ensure compliance with Article III and help develop core factual 

issues to inform what discovery is needed under section (c)(6). The discussion about discovery 

belongs in the note to subsection (c)(6). 

C. The Note to Subsection 16.1(c)(4) Should Explain Why the Subsection Is Being 

Written and Clarify That It Does Not Create Exceptions to Other FRCP Rules

The Rules Enabling Act requires the Committee to provide “an explanatory note on the rule” 

when making a rule recommendation.28 In keeping with this law, the Committee’s practice is to 

explain the problem that a rule proposal is meant to address. For example, notes to past Rule 26 

23 Agenda Book, Committee on Rules of Practice and Procedure, June 25, 2019 at 236,

https://www.uscourts.gov/sites/default/files/2019-06_standing_agenda_book_0.pdf. 

24 Meeting Minutes, Civil Rules Advisory Committee, Oct. 29, 2019, Agenda Book, Advisory Committee on Civil 

Rules, April 1, 2020, at 74, https://www.uscourts.gov/sites/default/files/04-2020_civil_rules_agenda_book.pdf

(emphasis added).

25 A better and more appropriate way for the FRCP to provide guidance would be to define such discovery tools in 

the rules, just as they do with depositions, interrogatories, document requests, physical and mental examinations, 

and requests for admission.

26 See Margaret S. Williams et al., Plaintiff Fact Sheets in Multidistrict Proceedings; A Guide for Transferee Judges, 

nn. 4-7 and accompanying text (Fed. J. Ctr. 2019) [“Plaintiff Fact Sheets”]. See also Guidelines and Best Practices 

for Large and Mass-Tort MDLs, Best Practice 1C(v), at 10, Bolch Judicial Institute, Duke Law School (2d ed.) 

(enumerating uses for fact sheets), 

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1004&context=bolch.

27 See Plaintiff Fact Sheets, nn. 76-77 and accompanying text (discussing In re Xarelto MDL).

28 28 U.S.C. § 2073(d) (“the body making that recommendation shall provide a proposed rule, an explanatory note 

on the rule, and a written report explaining the body’s action, including any minority or other separate views”).

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amendments explain “[t]here has been widespread criticism of abuse of discovery,”29

“[e]xcessive discovery and evasion or resistance to reasonable discovery requests pose 

significant problems,”30 “[a] major purpose of the revision is to accelerate the exchange of basic

information about the case,”31 and “initial disclosure provisions are amended to establish a 

nationally uniform practice.”32 On the rare occasion when the Committee discusses practice in 

addition to a proposed amendment’s purpose, it typically does so only in direct reference to the 

rule provision, such as: “In applying the rule, a court may need to decide whether and when a 

duty to preserve arose.”33

In profound contrast, the Draft Note to subsection 16.1(c)(4) makes no mention of why the 

Committee is proposing the rule, what problem it addresses, or what the rule is meant to 

accomplish.

34 Rather, the Draft Note makes observations about what “[e]xperience has shown” 

and what techniques “[s]ome courts have utilized.” It opines that early exchanges of information

“may depend on a number of factors” and their timing “may depend on other factors.” In fact, 

the Draft Note does more to discourage courts from using (c)(4) than explain its purpose. It

skims over the need for essential claim information and the benefits of obtaining basic 

information about claims early in an MDL, instead proclaiming that providing the elemental 

basis of claims may be an “undue burden” and listing several factors that would put the topic of 

claim insufficiency on the courts’ back burner. The Draft Note does not mention the benefit that 

an early examination of claims sufficiency would provide by helping the court and parties 

understand the shape of the litigation.

The Draft Note should be revised to include the Committee’s description of the problem that 

gave rise to section (c)(4): the amassing of unexamined claims. Here is how the MDL 

Subcommittee described the problem to the Committee:

The unfortunate reality that confronts experienced lawyers in MDL proceedings is that a 

significant number of claimants in those proceedings turn out not to have supportable 

claims. Were there no MDL centralization, arguably, this would not be a problem. 

Defendants would have an opportunity to challenge individual claims one by one. Indeed, 

but for the MDL centralization order, many of those claims might not have reached court 

at all.35

The note should explain the requirement that the court be provided with sufficient information to 

establish the “constitutional minimum of standing” with respect to each plaintiff before it asserts 

29 FED. R. CIV. P. 26(f) advisory committee’s note to 1980 amendment.

30 FED. R. CIV. P. 26 advisory committee’s note to 1983 amendment.

31 FED. R. CIV. P. 26(a) advisory committee’s note to 1993 amendment.

32 FED. R. CIV. P. 26(a)(1) advisory committee’s note to 2000 amendment.

33 FED. R. CIV. P. 37(e) advisory committee’s note to 2015 amendment.

34 This observation applies to the entirety of the Draft Note.

35 Agenda Book, Advisory Committee on Civil Rules, Nov. 1, 2018, 142-43.

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jurisdiction over their claims.36 The “first and foremost of standing’s three elements” is an 

“injury in fact,”37 and the second requirement is a “causal connection” showing the injury is 

“fairly traceable to the challenged [conduct] of the defendant, and not the result of the 

independent action of some third party ... not before the court.”38

The note should describe the potential benefits of an early examination of claims sufficiency, 

including: providing judges better information for making early management decisions on the 

scope of discovery, motion practice, and bellwether trials; enabling parties to understand the 

risks of litigation earlier and therefore to accelerate resolution; faster resolution of plaintiffs’

cases and, for some, a better recovery and/or better representation by their counsel;

39 and 

satisfying defendants right to know the basis of the action and helping plaintiff leadership ensure 

that clients’ needs are understood.

Importantly, the note should explain how the proposed Rule 16.1(c)(4) relates to existing FRCP 

provisions. Specifically, the note should make clear that (c)(4) complements, rather than 

displaces, the rules defining pleading standards. Although the Committee has given no 

indication that Rule 16.1(c)(4), if adopted, would obviate those FRCP provisions, the MDL 

environment is mercurial, contentious, and frequently unreviewed by the appellate courts, so any 

uncertainty should be avoided. After all, the fundamental reason for amending the FRCP to 

accommodate MDLs is to deal with the rule problems that have led some to proclaim an “MDL 

exception” to the FRCP. Of course, there is no such thing as an “MDL exception” and appellate 

courts have made it clear that MDLs are governed by the FRCP. Rule 1 states that the FRCP 

apply to all civil actions including MDLs, and Rule 1, like all of the FRCP, has the force of 

law.40 Every court that has squarely considered the question has affirmed.41

36 “[T]he irreducible constitutional minimum of standing [contains] three elements.” Spokeo, Inc. v. Robins, 578 U.S. 

330, 338 (2016) (internal quotations omitted). “The plaintiff must have (1) suffered an injury in fact, (2) that is fairly 

traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial 

decision.” Id.; TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021). “The plaintiff, as the party invoking 

federal jurisdiction, bears the burden of establishing these elements,” Spokeo, 578 U.S. at 338.

37 Spokeo, 578 U.S. at 338.

38 Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (cleaned up, brackets removed).

39 See letter from Shanin Specter to Rebecca A. Womeldorf, Secretary, Committee on Rules of Practice and 

Procedure (Dec. 18, 2020) at 2 (“The incentive to amass as many cases as possible directly conflicts with an 

attorney’s obligation to advocate vigorously for their clients. A plaintiff’s attorney cannot realistically discover or 

try all of his cases if he amasses more than he can adequately handle.”); Theodore Rave, Multidistrict Litigation and 

the Field of Dreams, 101 Tex. L. Rev. 1595, 1617-1618 (2023).

40 28 U.S.C. § 2072 (“All laws in conflict with such rules shall be of no further force or effect after such rules have 

taken effect.”).

41 See, e.g., In re National Prescription Opiate Litigation, No. 20-3075, 956 F.3d 838, 844 (6th Cir. 2020) (“MDLs 

are not some kind of judicial border country, where the rules are few and the law rarely makes an appearance. For 

neither §1407 nor Rule 1 remotely suggests that, whereas the Rules are law in individual cases, they are merely 

hortatory in MDL ones.”).

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An appropriate note could look like this:

Subsection (c)(4) addresses a significant problem with multidistrict litigation: insufficient 

claims. An unfortunate problem in MDL proceedings is that a significant number of 

plaintiffs do not have constitutional standing or plausible claims because the plaintiff did 

not use the product at issue, did not suffer an actual injury (as alleged by others in the 

litigation), did not transact business with the defendants, or because the pertinent statute 

of limitations has run. Such insufficient claims often constitute more than 20 percent of 

an MDL. S. Todd Brown, Specious Claims and Global Settlements, 42 U. MEMPHIS L.

REV. 559, 606 (2012). Insufficient claims fail to present a “case or controversy,”

complicate management of the MDL, slow resolution of the litigation, and require 

significant expenditures of time and money to identify and dismiss.

Existing Federal Rules of Civil Procedure definitions of pleading standards are effective 

in ensuring claim sufficiency in individual litigation, but are failing to do so in MDL 

proceedings involving allegations of personal injury, which constitute more than 90 

percent of cases consolidated into MDLs. Without a specified mechanism requiring basic 

information to demonstrate standing and the elemental sufficiency of each claim, an 

incentive exists to file claims without conducting any investigation into their basis. See, 

e.g., In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., 2016 WL 

4705807, at *1 (M.D. Ga. Sep. 7, 2016) (explaining how MDLs “become[] populated 

with many non-meritorious cases”). The result is a large percentage of claims with 

unknown basis, which would not occur in an individual case. While Rules 3, 7, 8, 9, 10, 

11, 12, and 26 establish uniform standards and procedures to ensure claim sufficiency, 

and apply to cases consolidated into MDLs, they are not proving sufficient to address the 

problem when claims are aggregated pursuant to 28 U.S.C. Section 1407. Subsection 

(c)(4) addresses this problem by prompting transferee courts to require basic information 

early in the proceedings, which deters the filing of unexamined claims and helps courts 

and parties manage the filed claims.

Subsection (c)(4) does not pertain to discovery, which is addressed subsection (c)(6). 

Rather, this subsection reflects that threshold disclosures of the factual basis for standing 

and claim sufficiency are independent of discovery obligations such as fact sheets, profile 

forms, or census requirements. Because standing is a constitutional requirement and the 

information necessary to show claim sufficiency is already required to be known prior to 

filing and is in the plaintiffs’ possession, providing that information is not unduly 

burdensome. See In re Silica Prods. Liab. Litig., 398 F. Supp. 2d 563, 632 (S.D. Tex. 

2005) (“The doctors undertook the burden of diagnosing each of these Plaintiffs — just 

as the attorneys undertook the burden of representing each one of them . . . and the sheer 

volume of Plaintiffs does not mean that these professionals’ obligations toward each 

Plaintiff has been lessened”).

Requiring such factual disclosures allows transferee judges to ensure that the 

constitutional minimum of standing is satisfied and offers several additional benefits to 

the MDL proceeding that accomplish the purposes of Rule 16.1. Disclosures will provide 

judges better information for making early management decisions, including scope of 

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discovery, timing of any motion practice, selection of initial trial cases. To the extent that 

leadership decisions are made in part on the basis of claim volume, early disclosures help 

the judge make appropriate decisions about plaintiffs’ leadership. See, e.g., In re Gen. 

Motors LLC Ignition Switch Litig., No. 14-MD-2543, 2016 WL 1441804, at *9 n.4 

(S.D.N.Y. Apr. 12, 2016) (giving “some credence” to accusation that lead counsel 

“flooded the MDL with meritless cases” to gain position in leadership contest). 

Disclosures enable parties more accurately to estimate the risks of litigation, aiding in 

timely resolution of the litigation.

II. APPOINTMENT OF LEADERSHIP COUNSEL IS TOO FRAUGHT WITH 

LEGAL UNCERTAINTY TO BE ENDORSED BY THE FRCP 

The Preliminary Draft’s prompt to consider “whether leadership counsel should be appointed”42

would interject difficult and unanswered legal questions into the FRCP. Although intended to 

facilitate a discussion that may need to occur (particularly in mass tort MDLs),

43 the topic is 

adequately covered in the Manual for Complex Litigation (Fourth)44 and including this concept

in Rule 16.1 would cause more problems than it would solve.

A. Because No Accepted Definition of “Leadership Counsel” Exists, Injecting this 

Concept into the FRCP Would Sow Confusion 

There is no prevailing definition of the MDL “leadership counsel” concept. The leadership 

appointment orders issued by MDL courts in recent years have been described as reflecting the 

most extreme level of “ad hockery” in the MDL realm.45 Unfortunately, the case law is not 

developing any new clarity; one scholar’s examination of MDL leadership appointment orders 

issued in 201 federal MDLs pending as of June 2019 concluded that “there is no grand 

progression toward more perfect, more fully specified orders.”46 Rather, such orders “simply 

appoint attorneys to specified positions and say nothing more.”47 Only about half endeavor to 

enumerate leaders’ duties.48 The study observed that “[n]one of the [reviewed] orders . . . 

42 Preliminary Draft Rule 16.1(c)(1).

43 These comments are focused primarily on mass tort-type MDL proceedings where most constituent actions are 

individual plaintiff lawsuits in which claimants are each represented by their own retained counsel. In contrast, 

many other MDL proceedings are constituted largely of class action cases, which seek to assert the claims of 

numerous unnamed persons who are not individually represented by their own counsel. In those cases, appointment 

of leadership counsel (that is, counsel for the putative class members) is governed primarily by Fed. R. Civ. P. 23(g). 

Nevertheless, appointment of leadership counsel for the overall MDL proceeding may be desirable in such matters 

to coordinate the multiple class actions in the proceeding. If the Advisory Committee proceeds toward adoption of a 

Rule 16.1, this distinction between “mass tort” and class action-based MDL proceedings should be addressed more 

explicitly. 

44 See Manual for Complex Litigation (Fourth) §§ 10.22, 22.62.

45 David L. Noll, What Do MDL Leaders Do? Evidence from Leadership Appointment Orders, 24 Lewis & Clark L. 

Rev. 433, 465-66 (2020) (“Noll Study”). 

46 Id.

47 Id.

48 Id. at 444.

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attempted to define the legal relationship between court-appointed leaders and non-client 

plaintiffs.”49 Further, the study noted that only around five percent of the orders “specify duties 

that lead plaintiffs’ counsel hold toward MDL plaintiffs.”50 This absence of meaningful 

“leadership counsel” definitions does not reflect efforts to tailor the concept to the needs of 

particular MDL proceedings. To the contrary, the definitional fuzziness shows that MDL courts

are unable, because of the thicket of unanswerable questions, to advance any meaningful 

definition of leadership appointments—or worse, a practice of allowing leadership counsel to 

self-define their roles.

51 Incorporating the significant uncertainty about this concept into Rule 

16.1 would not clarify what “leadership counsel” means for newly appointed (or even 

experienced) transferee judges, but rather would suggest a degree of certainty and predictability 

that does not exist. 

B. Rule 16.1 Should Not Invite MDL Courts to Limit the Activity of Non-Leadership 

Counsel Because the Legal Authority to Do So Is Unsettled and Raises Complicated

Questions Under State Law, Ethics Rules, and the Rules Enabling Act

The Preliminary Draft’s suggestion to consider imposing “limits on activity of nonleadership 

counsel”52 is highly inappropriate for inclusion in the FRCP because of the legal and ethical 

duties MDL plaintiffs’ lawyers owe to their clients. As the Preliminary Draft and Draft Note

suggest, when plaintiffs’ leadership counsel are designated in an MDL proceeding, they are 

directed to act on behalf of all plaintiffs, which means that the plaintiffs’ counsel not selected for 

a leadership roles are effectively ordered to stand down, even though their clients’ claims remain 

in the MDL proceeding and likely will be substantially affected by leadership counsel’s actions. 

Some MDL courts—22 percent, according to Professor Noll’s study53—explicitly direct 

nonleadership counsel to cease active representation of their clients and defer to leadership 

counsel’s decision-making. For example, one order states that “Counsel for Plaintiffs who 

disagree with Lead and Liaison Counsel, or have individual or divergent positions, may not act 

separately on behalf of their clients without prior authorization of this Court.”54 Another MDL 

appointment order states that “no papers shall be served or filed, and no process, discovery, or 

other procedure shall be commenced by any counsel other than Lead Counsel, except with 

specific leave of Court.”55 The Noll Study concluded that even where an appointment order does 

not explicitly restrict nonleadership counsel practice, “the division of labor between leaders and 

non-leads in these MDLs is [likely] governed by informal norms or directions from the court or 

49 Id. at 452-53.

50 Id.

51 Id. at 450.

52 Preliminary Draft Rule 16.1(c)(1)(E). 

53 Noll, What Do MDL Leaders Do?, 24 Lewis & Clark L. Rev. at 455.

54 Id. at 455-56 (quoting Case Management Order at 9, In re MONAT Hair Care Prods. Mktg., Sales Practices, and 

Prod. Liab. Litig., No. 1:180md-02841-DPG (S.D. Fla. June 6, 2018), ECF No. 59) (emphasis added).

55 Id. (quoting Order Appointing Leadership Counsel at 4, In re Ashley Madison Consumer Data Security Breach 

Litig., No. 4:15-md-02669-JAR (E.D. Mo. Dec. 9, 2015), ECF No. 87). 

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court-appointed leaders about the work that non-leads can and cannot perform.”56 In short, it 

appears that in all MDL proceedings, nonleadership counsel are explicitly or implicitly 

constrained from fully representing their clients in the manner they otherwise would. 

The Preliminary Draft therefore gives rise to a series of thorny legal questions that appear largely 

unresolved, even though MDL courts have used the leadership counsel device for many years. 

Many of these questions have escaped judicial examination because of the tendency of mass tort 

MDL proceedings to be resolved on the basis of broad legal determinations (resulting in 

dismissal of most claims) or settlements. Hence, because of the failure of MDL courts to screen 

claims in the early phases, the presence of ill-considered claims and litigation funding influences 

have made settlements more difficult to achieve, and increasing numbers of case remands should 

be expected going forward. They will likely give rise to disputes that will require resolution of 

these issues, including:

1. What authority allows courts to assign leadership counsel the duty to

represent clients of nonleadership counsel? 

At least one court has stated that leadership counsel assume responsibility for representing the 

clients of nonleadership counsel with respect to all duties assigned in the leadership order.57 

Some other courts’ orders reflect this practice, according to Professor Noll’s study: “A leadership 

appointment order . . . picks out functions that will be handled on a centralized basis by courtappointed leaders and leaves individually retained plaintiffs’ attorneys responsible for the rest of 

the duties that inhere in the attorney/client relationship.”58 However, there is no explicit 

authority for courts to do this, and no general judicial embrace of this power. In fact, MDL 

leadership orders typically do not detail the division of responsibility between leadership and 

nonleadership counsel as to the representation of nonleadership counsels’ clients. The 

Committee should not enshrine the notion of appointing leadership counsel into the FRCP—a 

notion that would conflict with state laws and ethics rules, and would not be consistent with the 

Rules Enabling Act.

2. What authority allows MDL courts to override a client’s choice of counsel by

shifting their representation to different counsel (at least in part) without 

their consent? 

Although appointment of leadership counsel is common in MDL proceedings and is mentioned 

in the Manual for Complex Litigation (Fourth), there is no identified source of authority for 

federal courts to abrogate and restructure attorney-client relationships in this manner. It certainly 

does not flow from the MDL statute. Indeed, if anything, the concept of transferring 

responsibility from the counsel retained by a plaintiff to a “leadership” group is contrary to the 

Supreme Court’s holding that cases transferred into an MDL proceeding “retain their separate 

56 Id.

57 Casey v. Denton, 2018 WL 4205153, at *4 (S.D. Ill. Sept. 4, 2018) (quoting Manual for Complex Litigation, § 

10.22) (“to avoid being bogged down and wasteful of judicial resources, a court will need to institute procedures 

‘under which one or more attorneys are selected and authorized to act on behalf of other counsel and their 

clients with respect to specified aspects of the litigation’"). 

58 Noll, What Do MDL Leaders Do?, 24 Lewis & Clark L. Rev. at 465. 

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identities.”59 The Court has stressed that “Section 1407 refers to individual ‘actions’ which may 

be transferred to a single district court, not to any monolithic multidistrict ‘action’ created by 

transfer.”60 The Committee should not enshrine the notion of overriding clients’ choice of 

counsel into the FRCP when doing so is unsupported by law, contradicts state ethics rules, and is 

not consistent with the Rules Enabling Act.

3. What authority allows an MDL court to replace (at least in some respects)

plaintiff’s retained counsel, who owe traditional fiduciary duties to their 

clients, with leadership counsel who do not, without the client’s consent?

Leadership counsel do not owe standard fiduciary duties to clients of nonleadership counsel, at 

least according to caselaw. For example, when several plaintiffs represented by nonleadership 

counsel asserted a breach of fiduciary duty claim against lead counsel in the Yasmin and YAZ 

(Drospirenone) Marketing, Sales Practices and Products. Liability Litigation, the MDL court 

concluded: 

[L]ead and liaison counsel do not owe a fiduciary duty to each and every MDL plaintiff 

in the traditional sense. Rather, lead and liaison counsel should put the common and 

collective interests of all plaintiffs first while they carry out their enumerated 

functions. . . . It is obvious to this Court that the hallmarks of a traditional fiduciary 

relationship are absent from the MDL context in that there is no underlying offer and 

acceptance of power of attorney or agency between appointed leadership counsel and the 

plaintiffs.61

Similarly, in the In re General Motors LLC Ignition Switch Litigation proceeding, a 

nonleadership attorney alleged that lead counsel breached a fiduciary duty owed to all plaintiffs 

in the MDL proceeding when he (a) asked the court to schedule one of his own cases as the first 

bellwether trial, (b) voluntarily dismissed that case due to that bellwether plaintiff’s potential 

perjury, and (c) negotiated an inventory settlement with the defendant that covered most of his 

other clients.

62 In support of that motion, Prof. Charles Silver, a legal ethics expert, opined that 

by virtue of his role, lead counsel owed to all MDL plaintiffs a fiduciary duty to “operate free of 

any incentive” to perform his duties in a manner that would disserve their interests.63 In 

opposition, Prof. Geoffrey Miller, another legal ethics expert, denied the existence of any such 

59 Gelboim v. Bank of America Corp., 574 U.S. 405, 413 (2015).

60 Id. See also Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 37 (1998) (section 1407 does 

not “imbue transferred actions with some new and distinctive . . . character”); In re Fosamax Prods. Liab. Litig., 852 

F.3d 268 (3d Cir. 2017) (cautioning that in MDL proceedings, plaintiffs each retain the right to develop their own 

cases, because “[a] mass tort MDL is not a class action” but rather “is a collection of separate lawsuits that are 

coordinated for pretrial proceedings—and only pretrial proceedings—before being remanded to their respective 

transferor courts”), vacated and remanded on other grounds, Merck Sharpe and Dohme Corp. v. Albrecht, 139 S.Ct. 

1668 (2019). 

61 Casey v. Denton, 2018 WL 4205153, at *5-6 (S.D. Ill. Sept. 4, 2018).

62 In re General Motors Ignition Switch Litig., 2016 WL 1441804, at *2–5 (S.D.N.Y. Apr. 12, 2016). 

63 In re General Motors Ignition Switch Litig., No. 14-MD-2543, Declaration of Charles Silver at 13, ECF No. 2182. 

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duty.64 The court adopted a middle ground closer to Professor Miller’s view, concluding that 

lead counsel’s obligations to nonleadership counsel’s clients are “not as strong as the duties that 

lead counsel owes to absentee [class] members of a class action.”65 

Since leadership counsel do not owe the same duties to plaintiffs as nonleadership counsel, the 

FRCP should not prompt courts, without consent of each plaintiff, to substitute leadership 

counsel for the plaintiff’s retained counsel.

4. Does ordering leadership counsel to consult with nonleadership counsel solve 

the ethical dilemmas?

In a few instances, MDL courts have sought to sidestep this concern by ordering that in 

performing their duties, leadership counsel must consult with nonleadership counsel. For 

example, the leadership order in one proceeding states: “In carrying out the [specified] duties, 

Plaintiffs’ Co-Lead Counsel are . . . required to consult with all Plaintiffs’ counsel throughout 

this case to assure that all interests are represented.”66 And in another, an MDL court stated: “I 

anticipate that the Robins Kaplan group will solicit and consider the views of others, particularly 

the Milberg Weiss firm, in making litigation decisions on behalf of the plaintiffs.”67 However, 

nothing required leadership counsel to obtain any form of consent from nonleadership counsel 

(or their clients) as to any strategy decisions. Orders requiring consultation do not ameliorate 

concerns that leadership appointments in MDL proceedings seriously disrupt attorney-client 

relationships. Proposed Rule 16.1 merely suggests that in crafting the initial case management 

conference report, the parties should consider “proposed methods for [leadership counsel] to 

regularly communicate with and report to the court and nonleadership counsel.” (Emphasis 

added.) The Draft Note speaks only in terms of leadership counsel allowing nonleadership 

counsel to “monitor” proceedings; there is no mention of leadership counsel having any 

obligation to confer with nonleadership counsel about litigation decisions. Observing that “it 

may be necessary for the court to give priority to the leadership counsel’s pretrial plans with they 

conflict with initiatives sought by nonleadership counsel,” the Draft Note says only that “[t]he 

court should . . . ensure that nonleadership counsel have suitable opportunities to express their 

views to the court.” 68

64 In re General Motors Ignition Switch Litig., No. 14-MD-2543, Declaration of Geoffrey Parsons Miller at 4, ECF 

No. 2200-1. 

65 In re General Motors Ignition Switch Litig., 2016 WL 1441804 at *7. 

66 Order Appointing Leadership Counsel at 4, In re Ashley Madison Consumer Data Security Breach Litig., No. 

4:15-md-02669-JAR (E.D. Mo. Dec. 9, 2015), ECF No. 87). 

67 Memorandum and Order at 6, In re Payment Card Interchange Fee and Merchant Discount Antitrust Litig., No. 

1:05-md-01720-MDB-JO (E.D.N.Y. Oct. 20, 2005), ECF No. 278.

68 A few MDL courts have sought to dodge the representational responsibility issue by including in their 

appointment orders statements seemingly deny that any representational duty has been transferred to leadership 

counsel. For example, one such order states: “All attorneys representing parties to this litigation, regardless of their 

role in the management structure of the litigation and regardless of this court’s designation of [leadership counsel] . . 

. continue to bear the responsibility to represent their individual client or clients.” Pretrial Order No. 4 at 2, In re 

Ethicon, Inc., Pelvic Repair Sys. Prods. Liab. Litig., No. 2:12-md-02327 (S.D. W. Va. Feb. 7, 2012(, ECF No. 120. 

However, it is difficult to see how nonleadership counsel can continue to fully “bear [that] responsibility” if most of 

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5. Are leadership counsel obliged to comply with ethics requirements, including 

obtaining written consents (as necessary) from the nonleadership counsel’s 

clients?

Nonleadership counsel presumably have given their clients appropriate disclosures and possibly 

received informed consents to their representation of multiple plaintiffs as to the claims in the 

MDL proceeding pursuant to applicable ethics rules, such as ABA Model Rules 1.7 (as to the 

representation of multiple plaintiffs as to similar claims) and 1.8(g) (as to “participat[ing] in 

making an aggregate settlement” involving multiple clients). To the extent that elements of 

nonleadership counsel’s representational responsibilities are transferred by court order to 

leadership counsel, it is unclear if leadership counsel are also obliged to comply with these ethics 

requirements, including obtaining written consents (as necessary) from the nonleadership 

counsel’s clients.

6. Who has responsibility for keeping the nonleadership counsel’s clients 

apprised of developments in the litigation? 

The Preliminary Draft and Draft Note appear to envision that leadership counsel should keep 

nonleadership counsel informed about developments. It is unclear if leadership counsel are also 

responsible for updating the clients of nonleadership counsel, which might be expected since 

nonleadership counsel can, at most, “monitor” the proceedings.

7. Does the Preliminary Draft invite the appearance of impropriety by greenlighting MDL courts’ appointment of leadership counsel? 

Even though virtually all plaintiffs in an MDL proceeding are represented by their own counsel, 

appointing leadership counsel affords the court the opportunity to choose its own team to litigate 

the overall matter—to decide who will best handle the pretrial proceedings. Indeed, it has been 

observed that “[t]he universal goal in any MDL is to assemble the best team.”69 The court may 

be involved in ex parte discussions with the leadership team about supplementing or rearranging 

the team to improve its performance. In the common benefit fee process, the court will decide 

how much the plaintiffs represented by nonleadership counsel will be taxed to pay the fees and 

costs of the chosen group. Although none of these circumstances necessarily crosses ethical 

lines, they do create the troubling appearance of an MDL court having active involvement in 

managing plaintiffs’ side of the litigation.

This appearance concern may be exacerbated where, in the words of the Draft Note, “tension 

[develops] between the approach that leadership counsel takes in handling pretrial matters and 

the preferences of individual parties and nonleadership counsel.” The Draft Note observes that 

“nonleadership counsel [should] have suitable opportunities to express their views to the court.” 

But will those opportunities occur on the public record or ex parte? For example, if leadership 

counsel insists on using a particular science expert on causation issues common to all plaintiffs 

their authority to perform representational duties has been shifted to leadership counsel and their awareness of what 

is occurring in the litigation is necessarily limited by the distance they are required to maintain.

69 Judge Stephen R. Bough & Elizabeth Chamblee Burch, Collected Wisdom on Selecting Leaders and Managing 

MDLs, 1 Judicature 69 (2022). 

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but nonleadership counsel has received information showing that a different expert would be 

better equipped to rebut defendant’s positions, how will that dispute be aired with the court? 

Presumably, the plaintiffs’ side would prefer that the dispute be discussed ex parte to avoid 

giving defense counsel a window on plaintiff strategies. But how can a federal court possibly 

justify discussing and possibly expressing views on merits issues ex parte? Doing so could be 

exceedingly unfair to defendants and certainly create an appearance of impropriety.

Given all of the foregoing concerns and uncertainties about the meaning, authorization, and 

ramifications of the MDL leadership counsel concept, it would be imprudent to include 

subsection (c)(1) in the proposed Rule 16.1. It should be removed from the Preliminary Draft.

70

III. TIPS FOR JUDICIAL FACILITATION OF SETTLEMENT DO NOT BELONG 

IN THE FRCP—GOOD LITIGATION MANAGEMENT IS THE KEY

The Preliminary Draft acknowledges that Rule 16 already prompts judges to consider actions to 

facilitate settlement,71 but escalates settlement into a top priority in MDLs by making

suggestions that transferee courts consider “measures to facilitate settlement,”72 provide “judicial 

assistance [to] facilitate the settlement of some or all actions,”73 facilitate the role of leadership 

counsel “in settlement activities,”74 and refer matters to a magistrate judge or master “to play a 

part in settlement negotiations.”75 The words “settle” or “settlement” appear 12 times in the 

Preliminary Draft and Draft Note.76 In particular, the Draft Note stresses the “important role for 

leadership counsel in some MDL proceedings ... to facilitate possible settlement”77 As the Draft 

Note puts it:

It is often important that the court be regularly apprised of developments regarding 

potential settlement of some or all actions in the MDL proceeding. In its supervision of 

leadership counsel, the court should make every effort to ensure that leadership counsel’s

participation in any settlement process is appropriate.78

Many federal judges would disagree that a court should be “regularly apprised of developments 

regarding potential settlement” of matters before them and should “make every effort” to 

supervise lawyers (on one side of the case) as to their settlement efforts. Although the Draft

70 If the Advisory Committee decides to pursue addressing the leadership counsel concept in Rule 16.1, the Rule 

should directly address the concerns noted above by, inter alia, stressing the need to define clearly the division of 

responsibilities between leadership and nonleadership counsel and requiring substantial involvement of 

nonleadership counsel in decision-making. 

71 See Preliminary Draft Rule 16.1(c)(9) and accompanying advisory committee’s note.

72 Preliminary Draft Rule 16.1(c)(9).

73 Preliminary Draft Rule 16.1 (c)(9) advisory committee’s note.

74 Preliminary Draft Rule 16.1(c)(1)(C).

75 Preliminary Draft Rule 16.1(c)(12) advisory committee’s note.

76 At lines 33, 62, 206, 207, 211, 213, 217, 320, 322, 324, 330, and 336.

77 Preliminary Draft Rule 16.1(c)(1)(C) advisory committee’s note.

78 Preliminary Draft Rule 16.1(c)(1)(C) advisory committee’s note.

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Note offers a nod to the fact that settlement is “a decision to be made by the parties,” the overemphasis on settlement at the initial conference is inappropriate because it fosters a presumption 

of liability, conveys that the judge has an agenda, is inconsistent with the MDL statute’s

boundaries as a pre-trial mechanism, and is counterproductive because it puts the “cart” of 

settlement well before “horse” of litigating claims, defenses, and liability.

Taking actions to propel settlement is inconsistent with the MDL statute,79 which does not 

mention settlement. The Preliminary Draft implies that the decision to consolidate—a decision 

that is not informed by the merits of the cases—gives rise to a presumption that settlement is the 

appropriate resolution and that judges should take an active role in facilitating that result. That is

simply not the case.80

The existence of a large number of claims does not mean those claims have merit—especially 

since the mass filing of unexamined claims is a defining characteristic of many MDLs (see 

section I, above). Often, claims are generated by extravagant spending on advertising, and, as 

the Committee acknowledges, between 20 and 50 percent of these claims are unsupportable.81 

Many of these should be dismissed due to lack of product use, lack of injury, or on statute of 

limitations grounds. Others present insurmountable legal or factual deficiencies and should be 

dismissed at summary judgment on common issues, including lack of scientific support82 or 

preemption.83 Still others, consistent with 28 U.S.C. Section 1407, should be remanded to their 

originating courts for individual adjudication on the merits.84 In all of these situations, the merits 

should guide the resolution of claims. To conclude instead that settlement is the judicial 

objective would be improper.

The Preliminary Draft furthers the misperception that an MDL is primarily a vehicle for 

paying—rather than adjudicating—claims. MDLs are not victim-compensation funds akin to the 

September 11th Victim Compensation Fund or the Deepwater Horizon Oil Spill Trust. In those 

situations, liability had already been determined and claimants were entitled to receive money 

based on their injury. In contrast, in most MDLs, liability is hotly contested and settlement 

79 28 U.S.C. § 1407.

80 See Hon. Clay D. Land, Multi-District Litigation after 50 Years: A Minority Perspective from the Trenches, 53 

Ga. L. Rev. 1237, 1242 (2019); see also In re Mentor Corp. Transobturator Sling Prods., No. 4:08-MD-2004 

(CDL), 2016 WL 4705827, at *1 n.2 (M.D. Ga. Sept. 7, 2016) (noting that, of 850 cases filed, 100 were decided 

against plaintiffs on summary judgment, 458 were dismissed by stipulation of parties, and 74 were dismissed 

voluntarily).

81 Agenda Book, Advisory Committee on Civil Rules, Nov. 1, 2018, at 142, https://www.uscourts.gov/sites/default/

files/2018-11_civil_rules_agenda_book_0.pdf.

82 See, e.g., In re Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prods. Liab. Litig. (No II), MDL 2502, 

892 F.3d 624, 631 (4th Cir. 2018) (trial court granted summary judgment against all claims after Rule 702 motion, 

ending the litigation).

83 Hon. Eduardo C. Robreno, The Federal Asbestos Product Liability Multidistrict Litigation (MDL-875): Black 

Hole or New Paradigm?, 23 Widener L.J. 97, 129 (2013) (noting disposition of Kurns v. Railroad Friction Prods. 

Corp., 565 U.S. 625 (2012) resulted in dismissal of 3,000 asbestos cases as pre-empted by Locomotive Inspection 

Act). 

84 See, e.g., In re Chinese-Manufactured Drywall Prods. Liab. Litig., MDL No. 2047, 2018 WL 3972041, at *5 

(E.D. La. Aug. 20, 2018) (Fallon, J.).

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before a determination of liability is often not appropriate for some or all of the individual 

claimants. Moreover, suggesting MDL courts immediately focus on settlement at the initial 

management conference does not encourage sound management of proceedings. In an empirical 

study of MDL settlements for her book Mass Tort Deals, Elizabeth Chamblee Burch found that 

most MDL judges (52.9 percent) actively promote settlement,85 and a substantial number did so 

before hearing expert witnesses or reviewing summary judgment motions.86 Settlements 

resulting from artificially shortened processes risk inferior agreements, where potentially 

deserving plaintiffs are undercompensated while plaintiffs without cognizable claims are 

overcompensated.

If the Committee wishes to offer advice to transferee judges for creating a favorable environment 

for settlement, it should emphasize that settlements are most often the by-product of case 

management focused on resolving merits issues—the same approach judges take when hearing 

individual claims.87 At the Initial MDL Management Conference, the court should focus on 

working through pre-trial issues so the various parties may evaluate the merits of the litigation 

generally and the veracity of each claim. Resolving these issues will provide the parties with the 

information they need to assess the litigation—and settle only if and as appropriate, again just as 

in individual cases. If early settlement is appropriate in a case, the parties can and will drive that

outcome.

IV. THE FRCP SHOULD NOT INVITE “PLEADINGS” THAT RULE 7(A) DOES 

NOT ALLOW

Rule 7(a) lists seven pleadings and states that “[o]nly these pleadings are allowed” in district 

courts.88 The Committee views this rule strictly, as evidenced by the 2007 amendment that

added subsection (a)(7) allowing a reply to an answer – but only “if the court orders one.”89 In 

other words, the Rule rejects any notion that courts should permit pleadings absent Rule 7(a) 

authority. Problems arise when courts grapple with non-standard pleadings.

90 Although Rule 

7(a) does not list “consolidated pleadings” or give any indication that such pleadings are 

allowed—even if ordered by the court—subsection (c)(5) of the Preliminary Draft 

inappropriately suggests consideration of “[w]hether consolidated pleadings should be prepared 

to account for multiple actions filed in MDL proceedings.”

It would be a mistake to advance an FRCP amendment that contradicts an existing Rule. 

Subsection (c)(5) would create considerable confusion. The term “pleading” has a meaning in 

85 Elizabeth Chamblee Burch, Mass Tort Deals: Backroom Bargaining in Multidistrict Litigation (2019) at 104.

86 Burch, Mass Tort Deals at 104.

87 Burch, Mass Tort Deals at 108 (“When judges don’t engage with the merits through pretrial motions and trials, 

the relative strength of plaintiffs’ cases may matter little in settlement negotiations.”).

88 FED. R. CIV. P. 7(a).

89 FED. R. CIV. P. 7(a)(7) and advisory committee’s note to 2007 amendment (“For the first time, Rule 7(a)(7) 

expressly authorized the court to order a reply to a counterclaim answer.”).

90 See, e.g., In re Zantac (Ranitidine) Products Liability Litigation, 339 F.R.D. 669, 682 & n.15 (S.D. Fla. 2021) 

(addressing unanticipated problems caused by use of non-standard MDL “short form complaints”).

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the FRCP and appears in numerous rules. The FRCP establish standards for pleadings and 

procedures for testing those standards. Subsection (c)(5)’s use of the word “pleadings” will 

create a presumption that the word has the same meaning as in other rules, but litigation is sure 

to arise as to the function and limits of such documents. Those questions are not answered by a 

note that gives consolidated pleadings a wink and a nod by mentioning that “some courts” have 

required them and they “may be useful,”91 especially with the particularly unhelpful editorial that 

the relationship between consolidated pleadings and real pleadings “depends.”92 The Draft 

Note’s mere reference to the Supreme Court’s opinion in Gelboim v. Bank of America93 is no

substitute for rule clarity. In fact, the Gelboim Court expressly questioned the legal effect of 

such documents.94 Subsection (c)(5) should be removed from the proposed rule.

If the Committee wants to give MDL courts authority to order parties to use a new type of 

pleading, it should amend Rule 7(a), just as it did with Rule 7(a)(7). But if the Committee is 

determined to mention consolidated pleadings, master complaints, and master answers in a Rule 

16.1, then the Preliminary Draft should be modified to provide courts and parties tangible 

guidance including a statement that such documents must provide the required notice95 and 

should be treated as if they were actually pleadings under the FRCP.

V. THE FRCP SHOULD NOT EMBRACE “DIRECT FILING ORDERS” BECAUSE 

THEIR USE CONFLICTS WITH RULE 3, CONTRADICTS THE MDL 

STATUTE, AND PROVOKES SERIOUS QUESTIONS ABOUT JURISDICTION 

AND WAIVER

Subsection (c)(10) of the Preliminary Draft invites transferee courts and parties to consider “how 

to manage the filing of new actions in the MDL proceedings.”96 The Draft Note clarifies that

(c)(10) refers to stipulated “‘direct filing’ orders.”97 Inserting the concept of direct filing into the 

FRCP would be a radical decision because direct filing is inconsistent with Rule 3, which 

“governs the commencement of all actions,”98 and with the statutory framework, which mandates 

that MDL transfers “shall be made by the [JPML].”99 Moreover, because several courts have 

91 Draft Note at lines 286, 288.

92 Id. at line 293.

93 Id. at lines 297-98.

94 See Gelboim v. Bank of Am. Corp., 574 U.S. 405, 413 n.3 (2015) (noting that “master complaints” may “supersede 

prior individual pleadings,” but also may lack “legal effect” serve only as “an administrative summary of the claims 

brought by all the plaintiffs”) (quoting In re Refrigerant Compressors Antitrust Litig., 731 F.3d 586, 590-92 (6th 

Cir. 2013)).

95 See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007) (complaints must provide “fair notice of what the claim 

is and the grounds upon which it rests”).

96 Preliminary Draft 16.1(c)(10).

97 Draft Note at lines 337-38, 340.

98 Fed. R. Civ. P. 3 advisory committee note to 1937 rule.

99 See 28 U.S.C. § 1407(a); see also, In re Kaba Simplex Locks Marketing and Sales Practice Litig., No. 1:11-MD2220 (N.D. Ohio Aug. 1, 2012) (“no basis upon which [the court] has the legal authority to issue the requested direct 

filing order in the instant case.”).

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held that MDL courts lack subject-matter jurisdiction over direct-filed claims,

100 subsection 

(c)(10) urges the filing of claims that MDL courts lack power to address.

Direct filing orders typically require defendants to waive objections to personal jurisdiction,

venue, and even choice of law—sometimes to their surprise.

101 They also engender disputes 

about the scope of such waiver and the effect on choice-of-law questions. Subsection (c)(10) 

would thus set up MDL judges for unrealistic expectations about waivers and unintended 

complications when claims are not filed in the appropriate venue. For these reasons, subsection 

(c)(10) should be removed from the proposed rule. 

If the Committee is nonetheless determined to prompt courts and parties to consider direct filing, 

the Preliminary Draft should be modified to provide meaningful guidance on procedures for, and 

the possible ramifications of, such filings. The rule should make plain that direct-filed claims are

subject to the FRCP rules governing pleadings, and the note should address the impact that a 

direct-filing order can have on venue and jurisdictional defenses – in particular, it should plainly 

state that express agreement by defendants is necessary for any waiver of venue and 

jurisdictional defenses.

VI. THE SUBSECTION (C)(12) PROMPT TO APPOINT MASTERS SHOULD BE 

OMITTED BECAUSE IT CONTRADICTS THE GUIDANCE IN RULES 53 AND 

72 AND DOES NOT FOCUS ON MDL-SPECIFIC PROBLEMS

There is little if any utility to subsection (c)(12)’s suggestion that MDL courts should obtain the 

parties’ views on “whether matters should be referred to a magistrate judge or master.”102 Rule 

53 already requires that “the court must give the parties notice and an opportunity to be heard” 

before appointing a master,

103 and Rule 72 provides guidance and procedures for referrals to 

magistrate judges.

104 Adding subsection (c)(12) to the FRCP will cause confusion by 

communicating an explicit endorsement of appointing masters, contrary to the Committee Note

statements that “appointment of a master must be the exception and not the rule” and “[a] master 

should be appointed only in limited circumstances” because “[d]istrict judges bear primary 

responsibility for the work of their courts.” 105 When a court appoints a master to address pretrial matters, “[a]ppointment is limited to matters that cannot be addressed effectively and in a 

timely fashion by an available district judge or magistrate judge.”106

100 See, e.g., In re Jan. 2021 Short Squeeze Trading Litig., 580 F. Supp. 3d 1243, 1253 (“The weight of authority 

further supports the conclusion that an MDL transferee court lacks subject matter jurisdiction over claims by new 

plaintiffs asserted for the first time directly in an MDL proceeding.”).

101 See, e.g., Looper v. Cook Inc., 20 F.4th 387, 394 (7th Cir. 2021) (defendant “impliedly” consented to waive 

choice of law by agreeing to direct filing); In re Depuy Orthopaedics, Inc., 870 F.3d 345, 351-52 (5th Cir. 2017) 

(MDL judge incorrectly interpreted defendant’s agreement to direct filing as waiver of personal jurisdiction 

defenses). 

102 Proposed Rule 16.1(c)(12).

103 FED. R. CIV. P. 53(b)(1).

104 See FED. R. CIV. P. 72. See also 28 U.S.C. §636(b).

105 FED. R. CIV. P. 53 advisory committee’s note to 2003 amendment.

106 Id. 

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Because the FRCP already address this topic, the only purpose for mentioning it in a Rule 16.1 

would be to provide MDL-specific guidance that could help the transferee court address (or 

better yet, avoid) problems that often come up in MDLs. To that end, the Committee Note 

should advise that MDL courts must be cautious in their use of masters, and must tailor

appointment orders, recognizing that “[d]irect performance of judicial functions may be 

particularly important in cases that involve important public issues or many parties.”107 It should 

also avoid perpetuating a misconception that the raison d’être of an MDL proceeding (almost 

literally from day one) is to steer the litigation toward settlement, rather than managing pretrial 

matters including adjudicating dispositive motions, where warranted. If the rule mentions the 

use of masters, the note should provide guidance about the following issues:

• Presumption against referral. As the Committee has stated, “appointment of a master 

must be the exception and not the rule.”108

• Preference for magistrate judges. As the Committee has stated, “[o]rdinarily a judge who 

delegates these functions should refer them to a magistrate judge acting as a magistrate 

judge.”109 Before appointing a master, the court should first consider whether a

magistrate judge is available.

• Delay. Research shows that the use of masters in many MDL proceedings prolongs rather 

than shortens the litigation, delaying resolution.110 Before appointing a master, the court 

should have confidence that appointing a master will help secure “speedy” 

determinations.

111

• Transparency about selection. Courts should have a transparent process for vetting and 

selecting masters, including opportunities to object to an appointment and to seek a 

master’s removal. In MDLs, the employment of masters raises significant concerns about 

“capture and cronyism”112 and the appearance of bias. MDL masters are often chosen 

from a small group of repeat players, and are often nominated by lawyers who are 

107 Id. 

108 Id. 

109 Id. 

110 According to a study by Professors Burch and Williams:

Proceedings with special masters last about 66% longer than those without such appointments, and 

the difference is statistically significant at conventional levels. Our findings are thus consistent 

with a prior study’s observation that, when comparing proceedings with only special masters to 

those with only magistrates, “cases that used only a special master took longer to resolve than 

cases using only a magistrate judge.”

Elizabeth Chamblee Burch & Margaret S. Williams, Judicial Adjuncts in Multidistrict Litigation, 120 Colum. L. 

Rev. 2129 (2020). 

111 See FED. R. CIV. P. 1 (the FRCP should be employed to secure “the just, speedy, and inexpensive determination 

of every action and proceeding” in United States district courts). 

112 Burch & Williams, 120 Colum. L. Rev. at 2206.

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likewise repeat MDL players. Courts should guard against the unfairness and perception 

of bias because MDL lawyers and masters have the power to advance each other’s selfinterest in a manner that could create tension with the best interests of the court, the

parties, and public trust in the judiciary.

• Transparency about process. Before appointing a master, courts should spell out a clear

scope of responsibility and authority. As the Committee has said, “[t]he order appointing 

a pretrial master is vitally important in informing the master and the parties about the 

nature and extent of the master’s duties and authority. Care must be taken to make the 

order as precise as possible.”113 This is even more important in MDLs than other cases 

due to the multiplicity of parties and the court-imposed limitations on engagement by 

nonleadership counsel. The order should require a master’s decisions to be in writing or 

transcribed and part of the public record and explain the mechanism for challenging a 

decision or appealing an order rendered by the master. The order should include a 

defined process for parties to raise questions about a master’s conduct. 

• Transparency about cost. The use of masters in MDLs raises the cost of litigation; fees 

can easily run into the millions or tens of millions of dollars. Public transparency is 

essential in MDLs because the many claimants and parties should have the ability to

understand where their money goes when masters perform judicial functions on behalf of 

the federal courts. Courts should provide full transparency, on the public record, about 

special master compensation, including hourly rates and invoices that specify how much 

time a special master spends on particular tasks.

• Role in settlement. Courts should be especially vigilant when delegating and defining a

master’s role in facilitating settlement (see section III, above). Courts should not use 

masters as a loophole in the ethical limitations inherent in settlement communications, 

particularly including discussions between the master and the court.

• Ex Parte Communications. As the Committee has explained, “[e]x parte communications 

between a master and the court present troubling questions”114 and “[o]rdinarily the 

order” appointing a master “should prohibit such communications.”115 Equally 

important, “in most settings . . . ex parte communications [between a master and] the 

parties should be discouraged or prohibited.”116 MDLs are particularly vulnerable to the 

well-known problem that ex parte communications with the court and with individual 

parties create unequal access to information and taint the appearance of impartiality.117 

113 FED. R. CIV. P. 53 advisory committee’s note to 2003 amendment.

114 FED. R. CIV. P. 53, advisory committee’s note to 2003 amendment; see also id. (“Similarly difficult questions 

surround ex parte communications between a master and the parties.”).

115 Id.

116 Id. 

117 Leslie W. Abramson, The Judicial Ethics of Ex Parte and Other Communications, 37 Houston L. Rev. 1347,

1355 (2000) (“The proscription against ex parte and other improper communications is to ‘accord to every person 

who has a legal interest in a proceeding, or that person's lawyer, the right to be heard according to law.’ Generally, 

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Appointment orders should prohibit ex parte communications or, at the very least, limit 

such communications to well-defined and narrow circumstances.

CONCLUSION

An FRCP amendment providing guidance about MDL management is greatly needed. It should 

explain and address the “rules problem” that led the Committee to take up the current rulemaking 

effort: the shortcoming in the FRCP that invites the mass filing of unexamined claims in MDLs. 

Subsection (c)(4) and the accompanying note should be revised to guide MDL courts to deter

and manage the mass filing of unexamined claims by requiring basic information early in the 

case, and it should not conflate this with discovery, which is covered in subsection (c)(6). The 

Preliminary Draft and Draft Note should also be revised to remove the subsections that could do 

more harm than good by enshrining into the FRCP concepts that raise complicated or undecided 

questions about existing FRCP or statutory provisions, including the subsections about

appointing leadership counsel, facilitating settlement, consolidated pleadings, “direct filing,” and 

appointing masters.

no party or viewpoint should have an advantage in the presentation of information or the decision-making of a judge 

without notice to all interested parties. When ex parte communications are used, excluded parties lose the 

opportunity to rebut unfavorable or incorrect information.”).

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TAB 4B 

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COMMENT

to the

ADVISORY COMMITTEE ON CIVIL RULES

October 4, 2023

THE DIRECT APPROACH: WHY FIXING THE RULE 26(b)(5)(A) PROBLEM 

REQUIRES AN AMENDMENT TO RULE 26(b)(5)(A)

Lawyers for Civil Justice (“LCJ”)1 respectfully submits this Comment to the Advisory 

Committee on Civil Rules (the “Committee”) in response to the Judicial Conference Committee 

on Rules of Practice and Procedure’s Request for Comments on the proposed amendments to 

rules 16(b) and 26(f) of the Federal Rules of Civil Procedure (“FRCP”).2

INTRODUCTION

The proposed amendments recognize the significant problems and inefficiencies in today’s 

complex federal court litigation involving the appropriate withholding of records on the basis of 

privilege – particularly the widely divergent standards and expectations across the nation. The

fact that these problems exist despite the clear statement in the Committee Notes to the 1993 

amendment to Rule 26(b)(5)(A) that document-by-document logs are not required in every case3

suggests that the solution is not to issue guidance in Rules 16(b) and 26(f)(3)(D) and in the 

Committee Notes to those rules (the “Committee’s Proposal”), particularly when the proposed 

comments will be inserted in notes unrelated to the rule that sets out the expectations when 

parties withhold documents from production on the basis of privilege, Rule 26(b)(5)(A). The 

fact that there are thirteen references to Rule 26(b)(5)(A) in the Committee’s Proposal

demonstrate that the Committee’s intent is to address a Rule 26(b)(5)(A) problem. Because the 

1 Lawyers for Civil Justice (“LCJ”) is a national coalition of corporations, law firms, and defense trial lawyer 

organizations that promotes excellence and fairness in the civil justice system to secure the just, speedy, and 

inexpensive determination of civil cases. For over 35 years, LCJ has been closely engaged in reforming federal 

procedural rules in order to: (1) promote balance and fairness in the civil justice system; (2) reduce costs and 

burdens associated with litigation; and (3) advance predictability and efficiency in litigation.

2 Preliminary Draft, Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, and Civil Procedure

(Aug. 2023), https://www.uscourts.gov/sites/default/files/2023_preliminary_draft_final_0.pdf.

3 It should be noted that the multiple amendments to Rule 26 since 1937 have caused the committee notes to become 

voluminous, making it difficult for courts and parties to find the relevant notes. 

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indirect approach will not serve the need, the Committee should modify its proposal to include

an appropriate amendment to Rule 26(b)(5)(A).

The 1993 Committee Note correctly observes that detailed privilege logs “may be appropriate if 

only a few items are withheld, but may be unduly burdensome when voluminous documents are 

claimed to be privileged or protected, particularly if the items can be described by categories.”4

However, Rule 26(b)(5)(A) fails to help distinguish between appropriate and unduly burdensome

logging, likely because the 1993 Committee Note has gotten lost in the voluminous notes to the 

13 amendments to Rule 26 since 1937.

5 Many courts and parties continue to misconstrue Rule 

26(b)(5)(A) to require document-by-document privilege logs in all cases—including in cases 

involving massive amounts of data, and even for categories of documents that are highly unlikely 

to contain discoverable information, such as communications with counsel after the filing of a 

complaint.

6 This misinterpretation of Rule 26(b)(5)(A) is causing significant inefficiency and 

injustice by imposing unsupportable and unjustifiable burdens and by hindering courts and 

parties from making use of more efficient alternative methods to comply with the rule. It is also 

suborning the unfortunate tactic of imposing asymmetric litigation burdens on litigants to force 

the compromise of claims and defenses in response to economic pressure rather than the merits.

To address the Rule 26(b)(5)(A) problem, the Committee is proposing to amend two other rules, 

Rule 26(f) and Rule 16(b), to require parties to discuss, and prompt judges to order, the timing 

and method for compliance with Rule 26(b)(5)(A). Although this proposal is well-intended, and 

might help in some cases correct the misinterpretation that leads many courts to find a

presumptive requirement for document-by-document privilege logs, its utility will be limited. As 

Judge Facciola and Jonathan Redgrave accurately observed to the Committee:

[T]he omission of any proposed amendments to Fed. R. Civ. P. 26(b)(5)(A)(ii) itself in 

the rules package unfortunately fails to address directly the progeny of cases that 

misapply this rule and axiomatically insist that the rule requires that a party must log each 

privileged document individually, including courts holding that the rule rigidly requires a 

separate log entry for each email in a chain of emails, regardless of circumstances.7

Meetings and conferences will not fix Rule 26(b)(5)(A), nor will they adequately address the 

problem of ever-increasing burdens of the privilege process as the volume of records and costs of 

discovery continue to increase. Only an amendment to Rule 26(b)(5)(A) can sufficiently clarify 

that the rule does not require document-by-document privilege logs but rather allows producing 

4 FED. R. CIV. P. 26(b)(5) advisory committee’s note to 1993 amendment (“The rule does not attempt to define for 

each case what information must be provided when a party asserts a claim of privilege or work product protection. 

Details concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld, 

but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly 

if the items can be described by categories.”)

5 To find committee notes to a specific section of the rule, practitioners and courts need to know the year that section 

was amended. Importantly, the Committee’s Proposal does not include a cross-reference in Rule 26(b)(5)(A) 

referring to the amendments and committee notes to Rules 16(b) and 26(f)(3)(D).

6 In re Imperial Corp. of America, 174 F.R.D. 475, 478 (S.D. Cal 1997). 

7 Letter from Hon. John M. Facciola (ret.) and Jonathan M. Redgrave to H. Thomas Byron III, Secretary,

Committee on Rules of Practice and Procedure (Jan. 31, 2023), https://www.uscourts.gov/sites/default/files/23-cva_suggestion_from_facciola_and_redgrave_-_rules_16_and_26_0.pdf.

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parties to create categorical privilege logs or to agree on other alternatives. At very least, an 

amendment to Rule 26(b)(5)(A) should provide a reference to the proposed Rule 16(b) and Rule 

26(f) amendments and should be accompanied by a note explaining what compliance with the 

rule means.

This Comment sets forth the Rule 26(b)(5)(A) problem, explains why a modification to the 

Committee’s Proposal to add a direct amendment to Rule 26(b)(5)(A) is necessary, urges a 

change from “rolling” logs to “tiered” logs in the proposed Committee Notes to the proposed 

Rule 16(b) and 26(f) amendments, and suggests that the Committee should follow through with 

this rulemaking by next taking up a Rule 45 amendment to address the needs of non-parties. 

Modifying the Committee’s Proposal as suggested here will achieve the Committee’s purpose of 

informing and enabling parties to customize appropriate logging procedures that are effective, 

efficient, and proportional to the needs of each case.

I. PRIVILEGE LOGS ARE TOO EXPENSIVE, OFTEN MORE BURDENSOME 

THAN HELPFUL, AND FREQUENTLY INDUCE HARMFUL GAMESMANSHIP

A. Costs and Burdens

Indiscriminate document-by-document privilege logs are one of the most labor-intensive, 

burdensome, costly, and wasteful parts of pretrial discovery in civil litigation.8

 The Sedona 

Conference recognizes that “[i]n complex litigation, preparation of [privilege] logs can consume 

hundreds of thousands of dollars or more.”9

 The costs and complexity of privilege logs are

increasing exponentially as the volume of data and communications increase at incredibly high 

rates. It is estimated that human beings produce 2.5 quintillion bytes of data every day. Ninety 

percent of the world’s total data was produced in the past two years. Document and 

communication demands are consequently straining the current rules, which were designed for a 

world of paper. 

The burdens of overlogging are not limited to producing parties. Because document-bydocument logs treat each item as if it had equal importance, such logs force receiving parties and 

courts to focus often misplaced attention on items that may have no material relationship with 

the claims and defenses. Receiving parties often review thousands of entries, assess those 

entries, and fashion responses, irrespective of importance. Courts often must resolve disputes 

over the sufficiency of such log entries that frequently require in camera reviews and 

proceedings.

As the volume of material potentially subject to discovery has escalated, so too has the number 

of documents withheld for privilege. As the Committee explained to the Standing Committee,

the burdens of producing document-by-document privilege logs have escalated as digital 

8 See New York State Bar Association, Report of the Special Committee On Discovery And Case Management In 

Federal Litigation, at 73 (June 23, 2012) (“Most commercial litigation practitioners have experienced the harrowing 

burden the privilege log imposes on a party in a document-intensive case, especially one with many e-mails and email strings.”).

9 The Sedona Conference, The Sedona Conference Commentary on Protection of Privileged ESI, 17 SEDONA CONF.

J. 95, 103 (2016).

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communications have supplanted other means of communication.10 As a result, the burdens and 

expenses of asserting privilege claims has grown dramatically. A court in the Southern District 

of New York has noted that “the advent of electronic discovery and the proliferation of e-mails 

and e-mail chains” has made “traditional document-by-document privilege logs . . . extremely 

expensive to prepare, and not really informative to opposing counsel and the Court.”11 While 

artificial intelligence and other technological advancements have increased the capability and 

efficiency of finding potentially privileged documents, litigants cannot use these tools alone to 

assert their privilege claims under the current rules. Instead, creating privilege logs remains a 

manual, burdensome, and exceptionally expensive process in litigation.

B. Limited Value

Document-by-document privilege logs are frequently of little value to the requesting party and 

the court in analyzing or evaluating the privilege claims, despite the time, effort and money spent 

preparing them.12 The Sedona Conference explains: “Privilege logs rarely ‘enable other parties 

to assess the claim’ as contemplated by Rule 26(b)(5) [ n]or do the logs ‘reduce the need for in 

camera examination of the documents.’”13 A major reason for the problem is that document-bydocument logging is based on the flawed premise that each document (or redacted portion) 

should be treated with equal detail, rather than focusing more attention on the documents that are 

more important to the case and less attention to unimportant items. Preparing a privilege log 

requires careful and time-consuming analysis of descriptions sufficient to convey the basis for 

withholding the document without unintentionally conveying the substance of the 

communication and thus waiving privilege—an effort that should be tailored rather than applied

as a blanket default to the universe of documents.

C. Gamesmanship

Although disagreements regarding the sufficiency of privilege logs can cause extensive 

skirmishes between the parties, rarely do such fights impact the ultimate outcome of the case. 

Too often, challenges to privilege logs are used as a tool by overly aggressive requesting parties 

to impose added expenses on producing parties, to obtain desired concessions with respect to 

other discovery disputes, or to delay litigation. Such actions place additional barriers to the 

10 Memo from Hon. Robin L. Rosenberg, Chair, Advisory Committee on Civil Rules, to John D. Bates, Chair, 

Committee on Rules of Practice and Procedure (Dec. 9, 2022), Agenda Book, Committee on Rules of Practice and 

Procedure (Jan. 4, 2023), at 205, https://www.uscourts.gov/sites/default/files/2023-

01_standing_committee_meeting_agenda_book_final_0.pdf. 

11 Auto Club of N.Y., Inc. v. Port Auth. of N.Y. and N.J., 297 F.R.D. 55, 60 (S.D.N.Y. 2013).

12 See The Sedona Conference, The Sedona Principles, Third Edition: Best Practices, Recommendations & 

Principles for Addressing Electronic Document Production, 19 SEDONA CONF. J. 1, 81 (2018) (“[o]ften, the 

privilege log is of marginal utility.”); see also id at 159, Comment 10.h (“[T]he precise type and amount of 

information required to meet the general standards set forth in Rule 26(b)(5)(A)(ii) varies among courts, and 

frequently fails to provide sufficient information to the requesting party to assess the claimed privilege.”).

13 The Sedona Conference, Commentary on Protection of Privileged ESI, supra at 104 n.7. See also id at 155 

(“[T]he deluge of information and rapid response time required by pressing dockets have forced attorneys into using 

mass-production techniques, resulting in logs with vague narrative descriptions. In some instances, the text of 

privilege logs ‘raise[] the term “boilerplate” to an art form, resulting in the modern privilege log being as expensive 

to produce as it is useless.’”).

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efficiency of our civil justice system and inevitably force parties to compromise rights that 

otherwise could be vindicated on the merits. Rarely do privilege log disputes result in the 

production of documents or data that are dispositive of a case or claim.

D. Lack of Uniformity

There is a troublesome lack of uniformity across federal courts in the caselaw interpreting Rule 

26(b)(5)(A). Many district courts across the country have attempted to address the Rule 

26(b)(5)(A) problem by promulgating local rules and standing orders that provide for limits on 

logging requirements and endorse alternative methods of privilege logging—a clear indication 

that the absence of a national standard is causing problems.14 Local rules developed in response 

to the burden of document-by-document privilege logs have also been varied and inconsistent. 

For example, the District of Colorado urges counsel to engage in good faith to identify types of 

documents that do not need to be logged document-by-document,15 while district courts in New 

York have local rules that presumptively find categorical groupings of documents for privilege 

logs to be proper.16 Still other courts hold that Rule 26(b)(5)(A) rigidly requires a separate log 

for each email in a chain of emails, regardless of the circumstances.17 There is also a lack of 

uniformity with respect to which kinds of documents may be categorically excluded from 

privilege logs, such as duplicative emails in lengthy email chains or communications between 

counsel and clients after the commencement of litigation.18

14 Even in jurisdictions where courts have not undertaken larger-scale efforts to address the problem of logging 

privileged documents in the digital age, a growing number of courts have recognized the appropriateness of categorical 

privilege logs based on the burden imposed by individual logs and lack of benefit they provide. See, e.g., AsghariKamrani v. U.S. Auto. Ass’n, No. 2:15-cv-478, 2016 WL 8243171, at *1– 4 (E.D. Va. Oct. 21, 2016) (finding party’s 

categorical privilege log complied with 26(b)(5) and holding that requiring plaintiffs to separately list each of the 439 

documents categorically logged would be “unduly burdensome for no meritorious purpose”); Manufacturers 

Collection Co., LLC v. Precision Airmotive, LLC, No. 3:12-CV-853-L, 2014 WL 2558888, at *4-5 (N.D. Tex. June 6, 

2014) (permitting categorical privilege log when a “document-by-document listing.... would be unduly burdensome” 

and provide “no material benefit to Precision in assessing whether a privilege .... claim is well grounded.”); First 

Horizon National Corp. v. Certain Underwriters at Lloyd's, 2013 WL 11090763, at*7 (W.D. Tenn. Feb. 27, 2013) 

(permitting categorical privilege log and noting that “several courts have employed such a categorical approach to 

balance competing concerns of, on the one hand, the burden on the withholding party to perform a detailed indexing 

of a large amount of documents and, on the other hand, the need for the requesting party, and even more importantly, 

the court, to be able to adequately assess the applicability of the privilege being asserted.”)

15 Guidelines Addressing the Discovery of Electronically Stored Information cmt. 5.1 (D. Colo. 2014)

16 S.D.N.Y. Civ. R. 26.2(c); W.D.N.Y. Civ. R. 26(d)(4). 

17 See, e.g., M & C Corp. v. Erwin Behr GmbH & Co., No. 91-CV-74110-DT, 2008 WL 3066143, at *2 (E.D. Mich. 

Aug. 4, 2008) (“As an initial matter the Court notes that the parties have approached the question of the applicability 

of the work product doctrine to the disputed material in general terms rather than on a more detailed, document by 

document, level. Kemp Klein did not serve a privilege log listing each document withheld and describing each 

document as required by Fed. R. Civ. P. 45(d)(2). Therefore, this Court cannot and will not decide whether any 

specific documents or categories of documents are protected by the work product doctrine.”).

18 Compare Brown v. West Corp., 287 F.R.D. 494, 499 (D. Neb. 2012) (“This Court has joined other district courts 

in assuming privilege for attorney-client communications that transpire after the initiation of litigation in situations 

where the plaintiff is requesting extensive discovery.”), with Shufeldt v. Baker, Donelson, Bearman, Caldwell and 

Berkowitz, P.C., No. 3:17-cv-01078, 2020 WL 1532323, at *6 (M.D. Tenn. 2020) (“[T]here is no apparent reason to 

limit the scope of the log to materials generated before the filing of the [action]”).

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6

While a categorical privilege log can be a reasonable alternative to a document-by-document 

privilege log in many cases, it is certainly not the only alternative. The spirit of Rule 26(b)(5)(A) 

calls for effective and proportional alternatives, as contemplated in the 1993 Committee Note, 

and for parties to select the privilege log form that best suits the case. Establishing clear 

guidance on the elements of a sufficient privilege log will ensure consistency across courts and 

relieve parties of the default document-by-document privilege log burden. 

II. THE COMMITTEE’S PROPOSAL SHOULD BE MODIFIED TO INCLUDE AN 

AMENDMENT TO RULE 26(b)(5)(A) WITH A COMMITTEE NOTE 

DESCRIBING A SUFFICIENT LOG

The Committee’s Proposal will best achieve its purpose if an amendment to Rule 26(b)(5)(A)(ii) 

provides a reference to the new amendments. As suggested by Facciola and Redgrave,19 adding

this single sentence would put the focus where it belongs—the rule that is the source of the 

misunderstanding: 

The manner of compliance with subdivisions (A)(i) and (ii) shall be determined in 

each case by the parties and the court in accord with Rules 16(b)(3)(B)(iv) and 

26(f)(3)(D).

Adding this provision will help ensure that courts and parties turning to Rule 26(b)(5)(A) for 

guidance will learn that the FRCP require parties to take the initiative in addressing and reaching 

agreement on the scope, structure, content, and timing of privilege logs at the appropriate time in 

each case. A Committee Note accompanying this amendment should clarify that Rule 

26(b)(5)(A) does not specify the method of compliance and should describe the elements of a 

sufficient privilege log. The Committee Note should also clarify that, absent unusual 

circumstances, there is a presumption that parties are not required to provide logs of trialpreparation documents created after the commencement of litigation, communications between 

counsel and client regarding the litigation after service of the complaint, or communications 

exclusively between a party’s in-house counsel and outside counsel during litigation. These 

three categories are clearly within the privilege and almost never will be admissible in the 

substantive case. Providing clarity on this topic is much-needed (as noted in LCJ’s original 

submission20) and would reduce satellite litigation over whether documents in these categories 

must be logged. The Committee Note should also suggest that prioritizing logging by tier can 

help parties focus on the documents that are most likely to matter to the litigation. An effective 

Committee Note could look like this:

Rule 23(b)(5)(A) is amended together with Rules 16(b)(3)(B)(iv) and 26(f)(3)(D) to 

direct the parties to select a privilege log form and process that is effective and 

proportional to the needs of the case. The form should allow the parties to assess 

19 Letter from Hon. John M. Facciola (ret.) and Jonathan M. Redgrave to H. Thomas Byron III, Secretary,

Committee on Rules of Practice and Procedure (Jan. 31, 2023) , https://www.uscourts.gov/sites/default/files/23-cva_suggestion_from_facciola_and_redgrave_-_rules_16_and_26_0.pdf. 20 Lawyers for Civil Justice, Privilege And Burden: The Need To Amend Rules 26(B)(5)(A) And 45(E)(2) To Replace 

“Document-By-Document” Privilege Logs With More Effective And Proportional Alternatives (August 4, 2020), 

https://www.uscourts.gov/sites/default/files/20-cv-r_suggestion_from_lawyers_for_civil_justice_-

_rules_26_and_45_privilege_logs_0.pdf (hereinafter, “LCJ Suggestion”).

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7

privilege claims and make the proper assertion as to whether privilege applies. The 

process should be efficient; the parties’ selection should reflect the volume of documents, 

the burdens and expenses of producing the log, and the value of the log to the litigation.

The privilege log form and process should not require judicial attention or intervention in 

the ordinary course.

The privilege log form will vary with the needs of the case. Elements of a sufficient 

privilege log form may: (1) include sampling to determine whether privilege claims are 

legally and factually sound; (2) utilize broad categories or summaries for secondary, 

nonmaterial documents; (3) provide more detailed information for subsets of important or 

primary, material documents; or (4) establish logging protocols for particular types of 

linked/serial communications such as emails or text messaging.

The process of compiling a privilege log should also reflect the needs of the case. 

Prioritizing the logging of documents that are more likely to be significant to the claims 

and defenses could help focus attention on the key issues, just as with a tiered approach 

to document production. 

Certain categories of documents are presumed not to need logging absent unusual 

circumstances, including trial-preparation documents created after the commencement of 

litigation and communications between counsel, client regarding the litigation after 

service of the complaint, and communications exclusively between a party’s in-house 

counsel and outside counsel during litigation.

Parties may select a privilege log form and process that incorporates technology and the 

creativity of parties and counsel, so long as the privilege log form and process are clear, 

efficient, and proportional to the needs of the case.

III. THE PROPOSED COMMITTEE NOTES TO THE RULE 16(b) AND 26(f) 

AMENDMENTS SHOULD SUGGEST TIERED LOGGING RATHER THAN 

ROLLING PRODUCTION

The Committee’s Proposal includes a proposed note to the Rule 26(f)(3)(D) amendment stating: 

“Often it will be valuable to provide for ‘rolling’ production of materials and an appropriate 

description of the nature of the withheld material.” Similarly, the proposed Note to the Rule 

16(b) amendment says: “It may be desirable for the Rule 16(b) order to provide for ‘rolling’ 

production that may identify possible disputes about whether certain withheld materials are 

indeed protected.” This language should be changed to substitute the word “tiered” for “rolling” 

because tiering is an effective management technique but rolling is frequently a 

counterproductive concept that often exacerbates the problems of ineffective and inefficient

logging practices.

A “tiered” process allows coordination between privilege logging and the production of 

documents.21 It prioritizes the production and logging of documents that are most likely to 

21 Comment by Robert D. Keeling to the Advisory Committee on Civil Rules (Sept. 8, 2023) at 9,

https://www.regulations.gov/comment/USC-RULES-CV-2023-0003-0003. 

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8

contain information that is material to the issues in the case. Organizing the process in this 

manner means that any potential disputes related to the most important documents are resolved 

as early as possible in the discovery process. By focusing on sources that are more likely to be 

material, tiering can provide more detailed logs for important withheld documents while 

relieving the burdens of focusing undue attention on the less significant tiers. 

In contrast, rolling logs often cause substantial delay in the completion of document productions 

because providing privilege logs at or near the same time as corresponding document 

productions adds significantly to the burden while decreasing the quality and accuracy of the 

privilege log.22 Devoting resources and attention to composing privilege log entries takes away 

resources from the document production. “More often than not, rolling logs create needless ‘fire 

drills’ where not enough time (or resources) exists to provide quality productions simultaneously 

with quality log entries.”23 Because document productions are typically of more immediate 

interest to the requesting party, when a choice must be made, the privilege log is often the second 

priority, which leads to disputes and motion practice. Moreover, logs that are produced on a 

rolling basis often must be corrected and reproduced later in the process based on information 

from subsequent document review. “For example, the question of whether an individual copied 

on a communication is a third-party recipient who breaks privilege may not be clear from review 

of a single document, but subsequent review of additional documents may assist lawyers in 

making the correct privilege determination in the first instance.”24 Correcting and redoing

previously produced logs, and making supplemental productions of documents in the previous 

log population, is inefficient. It is better for parties and the courts if privilege logs are compiled

after the majority of documents in a particular tier have been reviewed.

IV. A RULE 45 AMENDMENT IS NEEDED BECAUSE THE COMMITTEE’S 

PROPOSAL DOES NOT ADDRESS THE PROBLEMS OF NON-PARTY 

PRIVILEGE LOGS

Non-parties facing the prospect of producing a privilege log pursuant to Rule 45 have an equal,

or perhaps even greater, need for guidance about requirements than parties. Although Rule 45 

makes clear that non-parties should be entitled to greater protection against undue burdens, it 

fails to provide it expressly with respect to privilege logging. Because non-parties do not 

typically participate in Rule 26(f) or Rule 16 conferences, the Committee’s Proposal does not 

address their needs and problems. If the Committee does not want to address Rule 45 in the 

current rulemaking, it should nevertheless take up the topic for a future proposal because an 

amendment to Rule 45 is the most effective way to provide non-parties the appropriate guidance 

and protection.

CONCLUSION

The Committee’s 1993 insight has been misunderstood or ignored, and now Rule 26(b)(5)(A) 

and its case law progeny have institutionalized a de facto default to “document-by-document” 

overlogging. This Rule 26(b)(5)(A) problem imposes significant burdens on parties, non-parties, 

and courts that are not worth the price, and it also induces gamesmanship. Although the 

22 Id. at 7-9. 23 Id. at 8. 24 Id.

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9

Committee’s Proposal could help, the indirect approach of amending Rules 26(f) and 16(b) will 

not be as effective without direct guidance in Rule 26(b)(5)(A) to focus on finding an efficient 

process that best meets the needs of the case. An amendment to Rule 26(b)(5)(A) referring to the 

new Rule 26(f) and 16(b) provisions, together with a Committee Note as described above, will

inform and enable courts, parties, and non-parties to customize logging forms and procedures to 

ensure effective and efficient logging.

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TAB 5 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 66 of 177
TAB 5A

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 67 of 177
Kaspar J. Stoffelmayr

Kaspar.Stoffelmayr@BartlitBeck.com

Courthouse Place

54 West Hubbard Street

Chicago, IL 60654

main: (312) 494-4400

direct: (312) 494-4434

BartlitBeck.com

October 5, 2023 

Advisory Committee on Civil Rules

Committee on Rules of Practice and Procedure 

 of the Judicial Conference of the United States 

Administrative Office of the United States Courts

One Columbus Circle, NE 

Washington, DC 20544 

Re: Written Testimony on Proposed Federal Rule of Civil Procedure 16.1 

Dear Members of the Committee: 

This letter is in response to the request for written testimony in advance of the Committee 

hearing on October 16, 2023. I am a partner in the law firm of Bartlit Beck LLP, but the views 

expressed here and in my testimony are exclusively my own and do not necessarily reflect the 

views of the firm, its other lawyers, or any of the firm’s clients.

My testimony will concern Proposed Rule 16.1 regarding multidistrict litigation cases, in 

particular Proposed Rule 16.1(c). 

For details regarding my testimony, I refer the Committee to the written comment that I intend to 

submit no later than October 7, 2023. 

At a high level, I will address these topics:

• The extent to which the current draft of Proposed Rule 16.1(c), including its use of 

permissive rather than mandatory language, does not function as a traditional rule but 

rather encourages ad hoc rulemaking by MDL judges. 

• Reasons why the Federal Rules should not encourage ad hoc rulemaking in MDLs.

o While a certain amount of ad hoc procedure may be unavoidable, discussions of 

the benefits of giving MDL judges maximum flexibility in case management 

overlook the significant problems that accompany ad hoc rulemaking. 

o Those problems include how ad hoc rulemaking (1) contributes to the 

proliferation of unsubstantiated claims in MDLs and the so-called “Field of 

Dreams” problem; (2) may inadequately restrict an MDL judge’s discretion with 

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Advisory Committee on 

Civil Rules 

October 5, 2023 

Page 2 

respect to effectively unreviewable orders that can have a major impact on the 

parties’ rights; (3) relies on an adversarial, party-driven process that lacks the 

credibility of rulemaking by disinterested parties whose sole aim is to draft rules 

that promote the fair and expedient administration of justice; (4) exacerbates that 

“repeat player” problem that has generated much criticism of current MDL 

practice; and (5) contributes to the lack of confidence among both plaintiffs and 

defendants in MDLs as a means to fairly adjudicate disputes and resolve claims. 

• Revisions to the current draft of Proposed Rule 16.1, as proposed by Lawyers for Civil 

Justice, that would both (1) avoid unnecessarily encouraging ad hoc rulemaking in 

MDLs and (2) more effectively address the unsubstantiated claims problem. 

I look forward to the opportunity to discuss these issues with the Committee and answer any 

questions you may have. 

Respectfully submitted,

/s/ Kaspar J. Stoffelmayr 

Kaspar J. Stoffelmayr 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 69 of 177
TAB 5B 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 70 of 177
Kaspar J. Stoffelmayr

Kaspar.Stoffelmayr@BartlitBeck.com

Courthouse Place

54 West Hubbard Street

Chicago, IL 60654

main: (312) 494-4400

direct: (312) 494-4434

BartlitBeck.com

October 7, 2023 

Advisory Committee on Civil Rules

Committee on Rules of Practice and Procedure 

 of the Judicial Conference of the United States 

Administrative Office of the United States Courts

One Columbus Circle, NE 

Washington, DC 20544 

Re: Comment on Proposed Federal Rule of Civil Procedure 16.1 

Dear Members of the Committee: 

I write regarding proposed new Rule of Civil Procedure 16.1 for multidistrict litigation cases. I 

am a partner in the law firm of Bartlit Beck LLP, but the views expressed here and in my 

testimony are exclusively my own and do not necessarily reflect the views of the firm, its other 

lawyers, or any of the firm’s clients.

Introduction

For many years, much of my practice, both as a senior in-house lawyer and as outside counsel to 

major corporations, has involved the defense of mass tort claims in federal MDLs. 

Based on that experience, I wholeheartedly endorse the comment submitted by Lawyers for Civil 

Justice (“LCJ Comment”) on September 18, 2023. The LCJ Comment comprehensively 

addresses Proposed Rule 16.1 and suggests revisions that would significantly improve the 

current draft. 

In particular, as the LCJ Comment lays out, the current draft is inadequate to address one of the 

greatest shortcomings of modern MDL practice: the so-called “Field of Dreams” problem. 

Today, large MDLs generally proceed in a manner that does not just permit, but encourages, the 

filing of large numbers of claims that have not been subject to any sort of meaningful pre-filing 

review. Experience shows that, after years of costly litigation, many of these unreviewed claims 

turn out to be unsubstantiated for the most basic reasons, such as a plaintiff’s failure ever to have 

used the product at issue or to have suffered the relevant injury. 

I submit this separate comment to address a related, overarching concern: as currently drafted, 

subsection (c) of Proposed Rule 16.1 threatens to codify and exacerbate the problematic extent to 

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Advisory Committee on Civil Rules 

October 7, 2023 

Page 2 

which MDL courts rely on unpredictable and ad hoc procedural rulemaking. The solution, as the 

LCJ Comment proposes, is to revise the current language in Proposed Rule 16.1(c) so that it (1) 

does not include controversial subject matter for which a rule is not appropriate, and (2) 

addresses the unsubstantiated claims problem with mandatory language, like other Federal Rules,

that provides clear requirements for litigants and courts to follow. 

Proposed Rule 16.1(c) Would Unnecessarily Encourage Ad Hoc Rulemaking

As drafted, Proposed Rule 16.1(c) is not a “rule” in the traditional sense and does not, like other 

Rules of Civil Procedure, set forth procedures that apply across cases unless a court expressly 

excuses compliance under limited circumstances that the Rules define.1

 Just the opposite, the 

current draft of Proposed Rule 16.1(c) encourages each MDL court to make its own ad hoc rules 

on numerous important topics. 

Proposed Rule 16.1(c) advises MDL judges that, in advance of the initial case management 

conference in an MDL, the court “may” (but need not) direct the parties to submit a report on 

extraordinary procedural orders that might (or might not): 

• Put “limits on activity by non-leadership counsel” on behalf of their own clients 

(Proposed Rule 16.1(c)(1)(E)); 

• Require individual plaintiffs to provide information about the factual bases for their 

claims (Proposed Rule 16.1(c)(4)); 

• Permit atypical pleadings such as “master” and “short form” complaints (and 

answers), which are not recognized in Rule 7 or elsewhere in the Federal Rules and

which have unclear legal effect (Proposed Rule 16.1(c)(5));2 

1 For example, while Rule 4 provides significant flexibility regarding the time limits for serving process, it uses 

mandatory language that strictly defines how a district court can—and cannot—exercise its discretion around the 

deadlines for service: “If a defendant is not served within 90 days after the complaint is filed, the court . . . must

dismiss the action without prejudice or order that service be made within a specified time,” except that “if the 

plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.” Fed. 

R. Civ. P. 4(m) (emphasis added). 

Similarly, although a district court should “freely give leave” to amend pleadings “when justice so requires,” Fed. R. 

Civ. P. 15(a)(2), the Rules strictly circumscribe a district court’s discretion under Rule 16(b)(4) to modify the 

deadline for amending a complaint. The plaintiff must demonstrate “good cause,” meaning specifically that “despite 

their diligence they could not meet the original deadline.” In re Nat’l Prescription Opiate Litig., 956 F.3d 838, 843 

(6th Cir. 2020) (quotation marks and citation omitted). Absent such a showing, a district court has no discretion to

find the “good cause” necessary for a late amendment based on what the court believes would be more efficient or 

would otherwise promote its case management goals. Id. at 843-45.

2 Subsection (c)(5) refers to “consolidated pleadings,” which the Committee Note discusses in terms of “master 

complaints and answers in addition to short form complaints.”

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Page 3 

• Involve special “measures to promote settlement” (Proposed Rule 16.1(c)(9));3 and 

• Permit the filing of new actions in a court that the personal jurisdiction and venue 

rules would normally prohibit (Proposed Rule 16.1(c)(10)).4

It is unclear what purpose such a rule would serve. The LCJ Comment explains why numerous 

topics in Proposed Rule 16.1(c) involve difficult and contested legal questions on which it would 

be inappropriate for the Rules to take a position. And the draft rule does not purport to give 

federal judges any greater power than whatever discretion they already have to issue the 

procedural orders contemplated in Proposed Rule 16.1(c). 

While a rule along the lines of the current draft is thus unnecessary, it would not be without 

impact. Proposed Rule 16.1(c) provides no standards or limits to govern how MDL judges 

should address the enumerated topics. Rather, it would enshrine in the Federal Rules the view 

that the topics identified in Proposed Rule 16.1(c) are appropriate areas for inconsistent and 

unpredictable ad hoc rulemaking in every MDL.

Concerns About the Use of Ad Hoc Rulemaking in MDLs

Many have expressed the view that ad hoc rulemaking in MDLs is a virtue of the current system 

and should be encouraged. There are, of course, benefits to providing district judges with 

maximum flexibility to manage their cases, including MDLs, as they see fit. Far less attention 

has been paid, however, to the important countervailing considerations that warn against the 

widespread use of ad hoc rules in a class of cases that makes up such a large portion of the 

federal civil docket. 

First, there is an important way in which the unpredictability inherent in ad hoc rulemaking 

contributes to the unsubstantiated claims problem that has become a defining characteristic of 

modern MDLs. Without knowing in advance what procedural rules will apply in an MDL and 

what sort of early scrutiny, if any, claims will receive, it is virtually never the case that a claim is 

not worth filing simply because counsel does not know whether it can ever be substantiated. 

Given the low cost and burden of filing cut-and-paste complaints on behalf of hundreds or 

thousands of plaintiffs, it is not surprising that lawyers will file large numbers of unreviewed 

cases in the hope that the court will not adopt procedures that require parties to show that they 

3 The Committee Note tells district courts that the relevant “measures to promote settlement” do not just include 

encouraging (or ordering) mediation, but can include any number of other procedural devices.

4 While subsection (c)(10) refers to “how to manage the filing of new actions,” the Committee Note discusses only 

so-called “direct filing” orders. 

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Page 4 

have viable claims before a settlement opportunity arises.5 An important step toward solving the 

unsubstantiated claims problem would be to replace the ad hoc approach with a clear rule that 

applies across cases and creates a firm expectation that in MDLs, no less than in other cases, 

plaintiffs must produce evidence to support their claims early in the process. 

Second, while the benefits of broad judicial discretion are important, so too are the benefits of 

limiting judicial discretion. Certainly, there are highly regarded MDL judges who have adopted

procedural innovations that served the court and the parties well. But judges come to the bench 

with very different skill sets and backgrounds. Not every judge who receives an MDL will be 

equally adept at MDL case management. At the same time, even the most important MDL case 

management orders, with the greatest impact on the parties’ rights, are effectively unreviewable. 

Under such circumstances, there is much to be said for restricting a lone MDL judge’s discretion 

in favor of considered rules of procedure, adopted through the formal and deliberative federal 

rulemaking process—which is public and which benefits from the input of judges across the 

judiciary and experts with a wide variety of perspectives.

Third, the process by which MDL courts adopt ad hoc procedural rules means that these rules

often lack credibility as impartial rules of procedure designed to promote the fair administration 

of justice. It is typical for an MDL judge to rely heavily on input from the lawyers about what 

procedures to adopt. There are times when judges are notably deferential to counsel with the 

most experience in large MDLs. Yet every one of these lawyers is an advocate representing an 

interested party (and some may also stand to gain or lose personally from the court’s procedural 

decisions). A leading scholar of MDLs finds that, “[w]ithout much external scrutiny, past 

practices quickly become best practices, and experienced agents are able to cite and replicate 

beneficial procedures in areas that affect their financial remuneration.”6 An adversarial 

rulemaking process, driven by parties looking for an advantage, is nothing like rulemaking by 

disinterested parties, such as this Committee, who are not concerned with who will win or lose 

any particular lawsuit, but rather draft rules to apply across cases with the aim of securing the 

“just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1.7

5 One often hears in response that many lawyers, including some prominent members of the mass-tort plaintiffs’ bar, 

do not file unreviewed cases. One would hope so. The problem is that other lawyers do file these cases.

6 Elizabeth Chamblee Burch, Monopolies in Multidistrict Litigation, 70 Vanderbilt L. Rev. 67, 86 (2017).

7 The “agreed” case management orders that lawyers present to an MDL judge are not necessarily any better. While 

such orders may receive less judicial scrutiny, they may often reflect nothing more than “horse trading” among 

sophisticated parties negotiating compromise positions that secure terms of particular importance to each side. And 

lawyers recognize the value of agreeing to enough of the other side’s demands, whether or not they are sound as a 

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Fourth, the reliance on ad hoc procedures in MDLs is a significant contributor to the “repeat 

player” problem that has generated much criticism of current MDL practice.8 When important 

procedural rules in MDLs are not codified anywhere, but are recycled and modified from case to 

case, the only lawyers capable of playing a major role in an MDL are the insiders and their 

selected colleagues whom the insiders favor by sharing their knowledge and experience. To 

make matters worse, when MDL judges defer to the most experienced MDL lawyers for 

guidance on which procedures to adopt, it gives those repeat players outsized influence and 

standing with the court and among the other lawyers representing aligned parties.

Finally, ad hoc procedure in MDLs contributes to the notable lack of confidence that many 

parties have expressed in federal MDLs as a fair way to adjudicate disputes and resolve claims. 

While lawyers and judges see much to praise in current MDL practice, the parties themselves 

often have a very different assessment. Certain defendants’ concerns about MDLs are well 

documented. A recent survey of plaintiffs with cases in mass tort MDLs shows enormous 

dissatisfaction with the process among plaintiffs as well.

9

 There are doubtless numerous reasons 

why parties may have such a low opinion of MDLs, but one important factor is the clash between 

the broad reliance on ad hoc procedures in MDLs and a fundamental view “of the rule of law that 

equates it with fair procedures laid down in advance of disputes.”10 With so many defendants 

and, apparently, plaintiffs sharing the view that MDLs work to obscure the merits of individual 

cases while driving coercive settlements, it can only heighten the parties’ distrust of the process 

when the court begins to craft its own procedures, not found in the Federal Rules, specifically to 

control their case. 

matter of the administration of justice, to satisfy the court’s strong desire to see agreement among the parties on 

procedural matters.

8 E.g., Alissa del Riego, Driving Diverse Representation of Diverse Classes, 56 U. Mich. J. L. Reform 67 (2022); 

Elizabeth Chamblee Burch, Monopolies in Multidistrict Litigation, 70 Vanderbilt L. Rev. 67 (2017); Elizabeth 

Chamblee Burch & Margaret S. Williams, Repeat Players in Multidistrict Litigation: The Social Network, 102 

Cornell L. Rev. 1445 (2017); Dana Alvaré, Vying for Lead in the “Boys’ Club”: Understanding the Gender Gap in 

Multidistrict Litigation Leadership Appointments (2017 & 2018 update) 

(https://www2.law.temple.edu/csj/publication/mdl-study/). 

9 Elizabeth Chamblee Burch & Margaret S. Williams, Perceptions of Justice in Multidistrict Litigation: Voices from 

the Crowd, 107 Cornell L. Rev. 1835 (2022).

10 David L. Noll, MDL as Public Administration, 118 Mich. L. Rev. 403, 407 (2019). To be clear, Professor Noll

believes that this is an unfair criticism: If the parties feel this way, it is because they incorrectly hold MDL courts to 

the same standards of procedural justice as they hold other courts. According to Professor Noll’s article, that reflects

a misunderstanding of MDLs’ real function. He analogizes MDL courts to executive branch agencies, like the Social 

Security Administration, that administer public programs—but without the same legitimacy, he notes, because 

MDLs lack the transparency, accountability, and accessibility we demand of administrative processes. 

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Advisory Committee on Civil Rules 

October 7, 2023 

Page 6 

Conclusion 

None of the above is meant to say that there is no place for any ad hoc rules in MDLs. To a 

certain degree, ad hoc rulemaking is inevitable and sometimes appropriate in MDLs just as in 

other cases. But in drafting a new Rule 16.1 for MDLs, the Committee should also take seriously 

the major drawbacks of ad hoc rulemaking in MDLs. In light of those concerns, it would be a 

mistake to adopt the current draft language in Proposed Rule 16.1(c) that affirmatively 

encourages problematic ad hoc rulemaking by calling out certain topics as particularly 

appropriate for ad hoc procedural rules. 

Rather, Proposed Rule 16.1(c) should be revised as suggested in the LCJ Comment to eliminate 

the unnecessary invitation to engage in ad hoc rulemaking on contested subjects, while still 

addressing one of the most pressing failures of the MDL system through mandatory language on 

the early evaluation of claim sufficiency.11

I look forward to the opportunity to discuss these issues with the Committee and to answer any 

questions. 

Respectfully submitted,

/s/ Kaspar J. Stoffelmayr 

Kaspar J. Stoffelmayr 

11 Specifically, the current draft of Proposed Rule 16.1 should be revised to include the language that the LJC 

Comment proposes for subsection (c)(4) and to eliminate subsections (c)(1), (c)(5), (c)(9), (c)(10), and (c)(12).

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FIRM/AFFILIATE OFFICES

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SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP

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TEL: (202) 371-7000

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 www.skadden.com

October 3, 2023

VIA E-MAIL

H. Thomas Byron III, Secretary

Committee on Rules of Practice and Procedure

Administrative Office of the United States Courts

One Columbus Circle, NE, Room 7-300

Washington, D.C. 20544

Re: October 16, 2023 Civil Rules Hearing

Dear Mr. Byron:

I appreciate the opportunity to appear before the Advisory Committee on Civil 

Rules at its upcoming hearing on October 16, 2023. As requested in the September 23, 2023 

memorandum to confirmed hearing witnesses, I wanted to report that at the hearing, I intend to 

address the proposed Fed. R. Civ. P. 16.1, particularly the prompt in the Preliminary Draft of 

Rule 16.1(c)(1) suggesting that courts and parties consider “whether leadership counsel should 

be appointed” in the multidistrict litigation proceeding. My views on this topic are generally 

reflected in the comments submitted by Lawyers for Civil Justice on September 18, 2023, at 

pages 11-17. (Comment ID: USC-RULES-CV-2023–0003-0004.) I therefore do not plan to 

offer a separate written submission. 

If you have any questions, please let me know. 

Sincerely, 

John H. Beisner 

 DIRECT DIAL

202-371-7410

 DIRECT FAX

202-661-8301

 EMAIL ADDRESS

John.Beisner@SKADDEN.COM

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11

discovery, timing of any motion practice, selection of initial trial cases. To the extent that 

leadership decisions are made in part on the basis of claim volume, early disclosures help 

the judge make appropriate decisions about plaintiffs’ leadership. See, e.g., In re Gen. 

Motors LLC Ignition Switch Litig., No. 14-MD-2543, 2016 WL 1441804, at *9 n.4 

(S.D.N.Y. Apr. 12, 2016) (giving “some credence” to accusation that lead counsel 

“flooded the MDL with meritless cases” to gain position in leadership contest). 

Disclosures enable parties more accurately to estimate the risks of litigation, aiding in 

timely resolution of the litigation. 

II. APPOINTMENT OF LEADERSHIP COUNSEL IS TOO FRAUGHT WITH

LEGAL UNCERTAINTY TO BE ENDORSED BY THE FRCP

The Preliminary Draft’s prompt to consider “whether leadership counsel should be appointed”42

would interject difficult and unanswered legal questions into the FRCP. Although intended to 

facilitate a discussion that may need to occur (particularly in mass tort MDLs),43 the topic is 

adequately covered in the Manual for Complex Litigation (Fourth)44 and including this concept 

in Rule 16.1 would cause more problems than it would solve. 

A. Because No Accepted Definition of “Leadership Counsel” Exists, Injecting this

Concept into the FRCP Would Sow Confusion

There is no prevailing definition of the MDL “leadership counsel” concept. The leadership 

appointment orders issued by MDL courts in recent years have been described as reflecting the 

most extreme level of “ad hockery” in the MDL realm.45 Unfortunately, the case law is not 

developing any new clarity; one scholar’s examination of MDL leadership appointment orders 

issued in 201 federal MDLs pending as of June 2019 concluded that “there is no grand 

progression toward more perfect, more fully specified orders.”46 Rather, such orders “simply 

appoint attorneys to specified positions and say nothing more.”47 Only about half endeavor to 

enumerate leaders’ duties.48 The study observed that “[n]one of the [reviewed] orders . . . 

42 Preliminary Draft Rule 16.1(c)(1).

43 These comments are focused primarily on mass tort-type MDL proceedings where most constituent actions are 

individual plaintiff lawsuits in which claimants are each represented by their own retained counsel. In contrast, 

many other MDL proceedings are constituted largely of class action cases, which seek to assert the claims of 

numerous unnamed persons who are not individually represented by their own counsel. In those cases, appointment 

of leadership counsel (that is, counsel for the putative class members) is governed primarily by Fed. R. Civ. P. 23(g). 

Nevertheless, appointment of leadership counsel for the overall MDL proceeding may be desirable in such matters 

to coordinate the multiple class actions in the proceeding. If the Advisory Committee proceeds toward adoption of a 

Rule 16.1, this distinction between “mass tort” and class action-based MDL proceedings should be addressed more 

explicitly. 

44 See Manual for Complex Litigation (Fourth) §§ 10.22, 22.62.

45 David L. Noll, What Do MDL Leaders Do? Evidence from Leadership Appointment Orders, 24 Lewis & Clark L. 

Rev. 433, 465-66 (2020) (“Noll Study”). 

46 Id.

47 Id.

48 Id. at 444.

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12

attempted to define the legal relationship between court-appointed leaders and non-client 

plaintiffs.”49 Further, the study noted that only around five percent of the orders “specify duties 

that lead plaintiffs’ counsel hold toward MDL plaintiffs.”50 This absence of meaningful 

“leadership counsel” definitions does not reflect efforts to tailor the concept to the needs of 

particular MDL proceedings. To the contrary, the definitional fuzziness shows that MDL courts 

are unable, because of the thicket of unanswerable questions, to advance any meaningful 

definition of leadership appointments—or worse, a practice of allowing leadership counsel to 

self-define their roles.51 Incorporating the significant uncertainty about this concept into Rule 

16.1 would not clarify what “leadership counsel” means for newly appointed (or even 

experienced) transferee judges, but rather would suggest a degree of certainty and predictability 

that does not exist. 

B. Rule 16.1 Should Not Invite MDL Courts to Limit the Activity of Non-Leadership 

Counsel Because the Legal Authority to Do So Is Unsettled and Raises Complicated 

Questions Under State Law, Ethics Rules, and the Rules Enabling Act 

The Preliminary Draft’s suggestion to consider imposing “limits on activity of nonleadership 

counsel”52 is highly inappropriate for inclusion in the FRCP because of the legal and ethical 

duties MDL plaintiffs’ lawyers owe to their clients. As the Preliminary Draft and Draft Note 

suggest, when plaintiffs’ leadership counsel are designated in an MDL proceeding, they are 

directed to act on behalf of all plaintiffs, which means that the plaintiffs’ counsel not selected for 

a leadership roles are effectively ordered to stand down, even though their clients’ claims remain 

in the MDL proceeding and likely will be substantially affected by leadership counsel’s actions. 

Some MDL courts—22 percent, according to Professor Noll’s study53—explicitly direct 

nonleadership counsel to cease active representation of their clients and defer to leadership 

counsel’s decision-making. For example, one order states that “Counsel for Plaintiffs who 

disagree with Lead and Liaison Counsel, or have individual or divergent positions, may not act 

separately on behalf of their clients without prior authorization of this Court.”54 Another MDL 

appointment order states that “no papers shall be served or filed, and no process, discovery, or 

other procedure shall be commenced by any counsel other than Lead Counsel, except with 

specific leave of Court.”55 The Noll Study concluded that even where an appointment order does 

not explicitly restrict nonleadership counsel practice, “the division of labor between leaders and 

non-leads in these MDLs is [likely] governed by informal norms or directions from the court or 

49 Id. at 452-53. 

50 Id.

51 Id. at 450.

52 Preliminary Draft Rule 16.1(c)(1)(E). 

53 Noll, What Do MDL Leaders Do?, 24 Lewis & Clark L. Rev. at 455.

54 Id. at 455-56 (quoting Case Management Order at 9, In re MONAT Hair Care Prods. Mktg., Sales Practices, and 

Prod. Liab. Litig., No. 1:180md-02841-DPG (S.D. Fla. June 6, 2018), ECF No. 59) (emphasis added).

55 Id. (quoting Order Appointing Leadership Counsel at 4, In re Ashley Madison Consumer Data Security Breach 

Litig., No. 4:15-md-02669-JAR (E.D. Mo. Dec. 9, 2015), ECF No. 87). 

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13

court-appointed leaders about the work that non-leads can and cannot perform.”56 In short, it 

appears that in all MDL proceedings, nonleadership counsel are explicitly or implicitly 

constrained from fully representing their clients in the manner they otherwise would. 

The Preliminary Draft therefore gives rise to a series of thorny legal questions that appear largely 

unresolved, even though MDL courts have used the leadership counsel device for many years. 

Many of these questions have escaped judicial examination because of the tendency of mass tort 

MDL proceedings to be resolved on the basis of broad legal determinations (resulting in 

dismissal of most claims) or settlements. Hence, because of the failure of MDL courts to screen 

claims in the early phases, the presence of ill-considered claims and litigation funding influences 

have made settlements more difficult to achieve, and increasing numbers of case remands should 

be expected going forward. They will likely give rise to disputes that will require resolution of 

these issues, including: 

1. What authority allows courts to assign leadership counsel the duty to 

represent clients of nonleadership counsel? 

At least one court has stated that leadership counsel assume responsibility for representing the 

clients of nonleadership counsel with respect to all duties assigned in the leadership order.57 

Some other courts’ orders reflect this practice, according to Professor Noll’s study: “A leadership 

appointment order . . . picks out functions that will be handled on a centralized basis by courtappointed leaders and leaves individually retained plaintiffs’ attorneys responsible for the rest of 

the duties that inhere in the attorney/client relationship.”58 However, there is no explicit 

authority for courts to do this, and no general judicial embrace of this power. In fact, MDL 

leadership orders typically do not detail the division of responsibility between leadership and 

nonleadership counsel as to the representation of nonleadership counsels’ clients. The 

Committee should not enshrine the notion of appointing leadership counsel into the FRCP—a 

notion that would conflict with state laws and ethics rules, and would not be consistent with the 

Rules Enabling Act. 

2. What authority allows MDL courts to override a client’s choice of counsel by

shifting their representation to different counsel (at least in part) without 

their consent? 

Although appointment of leadership counsel is common in MDL proceedings and is mentioned 

in the Manual for Complex Litigation (Fourth), there is no identified source of authority for 

federal courts to abrogate and restructure attorney-client relationships in this manner. It certainly 

does not flow from the MDL statute. Indeed, if anything, the concept of transferring 

responsibility from the counsel retained by a plaintiff to a “leadership” group is contrary to the 

Supreme Court’s holding that cases transferred into an MDL proceeding “retain their separate 

56 Id.

57 Casey v. Denton, 2018 WL 4205153, at *4 (S.D. Ill. Sept. 4, 2018) (quoting Manual for Complex Litigation, § 

10.22) (“to avoid being bogged down and wasteful of judicial resources, a court will need to institute procedures 

‘under which one or more attorneys are selected and authorized to act on behalf of other counsel and their 

clients with respect to specified aspects of the litigation’"). 

58 Noll, What Do MDL Leaders Do?, 24 Lewis & Clark L. Rev. at 465. 

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identities.”59 The Court has stressed that “Section 1407 refers to individual ‘actions’ which may 

be transferred to a single district court, not to any monolithic multidistrict ‘action’ created by 

transfer.”60 The Committee should not enshrine the notion of overriding clients’ choice of 

counsel into the FRCP when doing so is unsupported by law, contradicts state ethics rules, and is 

not consistent with the Rules Enabling Act.

3. What authority allows an MDL court to replace (at least in some respects) 

plaintiff’s retained counsel, who owe traditional fiduciary duties to their 

clients, with leadership counsel who do not, without the client’s consent?

Leadership counsel do not owe standard fiduciary duties to clients of nonleadership counsel, at 

least according to caselaw. For example, when several plaintiffs represented by nonleadership 

counsel asserted a breach of fiduciary duty claim against lead counsel in the Yasmin and YAZ 

(Drospirenone) Marketing, Sales Practices and Products. Liability Litigation, the MDL court 

concluded: 

[L]ead and liaison counsel do not owe a fiduciary duty to each and every MDL plaintiff 

in the traditional sense. Rather, lead and liaison counsel should put the common and 

collective interests of all plaintiffs first while they carry out their enumerated 

functions. . . . It is obvious to this Court that the hallmarks of a traditional fiduciary 

relationship are absent from the MDL context in that there is no underlying offer and 

acceptance of power of attorney or agency between appointed leadership counsel and the 

plaintiffs.61

Similarly, in the In re General Motors LLC Ignition Switch Litigation proceeding, a 

nonleadership attorney alleged that lead counsel breached a fiduciary duty owed to all plaintiffs 

in the MDL proceeding when he (a) asked the court to schedule one of his own cases as the first 

bellwether trial, (b) voluntarily dismissed that case due to that bellwether plaintiff’s potential 

perjury, and (c) negotiated an inventory settlement with the defendant that covered most of his 

other clients.62 In support of that motion, Prof. Charles Silver, a legal ethics expert, opined that 

by virtue of his role, lead counsel owed to all MDL plaintiffs a fiduciary duty to “operate free of 

any incentive” to perform his duties in a manner that would disserve their interests.63 In 

opposition, Prof. Geoffrey Miller, another legal ethics expert, denied the existence of any such 

59 Gelboim v. Bank of America Corp., 574 U.S. 405, 413 (2015).

60 Id. See also Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523 U.S. 26, 37 (1998) (section 1407 does 

not “imbue transferred actions with some new and distinctive . . . character”); In re Fosamax Prods. Liab. Litig., 852 

F.3d 268 (3d Cir. 2017) (cautioning that in MDL proceedings, plaintiffs each retain the right to develop their own 

cases, because “[a] mass tort MDL is not a class action” but rather “is a collection of separate lawsuits that are 

coordinated for pretrial proceedings—and only pretrial proceedings—before being remanded to their respective 

transferor courts”), vacated and remanded on other grounds, Merck Sharpe and Dohme Corp. v. Albrecht, 139 S.Ct. 

1668 (2019). 

61 Casey v. Denton, 2018 WL 4205153, at *5-6 (S.D. Ill. Sept. 4, 2018).

62 In re General Motors Ignition Switch Litig., 2016 WL 1441804, at *2–5 (S.D.N.Y. Apr. 12, 2016). 

63 In re General Motors Ignition Switch Litig., No. 14-MD-2543, Declaration of Charles Silver at 13, ECF No. 2182. 

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duty.64 The court adopted a middle ground closer to Professor Miller’s view, concluding that 

lead counsel’s obligations to nonleadership counsel’s clients are “not as strong as the duties that 

lead counsel owes to absentee [class] members of a class action.”65 

Since leadership counsel do not owe the same duties to plaintiffs as nonleadership counsel, the 

FRCP should not prompt courts, without consent of each plaintiff, to substitute leadership 

counsel for the plaintiff’s retained counsel.

4. Does ordering leadership counsel to consult with nonleadership counsel solve 

the ethical dilemmas?

In a few instances, MDL courts have sought to sidestep this concern by ordering that in 

performing their duties, leadership counsel must consult with nonleadership counsel. For 

example, the leadership order in one proceeding states: “In carrying out the [specified] duties, 

Plaintiffs’ Co-Lead Counsel are . . . required to consult with all Plaintiffs’ counsel throughout 

this case to assure that all interests are represented.”66 And in another, an MDL court stated: “I 

anticipate that the Robins Kaplan group will solicit and consider the views of others, particularly 

the Milberg Weiss firm, in making litigation decisions on behalf of the plaintiffs.”67 However, 

nothing required leadership counsel to obtain any form of consent from nonleadership counsel 

(or their clients) as to any strategy decisions. Orders requiring consultation do not ameliorate 

concerns that leadership appointments in MDL proceedings seriously disrupt attorney-client 

relationships. Proposed Rule 16.1 merely suggests that in crafting the initial case management 

conference report, the parties should consider “proposed methods for [leadership counsel] to 

regularly communicate with and report to the court and nonleadership counsel.” (Emphasis 

added.) The Draft Note speaks only in terms of leadership counsel allowing nonleadership 

counsel to “monitor” proceedings; there is no mention of leadership counsel having any 

obligation to confer with nonleadership counsel about litigation decisions. Observing that “it 

may be necessary for the court to give priority to the leadership counsel’s pretrial plans with they 

conflict with initiatives sought by nonleadership counsel,” the Draft Note says only that “[t]he 

court should . . . ensure that nonleadership counsel have suitable opportunities to express their 

views to the court.” 68

64 In re General Motors Ignition Switch Litig., No. 14-MD-2543, Declaration of Geoffrey Parsons Miller at 4, ECF 

No. 2200-1. 

65 In re General Motors Ignition Switch Litig., 2016 WL 1441804 at *7. 

66 Order Appointing Leadership Counsel at 4, In re Ashley Madison Consumer Data Security Breach Litig., No. 

4:15-md-02669-JAR (E.D. Mo. Dec. 9, 2015), ECF No. 87). 

67 Memorandum and Order at 6, In re Payment Card Interchange Fee and Merchant Discount Antitrust Litig., No. 

1:05-md-01720-MDB-JO (E.D.N.Y. Oct. 20, 2005), ECF No. 278.

68 A few MDL courts have sought to dodge the representational responsibility issue by including in their 

appointment orders statements seemingly deny that any representational duty has been transferred to leadership 

counsel. For example, one such order states: “All attorneys representing parties to this litigation, regardless of their 

role in the management structure of the litigation and regardless of this court’s designation of [leadership counsel] . . 

. continue to bear the responsibility to represent their individual client or clients.” Pretrial Order No. 4 at 2, In re 

Ethicon, Inc., Pelvic Repair Sys. Prods. Liab. Litig., No. 2:12-md-02327 (S.D. W. Va. Feb. 7, 2012(, ECF No. 120. 

However, it is difficult to see how nonleadership counsel can continue to fully “bear [that] responsibility” if most of 

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16

5. Are leadership counsel obliged to comply with ethics requirements, including 

obtaining written consents (as necessary) from the nonleadership counsel’s 

clients? 

Nonleadership counsel presumably have given their clients appropriate disclosures and possibly 

received informed consents to their representation of multiple plaintiffs as to the claims in the 

MDL proceeding pursuant to applicable ethics rules, such as ABA Model Rules 1.7 (as to the 

representation of multiple plaintiffs as to similar claims) and 1.8(g) (as to “participat[ing] in 

making an aggregate settlement” involving multiple clients). To the extent that elements of 

nonleadership counsel’s representational responsibilities are transferred by court order to 

leadership counsel, it is unclear if leadership counsel are also obliged to comply with these ethics 

requirements, including obtaining written consents (as necessary) from the nonleadership 

counsel’s clients.

6. Who has responsibility for keeping the nonleadership counsel’s clients 

apprised of developments in the litigation? 

The Preliminary Draft and Draft Note appear to envision that leadership counsel should keep 

nonleadership counsel informed about developments. It is unclear if leadership counsel are also 

responsible for updating the clients of nonleadership counsel, which might be expected since 

nonleadership counsel can, at most, “monitor” the proceedings.

7. Does the Preliminary Draft invite the appearance of impropriety by greenlighting MDL courts’ appointment of leadership counsel? 

Even though virtually all plaintiffs in an MDL proceeding are represented by their own counsel, 

appointing leadership counsel affords the court the opportunity to choose its own team to litigate 

the overall matter—to decide who will best handle the pretrial proceedings. Indeed, it has been 

observed that “[t]he universal goal in any MDL is to assemble the best team.”69 The court may 

be involved in ex parte discussions with the leadership team about supplementing or rearranging 

the team to improve its performance. In the common benefit fee process, the court will decide 

how much the plaintiffs represented by nonleadership counsel will be taxed to pay the fees and 

costs of the chosen group. Although none of these circumstances necessarily crosses ethical 

lines, they do create the troubling appearance of an MDL court having active involvement in 

managing plaintiffs’ side of the litigation.

This appearance concern may be exacerbated where, in the words of the Draft Note, “tension 

[develops] between the approach that leadership counsel takes in handling pretrial matters and 

the preferences of individual parties and nonleadership counsel.” The Draft Note observes that 

“nonleadership counsel [should] have suitable opportunities to express their views to the court.” 

But will those opportunities occur on the public record or ex parte? For example, if leadership 

counsel insists on using a particular science expert on causation issues common to all plaintiffs 

their authority to perform representational duties has been shifted to leadership counsel and their awareness of what 

is occurring in the litigation is necessarily limited by the distance they are required to maintain.

69 Judge Stephen R. Bough & Elizabeth Chamblee Burch, Collected Wisdom on Selecting Leaders and Managing 

MDLs, 1 Judicature 69 (2022). 

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but nonleadership counsel has received information showing that a different expert would be 

better equipped to rebut defendant’s positions, how will that dispute be aired with the court? 

Presumably, the plaintiffs’ side would prefer that the dispute be discussed ex parte to avoid 

giving defense counsel a window on plaintiff strategies. But how can a federal court possibly 

justify discussing and possibly expressing views on merits issues ex parte? Doing so could be 

exceedingly unfair to defendants and certainly create an appearance of impropriety.

Given all of the foregoing concerns and uncertainties about the meaning, authorization, and 

ramifications of the MDL leadership counsel concept, it would be imprudent to include 

subsection (c)(1) in the proposed Rule 16.1. It should be removed from the Preliminary Draft.70

III. TIPS FOR JUDICIAL FACILITATION OF SETTLEMENT DO NOT BELONG 

IN THE FRCP—GOOD LITIGATION MANAGEMENT IS THE KEY 

The Preliminary Draft acknowledges that Rule 16 already prompts judges to consider actions to 

facilitate settlement,71 but escalates settlement into a top priority in MDLs by making 

suggestions that transferee courts consider “measures to facilitate settlement,”72 provide “judicial 

assistance [to] facilitate the settlement of some or all actions,”73 facilitate the role of leadership 

counsel “in settlement activities,”74 and refer matters to a magistrate judge or master “to play a 

part in settlement negotiations.”75 The words “settle” or “settlement” appear 12 times in the 

Preliminary Draft and Draft Note.76 In particular, the Draft Note stresses the “important role for 

leadership counsel in some MDL proceedings ... to facilitate possible settlement”77 As the Draft 

Note puts it: 

It is often important that the court be regularly apprised of developments regarding 

potential settlement of some or all actions in the MDL proceeding. In its supervision of 

leadership counsel, the court should make every effort to ensure that leadership counsel’s 

participation in any settlement process is appropriate.78

Many federal judges would disagree that a court should be “regularly apprised of developments 

regarding potential settlement” of matters before them and should “make every effort” to 

supervise lawyers (on one side of the case) as to their settlement efforts. Although the Draft 

70 If the Advisory Committee decides to pursue addressing the leadership counsel concept in Rule 16.1, the Rule 

should directly address the concerns noted above by, inter alia, stressing the need to define clearly the division of 

responsibilities between leadership and nonleadership counsel and requiring substantial involvement of 

nonleadership counsel in decision-making. 

71 See Preliminary Draft Rule 16.1(c)(9) and accompanying advisory committee’s note.

72 Preliminary Draft Rule 16.1(c)(9). 

73 Preliminary Draft Rule 16.1 (c)(9) advisory committee’s note. 

74 Preliminary Draft Rule 16.1(c)(1)(C). 

75 Preliminary Draft Rule 16.1(c)(12) advisory committee’s note. 

76 At lines 33, 62, 206, 207, 211, 213, 217, 320, 322, 324, 330, and 336.

77 Preliminary Draft Rule 16.1(c)(1)(C) advisory committee’s note. 

78 Preliminary Draft Rule 16.1(c)(1)(C) advisory committee’s note. 

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TAB 7 

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No summary of testimony was submitted.

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TAB 8 

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Rule 16.1 – Speaker Outline – Chris Campbell, DLA Piper

1. Intro

a. Christopher G. Campbell

b. Roadmap: (1) MDL Overview; (2) Issues with Draft Rules; and (3) Areas for improvement

2. MDLs suffer from too little structure, predictability, and uniformity

a. An FRCP amendment providing firm positions on MDL management is needed.

b. Current Draft conflicts with Rules, advisory notes, and existing law.

c. 1926 Senate Judiciary Committee Report on the Rules Enabling Act stated the goals of 

FRCPs are to make process “uniform” aimed at “simplicity” and “speedier and more 

intelligent disposition of issues...”

i. Effect of not having parties/lawyers know what procedures govern at the outset 

is that “repeat players” thrive while others face confusion and delay. 

ii. Likely consequences of proposed rule include increased filing/longer survival of 

unexamined claims and increased process “ad hockery.” 

3. The Rule functions more as practice advice/opinions than true “rule” 

a. The 16.1 Preliminary Draft deficiencies include, but are not limited to: 

i. Promoting Claim Insufficiency – improper MDL early case management thwarts 

ability to assess risks, impedes bellweather selection, and allows meritless claims 

to linger. For example, 16.1(c)(4) conflates information sharing and managing 

discovery – prompts the parties to discuss “how and when the parties will 

exchange information about the factual bases for their claims and defenses”

without questioning standing/ability to state claim in the first place.

ii. Leadership Counsel Confusion – the Preliminary Draft includes a prompt to 

consider “whether leadership counsel should be appointed.” 

1. No definition of Leadership Counsel exists, so including this is confusing. 

See, e.g., 2020 “Noll Study” on MDLs showed leadership appointment 

orders are insufficient, with only about half enumerating leader duties. 

2. Additionally, rule references “limits on activity of nonleadership counsel” 

which is inappropriate as it asks lawyers who are not selected as 

leadership to effectively stand down from their client obligations. 

iii. Settlement Emphasis – 16.1(c)(9) improperly promotes settlement as a top 

priority, noted 12 times in the rule, even suggests transferee courts to provide 

“measures to facilitate settlement.” 

iv. Conflicts with FRCP 7a – 16.1(c)(5) rejects filing of pleadings absent specific Rule 

7(a) authority, despite “consolidated pleadings” not being included in 7(a). 

v. Direct Filing Orders – 16.1(c)(10) prompts consideration of direct filing orders. 

This conflicts with Rule 3, contradicts the MDL statue (28 U.S.C. § 1497), and 

provokes questions related to personal jurisdiction, venue, and choice of law. 

vi. Use of Masters – Subsection 16.1(c)(12) suggests parties obtain party views on 

“whether matters should be referred to a magistrate judge or masters.” This goes 

against rules that masters be the “exception and not the rule” only appointed in 

“limited circumstances.” See Fed. R. Civ. P. 53. Issues with this include delaying 

resolution and lack of transparency in master selection/responsibility/cost. 

4. Questions?

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TAB 9 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 92 of 177
From:

To:

Cc:

Subject:

Date:

Shepherd, James (SHB)

RulesCommittee Secretary

Shepherd, James (SHB)

Outline of Proposed Remarks of Elmore James Shepherd at Civil Rules Hearing on October 16

Wednesday, October 04, 2023 3:30:23 PM

I. Introduction

a. My name and experience with MDLs

b. MDL specific rules are necessary

c. Preliminary draft of Rule 16.1 is a good start but it has flaws

II. What the Rule is Missing

a. Need to give transferee courts a rule that allows them to vet legally insufficient

cases

i. A requirement that plaintiffs transferred to an MDL provide proof of use

and injury within 30 days of transfer will help with legally insufficient cases

1. Such a requirement is not burdensome

a. It should already be in the file of the plaintiff’s attorney who

has a duty to due diligence before signing her/his name to

the lawsuit

b. Need to disincentivize Plaintiff attorneys from filing legally insufficient cases

i. Tie % of legally insufficient cases to CBF

III. What the Rule Does Not Need

a. Early Consideration to Facilitate Settlement

i. Purpose of an MDL is to coordinate or consolidate pretrial proceedings

ii. It is not to resolve the litigation via settlement

1. Presupposes liability

2. Hinders the purpose of the MDL

CONFIDENTIALITY NOTICE: This e-mail message including attachments, if any, is

intended for the person or entity to which it is addressed and may contain confidential and/or

privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If

you are not the intended recipient, please contact the sender by reply e-mail and destroy all

copies of the original message. Thank you.

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 93 of 177
TAB 10 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 94 of 177
From:

To:

Christopher Guth

RulesCommittee Secretary

Subject: Outline of Proposed Testimony of Chris Guth at October 16 Rules Committee Hearing

Date: Thursday, October 05, 2023 6:00:55 PM

To the SecretaryI am Senior Assistant General Counsel for the life sciences company Bayer and write in response to the

request for a written submission of planned testimony at the October 16 hearing. Bayer will be soon

submitting a formal written comment regarding proposed Rule 16.1, which will be consistent with the

outline I provide in this email.

In my testimony I plan to address proposed Rule 16.1, and specifically 16.1(c)(4). My testimony will focus

on the need to strengthen the current proposed language of 16.1(c)(4). Rather than simply prompting an

early exchange of information, it should instead include language regarding (i) when each plaintiff should

provide information on their claim to establish standing and facts necessary to state a claim; and (ii) the

type of information to be provided, such as use of the product(s) involved in the MDL proceeding and the

nature of their alleged injury. I plan to also address the language regarding plaintiff fact sheets in the

draft Note to 16.1(c)(4). Specifically, I will address the fact that plaintiff fact sheets are a discovery

mechanism, which have been co-opted by necessity as an inefficient method to obtain information

regarding the claims. But even this use of plaintiff fact sheets occurs at advanced stages of the MDL

proceeding and as a type of discovery vehicle insufficient to adequately address the issue of claim

sufficiency in MDLs. I plan to address these issues through discussion of my experiences in several

product liability MDLs where a Rule with language as described above would have (i) fostered more

efficient MDL proceedings; (ii) more properly allocated the court’s and parties’ resources to substantive

and dispositive issues in the litigation; and (iii) resulted in a superior process as demonstrated by my

experience with plaintiff fact sheets.

Thank you for your consideration and for the opportunity to testify on this important issue.

Freundliche Grüße / Best regards,

Christopher M. Guth

Senior Assistant General Counsel

////////////////////

Bayer: Science For A Better Life

Bayer U.S.

Law, Patents & Compliance

100 Bayer Boulevard

Whippany, NJ 07981

Mobile: (412) 402-8067

Fax: (412) 777-8323

Email: christopher.guth@bayer.com

Web: http://www.bayer.com

The information contained in this e-mail is for the exclusive use of the intended recipient(s) and may be confidential, proprietary, and/or

legally privileged. Inadvertent disclosure of this message does not constitute a waiver of any privilege. If you receive this message in

error, please do not directly or indirectly use, print, copy, forward, or disclose any part of this message. Please also delete this e-mail and

all copies and notify the sender. Thank you.

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 95 of 177
TAB 11 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 96 of 177
International Association of Defense Counsel ‐ Superior Advocates. Global Perspective.

303 West Madison, Suite 925 Chicago, IL 60606 USA         Phone  1.312.368.1494         Website  www.iadclaw.org

PRESIDENT

Michele Y. Smith

Houston, Texas USA

PRESIDENT‐ELECT

Donna Lamontagne

Cranston, Rhode Island USA

IMMEDIATE PAST PRESIDENT

Mark R. Beebe

New Orleans, Louisiana USA

VICE PRESIDENTOF CORPORATE

Mark D. Hansen

Bloomington, Illinois USA

VICE PRESIDENTOF INSURANCE

Thomas F. Lysaught

Naperville, Illinois USA  

VICE PRESIDENTOF INTERNATIONAL

Heather C. Devine

Oakville, Ontario Canada

SECRETARY‐TREASURER

Alex J. Hagan

Raleigh, North Carolina USA

DIRECTORS

CLASSOF 2024

J. Dominic Campodonico

San Francisco, California USA

Daniela Karollus‐Bruner

Vienna, Austria

Christopher A. Kenney

Boston, Massachusetts USA

CLASS OF 2025

Donna L. Burden

Buffalo, New York USA

Joseph D. Cohen

Houston, Texas USA

Jessalyn H. Zeigler

Nashville, Tennessee USA

CLASS OF 2026

Henry T. Morrissette

Mobile, Alabama USA

Charles E. Reynolds, II

Tampa, Florida USA

Deborah K. St. Lawrence Thompson

Baltimore, Maryland USA

EXECUTIVE DIRECTOR AND CEO

Mary Beth Kurzak

Chicago, Illinois USA

TO: Advisory Committee on Civil Rules

FROM:  Fred M (“Tripp”) Haston, III

RE:   Outline of Anticipated Testimony Concerning Proposed FRCP 16.1

DATE:   October 5, 2023

I. Organization & Speaker Information

A. International Association of Defense Counsel – Who & Why Here

B. Haston Personal MDL Experience & Perspective

1) 20 Years of Direct and Indirect Involvement in Multiple Major MDLS

2) Ever Expanding Dockets: From Withdrawal to Label Change to Literature   

Publication

II. Proposed Rule 16.1

A. Beneficial Aspects

1) Recognition of Need for Structure, Predictability & Uniformity

2) Focus on Intake/Initial Proceedings – Promise of More Efficient Outcomes

B. Substantial Room for Improvement

1) Broadly – Endorsement of Lawyers for Civil Justice 9/18/23 Comment

2) Special Emphasis  

a) Claim Sufficiency – Proposed FRCP 16.1(c)(4)

i) Cause of Exploding Dockets? Ease of “Park & Ride” Filings

ii) A Fair Filter: Early Scrutiny of Claims

iii) LCJ’s Proposed FRCP 16.1(c)(4) Revision

b) Proposed FRCP 16.1’s Overemphasis on MDL as a Settlement Facility  

i) Exacerbation of Exploding Dockets, Protracted Litigation & Non‐Meritorious

Filings

ii) Parallel Rules & Notes on Class Actions – Emphasis on Procedure & Not

Settlement  

iii) Importance of Proposed FRCP 16.1(c)(3) to Emphasize Rules & Procedure‐

Based Resolution

(1) Pleading Sufficiency

(2) Cross‐cutting Legal & Factual Issues

iv) Proposed Revisions to Notes

c) Proposed FRCP 16.1(c)(10)’s Inappropriate Seeding “Direct Filings”

i) Direct Filings as Contrary to FRCP 3 & MDL Statutory Framework

ii) Frustration of Proposed FRCP 16.1’s Promise

iii) Need for Removal or Greater Context

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 97 of 177
TAB 12 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 98 of 177
ATTORNEYS AT LAW

1025 Thomas Jefferson Street, NW | Suite 400 West

Washington, DC 20007-5208

202.965.8100 | fax 202.965.8104

www.carltonfields.com

Atlanta

Florham Park

Hartford

Los Angeles

Miami

New York

Orlando

Tallahassee

Tampa

Washington, DC

West Palm Beach

October 5, 2023 

VIA REGULATIONS.GOV PORTAL

RulesCommittee_Secretary@ao.uscourts.gov

Advisory Committee on Civil Rules

Committee on Rules of Practice and Procedure 

 of the Judicial Conference of the United States 

Washington, DC 20544 

Re: Comment to the Advisory Committee on Civil Rules 

Regarding Proposed New Rule 16.1 

Dear Members of the Advisory Committee:

In connection with my anticipated testimony at the hearing on October 16, 2023, this letter 

will provide comments regarding the focus of my testimony as it relates to proposed new Rule 

16.1, and in particular subsection (c)(4) of the proposed rule. More specifically, I will address in 

this letter and my testimony the serious constitutional issues that arise with respect to Article III 

subject matter jurisdiction over claims that become consolidated in many large multidistrict 

litigation (“MDL”) proceedings. As discussed below, it seems that the location within the 

proposed rule where these problems should be addressed is subsection (c)(4), but the current 

formulation of that rule is wholly inadequate and should be substantially revised. 

Every district court judge, MDL transferee judge or not, has a constitutional obligation to 

evaluate and ensure that the claims before the court meet the requirements of constitutional 

standing. U.S. v. Hays, 515 U.S. 737, 742 (1995) (“The federal courts are under an independent 

obligation to examine their own jurisdiction, and standing is perhaps the most important of the 

jurisdictional doctrines.”) (cleaned up) (quotations and citation omitted).1

 In addition, the 

Supreme Court has made it clear that “standing is not dispensed in gross; rather, plaintiffs must 

demonstrate standing for each claim that they press and for each form of relief that they seek ....” 

TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2208 (2021). There is no Article III exception for 

MDL proceedings.

 1 In Spokeo, Inc. v. Robins, 578 U.S. 330, 337 (2016), the Supreme Court remarked that

“[n]o principle is more fundamental to the judiciary’s proper role in our system of government 

than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” 

(quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)) (internal quotations omitted). 

Markham R. Leventhal

Shareholder

(202) 965-8189 Direct Dial

mleventhal@carltonfields.com

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 99 of 177
Advisory Committee on Civil Rules

Re: Proposed Rule 16.1 

October 5, 2023 

Page 2 

Carlton Fields, P.A.

Carlton Fields, P.A. practices law in California through Carlton Fields, LLP

Unfortunately, in many MDL proceedings, particularly those with hundreds or thousands 

of plaintiffs, transferee judges are not provided with the essential information necessary to ensure 

that all plaintiffs have constitutional standing.

2

 As a result, thousands of improper claims may 

become buried in a mass of plaintiffs over which the transferee court lacks subject matter 

jurisdiction, and the district court judge is stymied from fulfilling the court’s obligation to ensure 

Article III jurisdiction. 

As the Supreme Court has explained, “the irreducible constitutional minimum of standing 

contains three elements.” Spokeo, 578 U.S. at 338. “The plaintiff must have (1) suffered an injury 

in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely 

to be redressed by a favorable judicial decision.” Id. (citing Lujan v. Defs. of Wildlife, 504 U.S. 

555, 560-61 (1992)); TransUnion, 141 S. Ct. at 2203.3

 

It goes without saying that “[t]he plaintiff, as the party invoking federal jurisdiction, bears 

the burden of establishing these elements.” Spokeo, 578 U.S. at 338. And where “a case is at the 

pleading stage, the plaintiff must ‘clearly ... allege facts demonstrating’ each element” of standing. 

Id. (quoting Warth v. Seldin, 422 U.S. 490, 518 (1975)). Again, standing must be established for 

“each claim . . . and for each claim of relief.” TransUnion, 141 S. Ct. at 2208. If a plaintiff has 

not provided the essential facts to establish all three elements, the court lacks jurisdiction to hear 

the claims. Failure to root out such claims early in the proceeding violates Article III and impedes 

the resolution of mass MDL proceedings by allowing thousands of claimants to join the proceeding 

despite the absence of constitutional standing. 

And it cannot be seriously argued that providing basic, essential facts to establish “injury 

in fact” and “traceability” to a particular defendant named in the proceeding is an undue burden. 

If the MDL proceeding involves a particular product, essential facts establishing that the product

at issue was in fact used by a plaintiff, and the fact of injury, are required. In addition, traceability 

requires “a causal connection between the injury and the conduct complained of—the injury has 

to be fairly traceable to the challenged action of the defendant, and not the result of the independent 

action of some third party not before the court.” Lujan, 504 U.S. at 561 (cleaned up).4

 

 2 The requirement that a party have “[s]tanding to sue” is rooted in the constitutional “cases 

or controversies” limitation. Spokeo, 578 U.S. at 338.

3 Unless otherwise indicated in this letter, all emphasis is added and internal quotations and 

citations are omitted. 

4 Article III “requires that a federal court act only to redress an injury that fairly can be 

traced to the challenged action of the defendant, and not injury that results from the independent 

action of some third party.” Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976). 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 100 of 177
Advisory Committee on Civil Rules

Re: Proposed Rule 16.1 

October 5, 2023 

Page 3 

Carlton Fields, P.A.

Carlton Fields, P.A. practices law in California through Carlton Fields, LLP

Stated another way, traceability requires the plaintiff to establish a “substantial likelihood” 

that the defendant caused his injury. Duke Power Co. v. Carolina Env’t Study Grp., Inc., 438 U.S. 

59, 75 & n.20 (1978); see also 13A Charles Alan Wright & Arthur R. Miller, Federal Practice 

and Procedure § 3531.5 (3d ed. 2022). 

Before MDL transferee courts begin to assert jurisdiction over claimants and claims, the 

district judge should ensure that the court has sufficient information from each plaintiff to evaluate 

and ensure constitutional standing. Subsection 16.1(c)(4) should be revised to accomplish this 

result. 

Section (c) of proposed Rule 16.1 addresses preparing a report for the initial conference 

before the transferee court. It begins, “the transferee court should order the parties to meet and 

prepare a report to be submitted to the court before the conference begins.” The rule continues by 

stating that “[t]he report must address any matter designated by the court, which may include any 

matter addressed in the list below....” The list does not include a requirement to ensure the court 

can satisfy its obligation to police subject matter jurisdiction. 

Subsection (c)(4) should be revised to require, at a minimum, that the report shall address 

(not may address) the following: 

(1) whether all named plaintiffs have satisfied their burden of providing the 

court with sufficient information to establish standing; 

(2) if not, how and when sufficient information will be provided by each named 

plaintiff to establish Article III standing, including 

(3) facts establishing the use of any products or services involved in the MDL 

proceeding, injury in fact (e.g., the nature and time frame of each plaintiff’s 

alleged injury), and traceability to one or more named defendants; and

(4) if necessary, the mechanism to remove from the MDL proceeding claims 

that do not satisfy minimum standing requirements.

5

Failure to cure this problem at inception will allow (if not encourage) the mass filings of 

improper and unjustifiable claims, making it impossible for defendants to assess the validity of 

 5 I note that Lawyers for Civil Justice (“LCJ”) has submitted a proposed revision of Rule 

16.1(c)(4) that seeks to accomplish this result. I support LCJ’s proposal. Also, the requirements 

of constitutional standing are in addition to well-established pleading requirements necessary to 

state a plausible claim for relief. 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 101 of 177
Advisory Committee on Civil Rules

Re: Proposed Rule 16.1 

October 5, 2023 

Page 4 

Carlton Fields, P.A.

Carlton Fields, P.A. practices law in California through Carlton Fields, LLP

claims and to resolve legitimate claims, leading to prolonged, expansive, and inefficient 

proceedings. 

The current version of subsection (c)(4) does not address, let alone cure, the problem of 

mass deficiencies in constitutional standing. This requirement does not involve an “exchange” of 

information between plaintiffs and defendants, nor does it involve “defenses.” Those concepts 

should be removed from the rule. Constitutional standing is a requirement that plaintiffs must 

satisfy to invoke federal jurisdiction, and an MDL court should require sufficient information to 

satisfy this constitutional obligation. 

I look forward to discussing these issues before the Committee. Thank you for your 

consideration. 

Very truly yours,

MARKHAM R. LEVENTHAL

MRL:cp

134073048

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 102 of 177
TAB 13 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 103 of 177
Testimony of Amy Keller, DiCello Levitt LLP

October 16, 2023 Civil Rules Hearing

My name is Amy Keller, and I am the Managing Partner of DiCello Levitt LLP’s Chicago

office, and the Chair of its Privacy, Technology, and Cybersecurity Practice Group.  For the past

fifteen years, I have dedicated my practice to consumer protection issues and class action

litigation.  I am an elected member of the American Law Institute, and a Steering Committee

member of the Sedona Conference’s Working Group 11 on Data Security and Privacy Liability.  I

have the privilege of serving on the Board of Directors of the Public Justice Foundation, and the

Board of Governors of the American Association forJustice.  I have been appointed to more multi‐

district litigation leadership positions than any other woman in the country over the last five

years—including nationwide class actions against Equifax and Marriott related to their 2017 and

2018 data breaches—and I have achieved nearly $2 billion in recoveries for class members

through settlements in my cases.

Through my legal work over fifteen years of litigation, I have reviewed millions of privilege

log entries.  I have negotiated orders concerning, drafted and reviewed, and met and conferred

and briefed legal issues concerning privilege logs.  Based upon my experience, I recognize that all

partiesto civil litigation have had complaints about privilege logs.  But many of those issues could

be resolved with early discussions about the how, when, and in what format the logs should be

produced, and if categorical logging is suitable for their particular case.  No “one size fits all”

solution is appropriate, which is why the courts, and parties, should work to resolve these issues

collaboratively, rather than issue a rule which binds the parties to a particular protocol.

I enthusiastically support the proposed amendments to Rule 16 and 26 because they

would require parties and the court to resolve any potential disputes related to the production

of logs and the format of those logs, as well as any other potential issues that the parties may

face.  Resolving those issues at the outset of litigation will reduce the number of disputes the

parties have during the discovery process, and eliminate unnecessary surprise, delay, or expense

associated with deficient logs or inappropriately withheld documents.

1. My experience as co‐lead counsel in a nationwide data breach case.

One of the main reasons why I enthusiastically support the proposed amendments is

because of my experience in a data breach case where I currently serve as co‐lead counsel: In re

Marriott International Customer Data Security Breach Litigation, MDL No., 19‐md‐2870 (D. Md.).  

My experience in this case not only informs me that discussions regarding privilege logs should

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 104 of 177
Testimony of Amy Keller

Page 2

happen early, but that any use of categorial logs should be negotiated with clear guardrails in

place to avoid over‐designation.

In Marriott, we negotiated a whole host of proposed orders at the outset of the litigation,

including an order for the production of electronically‐stored information.  In that order, which

was entered in July 2019, the parties agreed that “[a] party withholding documents based on one

or more claims of privilege will produce a privilege log in accordance with a mutually agreed upon

or Court‐ordered timeframe.”  ECF No. 315, § 11.  Unfortunately, leaving details for privilege

logging until a later date led to significant disputes and months of meeting and conferring, where

the defendants insisted on categorical logging.   

We negotiated a limited categorical privilege log with defendants’ counsel, under the

condition that defendants agree to low‐cost, common sense safeguards, including those

recommended by the Facciola‐Redgrave Framework.1 We agreed to negotiate such a protocol

with the defendants in that case despite the fact that categorical privilege logs can be prone to

gamesmanship and over‐designation,2 a fact recognized by leading voices in the bar regarding

privilege logs.3 Unfortunately, defendants’ response was consistent with that experienced by

other firms with whom we have worked extensively, in that they refused to:  (1) agree what

categories would be used; (2) include an attestation by an attorney to provide reasonable context

as to the role of the person making the privilege assertion, the applicability of the privilege, and

how the review was conducted; (3) include specific data points for categorical logs; and (4)

1 See Hon. John M. Facciola & Jonathan M. Redgrave, Asserting and Challenging Privilege Claims in

Modern Litigation: The Facciola‐Redgrave Framework, 4 Fed. Cts. L. Rev. 19 (2009).  Judge John Facciola

(ret.) serves as the Special Master in that data breach case.

2 See e.g., In re Aenergy, S.A., No. 19‐MC‐542 (VEC), 2020 WL 1659834, at *4‐6 (S.D.N.Y. Apr. 3, 2020)

(finding defendant’s categorical privilege log descriptions were “vague and repetitive” and improperly

failed to reveal sufficient information to enable other parties to assess privilege claims); Certain

Companion Prop. & Cas. Ins. Co. v. U.S. Bank Nat’l Ass’n, No. 3:15‐CV‐01300‐JMC, 2016 WL 6539344, at

*3 (D.S.C. Nov. 3, 2016) (holding party’s categorical privilege log was deficient because it did not allow

opposing party or the court to test the applicability of privilege to each document sought to be withheld);

Franco‐Gonzalez v. Holder, No. CV 10‐2211‐DMG DTBX, 2013 WL 8116823, at *7 (C.D. Cal. May 3, 2013)

(same); Chevron Corp. v. Salazar, No. 11 CIV. 3718 LAK JCF, 2011 WL 4388326, at *2 (S.D.N.Y. Sept. 20,

2011) (finding, after in camera review of withheld documents, that party’s categorical privilege log

“obscures rather than illuminates the nature of the materials withheld” and that some or all documents

withheld were subject to disclosure).

3

  See Facciola‐Redgrave Framework, at 20.

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Testimony of Amy Keller

Page 3

provide distinct data points for document‐by‐document logs. Instead, defendants continued to

propose category descriptions that were facially overbroad and inconsistent with the Federal

Rules of Civil Procedure, despite producing millions of documents and indicating that they were

withholding substantial additional documents.4  

What became clear during negotiation, and then (inevitably) motion practice, was that

the defendants intended to litigate the sufficiency of their privilege logs, which only further

prolonged the discovery disputes present.  After months passed with no movement beyond the

naked placeholders offered at the outset, one of defendants’ counsel advised that the “parties’

proposals are too far apart for repeated redlines” and only then did they present us with two lists

of proposed categories.  

We eventually sought advice from Special Master Facciola in that case, noting that we

were frustrated with the way that the process was unfolding, and believed that months of delay

with a looming discovery cut‐off was preventing us from assessing any of defendants’ privilege

assertions.  During a call with the Special Master, he told the parties that, if he had known that

categorical logs would cause so many problems, he would not have suggested them.  As a result,

the parties negotiated a process that required defendants to produce document‐by‐document

privilege logs, which allowed us to have sufficient information to mount several successful

challenges to defendants’ privilege assertions.    Through this process, one of the defendants

produced thirteen thousand relevant documents it had previously marked as “privileged.” Had

the parties used only categorical logs, these documents—many of which speak directly to

defendants’ liability—would have remained improperly shielded from discovery. Some of the

“hottest” documents were included in that production—documents that Plaintiffs had been

seeking in the case for years (including non‐lawyer emails and timelines prepared by internal

employees).  As a result, additional interrogatories needed to be propounded, earlier responses

updated, and additional depositions taken.

If Judge Facciola ordered Marriott to produce a line‐by‐line privilege log earlier in the

litigation, Plaintiffs (and even Marriott) could have saved significant expense and duplication of

efforts, because Marriott would have been required to more carefully review their documents to

4 See Fed. R. Civ. P. 26(b)(5) (requiring a party withholding information based on privilege to “(ii) describe

the nature of the documents, communications, or tangible things not produced or disclosed—and do so

in a manner that, without revealing information itself privileged or protected, will enable other parties to

assess the claim.”) (emphasis added).

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 106 of 177
Testimony of Amy Keller

Page 4

determine if the documents were privileged or protected by an assertion of work product.  

Meeting and conferring to agree upon a privilege log format before the documents were

produced would have avoided the unnecessary delay and expense.

My experience in Marriott, as well as other nationwide class actions, informs me that

having discussions regarding document format and production, privilege logs, “clawback”

provisions, deposition protocols, electronic filing and sealing, and other case management issues

from the outset is important for the efficient litigation of complex cases.  Accordingly, I support

the proposed amendment to Rules 16 and 26, and thank the Committee for the opportunity to

share my experiences with you.

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 107 of 177
TAB 14 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 108 of 177
TAB 14A 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 109 of 177
 Lana Olson Lightfoot, Franklin & White, LLC

 (205) 581-1514 direct

 

 lolson@lightfootlaw.com

October 5, 2023

The Clark Building  400 20th Street North  Birmingham, AL 35203  

lightfootlaw.com 

BIRMINGHAM  HOUSTON

VIA EMAIL

H. Thomas Byron III, Secretary

Committee on Rules of Practice and Procedure 

Administrative Office of the United States Courts 

One Columbus Circle, NE, Room 7-300 

Washington, D.C. 20544

Re: October 16, 2023 Civil Rules Hearin g

Dear Mr. Byron:

I appreciate the opportunity to appear before the Advisory Committee on Civil Rules

at its upcoming hearing on October 16, 2023. As requested in the September 21, 2023

memorandum to confirmed hearing witnesses, I wanted to report that at the hearing I intend

to support the proposed amendments to Fed. R. Civ. P. 16 and 26 related to privilege logs. 

The proposed amendments encourage parties to devise proportional and workable privilege 

logging procedures while facilitating timely judicial management where necessary to avoid 

later disputes, reducing the burdens on both the parties and the court while addressing the 

continual frustration that document-by-document logs seldom, if ever, enable the parties or 

the court to assess the claim[s]. My views on this topic are generally reflected in the 

comments submitted by DRI and its Center for Law and Public Policy on October 3, 2023.

If you have any questions, please let me know.

Sincerely, 

 

Lana A. Olson, DRI President

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 110 of 177
TAB 14B 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 111 of 177
1

COMMENT 

to the 

ADVISORY COMMITTEE ON CIVIL RULES

Re: Proposed Amendments to FRCP 16 and FRCP 26

October 3, 2023

The DRI Center for Law and Public Policy respectfully asks the Advisory Committee on Civil 

Rules to consider this submission in support of the amendment to Rules 16 and 26 proposed by 

the Advisory Committee on the Federal Rules of Civil Procedure. The proposed amendment to 

Rule 26(f)(3)(D) would require the parties to include in their discovery plan, submitted before 

the initial case management conference, their views and proposals on how claims of privilege 

and protection of trial-preparation materials, “including the timing and method for complying 

with Rule 26(b)(5)(A),” should be addressed during discovery. The proposed amendment to Rule 

16 (b)(3)(iv) allows the parties to propose in their discovery plan the timing and method for 

complying with requirements of Rule 26(b)(5)(A) should claims of privilege or protection of 

trial-preparation arise. Both of these proposed amendments will aid the parties and the courts in 

managing the process of asserting and resolving claims of privilege. 

WHO WE ARE

The Center for Law and Public Policy (“the Center”) is part of DRI, Inc. (“DRI”), the leading 

organization of civil defense attorneys and in-house counsel. Founded by DRI in 2012, the 

Center is the national policy arm of DRI. It acts as a think tank and serves as the public face of 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 112 of 177
2

DRI. The Center’s three primary committees—Amicus, Public Policy, and Legislation and 

Rules—are comprised of numerous task forces and working groups. These subgroups publish 

scholarly works on a variety of issues, and they undertake in-depth studies of a range of topics 

such as class actions, climate change litigation, data privacy, MSP, and changes to the Federal 

Rules of Civil Procedure and the Federal Rules of Evidence. Since its inception, the Center has 

been the voice of the civil defense bar on substantive issues of national importance.

I. BACKGROUND

The Standing Committee describes these proposed amendments as dealing with what they call 

the “privilege log” problem. Rule 26(b)(5)(A) and Rule 45(e)(2), as they currently stand, direct 

litigants and nonparties withholding documents from production based on claims of privilege or 

work product protection to identify those documents in a manner that “will enable other parties 

to assess the claim.” The default method of doing so employed by most lawyers is for the 

withholding entity to prepare a privilege log of all withheld records on a “document-bydocument basis.” However, some categories of documents and communications are, by their 

authorship, exchange, or content, transparently privileged or protected, while others merit more 

information. The exponential proliferation of ESI since Rule 26(b)(5)(A) was enacted in 1993 

further complicates this process. And despite the 1993 Committee Note to Rule 26(f) regarding 

flexibility with respect to privilege logging, the proposed Amendments include guidance about 

optional methods other than continued adherence to the inflexible, “each document must be 

logged” standards. 

These document-by-document privilege logs are very labor-intensive, burdensome, and costly. 

The costs associated with creating these traditional privilege logs have become possibly the 

largest category of pretrial spending for litigants in document-intensive litigation. Typically, 

preparing such logs requires lawyers to identify potentially privileged documents, conduct 

extensive research into the elements of each potential claim, make and then validate initial 

privilege calls, and then construct a privilege log describing each withheld document—with the 

lawyer’s client paying the associated costs. These logs are often expensive to produce and 

inefficient in conveying useful information, and often lead to disputes that require court 

intervention. 

II. PROPOSED AMENDMENTS

Rule 16. Pretrial Conferences; Scheduling; Management

(b) Scheduling and Management

(3) Contents of the Order.

(B) Permitted Contents.

(iv) include the timing and method for complying with Rule 26(b)(5)(A) and any agreements the 

parties reach for asserting claims of privilege or of protection as trial-preparation material after 

information is produced, including agreements reached under Federal Rule of Evidence 502;

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3

Rule 26. Duty to Disclose; General Provisions Governing Discovery

* * * * *

Conference of the Parties; Planning for Discovery.

* * * * *

(3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:

* * * * *

(D) any issues about claims of privilege or of protection as trial-preparation

materials, including the timing and method for complying with Rule 

26(b)(5)(A) and—if the parties agree on a procedure to assert these claims 

after production—whether to ask the court to include their agreement in an 

order under Federal Rule of Evidence 502;

III. DRI CENTER RECOMMENDATIONS

The 2006 Committee Notes to Rule 26(f) recommended that parties address issues concerning 

privilege during the Rule 26(f) conference. However, this suggestion is often not followed in 

actual practice. The Proposed Amendments contemplate that the parties will take the initiative 

in addressing and reaching agreement with respect to the scope, structure, content, and timing of 

submission of privilege logs at the appropriate time in each matter. 

This contemplated discussion should be initiated at the parties’ required Rule 26(f) initial 

conference and agreement finalized at a reasonable time preceding the commencement of 

document productions. The precise procedures agreed to are best incorporated in the parties’ 

Rule 26 report and then into a court order. If agreement, in full or part, is not achieved, each 

party could submit its plan or disputed parts to the court for guidance and, if necessary, 

resolution. The objective of the parties’ conference is to agree on procedures for providing 

sufficient information to assess privilege claims relating to information that is likely to be 

probative of claims and defenses and that is not facially subject to protection. This could allow 

the parties to avoid many of the issues described above.

Some categories of documents and ESI are facially privileged or protected and can be agreed by 

the parties to be excluded from logging. For example, absent extraordinary circumstances, 

communications between counsel and client regarding the litigation after the date the complaint 

is served can be excluded as clearly privileged or protected. The Proposed Amendments 

contemplate that parties might agree that work product prepared for the litigation need not be 

logged in detail. Certain forms of communications, for example communications exclusively 

between in-house counsel and outside counsel to an organization, might be so clearly privileged 

that a simplified log merely identifying counsel as the exclusive communicants is needed. 

Express exclusions, as allowed by the Proposed Amendments and encouraged by the Committee 

Notes, both reduces the burdens of reviews and logging and possible disputes regarding the 

scope of logging that arise when a party unilaterally excludes documents and ESI otherwise 

deemed relevant.

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Although it is widely understood that tiered discovery can be an efficient way to focus attention 

on the most important documents and ESI, courts and parties have been slow to apply that 

concept to privilege logs. But just as not all documents are equally important to a case, so it is 

that not all documents withheld on the basis of privilege have the same value in the litigation. 

Whereas sampling and other procedures are employed to determine whether various categories 

of documents and ESI are sufficiently probative to warrant additional productions, so can 

iterative, proportional logging determine which privilege claims should be subject to greater 

scrutiny in the circumstances of the case. For example, certain claimed privileged documents or 

ESI may pertain to a mixture of privileged and business information that is probative and 

requires additional information to assess the claim. Providing initial logs with limited 

information, for example logs based on extracted metadata fields, permits the receiving party to 

focus on documents and ESI for which further information is needed to assess the privilege 

claims. Similarly, well-structured categorical logging can include procedures for the receiving 

party to sample documents or ESI and receive document-by-document log entries for those 

documents to ascertain the sufficiency of the privilege claims for the category.

The 1993 Committee Notes to Rule 26(b)(5) recognize that detailed, document-by-document 

privilege logs are appropriate when only a few items are being logged but contemplate

identification by category in other circumstances. Thus, even 25 years ago, as the current issues 

created by the volume of ESI were just beginning to emerge, the Committee recognized the 

benefit of categorical logs in the face of voluminous productions and claims of privilege. The 

recent Proposed Amendments allow the parties, and the court, to discuss the timing and method 

of complying with Rule 26(b)(5)(A). The Committee Note to the Proposed Amendment to Rule 

26 reinforces this position, recognizing that “[i]n some cases some sort of categorical approach 

might be effective to relieve the producing party of the need to list many of the withheld 

documents.” 

The DRI Center for Law and Public Policy believes that the Proposed Amendments are, overall, 

a step in the right direction to help litigants and the courts modernize guidance for handling 

privilege logs by strengthening the timing and manner of expected compliance with Rule 

26(b)(5)(A). These Amendments, as guided by the Committee Notes, would enhance efficiency 

and expedite litigation by enabling parties to work collaboratively and creatively to avoid 

needless costs and disputes, saving judicial resources. The Proposed Amendments would also 

permit the parties to use new and emergent technologies, including technology applications that 

automatically identify privileged documents and ESI, and extract information for automated 

logging. Finally, the Proposed Amendments would bring uniformity to the best practices that 

have developed in many federal courts pursuant to local rules and pilot programs.

Some critics of the Proposed Amendments assert that categorical and iterative logging may 

provide incentive or ability to cheat the system by hiding important relevant documents and ESI 

behind invalid claims of privilege or protection. Such criticisms assume that lawyers admitted to 

practice in federal court would immediately set aside their oaths and violate the rules of ethics in 

every jurisdiction. This criticism also ignores that the amendments proposed here contemplate 

meet-and-confers at the appropriate juncture, providing the opportunity for timely judicial 

involvement if necessary. And, of course, such criticism ignores the obvious—if a lawyer is 

going to cheat, he or she will do so under either a document-by-document log or a categorical 

log. 

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5

V. CONCLUSION

The general practice under Rules 26(b)(5)(A) and 45(e)(2) has been for the parties to prepare 

document-by-document privilege logs notwithstanding the 1993 Committee Note suggesting 

that other procedures might be employed. The status quo puts substantial burdens on the 

parties, nonparties, and the judiciary because expensive and ineffective logs create collateral 

disputes concerning the sufficiency of logs without providing the information necessary to 

resolve them. The Proposed Amendments encourage the parties to devise proportional and 

workable logging procedures while facilitating timely judicial management where necessary 

to avoid later disputes. Doing so would reduce both the burdens on the parties and the court 

while addressing the continual frustration that document-by-document logs seldom, if ever, 

“enable other parties [and the court] to assess the claim[s].” Thus, the DRI Center for Law 

and Public Policy urges the Committee to adopt the proposed Amendments. 

Respectfully submitted,

/s/ Lawrence S. Ebner

Lawrence S. Ebner, Chair

DRI Center for Law and Public Policy

/s/ James L. McCrystal, Jr.

James L. McCrystal, Jr., Chair

Center Legislation and Rules Committee

/s/ Robert L. Massie

Robert L. Massie, Chair

Center Federal Rules Task Force

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 116 of 177
TAB 15 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 117 of 177
TAB 15A 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 118 of 177
Amy Bice Larson* 

larson@bsplaw.com 

T/F: 281-930-6851 

Bush Seyferth PLLC 

5810 Wilson Rd | Suite 125 | Humble, Texas 77396 | bsplaw.com 

*also licensed in Michigan 

October 5, 2023 

Via Email 

RulesCommittee_Secretary@ao.uscourts.gov 

H. Thomas Byron III, Secretary 

Committee on Rules of Practice and Procedure 

Administrative Office of the United States Courts 

One Columbus Circle, NE, Room 7-300 

Washington, D.C. 20544 

RE: October 16, 2023, Civil Rules Hearing

Dear Mr. Byron: 

In my appearance before the Advisory Committee on Civil Rules on October 16, 2023, I 

plan to address the proposed amendments to Federal Rules of Civil Procedure 16(b) and 26(f) as 

they relate to privilege logs. Comments submitted by Lawyers for Civil Justice on October 4, 2023, 

and by The DRI Center for Law and Public on October 3, 2023, generally align with my views 

and experience. Therefore, I do not plan to offer a separate written submission. I do, however, plan 

to offer the Committee practical examples of the tremendous costs and inefficiencies in the current 

document-by-document privilege log practice. I will also share comments on how the proposed 

amendments may play out in day-to-day discovery and litigation practice, especially in product 

liability cases. 

I appreciate the opportunity to appear before the Committee and look forward to sharing 

my comments and answering any questions. 

Very truly yours, 

Amy Bice Larson 

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TAB 15B 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 120 of 177
COMMENT

to the

ADVISORY COMMITTEE ON CIVIL RULES

October 4, 2023

THE DIRECT APPROACH: WHY FIXING THE RULE 26(b)(5)(A) PROBLEM 

REQUIRES AN AMENDMENT TO RULE 26(b)(5)(A)

Lawyers for Civil Justice (“LCJ”)1 respectfully submits this Comment to the Advisory 

Committee on Civil Rules (the “Committee”) in response to the Judicial Conference Committee 

on Rules of Practice and Procedure’s Request for Comments on the proposed amendments to 

rules 16(b) and 26(f) of the Federal Rules of Civil Procedure (“FRCP”).2

INTRODUCTION

The proposed amendments recognize the significant problems and inefficiencies in today’s 

complex federal court litigation involving the appropriate withholding of records on the basis of 

privilege – particularly the widely divergent standards and expectations across the nation. The

fact that these problems exist despite the clear statement in the Committee Notes to the 1993 

amendment to Rule 26(b)(5)(A) that document-by-document logs are not required in every case3

suggests that the solution is not to issue guidance in Rules 16(b) and 26(f)(3)(D) and in the 

Committee Notes to those rules (the “Committee’s Proposal”), particularly when the proposed 

comments will be inserted in notes unrelated to the rule that sets out the expectations when 

parties withhold documents from production on the basis of privilege, Rule 26(b)(5)(A). The 

fact that there are thirteen references to Rule 26(b)(5)(A) in the Committee’s Proposal

demonstrate that the Committee’s intent is to address a Rule 26(b)(5)(A) problem. Because the 

1 Lawyers for Civil Justice (“LCJ”) is a national coalition of corporations, law firms, and defense trial lawyer 

organizations that promotes excellence and fairness in the civil justice system to secure the just, speedy, and 

inexpensive determination of civil cases. For over 35 years, LCJ has been closely engaged in reforming federal 

procedural rules in order to: (1) promote balance and fairness in the civil justice system; (2) reduce costs and 

burdens associated with litigation; and (3) advance predictability and efficiency in litigation.

2 Preliminary Draft, Proposed Amendments to the Federal Rules of Appellate, Bankruptcy, and Civil Procedure

(Aug. 2023), https://www.uscourts.gov/sites/default/files/2023_preliminary_draft_final_0.pdf.

3 It should be noted that the multiple amendments to Rule 26 since 1937 have caused the committee notes to become 

voluminous, making it difficult for courts and parties to find the relevant notes. 

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2

indirect approach will not serve the need, the Committee should modify its proposal to include

an appropriate amendment to Rule 26(b)(5)(A).

The 1993 Committee Note correctly observes that detailed privilege logs “may be appropriate if 

only a few items are withheld, but may be unduly burdensome when voluminous documents are 

claimed to be privileged or protected, particularly if the items can be described by categories.”4

However, Rule 26(b)(5)(A) fails to help distinguish between appropriate and unduly burdensome

logging, likely because the 1993 Committee Note has gotten lost in the voluminous notes to the 

13 amendments to Rule 26 since 1937.

5 Many courts and parties continue to misconstrue Rule 

26(b)(5)(A) to require document-by-document privilege logs in all cases—including in cases 

involving massive amounts of data, and even for categories of documents that are highly unlikely 

to contain discoverable information, such as communications with counsel after the filing of a 

complaint.

6 This misinterpretation of Rule 26(b)(5)(A) is causing significant inefficiency and 

injustice by imposing unsupportable and unjustifiable burdens and by hindering courts and 

parties from making use of more efficient alternative methods to comply with the rule. It is also 

suborning the unfortunate tactic of imposing asymmetric litigation burdens on litigants to force 

the compromise of claims and defenses in response to economic pressure rather than the merits.

To address the Rule 26(b)(5)(A) problem, the Committee is proposing to amend two other rules, 

Rule 26(f) and Rule 16(b), to require parties to discuss, and prompt judges to order, the timing 

and method for compliance with Rule 26(b)(5)(A). Although this proposal is well-intended, and 

might help in some cases correct the misinterpretation that leads many courts to find a

presumptive requirement for document-by-document privilege logs, its utility will be limited. As 

Judge Facciola and Jonathan Redgrave accurately observed to the Committee:

[T]he omission of any proposed amendments to Fed. R. Civ. P. 26(b)(5)(A)(ii) itself in 

the rules package unfortunately fails to address directly the progeny of cases that 

misapply this rule and axiomatically insist that the rule requires that a party must log each 

privileged document individually, including courts holding that the rule rigidly requires a 

separate log entry for each email in a chain of emails, regardless of circumstances.7

Meetings and conferences will not fix Rule 26(b)(5)(A), nor will they adequately address the 

problem of ever-increasing burdens of the privilege process as the volume of records and costs of 

discovery continue to increase. Only an amendment to Rule 26(b)(5)(A) can sufficiently clarify 

that the rule does not require document-by-document privilege logs but rather allows producing 

4 FED. R. CIV. P. 26(b)(5) advisory committee’s note to 1993 amendment (“The rule does not attempt to define for 

each case what information must be provided when a party asserts a claim of privilege or work product protection. 

Details concerning time, persons, general subject matter, etc., may be appropriate if only a few items are withheld, 

but may be unduly burdensome when voluminous documents are claimed to be privileged or protected, particularly 

if the items can be described by categories.”)

5 To find committee notes to a specific section of the rule, practitioners and courts need to know the year that section 

was amended. Importantly, the Committee’s Proposal does not include a cross-reference in Rule 26(b)(5)(A) 

referring to the amendments and committee notes to Rules 16(b) and 26(f)(3)(D).

6 In re Imperial Corp. of America, 174 F.R.D. 475, 478 (S.D. Cal 1997). 

7 Letter from Hon. John M. Facciola (ret.) and Jonathan M. Redgrave to H. Thomas Byron III, Secretary,

Committee on Rules of Practice and Procedure (Jan. 31, 2023), https://www.uscourts.gov/sites/default/files/23-cva_suggestion_from_facciola_and_redgrave_-_rules_16_and_26_0.pdf.

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3

parties to create categorical privilege logs or to agree on other alternatives. At very least, an 

amendment to Rule 26(b)(5)(A) should provide a reference to the proposed Rule 16(b) and Rule 

26(f) amendments and should be accompanied by a note explaining what compliance with the 

rule means.

This Comment sets forth the Rule 26(b)(5)(A) problem, explains why a modification to the 

Committee’s Proposal to add a direct amendment to Rule 26(b)(5)(A) is necessary, urges a 

change from “rolling” logs to “tiered” logs in the proposed Committee Notes to the proposed 

Rule 16(b) and 26(f) amendments, and suggests that the Committee should follow through with 

this rulemaking by next taking up a Rule 45 amendment to address the needs of non-parties. 

Modifying the Committee’s Proposal as suggested here will achieve the Committee’s purpose of 

informing and enabling parties to customize appropriate logging procedures that are effective, 

efficient, and proportional to the needs of each case.

I. PRIVILEGE LOGS ARE TOO EXPENSIVE, OFTEN MORE BURDENSOME 

THAN HELPFUL, AND FREQUENTLY INDUCE HARMFUL GAMESMANSHIP

A. Costs and Burdens

Indiscriminate document-by-document privilege logs are one of the most labor-intensive, 

burdensome, costly, and wasteful parts of pretrial discovery in civil litigation.8

 The Sedona 

Conference recognizes that “[i]n complex litigation, preparation of [privilege] logs can consume 

hundreds of thousands of dollars or more.”9

 The costs and complexity of privilege logs are

increasing exponentially as the volume of data and communications increase at incredibly high 

rates. It is estimated that human beings produce 2.5 quintillion bytes of data every day. Ninety 

percent of the world’s total data was produced in the past two years. Document and 

communication demands are consequently straining the current rules, which were designed for a 

world of paper. 

The burdens of overlogging are not limited to producing parties. Because document-bydocument logs treat each item as if it had equal importance, such logs force receiving parties and 

courts to focus often misplaced attention on items that may have no material relationship with 

the claims and defenses. Receiving parties often review thousands of entries, assess those 

entries, and fashion responses, irrespective of importance. Courts often must resolve disputes 

over the sufficiency of such log entries that frequently require in camera reviews and 

proceedings.

As the volume of material potentially subject to discovery has escalated, so too has the number 

of documents withheld for privilege. As the Committee explained to the Standing Committee,

the burdens of producing document-by-document privilege logs have escalated as digital 

8 See New York State Bar Association, Report of the Special Committee On Discovery And Case Management In 

Federal Litigation, at 73 (June 23, 2012) (“Most commercial litigation practitioners have experienced the harrowing 

burden the privilege log imposes on a party in a document-intensive case, especially one with many e-mails and email strings.”).

9 The Sedona Conference, The Sedona Conference Commentary on Protection of Privileged ESI, 17 SEDONA CONF.

J. 95, 103 (2016).

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4

communications have supplanted other means of communication.10 As a result, the burdens and 

expenses of asserting privilege claims has grown dramatically. A court in the Southern District 

of New York has noted that “the advent of electronic discovery and the proliferation of e-mails 

and e-mail chains” has made “traditional document-by-document privilege logs . . . extremely 

expensive to prepare, and not really informative to opposing counsel and the Court.”11 While 

artificial intelligence and other technological advancements have increased the capability and 

efficiency of finding potentially privileged documents, litigants cannot use these tools alone to 

assert their privilege claims under the current rules. Instead, creating privilege logs remains a 

manual, burdensome, and exceptionally expensive process in litigation.

B. Limited Value

Document-by-document privilege logs are frequently of little value to the requesting party and 

the court in analyzing or evaluating the privilege claims, despite the time, effort and money spent 

preparing them.12 The Sedona Conference explains: “Privilege logs rarely ‘enable other parties 

to assess the claim’ as contemplated by Rule 26(b)(5) [ n]or do the logs ‘reduce the need for in 

camera examination of the documents.’”13 A major reason for the problem is that document-bydocument logging is based on the flawed premise that each document (or redacted portion) 

should be treated with equal detail, rather than focusing more attention on the documents that are 

more important to the case and less attention to unimportant items. Preparing a privilege log 

requires careful and time-consuming analysis of descriptions sufficient to convey the basis for 

withholding the document without unintentionally conveying the substance of the 

communication and thus waiving privilege—an effort that should be tailored rather than applied

as a blanket default to the universe of documents.

C. Gamesmanship

Although disagreements regarding the sufficiency of privilege logs can cause extensive 

skirmishes between the parties, rarely do such fights impact the ultimate outcome of the case. 

Too often, challenges to privilege logs are used as a tool by overly aggressive requesting parties 

to impose added expenses on producing parties, to obtain desired concessions with respect to 

other discovery disputes, or to delay litigation. Such actions place additional barriers to the 

10 Memo from Hon. Robin L. Rosenberg, Chair, Advisory Committee on Civil Rules, to John D. Bates, Chair, 

Committee on Rules of Practice and Procedure (Dec. 9, 2022), Agenda Book, Committee on Rules of Practice and 

Procedure (Jan. 4, 2023), at 205, https://www.uscourts.gov/sites/default/files/2023-

01_standing_committee_meeting_agenda_book_final_0.pdf. 

11 Auto Club of N.Y., Inc. v. Port Auth. of N.Y. and N.J., 297 F.R.D. 55, 60 (S.D.N.Y. 2013).

12 See The Sedona Conference, The Sedona Principles, Third Edition: Best Practices, Recommendations & 

Principles for Addressing Electronic Document Production, 19 SEDONA CONF. J. 1, 81 (2018) (“[o]ften, the 

privilege log is of marginal utility.”); see also id at 159, Comment 10.h (“[T]he precise type and amount of 

information required to meet the general standards set forth in Rule 26(b)(5)(A)(ii) varies among courts, and 

frequently fails to provide sufficient information to the requesting party to assess the claimed privilege.”).

13 The Sedona Conference, Commentary on Protection of Privileged ESI, supra at 104 n.7. See also id at 155 

(“[T]he deluge of information and rapid response time required by pressing dockets have forced attorneys into using 

mass-production techniques, resulting in logs with vague narrative descriptions. In some instances, the text of 

privilege logs ‘raise[] the term “boilerplate” to an art form, resulting in the modern privilege log being as expensive 

to produce as it is useless.’”).

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5

efficiency of our civil justice system and inevitably force parties to compromise rights that 

otherwise could be vindicated on the merits. Rarely do privilege log disputes result in the 

production of documents or data that are dispositive of a case or claim.

D. Lack of Uniformity

There is a troublesome lack of uniformity across federal courts in the caselaw interpreting Rule 

26(b)(5)(A). Many district courts across the country have attempted to address the Rule 

26(b)(5)(A) problem by promulgating local rules and standing orders that provide for limits on 

logging requirements and endorse alternative methods of privilege logging—a clear indication 

that the absence of a national standard is causing problems.14 Local rules developed in response 

to the burden of document-by-document privilege logs have also been varied and inconsistent. 

For example, the District of Colorado urges counsel to engage in good faith to identify types of 

documents that do not need to be logged document-by-document,15 while district courts in New 

York have local rules that presumptively find categorical groupings of documents for privilege 

logs to be proper.16 Still other courts hold that Rule 26(b)(5)(A) rigidly requires a separate log 

for each email in a chain of emails, regardless of the circumstances.17 There is also a lack of 

uniformity with respect to which kinds of documents may be categorically excluded from 

privilege logs, such as duplicative emails in lengthy email chains or communications between 

counsel and clients after the commencement of litigation.18

14 Even in jurisdictions where courts have not undertaken larger-scale efforts to address the problem of logging 

privileged documents in the digital age, a growing number of courts have recognized the appropriateness of categorical 

privilege logs based on the burden imposed by individual logs and lack of benefit they provide. See, e.g., AsghariKamrani v. U.S. Auto. Ass’n, No. 2:15-cv-478, 2016 WL 8243171, at *1– 4 (E.D. Va. Oct. 21, 2016) (finding party’s 

categorical privilege log complied with 26(b)(5) and holding that requiring plaintiffs to separately list each of the 439 

documents categorically logged would be “unduly burdensome for no meritorious purpose”); Manufacturers 

Collection Co., LLC v. Precision Airmotive, LLC, No. 3:12-CV-853-L, 2014 WL 2558888, at *4-5 (N.D. Tex. June 6, 

2014) (permitting categorical privilege log when a “document-by-document listing.... would be unduly burdensome” 

and provide “no material benefit to Precision in assessing whether a privilege .... claim is well grounded.”); First 

Horizon National Corp. v. Certain Underwriters at Lloyd's, 2013 WL 11090763, at*7 (W.D. Tenn. Feb. 27, 2013) 

(permitting categorical privilege log and noting that “several courts have employed such a categorical approach to 

balance competing concerns of, on the one hand, the burden on the withholding party to perform a detailed indexing 

of a large amount of documents and, on the other hand, the need for the requesting party, and even more importantly, 

the court, to be able to adequately assess the applicability of the privilege being asserted.”)

15 Guidelines Addressing the Discovery of Electronically Stored Information cmt. 5.1 (D. Colo. 2014)

16 S.D.N.Y. Civ. R. 26.2(c); W.D.N.Y. Civ. R. 26(d)(4). 

17 See, e.g., M & C Corp. v. Erwin Behr GmbH & Co., No. 91-CV-74110-DT, 2008 WL 3066143, at *2 (E.D. Mich. 

Aug. 4, 2008) (“As an initial matter the Court notes that the parties have approached the question of the applicability 

of the work product doctrine to the disputed material in general terms rather than on a more detailed, document by 

document, level. Kemp Klein did not serve a privilege log listing each document withheld and describing each 

document as required by Fed. R. Civ. P. 45(d)(2). Therefore, this Court cannot and will not decide whether any 

specific documents or categories of documents are protected by the work product doctrine.”).

18 Compare Brown v. West Corp., 287 F.R.D. 494, 499 (D. Neb. 2012) (“This Court has joined other district courts 

in assuming privilege for attorney-client communications that transpire after the initiation of litigation in situations 

where the plaintiff is requesting extensive discovery.”), with Shufeldt v. Baker, Donelson, Bearman, Caldwell and 

Berkowitz, P.C., No. 3:17-cv-01078, 2020 WL 1532323, at *6 (M.D. Tenn. 2020) (“[T]here is no apparent reason to 

limit the scope of the log to materials generated before the filing of the [action]”).

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6

While a categorical privilege log can be a reasonable alternative to a document-by-document 

privilege log in many cases, it is certainly not the only alternative. The spirit of Rule 26(b)(5)(A) 

calls for effective and proportional alternatives, as contemplated in the 1993 Committee Note, 

and for parties to select the privilege log form that best suits the case. Establishing clear 

guidance on the elements of a sufficient privilege log will ensure consistency across courts and 

relieve parties of the default document-by-document privilege log burden. 

II. THE COMMITTEE’S PROPOSAL SHOULD BE MODIFIED TO INCLUDE AN 

AMENDMENT TO RULE 26(b)(5)(A) WITH A COMMITTEE NOTE 

DESCRIBING A SUFFICIENT LOG

The Committee’s Proposal will best achieve its purpose if an amendment to Rule 26(b)(5)(A)(ii) 

provides a reference to the new amendments. As suggested by Facciola and Redgrave,19 adding

this single sentence would put the focus where it belongs—the rule that is the source of the 

misunderstanding: 

The manner of compliance with subdivisions (A)(i) and (ii) shall be determined in 

each case by the parties and the court in accord with Rules 16(b)(3)(B)(iv) and 

26(f)(3)(D).

Adding this provision will help ensure that courts and parties turning to Rule 26(b)(5)(A) for 

guidance will learn that the FRCP require parties to take the initiative in addressing and reaching 

agreement on the scope, structure, content, and timing of privilege logs at the appropriate time in 

each case. A Committee Note accompanying this amendment should clarify that Rule 

26(b)(5)(A) does not specify the method of compliance and should describe the elements of a 

sufficient privilege log. The Committee Note should also clarify that, absent unusual 

circumstances, there is a presumption that parties are not required to provide logs of trialpreparation documents created after the commencement of litigation, communications between 

counsel and client regarding the litigation after service of the complaint, or communications 

exclusively between a party’s in-house counsel and outside counsel during litigation. These 

three categories are clearly within the privilege and almost never will be admissible in the 

substantive case. Providing clarity on this topic is much-needed (as noted in LCJ’s original 

submission20) and would reduce satellite litigation over whether documents in these categories 

must be logged. The Committee Note should also suggest that prioritizing logging by tier can 

help parties focus on the documents that are most likely to matter to the litigation. An effective 

Committee Note could look like this:

Rule 23(b)(5)(A) is amended together with Rules 16(b)(3)(B)(iv) and 26(f)(3)(D) to 

direct the parties to select a privilege log form and process that is effective and 

proportional to the needs of the case. The form should allow the parties to assess 

19 Letter from Hon. John M. Facciola (ret.) and Jonathan M. Redgrave to H. Thomas Byron III, Secretary,

Committee on Rules of Practice and Procedure (Jan. 31, 2023) , https://www.uscourts.gov/sites/default/files/23-cva_suggestion_from_facciola_and_redgrave_-_rules_16_and_26_0.pdf. 20 Lawyers for Civil Justice, Privilege And Burden: The Need To Amend Rules 26(B)(5)(A) And 45(E)(2) To Replace 

“Document-By-Document” Privilege Logs With More Effective And Proportional Alternatives (August 4, 2020), 

https://www.uscourts.gov/sites/default/files/20-cv-r_suggestion_from_lawyers_for_civil_justice_-

_rules_26_and_45_privilege_logs_0.pdf (hereinafter, “LCJ Suggestion”).

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privilege claims and make the proper assertion as to whether privilege applies. The 

process should be efficient; the parties’ selection should reflect the volume of documents, 

the burdens and expenses of producing the log, and the value of the log to the litigation.

The privilege log form and process should not require judicial attention or intervention in 

the ordinary course.

The privilege log form will vary with the needs of the case. Elements of a sufficient 

privilege log form may: (1) include sampling to determine whether privilege claims are 

legally and factually sound; (2) utilize broad categories or summaries for secondary, 

nonmaterial documents; (3) provide more detailed information for subsets of important or 

primary, material documents; or (4) establish logging protocols for particular types of 

linked/serial communications such as emails or text messaging.

The process of compiling a privilege log should also reflect the needs of the case. 

Prioritizing the logging of documents that are more likely to be significant to the claims 

and defenses could help focus attention on the key issues, just as with a tiered approach 

to document production. 

Certain categories of documents are presumed not to need logging absent unusual 

circumstances, including trial-preparation documents created after the commencement of 

litigation and communications between counsel, client regarding the litigation after 

service of the complaint, and communications exclusively between a party’s in-house 

counsel and outside counsel during litigation.

Parties may select a privilege log form and process that incorporates technology and the 

creativity of parties and counsel, so long as the privilege log form and process are clear, 

efficient, and proportional to the needs of the case.

III. THE PROPOSED COMMITTEE NOTES TO THE RULE 16(b) AND 26(f) 

AMENDMENTS SHOULD SUGGEST TIERED LOGGING RATHER THAN 

ROLLING PRODUCTION

The Committee’s Proposal includes a proposed note to the Rule 26(f)(3)(D) amendment stating: 

“Often it will be valuable to provide for ‘rolling’ production of materials and an appropriate 

description of the nature of the withheld material.” Similarly, the proposed Note to the Rule 

16(b) amendment says: “It may be desirable for the Rule 16(b) order to provide for ‘rolling’ 

production that may identify possible disputes about whether certain withheld materials are 

indeed protected.” This language should be changed to substitute the word “tiered” for “rolling” 

because tiering is an effective management technique but rolling is frequently a 

counterproductive concept that often exacerbates the problems of ineffective and inefficient

logging practices.

A “tiered” process allows coordination between privilege logging and the production of 

documents.21 It prioritizes the production and logging of documents that are most likely to 

21 Comment by Robert D. Keeling to the Advisory Committee on Civil Rules (Sept. 8, 2023) at 9,

https://www.regulations.gov/comment/USC-RULES-CV-2023-0003-0003. 

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contain information that is material to the issues in the case. Organizing the process in this 

manner means that any potential disputes related to the most important documents are resolved 

as early as possible in the discovery process. By focusing on sources that are more likely to be 

material, tiering can provide more detailed logs for important withheld documents while 

relieving the burdens of focusing undue attention on the less significant tiers. 

In contrast, rolling logs often cause substantial delay in the completion of document productions 

because providing privilege logs at or near the same time as corresponding document 

productions adds significantly to the burden while decreasing the quality and accuracy of the 

privilege log.22 Devoting resources and attention to composing privilege log entries takes away 

resources from the document production. “More often than not, rolling logs create needless ‘fire 

drills’ where not enough time (or resources) exists to provide quality productions simultaneously 

with quality log entries.”23 Because document productions are typically of more immediate 

interest to the requesting party, when a choice must be made, the privilege log is often the second 

priority, which leads to disputes and motion practice. Moreover, logs that are produced on a 

rolling basis often must be corrected and reproduced later in the process based on information 

from subsequent document review. “For example, the question of whether an individual copied 

on a communication is a third-party recipient who breaks privilege may not be clear from review 

of a single document, but subsequent review of additional documents may assist lawyers in 

making the correct privilege determination in the first instance.”24 Correcting and redoing

previously produced logs, and making supplemental productions of documents in the previous 

log population, is inefficient. It is better for parties and the courts if privilege logs are compiled

after the majority of documents in a particular tier have been reviewed.

IV. A RULE 45 AMENDMENT IS NEEDED BECAUSE THE COMMITTEE’S 

PROPOSAL DOES NOT ADDRESS THE PROBLEMS OF NON-PARTY 

PRIVILEGE LOGS

Non-parties facing the prospect of producing a privilege log pursuant to Rule 45 have an equal,

or perhaps even greater, need for guidance about requirements than parties. Although Rule 45 

makes clear that non-parties should be entitled to greater protection against undue burdens, it 

fails to provide it expressly with respect to privilege logging. Because non-parties do not 

typically participate in Rule 26(f) or Rule 16 conferences, the Committee’s Proposal does not 

address their needs and problems. If the Committee does not want to address Rule 45 in the 

current rulemaking, it should nevertheless take up the topic for a future proposal because an 

amendment to Rule 45 is the most effective way to provide non-parties the appropriate guidance 

and protection.

CONCLUSION

The Committee’s 1993 insight has been misunderstood or ignored, and now Rule 26(b)(5)(A) 

and its case law progeny have institutionalized a de facto default to “document-by-document” 

overlogging. This Rule 26(b)(5)(A) problem imposes significant burdens on parties, non-parties, 

and courts that are not worth the price, and it also induces gamesmanship. Although the 

22 Id. at 7-9. 23 Id. at 8. 24 Id.

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Committee’s Proposal could help, the indirect approach of amending Rules 26(f) and 16(b) will 

not be as effective without direct guidance in Rule 26(b)(5)(A) to focus on finding an efficient 

process that best meets the needs of the case. An amendment to Rule 26(b)(5)(A) referring to the 

new Rule 26(f) and 16(b) provisions, together with a Committee Note as described above, will

inform and enable courts, parties, and non-parties to customize logging forms and procedures to 

ensure effective and efficient logging.

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COMMENT 

to the 

ADVISORY COMMITTEE ON CIVIL RULES

Re: Proposed Amendments to FRCP 16 and FRCP 26

October 3, 2023

The DRI Center for Law and Public Policy respectfully asks the Advisory Committee on Civil 

Rules to consider this submission in support of the amendment to Rules 16 and 26 proposed by 

the Advisory Committee on the Federal Rules of Civil Procedure. The proposed amendment to 

Rule 26(f)(3)(D) would require the parties to include in their discovery plan, submitted before 

the initial case management conference, their views and proposals on how claims of privilege 

and protection of trial-preparation materials, “including the timing and method for complying 

with Rule 26(b)(5)(A),” should be addressed during discovery. The proposed amendment to Rule 

16 (b)(3)(iv) allows the parties to propose in their discovery plan the timing and method for 

complying with requirements of Rule 26(b)(5)(A) should claims of privilege or protection of 

trial-preparation arise. Both of these proposed amendments will aid the parties and the courts in 

managing the process of asserting and resolving claims of privilege. 

WHO WE ARE

The Center for Law and Public Policy (“the Center”) is part of DRI, Inc. (“DRI”), the leading 

organization of civil defense attorneys and in-house counsel. Founded by DRI in 2012, the 

Center is the national policy arm of DRI. It acts as a think tank and serves as the public face of 

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DRI. The Center’s three primary committees—Amicus, Public Policy, and Legislation and 

Rules—are comprised of numerous task forces and working groups. These subgroups publish 

scholarly works on a variety of issues, and they undertake in-depth studies of a range of topics 

such as class actions, climate change litigation, data privacy, MSP, and changes to the Federal 

Rules of Civil Procedure and the Federal Rules of Evidence. Since its inception, the Center has 

been the voice of the civil defense bar on substantive issues of national importance.

I. BACKGROUND

The Standing Committee describes these proposed amendments as dealing with what they call 

the “privilege log” problem. Rule 26(b)(5)(A) and Rule 45(e)(2), as they currently stand, direct 

litigants and nonparties withholding documents from production based on claims of privilege or 

work product protection to identify those documents in a manner that “will enable other parties 

to assess the claim.” The default method of doing so employed by most lawyers is for the 

withholding entity to prepare a privilege log of all withheld records on a “document-bydocument basis.” However, some categories of documents and communications are, by their 

authorship, exchange, or content, transparently privileged or protected, while others merit more 

information. The exponential proliferation of ESI since Rule 26(b)(5)(A) was enacted in 1993 

further complicates this process. And despite the 1993 Committee Note to Rule 26(f) regarding 

flexibility with respect to privilege logging, the proposed Amendments include guidance about 

optional methods other than continued adherence to the inflexible, “each document must be 

logged” standards. 

These document-by-document privilege logs are very labor-intensive, burdensome, and costly. 

The costs associated with creating these traditional privilege logs have become possibly the 

largest category of pretrial spending for litigants in document-intensive litigation. Typically, 

preparing such logs requires lawyers to identify potentially privileged documents, conduct 

extensive research into the elements of each potential claim, make and then validate initial 

privilege calls, and then construct a privilege log describing each withheld document—with the 

lawyer’s client paying the associated costs. These logs are often expensive to produce and 

inefficient in conveying useful information, and often lead to disputes that require court 

intervention. 

II. PROPOSED AMENDMENTS

Rule 16. Pretrial Conferences; Scheduling; Management

(b) Scheduling and Management

(3) Contents of the Order.

(B) Permitted Contents.

(iv) include the timing and method for complying with Rule 26(b)(5)(A) and any agreements the 

parties reach for asserting claims of privilege or of protection as trial-preparation material after 

information is produced, including agreements reached under Federal Rule of Evidence 502;

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Rule 26. Duty to Disclose; General Provisions Governing Discovery

* * * * *

Conference of the Parties; Planning for Discovery.

* * * * *

(3) Discovery Plan. A discovery plan must state the parties’ views and proposals on:

* * * * *

(D) any issues about claims of privilege or of protection as trial-preparation

materials, including the timing and method for complying with Rule 

26(b)(5)(A) and—if the parties agree on a procedure to assert these claims 

after production—whether to ask the court to include their agreement in an 

order under Federal Rule of Evidence 502;

III. DRI CENTER RECOMMENDATIONS

The 2006 Committee Notes to Rule 26(f) recommended that parties address issues concerning 

privilege during the Rule 26(f) conference. However, this suggestion is often not followed in 

actual practice. The Proposed Amendments contemplate that the parties will take the initiative 

in addressing and reaching agreement with respect to the scope, structure, content, and timing of 

submission of privilege logs at the appropriate time in each matter. 

This contemplated discussion should be initiated at the parties’ required Rule 26(f) initial 

conference and agreement finalized at a reasonable time preceding the commencement of 

document productions. The precise procedures agreed to are best incorporated in the parties’ 

Rule 26 report and then into a court order. If agreement, in full or part, is not achieved, each 

party could submit its plan or disputed parts to the court for guidance and, if necessary, 

resolution. The objective of the parties’ conference is to agree on procedures for providing 

sufficient information to assess privilege claims relating to information that is likely to be 

probative of claims and defenses and that is not facially subject to protection. This could allow 

the parties to avoid many of the issues described above.

Some categories of documents and ESI are facially privileged or protected and can be agreed by 

the parties to be excluded from logging. For example, absent extraordinary circumstances, 

communications between counsel and client regarding the litigation after the date the complaint 

is served can be excluded as clearly privileged or protected. The Proposed Amendments 

contemplate that parties might agree that work product prepared for the litigation need not be 

logged in detail. Certain forms of communications, for example communications exclusively 

between in-house counsel and outside counsel to an organization, might be so clearly privileged 

that a simplified log merely identifying counsel as the exclusive communicants is needed. 

Express exclusions, as allowed by the Proposed Amendments and encouraged by the Committee 

Notes, both reduces the burdens of reviews and logging and possible disputes regarding the 

scope of logging that arise when a party unilaterally excludes documents and ESI otherwise 

deemed relevant.

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Although it is widely understood that tiered discovery can be an efficient way to focus attention 

on the most important documents and ESI, courts and parties have been slow to apply that 

concept to privilege logs. But just as not all documents are equally important to a case, so it is 

that not all documents withheld on the basis of privilege have the same value in the litigation. 

Whereas sampling and other procedures are employed to determine whether various categories 

of documents and ESI are sufficiently probative to warrant additional productions, so can 

iterative, proportional logging determine which privilege claims should be subject to greater 

scrutiny in the circumstances of the case. For example, certain claimed privileged documents or 

ESI may pertain to a mixture of privileged and business information that is probative and 

requires additional information to assess the claim. Providing initial logs with limited 

information, for example logs based on extracted metadata fields, permits the receiving party to 

focus on documents and ESI for which further information is needed to assess the privilege 

claims. Similarly, well-structured categorical logging can include procedures for the receiving 

party to sample documents or ESI and receive document-by-document log entries for those 

documents to ascertain the sufficiency of the privilege claims for the category.

The 1993 Committee Notes to Rule 26(b)(5) recognize that detailed, document-by-document 

privilege logs are appropriate when only a few items are being logged but contemplate

identification by category in other circumstances. Thus, even 25 years ago, as the current issues 

created by the volume of ESI were just beginning to emerge, the Committee recognized the 

benefit of categorical logs in the face of voluminous productions and claims of privilege. The 

recent Proposed Amendments allow the parties, and the court, to discuss the timing and method 

of complying with Rule 26(b)(5)(A). The Committee Note to the Proposed Amendment to Rule 

26 reinforces this position, recognizing that “[i]n some cases some sort of categorical approach 

might be effective to relieve the producing party of the need to list many of the withheld 

documents.” 

The DRI Center for Law and Public Policy believes that the Proposed Amendments are, overall, 

a step in the right direction to help litigants and the courts modernize guidance for handling 

privilege logs by strengthening the timing and manner of expected compliance with Rule 

26(b)(5)(A). These Amendments, as guided by the Committee Notes, would enhance efficiency 

and expedite litigation by enabling parties to work collaboratively and creatively to avoid 

needless costs and disputes, saving judicial resources. The Proposed Amendments would also 

permit the parties to use new and emergent technologies, including technology applications that 

automatically identify privileged documents and ESI, and extract information for automated 

logging. Finally, the Proposed Amendments would bring uniformity to the best practices that 

have developed in many federal courts pursuant to local rules and pilot programs.

Some critics of the Proposed Amendments assert that categorical and iterative logging may 

provide incentive or ability to cheat the system by hiding important relevant documents and ESI 

behind invalid claims of privilege or protection. Such criticisms assume that lawyers admitted to 

practice in federal court would immediately set aside their oaths and violate the rules of ethics in 

every jurisdiction. This criticism also ignores that the amendments proposed here contemplate 

meet-and-confers at the appropriate juncture, providing the opportunity for timely judicial 

involvement if necessary. And, of course, such criticism ignores the obvious—if a lawyer is 

going to cheat, he or she will do so under either a document-by-document log or a categorical 

log. 

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V. CONCLUSION

The general practice under Rules 26(b)(5)(A) and 45(e)(2) has been for the parties to prepare 

document-by-document privilege logs notwithstanding the 1993 Committee Note suggesting 

that other procedures might be employed. The status quo puts substantial burdens on the 

parties, nonparties, and the judiciary because expensive and ineffective logs create collateral 

disputes concerning the sufficiency of logs without providing the information necessary to 

resolve them. The Proposed Amendments encourage the parties to devise proportional and 

workable logging procedures while facilitating timely judicial management where necessary 

to avoid later disputes. Doing so would reduce both the burdens on the parties and the court 

while addressing the continual frustration that document-by-document logs seldom, if ever, 

“enable other parties [and the court] to assess the claim[s].” Thus, the DRI Center for Law 

and Public Policy urges the Committee to adopt the proposed Amendments. 

Respectfully submitted,

/s/ Lawrence S. Ebner

Lawrence S. Ebner, Chair

DRI Center for Law and Public Policy

/s/ James L. McCrystal, Jr.

James L. McCrystal, Jr., Chair

Center Legislation and Rules Committee

/s/ Robert L. Massie

Robert L. Massie, Chair

Center Federal Rules Task Force

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TAB 16A

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John S Guttmann

1900 N Street, NW, Suite 100

Washington, DC 20036

 +1.202.789.6020

JGuttmann@bdlaw.com

Austin, TX Baltimore, MD Boston, MA 

New York, NY San Francisco, CA Seattle, WA Washington, DC 

October 5, 2023 

H. Thomas Byron III 

Secretary 

Committee on Rules of Practice and Procedure 

Administrative Office of the United States Courts 

One Columbus Circle, NE 

Room 7-300 

Washington, DC 20544 

Re: October 16, 2023, Civil Rules Hearin g

Dear Mr. Byron: 

I appreciate the opportunity to appear before the Advisory Committee on Civil Rules 

at its upcoming hearing on October 16, 2023. As requested in the September 21, 2023, 

memorandum to confirmed hearing witnesses, I wanted to report that at the hearing I intend 

to support a proposed Fed. R. Civ. P. 16.1. My views on this topic will be generally 

reflected in the comment to be submitted by DRI and its Center for Law and Public Policy in 

advance of the hearing, which will advocate that a proposed rule should be crafted to address 

the issue of meritless claims, including how an actual rule would benefit MDL judges. 

If you have any questions, please let me know. 

Very truly yours, 

John S Guttmann 

Principal 

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COMMENT

to the

ADVISORY COMMITTEE ON CIVIL RULES

Re: Proposed FRCP 16.1

October 11, 2023

SEPARATING THE WHEAT FROM THE CHAFF: THE NEED FOR A

RULES-BASED SOLUTION TO ADDRESS UNSUPPORTABLE CLAIMS

IN CONTEXT OF MDL PROCEEDINGS

The DRI Center for Law and Public Policy (the “Center” or “DRI”) is the public policy

“think tank” and advocacy voice of DRI, Inc., an international community of approximately

16,000 attorneys who represent businesses in civil litigation. The Center participates as an

amicus curiae in the U.S. Supreme Court, federal courts of appeals, and state appellate courts in

an ongoing effort to promote fairness, consistency, and efficiency in the civil justice system.

Given the prominence of MDL litigation in federal courts to its members, their clients, and the

outsized role the MDL process plays in the current civil justice system, the Center established a

working group to examine proposed Rule 16.1 and, where appropriate, to offer comments and

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suggestions. The Center submits this comment specifically directed to one aspect of proposed

Rule 16.1 and to suggest that Rule 16.1(c)(4) and its accompanying note be revised to more

specifically address a recurring issue in MDL proceedings—“unsupportable claims”—and to call

for a rules-based solution to the problems they create for all relevant stakeholders in the MDL

process.

DRI’S PERSPECTIVE ON THE NEED FOR A RULES-BASED SOLUTION

The fifty years since 28 U.S.C. § 1407, the statute creating the MDL transfer process, was

first enacted in 1968 have seen an exponential growth in the number of matters pending on MDL

dockets in district courts around the country. As the JPML reported in its summary for fiscal

year 2020, 953,641 civil actions were centralized for pretrial proceedings from the creation of the

JPML from 1968 to September 30, 2020. United States Judicial Panel on Multidistrict

Litigation, Statistical Analysis of Multidistrict Litigation Under 28 U.S.C. § 1407, Fiscal Year

2020 at 3. More than a third of that number, 327,024, were pending at the end of FY 2020 alone.

By September 15, 2023, less than three years later, that number had ballooned again, to 408,636

cases pending in various MDLs. United States Judicial Panel on Multidistrict Litigation, MDL

Statistics Report - Distribution of Pending MDL Dockets by Actions Pending (September 15,

2023).

As discussed in some detail in the MDL subcommittee’s report, an unreasonably high

number of those claims—particularly in product liability actions making up the largest

percentage of cases and consolidated proceedings—are “unsupportable1” as that term is defined

1 DRI uses the phrase “unsupportable claim” in same sense it was defined by the MDL

subcommittee in its reporting: a claim where the plaintiff did not use the product involved,

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below. The MDL Subcommittee decision to offer only nonbinding guidance contained in

proposed Rule 16.1(c)(4) and the Committee Notes to Rule 16.1 is disappointing because the

situation will only improve with a clear, rules-based approach.2

DRI supports revising the proposed language with a clear rules-based approach to address

the problem presented by unsupportable claims. This approach is needed, is workable, and will

be beneficial to the MDL judges, the parties, and the judicial system as a whole. Unsupportable

claims are relatively easy to weed out in mine-run litigation where there is little if any incentive,

for example, to file a claim against a pharmaceutical manufacturer where the claimant did not

actually use the drug or where the plaintiff did not develop the condition the drug allegedly

causes or where the statute of limitations had plainly run. All of that information is uniquely in

the hands of the party filing the claim. Without that foundation, there would be little reason to

file suit. And even where an unsupportable claim is improperly filed in an individually litigated

case, those deficiencies are usually exposed efficiently and can be addressed by the court in the

usual course of business.

DRI submits, however, that the problem of unsupportable claims creates asymmetrical

issues of scaling when applied across hundreds or thousands or tens of thousands of cases

pending in an MDL. As discussed below, this unsupportable claim problem is real and adversely

impacts the judicial system in a way that a rules-based solution can uniquely remedy.

Accordingly, DRI suggests that proposed Rule 16.1 be amended to require specifically that the

report called for by proposed Rule 16.1(c) include a mandatory proposal for addressing the

where the plaintiff did not suffer the adverse consequence at issue, or where the claim is timebarred under applicable law.

2 DRI notes that the Lawyers for Civil Justice submitted a comment on proposed

Rule 16.1 on September 18, 2023, which suggests proposed revisions to both Rule 16.1(c)(4) and

adding appropriate notes to that portion of the rule. DRI endorses the LCJ’s proposed revisions

and additions.

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supportability of claims pending or transferred into the MDL.3 DRI also suggests that the notes

to Rule 16.1(c)(4) outline the reasons for its adoption. DRI believes these changes will

discourage if not eliminate the filing of unsupportable claims to the benefit of all. And even

when such claims are filed, failure to supply the required information makes their dismissal

almost a ministerial task rather than the far more resource-intensive motion practice required

under the existing rules.

THE EXISTENCE OF UNSUPPORTABLE CLAIMS IS REALAND HAS

EXISTED FOR SOME TIME

DRI purposefully uses the phrasing “unsupportable claims’ because it mirrors the

language in the MDL Subcommittee’s 2018 report to the Advisory Committee:

There seems to be fairly widespread agreement among experienced

counsel and judges that in many MDL centralizations—perhaps particularly those

involving claims about personal injuries resulting from use of pharmaceutical

products or medical devices—a significant number of claimants ultimately (often

at the settlement stage) turn out to have unsupportable claims, either because the

claimant did not use the product involved, or because the claimant had not

suffered the adverse consequence in suit, or because the pertinent statute of

limitations had run before the claimant filed suit. The reported proportion of

claims falling into this category varies; the figure most often used is 20 to 30%,

but in some litigations it may be as high as 40% or 50%.

MDL Subcommittee Report, Advisory Committee on Civil Rules Agenda Book at 143

(November 1, 2018).4

3 The current version of Rule 16.1(c)(4) simply refers to the “exchange of

information” about the factual bases for the parties claims and defenses. But the exchange of

information is really a discovery issue, more properly addressed under the initial disclosure

requirements of Rule 26(a)(1) and proposed Rule 16.1(c)(6). On the other hand, the

supportability of each claim is foundational issue—the very keys to the federal courthouse, if

you will—which precedes any need for discovery.

4 This is in contrast to claims that cannot survive summary judgment because for

example, the plaintiffs ultimately cannot establish general or specific causation. See, e.g., In re

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5

Twenty-one years before that report, the Federal Judicial Center published a report, Mass

Torts Problems & Proposals, A Report to the Mass Torts Working Group (Fed. Judicial Center

January 1999), which observed that, “[t]he consequences of aggregation can be to create a mass

tort. To capsulize a now-familiar metaphor, Professor McGovern has coined the mantra: ‘If you

build a superhighway, there will be a traffic jam.’” Mass Torts Problems & Proposals at 23. In

discussing asbestos litigation specifically, the report offered an observation that Professor

Siliciano had attributed “the asbestos problems to a failure to apply the ground rules of the tort

system, allowing unmeritorious claims to clog the new superhighway.” Id. These have proved

to be more than academic and not limited to asbestos claims.

More recently, in 2016, Judge Land stated that his experience as a transferee judge in two

MDLs led him to the belief that

the evolution of the MDL process toward providing an alternative dispute

resolution forum for global settlements has produced incentives for the filing of

cases that otherwise would not be filed if they had to stand on their own merit as a

stand-alone action. Some lawyers seem to think that their case will be swept into

the MDL where a global settlement will be reached, allowing them to obtain a

recovery without the individual merit of their case being scrutinized as closely as

it would if it proceeded as a separate individual action.

In re Mentor Corp. Obtape Transobturator Sling Prod. Liab. Litig., No. 4:08-MD-2004 (CDL),

2016 WL 4705827, at *1 (M.D. Ga. Sept. 7, 2016). Based on his experience, Judge Land added:

Lipitor (Atorvastatin Calcium) Mktg., Sales Pracs. & Prod. Liab. Litig., 227 F. Supp. 3d 452,

466 (D.S.C. 2017), aff'd sub nom. In re Lipitor (Atorvastatin Calcium) Mktg., Sales Pracs. &

Prod. Liab. Litig. (No II) MDL 2502, 892 F.3d 624 (4th Cir. 2018) ("Plaintiffs at issue here were

prescribed and ingested Lipitor is dosages of less than 80 mg prior to their diabetes diagnosis,

they have no admissible expert testimony regarding general causation.”). In that case, the

plaintiffs covered by the motion had ingested the product at issue and had been subsequently

diagnosed with the disease at issue; they were simply unable to provide sufficient expert

testimony at the summary judgment/Rule 702 stage to establish a genuine issue of fact on

causation. Under DRI’s definition, those claims were “supportable” even if not ultimately

successful.

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This phenomenon produces the perverse result that an MDL, which was

established in part to manage cases more efficiently to achieve judicial economy,

becomes populated with many non-meritorious cases that must nevertheless be

managed by the transferee judge—cases that likely never would have entered the

federal court system without the MDL.

Id. Judge Land, noting his struggle to address that problem, suggested the “robust use of Rule

11” might help. But Rule 11 comes with its own issues and requires heavy involvement from the

transferee judge.5

Even the American Association of Justice’s MDL Working Group’s suggestions to the

MDL subcommittee in 2018 candidly acknowledged that cases are “sometimes filed

prematurely” because, it said, “plaintiffs need additional time to obtain medical records or other

documentation to confirm plaintiffs’ use of the product, diagnosis, date of injury, etc.”

Memorandum to Judge Robert Dow and Members of the MDL Subcommittee, AAJ’s MDL

Working Group at 1 (May 25, 2018). But even were that the situation in sporadic individual

cases, it would not explain the 20–40 percent estimate of unsupportable claims noted by the

MDL Working Group in its report. More importantly, the current MDL process all but assures

that those “prematurely filed” cases will be in the MDL regardless of whether their claims are

supportable or unsupportable.

THE PROBLEM OF UNSUPPORTABLE CLAIMS IS NOT A DISCOVERY

ISSUE

5 As Judge Robreno pointed out ten years ago, “aggregation promotes the filing of

cases of uncertain merit. The incentive becomes the number of cases that can be filed, not the

relative merit of the individual case. Additionally, while the court searches for global solutions,

the individual cases are not attended to by either the court or the individual lawyers.” Hon.

Eduardo C. Robreno, The Federal Asbestos Product Liability Multidistrict Litigation (Mdl-875):

Black Hole or New Paradigm? 23 Widener L.J. 97, 187 (2013).

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7

The Supreme Court has repeatedly held that Article III standing is constitutional

minimum for proceeding in federal court. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)

(calling standing an “irreducible constitutional minimum”). As the United States Court of

Appeals for the First Circuit has stated, “Standing is a threshold question in every case.”

Summers v. Fin. Freedom Acquisition LLC, 807 F.3d 351, 355 (1st Cir. 2015) (citing Warth v.

Seldin, 422 U.S. 490 (1975)). It added, “[a] plaintiff suing in federal court normally must

shoulder the burden of establishing standing. Id. Moreover, when “standing is challenged as a

factual matter..., the plaintiff must come forward with ‘competent proof,’ showing by a

preponderance of the evidence that standing exists.” EMD Crop Bioscience Inc. v. Becker

Underwood, Inc., 750 F. Supp. 2d 1004, 1011 (W.D. Wis. 2010).

In Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), the Court concluded that to have

Article III standing, a plaintiff must show (1) he or she suffered an injury in fact, (2) that is fairly

traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a

favorable decision. Unsupportable claims fail the Article III standing requirement because:

1) The plaintiff did not suffer an injury in fact; and/or

2) The plaintiff’s injury is not fairly traceable to the defendant’s conduct;

and/or

3) The claim is not likely to be redressed by a favorable decision because it

was time-barred when suit was filed.

Using Rule 16.1 to require the MDL courts to establish a procedure for establishing these three

minimal components of the “irreducible constitutional minimum” of standing—a “threshold

question” in every case—is not a discovery issue but is foundational to whether the case belongs

in federal court (and therefore in the MDL) in the first place.

UNSUPPORTABLE CLAIMS ARE PROBLEMATIC TO THE MDL

COURT, THE PARTIES, AND THE JUDICIAL SYSTEM

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8

Judge Land already pointed out the burden that unsupportable claims placed on the MDL

process based on his experience. But the problem runs deeper than that for all relevant

stakeholders. Once the JPML establishes an MDL, Rule 7.1(a) of the Rules of Procedure of the

United States Judicial Panel on Multidistrict Litigation requires “[a]ny party or counsel in actions

previously transferred under Section 1407 shall promptly notify the Clerk of the Panel of any

potential tag-along actions in which that party is also named or in which that counsel appears.”

6

This means, in the first instance, that the JPML itself must take action to transfer (or decline to

transfer) unsupportable claims filed, in any district except the one where the transferee court sits,

since all potential tag-alongs must be reported to it.7

Once such claims are transferred into the MDL proceeding, the existing parties and the

transferee court (and its staff) now have to deal with them. A large volume of unsupportable

claims misleads the transferee court on the scope of the MDL they will be overseeing and

prevents all proper parties from assessing the scope of the work ahead. Moreover, given the

unfortunate reality that many MDL judges feel pressure to lead the parties towards a global

resolution (a reality that DRI believes is inconsistent with the intent of §1407 and violative of the

Rules Enabling Act and due process), the presence of so many unsupportable claims places a

6 Rule 1.1(h) defines a “tag-along” action was “a civil action pending in a district

court which involves common questions of fact with either (1) actions on a pending motion to

transfer to create an MDL or (2) actions previously transferred to an existing MDL, and which

the Panel would consider transferring under Section 1407.”

7 This is not to say that DRI endorses the concepts of “direct filing” orders allowing

plaintiffs to bring actions directly into the MDL and skip the transfer process of 28 U.S.C. §

1407. These orders raise significant questions regarding the scope of MDL proceedings,

jurisdiction (both subject matter and personal), waiver, choice-of-law, and a host of other

problems. For purposes of this comment, however, DRI simply notes that any unsupportable

claim subject to a § 1407 transfer will take up JPML resources in the first instance.

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9

barrier to such global resolutions, impacting all parties’ ability to assess properly the magnitude

of exposure and determining who the actual stakeholders are.

EXISTING RULES ARE INADEQUATE TO ADDRESS THE PROBLEM

OF UNSUPPORTABLE CLAIMS

Despite long-standing evidence that creating an MDL can result in a mass tort proceeding

with large amounts of unsupportable claims, the JPML has expressed the belief that it is a

problem that can be readily handled by the transferee judge. In rejecting a challenge by certain

defendants to the expansion of an MDL to include additional types of claims, the JPML

reasoned:

[T]he transferee court handling several cases in an MDL likely is in a better

position—and certainly is in no worse position than courts in multiple districts

handling individual cases—to properly address meritless claims. There are many

tools a transferee court may use to accomplish this task. And importantly, if

defendants believe plaintiffs' counsel are filing frivolous claims, it is incumbent

upon defense counsel to bring that concern to the attention of the transferee court,

and to propose a process to identify and resolve such claims.

In re Valsartan Prod. Liab. Litig., 433 F. Supp. 3d 1349, 1352 (U.S. Jud. Pan. Mult. Lit. 2019).

From DRI’s perspective, there are at least two issues with this approach.

First, the wide-spread knowledge cited by the MDL committee that “a significant number

of claimants ultimately (often at the settlement stage) turn out to have unsupportable claims,” is

itself evidence that the existing rules are not adequately addressing the problem.8 There is no

good reason for the transferee court, the defendant(s), or the plaintiffs who do have supportable

8

See, e.g., Jaime Dodge, Facilitative Judging: Organizational Design in MassMultidistrict Litigation, 64 Emory L.J. 329, 350 (2014) (“While mass torts have notoriously

generated false claims by individuals far removed from the tort, the structure of the modern

MDL does not provide as strong a check upon these claims as exists in single-plaintiff

litigation.”)

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10

claims to have to shoulder through claims that frankly would not have been filed except for the

pendency of an MDL consolidation only to find out at some late settlement stage that many of

the claims asserted in the MDL are unsupportable.9

Second, there is no reason to believe the transferee court would in reality be in the same

sort of position as a judge in one-off case to determine whether sufficient facts exist to support

Article III standing.10 The existing pleading rules—requiring the plausible allegation of facts

sufficient to state a claim—fit poorly in the context of an MDL with hundreds or thousands of

aggregated claims. Take the “prematurely filed” example cited by the AAJ, where suit is filed

even though “plaintiffs need additional time to obtain medical records or other documentation to

confirm plaintiffs’ use of the product, diagnosis, date of injury, etc.” If the complaint in a

prematurely filed case flatly stated that the plaintiff “may or may not” have used the defendant’s

product or that the plaintiff “may or may not” have been diagnosed with the condition at issue,

the procedure in a mine-run case would allow the defendant to file an appropriate motion that the

district court could address—if necessary—in the normal course of handling their caseload.

Multiply that by hundreds of similarly pleaded complaints and similar motions and the transferee

court is now overwhelmed with motions.11 The wheels of justice grind to a halt despite Rule 1’s

9 As Judge Robreno stated, “Regardless of the amount of judicial effort and

resources, unless the court establishes a toll gate at which entrance to the litigation is controlled,

non-meritorious cases will clog the process.” Black Hole or New Paradigm? supra, 23 Widener

L.J. at 186.

10 The JPML in the Valsartin decision suggested that the transferee courts are only 

handling “several” cases. But as the statistical analysis from that Panel shows, as of September

15, 2023, 58 of the pending 173 MDLs had at least 50 pending cases and another 27 historically

had more than 50 cases, meaning that MDL judges are coordinating much more than just

“several” cases in MDLs they handle.

11 As of September 15, 2023, 23 of the 25 largest MDL proceedings (containing

almost 400,000 of the pending MDL cases) were classified by the JPML as “Product Liability”

cases. The other two, In Re: National Collegiate Athletic Association Student-Athlete

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11

goal that the rules were intended to “secure the just, speedy, and inexpensive determination of

every action and proceeding.”

12

Beyond the practical reality that no transferee court should be forced or even reasonably

be expected to devote the resources necessary to rule on multiple motions addressing the

threshold issue of a given claimant’s Article III standing (or for putting the MDL defendant to

the waste of resources necessary to bring such motions), there is the larger question of

expectations. If all parties, including plaintiffs considering filing a claim that will end up in an

MDL, know that the rules will require the prompt provision of information sufficient to establish

Article III standing as discussed above, claims that cannot meet that threshold will not be filed in

the first place.

DRI BELIEVES THE TIME HAS COME TO PUT A RULE IN PLACE TO

REMEDY THE PROBLEM

As noted, the courts and parties have had 50 years of experience with the MDL process

and its explosive growth as a percentage of the federal docket. DRI believes the time has come

to put a rule in place to address the unique and recurring problem of unsupportable claims in

MDL proceedings. That solution, in DRI’s view, goes beyond the language of the current draft

of Rule 16.1 to include mandatory provision at the outset of the information necessary to

establish each MDL plaintiff’s Article III standing: an injury-in-fact fairly traceable to the

Concussion Injury Litigation, MDL-2492, and In Re: National Prescription Opiate Litigation,

MDL-2804, were classified as “Miscellaneous” cases by the JPML reporting and accounted for

another 3,500 or so cases.

12 And that is just where the Complaints candidly acknowledged their current lack of

knowledge about “Plaintiffs’ use of the product, diagnosis, date of injury, etc.” When those facts

are blurred or elided over, the task becomes even more overwhelming to the point that the

process of eliminating unsupportable claims under the current rules simply does not happen to

the detriment of every stakeholder.

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12

defendant’s conduct that would likely be remedied by a favorable resolution. That means in the

vast majority of the MDL proceedings, facts establishing the use of the involved product, the

nature of the claimed injury, and the date of that alleged injury.

In addition, DRI believes that the Committee Note to proposed Rule 16.1(c)(4) ought to

outline in some detail the problem with unsupportable claims, explain why it is needed, and

unequivocally state that the required information is not a discovery issue. It need not cast

aspersions on parties. Rather, it can simply state as a fact that Article III standing requirements

are a threshold issue as to whether a given plaintiff has sufficient information to support moving

forward in federal court. It can further point out that rather than requiring extensive and

resource-intensive motion practice, the Rule is intended to require the early submission of the

minimal amount of information necessary to move to the discovery process.

A RULES-BASED SOLUTION WOULD AID THE TRANSFEREE COURT

AND THE PARTIES IN A NUMBER OF WAYS

As discussed above, the current approach benefits none of the relevant stakeholders

(defined as the judicial system, the transferee judge, those plaintiffs with supportable claims, and

the defendants).13 A rules-based solution would benefit all of them. DRI believes that it would

benefit the JPML and transferee courts because a rules-based requirement to provide threshold

information promptly will discourage if not outright eliminate the filing of unsupportable

claims.14 This means the transferee court will have a far more accurate picture of the scope of

13 In DRI’s view, parties with unsupportable claims (as defined above) simply have

no relevant interest in the process. They do not have a claim and have no right to burden the

judicial system and the other stakeholders with their involvement.

14 And even where such claims are filed, the parties and the transferee court will

have a far simpler task (if even necessary) of determining whether the information submitted

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13

the MDL they are overseeing. This will inform decisions across-the-board on discovery, the

nature of the claims, what sort of bellwether trials may or may not be useful, and even how to

structure case management orders and conferences.

The elimination of unsupportable claims benefits the other stakeholders as well. As

discussed, the defendants will have a far more accurate picture of their exposure and the true

nature of the claims being asserted against them. And for plaintiffs who have supportable

claims, it encourages the entire process to move forward towards a “just, speedy, and

inexpensive” determination of their claims.

Respectfully submitted,

/s/ Lawrence S. Ebner

Lawrence S. Ebner, Chair

DRI Center for Law and Public Policy

/s/ James L. McCrystal, Jr.

James L. McCrystal, Jr., Chair

Center Legislation and Rules Committee

/s/ Toyja E. Kelley

Toyja E. Kelley, Chair

Center MDL Working Group

/s/ Jeffrey A. Holmstrand

Jeffrey A. Holmstrand, Member

Center MDL Working Group

establishes a supportable claim. No submission is little different than not filing suit in the first

place and whether the information submitted meets the requirements to show the claim is

supportable is a far more binary determination than most.

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 152 of 177
TAB 17 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 153 of 177
By E-mail October 5, 2023

The Honorable Robin L. Rosenberg

Chair, Advisory Committee on Civil Rules

Administrative Office of the United States Courts

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, N.E. 

Washington, DC 20544 

Re: Written Testimony on Proposed Rule 16.1(c)(5)

Dear Judge Rosenberg and Members of the Civil Rules Advisory Committee:

I am a partner at Covington & Burling LLP, where I represent clients in complex product 

liability and mass tort litigation, often in federal MDLs and analogous centralized proceedings in 

state courts. I appreciate the chance to speak briefly about proposed Rule 16.1(c)(5), which 

identifies “consolidated pleadings” as a matter to potentially be addressed in the initial MDL 

management conference report.

Large MDLs often substitute individualized complaints with a “master complaint” 

containing allegations common to all plaintiffs and a “short-form complaint” containing 

allegations specific to each plaintiff. This process undoubtedly introduces efficiencies, as 

plaintiffs are absolved of the need to draft individualized complaints, and defendants are 

correspondingly absolved of the need to serve individualized answers.1 But there is no “MDL 

exception” to the Federal Rules of Civil Procedure.2 As the Sixth Circuit colorfully put it, “MDLs 

 

1 See, e.g., In re Taxotere (Docetaxel) Prods. Liab. Litig., 860 F. App’x 886, 888 (5th Cir. 2021) 

(“To streamline this multidistrict litigation, the district court directed the plaintiffs to file a 

master complaint collectively and to file short-form complaints individually.”); Nelson v. C.R. 

Bard, Inc., 553 F. Supp. 3d 343, 349 (S.D. Miss. 2021) (noting that court “ordered the use of 

Short Form Complaints as a manner of efficiently managing thousands of cases for pre-trial 

proceedings”); Perez v. Am. Med. Sys. Inc., 461 F. Supp. 3d 488, 494 (W.D. Tex. 2020) (shortform complaint process “was created in order to streamline pleadings in the MDL”); In re Nat’l 

Prescription Opiate Litig., 2019 WL 264900, at *2 (N.D. Ohio Jan. 18, 2019) (“The goal of the 

Short-Form Complaint is to streamline the amendment process, reduce the burden on the 

parties and the Court, and increase judicial efficiency.”).

2 See Fed. R. Civ. P. 1 (“These rules govern the procedure in all civil actions and proceedings in 

the United States district courts, except as stated in Rule 81.”).

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The Honorable Robin L. Rosenberg 

October 5, 2023

Page 2 

are not some kind of judicial border country, where the rules are few and the law rarely makes 

an appearance.”3 And the Federal Rules do not condone sacrificing fairness for efficiency. 

Indeed, Rule 1 lists justice first in its list of goals.4 

A complaint is not a mere box-checking exercise. Complaints serve two critical 

purposes: (1) providing defendants “fair notice of what the . . . claim is and the grounds upon 

which it rests”5; and (2) permitting defendants an opportunity, before costly and burdensome 

discovery, to challenge the legal sufficiency of the claims.6 Unfortunately, some courts have 

implemented master and short-form complaints in a manner fundamentally at odds with both 

of these protections. 

If Rule 16.1 ultimately recommends consideration of “[w]hether consolidated pleadings 

should be prepared,” the Advisory Committee Notes should explain that the master and shortform complaints, taken together, must satisfy Rule 8 and, where applicable, Rule 9(b), and that 

Defendants must be afforded an opportunity to seek dismissal of the master complaint under 

Rule 12.

I. The Use of Consolidated Pleadings Should Not Relax the Pleading 

Requirements that Govern All Civil Actions in Federal Court.

Rule 8 — and where it applies, Rule 9(b) — applies to “all civil actions and proceedings in 

the United States district courts” by virtue of Rule 1.7 Because the master complaint necessarily 

 

3 In re Nat’l Prescription Opiate Litig., 956 F.3d 838, 844 (6th Cir. 2020); see also, e.g., In re 

Paraquat Prods. Liab. Litig., 2021 WL 9793339, at *1 (S.D. Ill. Nov. 10, 2021) (“[A]n MDL court 

must adhere to the Federal Rules of Civil Procedure.”); In re Zofran (Ondansetron) Prods. Liab. 

Litig., 2017 WL 1458193, at *5 (D. Mass. Apr. 24, 2017) (“The creation of an MDL proceeding 

does not suspend the requirements of the Federal Rules of Civil Procedure, nor does it change or 

lower the[m].”).

4 See Fed. R. Civ. P. 1 (“These rules . . . should be construed, administered, and employed by the 

court and the parties to secure the just, speedy, and inexpensive determination of every action 

and proceeding.”).

5 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 

47 (1957)).

6 Id. at 559 (“It is no answer to say that a claim just shy of a plausible entitlement to relief can, if 

groundless, be weeded out early in the discovery process through ‘careful case management’ . . . . 

[I]t is self-evident that the problem of discovery abuse cannot be solved by ‘careful scrutiny of 

evidence at the summary judgment stage,’ much less ‘lucid instructions to juries’; the threat of 

discovery expense will push cost-conscious defendants to settle even anemic cases before 

reaching those proceedings.”).

7 Fed. R. Civ. P. 1. 

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The Honorable Robin L. Rosenberg

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Page 3 

lacks allegations about any particular plaintiff, the short-form complaint must contain sufficient 

individualized facts that, taken together with the general allegations in the master complaint, 

provide Defendants fair notice under Rule 8.8 Several years ago, in the Zostavax MDL, the court 

dismissed 173 complaints because they were “full of boilerplate language unrelated to the 

individual case.”9 But Zostavax is the exception, not the rule. As the MDL Subcommittee has 

recognized, “MDL courts using master complaints may initially require nothing more of 

claimants than the pleading equivalent of ‘count me in,’ deferring individualized details until 

later.”10 The Subcommittee noted that “[o]ne could argue that such pleadings do not comply 

with Rule 8(a)(2), which requires a ‘showing that the pleader is entitled to relief.’”11

I agree that “count-me-in” short-form complaints do not comply with Rule 8. Outside 

the setting of an MDL, if a plaintiff were to file a complaint alleging that use of a medicine 

caused them harm, without facts regarding the plaintiff’s usage of the medicine (including 

timing of use), how the medicine is alleged to be defective, or the nature and timing of the injury 

alleged, there can be little doubt that the complaint would be dismissed.12 Yet in an MDL, such 

 

8 See, e.g., In re Flint Water Cases, 2019 WL 3530874, at *40 n.31 (E.D. Mich. Aug. 2, 2019) 

(“Combined, the amended master and short-form complaints contain enough factual matter to 

put Veolia on adequate notice . . . .”).

9 In re Zostavax (Zostar Vaccine Live) Prods. Liab. Litig., 2019 WL 2137427, at *1 (E.D. Pa. May 

2, 2019).

10 Advisory Comm. on Civil Rules, MDL Subcommittee Report 148 (Nov. 1, 2018), 

https://www.uscourts.gov/sites/default/files/2018-11_civil_rules_agenda_book_0.pdf; see 

also Elizabeth Chamblee Burch & Margaret S. Williams, Perceptions of Justice in Multidistrict 

Litigation: Voices from the Crowd, 107 Cornell L. Rev. 1835, 1853–54 (2022) (“MDLs use 

master complaints with generic allegations and short-form complaints that often mean 

shoehorning plaintiffs’ story into a six-page check-the-box form.”); Lauren E. Godshall, Direct 

Filing in Multidistrict Litigation: Limiting Venue Options and Choice of Law for Plaintiffs, 29 

Geo. Mason L. Rev. 3, 14 (2021) (“Zostavax is unusual in this regard, and many MDLs are 

allowing the filing of standardized short form complaints.”).

11 Advisory Comm. on Civil Rules, MDL Subcommittee Report, supra, at 148. 

12 See, e.g., In re Prempro Prod. Liab. Litig., 2008 WL 3200772, at *1 (E.D. Ark. Aug. 5, 2008) 

(“The current Complaint is an excellent example of the generic, omnidirectional complaints of 

which I have repeatedly expressed disfavor. At 77 pages, it is long on the history of [hormone 

replacement therapy], but short on the application of that history to the specific plaintiff. In 

fact, the complaint lacks any specificity regarding Plaintiffs’ use of hormone therapy and fails to 

directly link any Plaintiff with any of the defendants, other than broad boilerplate language. As 

an example, the complaint states that ‘[b]ecause of her use of HRT drugs, [Plaintiff] was 

diagnosed with breast cancer.’ Simply claiming that you took hormone therapy and suing every 

hormone therapy manufacturer is not enough.” (alterations in original)). 

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Page 4 

short-form complaints are routine.13 

The problem is compounded in MDLs involving multiple defendants or multiple injuries, 

which seem to be becoming more common. For instance, in the Johnson & Johnson Talcum 

Powder MDL, the master complaint alleged that “Plaintiffs were diagnosed with various forms 

of cancer of the female reproductive system,”14 yet the short-form complaint simply required a 

plaintiff to allege that she experienced “a talcum powder product(s) injury” — without any 

specification of what that injury was.15 This basic Rule 8(a)(2) information was reserved for a 

plaintiff profile form that was not ordered until 3.5 years into the litigation and, even then, 

initially for only a subset of plaintiffs.16

The concern is also heightened where MDLs involve claims involving fraud or mistake, 

which Rule 9(b) requires to be pled with particularity.17 Complying with Rule 9(b) necessarily 

requires individualized facts: what alleged misstatements the plaintiff heard, when the plaintiff 

heard them, and how the plaintiff relied on them.18 Yet some courts have permitted plaintiffs to 

plead fraud claims via short-form complaint by checking a box to “opt-in” to the fraud 

allegations in the master complaint without supplementing the master complaint with 

 

13 See, e.g., Pretrial Order No. 79, In re Ethicon, Inc., Pelvic Repair Sys. Prods. Liab. Litig., No. 

2:12-md-02327 (S.D. W. Va. Nov. 14, 2013), ECF No. 932. 

14 Pls.’ Master Long-Form Compl., In re Johnson & Johnson Talcum Powder Products 

Marketing, Sales Practices, and Prods. Liab. Litig., No. 3:16-md-02738 (D.N.J. Jan. 5, 2017), 

ECF No. 82.

15 Case Management Order No. 2, In re Johnson & Johnson Talcum Powder Products 

Marketing, Sales Practices, and Prods. Liab. Litig., No. 3:16-md-02738 (D.N.J. Feb. 7, 2017), 

ECF No. 102.

16 Order, In re Johnson & Johnson Talcum Powder Products Marketing, Sales Practices, and 

Prods. Liab. Litig., No. 3:16-md-02738 (D.N.J. May 26, 2020), ECF No. 13428 (directing 

completion of profile form for 1,000 randomly-selected cases); see also Pl.’s Profile Form Order 

(Apr. 20, 2021), ECF No. 19911 (directing all plaintiffs to complete profile form within 330 

days).

17 See Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party must state with particularity the 

circumstances constituting fraud or mistake.”).

18 Compare In re Trasylol Prods. Liab. Litig., 2008 WL 5190987 (Aug. 15, 2008) (“MDL 

plaintiffs, like all other federal plaintiffs, must plead with particularity ‘the circumstances 

constituting fraud’”; one purpose of a SFC is to “present[] adequate particulars for any fraud 

claim”); In re Zofran (Ondansetron) Prods. Liab. Litig., 2017 WL 1458193, at *6 (D. Mass. Apr. 

24, 2017) (“[A]ny particularized allegation of fraud applicable only as to an individual — for 

example, a claim that a specific sales representative made a misrepresentation to a specific 

physician, who then prescribed the product to the plaintiff mother — should normally be set 

forth in the individual short-form complaint.”).

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Page 5 

individualized allegations.19

Rule 7 identifies the “only” pleadings that are “allowed,” and “consolidated pleadings” 

are absent from the list. If Rule 16.1 is intended for the first time to expressly authorize this 

often-used pleading form, the Advisory Committee Notes should provide much-needed guidance 

that master and short-form complaints must collectively meet the pleading requirements 

attendant to Rule 7(a)(1) complaints.

II. Consolidated Pleadings Should Not Prevent Defendants from Moving to 

Dismiss Master Complaints that Fail to State a Claim.

The Federal Rules of Civil Procedure require more than simply notice to the defendant of 

the claims they face; they require that the defendant be permitted an early opportunity to 

challenge the legal sufficiency of those claims.20 Yet without guidance in the Federal Rules, 

courts have taken varying approaches to motions to dismiss consolidated pleadings.21 Some 

courts have interpreted master complaints as administrative devices and thereby barred 

defendants from filing motions to dismiss them. For instance, in the ongoing Acetaminophen 

ASD-ADHD MDL, the court directed that “motions to dismiss should be brought against 

particular complaints and not against the master complaint.”22 Others have permitted motions 

to dismiss, but “assess[ed] the sufficiency of plaintiffs’ claims with substantial leniency.”23 

Finally, some courts have held that “the Master Complaint is not immune from a motion to 

dismiss under Rule 12(b)(6).”24 

In light of Rule 1 and the purposes of MDL proceedings — to “promote the just and 

efficient conduct” of civil actions pending in different districts25 — the third approach is the 

 

19 See, e.g., Short-Form Compl., In re Juul Labs, Inc., Marketing, Sales Practices, and Prods. 

Liabl. Litig., No. 3:19-md-02913 (N.D. Cal. Mar. 27, 2020), ECF No. 405.

20 See Fed. R. Civ. P. 12(b)(6) (“[A] party may assert the following defenses by motion: . . . failure 

to state a claim upon which relief can be granted . . . .”).

21 See In re Digitek Prods. Liab. Litig., 2009 WL 2433468, at *8 (S.D.W. Va. Aug. 3, 2009) (“[I]t 

is uncertain how a master complaint should be treated when it is challenged via Rule 

12(b)(6) . . . .”).

22 In re Acetaminophen ASD-ADHD Prods. Liab. Litig., 2023 WL 3026412, at *2 n.2 (S.D.N.Y. 

Apr. 20, 2023).

23 In re Trasylol Prods. Liab. Litig., 2009 WL 577726, at *8 (S.D. Fla. Mar. 5, 2009); see also In 

re Allergan Biocell Textured Breast Implant Prods. Liab. Litig., 537 F. Supp. 3d 679, 720 

(D.N.J. 2021) (“The Court Will Review the [Master Long-Form Personal Injury Complaint] with 

Leniency.”).

24 In re Atrium Med. Corp., 2018 WL 11397878, at *5 (D.N.H. Jan. 8, 2018).

25 28 U.S.C. § 1407(a).

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Page 6 

correct one. Nothing in the Federal Rules supports putting the court’s thumb on the scale 

against dismissal, simply because lawyers have recruited hundreds or thousands of plaintiffs to 

bring the same claims. The MDL Subcommittee has commented extensively on the “Field of 

Dreams” problem — that the creation of an MDL itself generates claims.26 And requiring 

defendants to file identical motions to dismiss hundreds or thousands of individual cases is 

neither just nor efficient. Where a motion to dismiss “raises issues common to all plaintiffs” 

that do not “require case-specific rulings to determine the sufficiency of each individual 

plaintiff’s factual allegations,” Defendants should be allowed to file a motion to dismiss the 

master complaint.27 Where a motion to dismiss involves case-specific facts, it should be filed 

against the short-form complaint.

If the Federal Rules are going to encourage consideration of “consolidated pleadings,” 

the Advisory Committee Notes should clarify that those consolidated pleadings are not immune 

from challenge under Rule 12(b)(6) or subject to a standard of review that is different from any 

other complaint filed in federal court.

Sincerely, 

Gregory L. Halperin

 

26 See, e.g., Advisory Comm. on Civil Rules, MDL Subcommittee Report, supra, at 143. 

27 In re Zimmer Nexgen Knee Implant Prods. Liab. Litig., 2012 WL 3582708, at *3–4 (N.D. Ill. 

Aug. 16, 2012) (“Where defendants bring a motion to dismiss that raises issues common to all 

plaintiffs, however, the administrative nature of a Master Complaint does not necessarily 

preclude 12(b)(6) motion practice.”).

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TAB 18 

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From:

To:

hratliff_shb.com

RulesCommittee Secretary

Subject: Outline of Proposed Remarks by Harley V. Ratliff at Civil Rules Hearing on October 16

Date: Thursday, October 05, 2023 2:46:36 PM

Greetings. I’m writing with regard to the upcoming testimony scheduled for Oct. 16 on proposed

rule changes. 

Below is a short written summary of my anticipated testimony:

My name is Harley Ratliff. I’m a partner at the law firm of Shook, Hardy & Bacon. Most of my 20-

year career has been spent litigating within the world of MDLs. For the past eight years, I have

served as national counsel for the lead defendant in two major products liability MDLs, and also as

lead counsel for a global retailer in another products liability MDL. I have seen the MDL process

play out first hand and, without question, the current system is broken. The cost of this is borne by

our federal judiciary tasked with managing unmanageable dockets; defendants that must spend

millions of dollars litigating thousands of largely un-vetted lawsuit; and individual plaintiffs who

might have potentially meritorious claims but that are devalued by the thousands of claimants who

plainly do not. At the end of the day, the only winners now are the lawyers.

Proposed Rule 16.1 is certainly a start. And, that steps are being taken to tackle some of these

problems is encouraging. That said, in my experience much of what is being proposed with 16.1

routinely takes place in MDLs already – i.e., initial case management conferences, designation of

coordinating or liaison counsel, discovery plans, appointment of leadership, preparation of

consolidated proceedings, etc. Although these concepts might be helpful for entirely uninitiated

MDL judges, they do not address the underlying problems at the core of our current system. 

To move the ball forward, there needs to be a serious approach to addressing the viability of these

lawsuits on the front end – not after years of expensive and potentially unnecessary litigation. What

does this mean? 

It means that plaintiffs in MDLs should be held to the same basic standards that they would in an

individual lawsuit. For example, does the plaintiff actually have proof that they used the product in

question (proof of use)? Does the plaintiff have proof that they used Defendant’s products vs. some

other, similar, product (product identification)? Have they been diagnosed with or, at the very

least, have some basic medical corroboration that they have the injury they allege (proof of injury)? 

To illustrate, outside of an MDL no plaintiff would file an individual lawsuit alleging a product caused

them cancer if, in fact, they had never been treated for or diagnosed with cancer before the lawsuit

was filed. Yet this scenario is all too common in MDLs. 

As it stands, these threshold issues are almost always addressed (if at all) after a “global” resolution

has been reached or through the pain-staking and expensive process of litigation. Without any

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 161 of 177
barrier to entry beyond a filing fee, the MDL system will remain a place where thousands (if not tens

or hundreds of thousands) of un-vetted claims are parked in our federal court system. Addressing

these issues first, rather than last, will streamline proceedings, unburden federal courts, and allow

the parties to litigate the merits of lawsuits that potentially have value. Otherwise we will continue

to have a system where MDLs are treated by many filing attorneys as little more than part of their

diversified investment portfolio. File hundreds of cases, let them sit in the MDL, and hope for a

return at a later time.

Likewise, MDLs should not be viewed as simply a mechanism for transferring money from the

defendant to the attorneys who have filed suit. In my experience, MDL judges may often view

liability as a foregone conclusion and the only (or easiest) solution to the problem is early

resolution. At one initial management conference, an MDL judge told the attorneys that he viewed

them as “partners working toward the efficient administration and resolution of the MDL.” This was

before a single document was produced, deposition taken, or motion filed. MDLs were created for

the purpose of coordinated or consolidated pre-trial proceedings. Too often, they are seen purely

as an instrument for resolution. And, while resolution might be a worthy goal if the parties desire it,

other considerations should be paramount, such as ensuring that claimants have legally sufficient

claims and all parties are treated fairly. And, if remand occurs after an efficient pre-trial process and

winnowing of claims, then the process should not be viewed as a failure of the presiding judge or the

MDL generally. 

To fix the current situation, we must go beyond proposed Rule 16.1 and begin to address the real

problems with our MDL system.

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TAB 19 

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No summary of testimony was submitted.

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TAB 20

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 165 of 177
OUTLINE OF 

TESTIMONY OF SHERMAN JOYCE 

PRESIDENT, AMERICAN TORT REFORM ASSOCIATION 

REGARDING PROPOSED NEW RULE 16.1 

ADVISORY COMMITTEE ON CIVIL RULES 

PUBLIC HEARING 

OCTOBER 16, 2023 

The American Tort Reform Association (ATRA) is a broad-based coalition of 

businesses, corporations, municipalities, associations, and professional firms. Our 

mission is to establish and advance a predictable, fair, and efficient civil justice 

system. 

ATRA commends the Committee for recognizing the critical need for rules 

governing multidistrict litigation (MDL), which has transformed the federal courts 

and has been misused for the mass filing of questionable and unsupportable claims. 

This litigation has overwhelmed both defendants and the federal courts. 

Respectfully, the preliminary draft of Rule 16.1 is insufficient. It does not 

acknowledge these significant problems; nor does it provide needed, effective 

procedural safeguards for MDLs. ATRA urges the Committee to further develop the 

proposed rule with the goal of restoring balance to the MDL system. 

Since Congress adopted the MDL statute in 1968, the mass tort 

litigation environment has significantly changed. An industry has developed 

around such litigation. Hundreds of millions of dollars are spent on generating claims 

for a single mass tort. Third party litigation funding supports these advertising 

campaigns and the filing of speculative litigation. With minimal screening, claims are 

filed en masse. Federal MDL dockets can go from zero to tens of thousands of 

questionable claims in only a few months. 

The percentage of cases in federal MDLs has doubled over the past decade and 

more than tripled over the past two decades. In 2020, for the first time in history, 

MDL dockets, primarily product liability mass tort cases, made up more than half of 

the federal civil caseload. That percentage reached an astounding 73% as of the 

conclusion of the 2022 fiscal year. 

The MDL system is not functioning properly. There is widespread 

agreement that a significant number of claims in product liability MDLs are not 

viable -- as high as 40% to 50%. Cases that otherwise would not be filed if they had 

to stand on their own merit are filed in MDLs because plaintiffs’ attorneys believe 

that, given the sheer volume of cases, defendants and courts will not scrutinize clear 

deficiencies in their claims when they are swept into a global settlement. 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 166 of 177
A rule governing MDLs is long overdue, but the preliminary draft of the 

proposed new Rule 16.1 (which largely offers a non-binding checklist for an initial 

management conference) is insufficient. 

A proposed rule should: 

 Recognize and respond to the extraordinary surge of mass tort litigation in 

the federal courts and the widely acknowledged problems that result. 

 Include safeguards that require cases to be carefully screened when they 

are filed and that provide a mechanism for courts to dismiss speculative or 

otherwise nonviable claims at an early stage, as they would if litigated 

individually. 

 Encourage courts to rule on dispositive legal issues as soon as practicable 

in the case, such as on novel theories of liability, general causation, 

preemption, or statutes of limitations that can affect all or many claims. 

In addition, disclosure of third party litigation funding, which is intertwined with the 

growth of MDLs, should be adopted as part of an MDL rule or separately. 

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TAB 21 

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Johnson&Johnson 

October 5, 2023 

Advisory Committee on Civil Rules 

Administrative Office of the United States Courts 

One Columbus Circle, NE 

Washington, D.C. 20544 

Re: Proposed New Rule 16.1 

Dear Members of the Advisory Committee: 

My name is Deirdre Kole, and I am Assistant General Counsel, Litigation 

at Johnson & Johnson. In that role, I am responsible for the management of 

product liability litigation involving certain medications, biologics and medical 

devices. Prior to joining Johnson & Johnson, I was a partner at the law firm 

Drinker Biddle & Reath, where my practice focused on representing 

pharmaceutical companies and medical device manufacturers in product liability 

litigation, including mass torts. 

I applaud the Committee's efforts to bring much needed change to the 

governance of Multi-District Litigation ("MDL"). Undoubtedly, there is great need 

for an amendment to the Federal Rules of Civil Procedure ("FRCP") providing 

clarity about MDL management. The federal judiciary is struggling under the 

current rules to manage ever-growing MDLs, which accounted for nearly 73% of 

all pending federal civil cases in 2022

1

, to proper outcomes. Concerns 

surrounding the integrity of the civil justice system in the MDL context is a 

significant challenge facing Johnson & Johnson's family of companies, which 

manufacture a myriad of prescription products, including life-saving and lifeenhancing medicines and medical devices. These issues also affect the U.S. 

economy on a macroeconomic level as manufacturers facing mass tort lawsuits 

struggle to address, manage and resolve staggering numbers of claims-many 

of which lack even the most basic factual support. 

Herein lies the problem: as tens of thousands of claims that lack the basic 

factual and legal bases required by the FRCP besiege the federal judiciary, 

courts and defendants in mass tort MDLs are deprived of critical information 

necessary to understand the scope and reach of the litigation. The mere 

stockpiling of claims on federal dockets does not mean that claims have merit or 

that individual plaintiffs have legitimate bases to pursue such claims; rather, the 

barrage of filed complaints underscores that the FRCP safeguards that usually 

prevent the initiation of baseless lawsuits are not utilized, or simply do not 

function, in the MDL context. 

1 See Rules 4 MDLs, https://www.rules4mdls.com/73-percent-of-federal-civil-cases-are-in-mdls (last accessed Oct. 4, 

2023) (392,374 cases out of 536,651 federal civil cases resided in MDLs at the end of fiscal year 2022). 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 169 of 177
Johnson&Johnson 

The Preliminary Draft of Rule 16.1 does not solve for this problem. Any 

Rule to address the management of MDLs must provide clear instructions for the 

early vetting of cases to ensure that claims in an MDL have, at minimum, a facial 

factual basis-i.e., the plaintiff actually used the product at issue and medical 

records show they experienced the injury they allege. Requiring this information 

is not burdensome; it is part of the normal intake process for any plaintiffs' lawyer 

in an individual case and would promote justice and efficiency for all parties and 

the judiciary. 

Traditional Safeguards Against Frivolous Claims 

Do Not Function in the Mass Tort MDL Context 

Traditionally, in tort litigation, an individual who experienced harm would 

seek out a lawyer to vindicate his or her rights in an effort to recover from 

someone who wrongfully caused that harm. Before filing a lawsuit, the lawyerparticularly one working on a contingency fee basis as is standard in the tort 

context-would conduct an initial assessment of the case to ensure the individual 

has a colorable claim. That is how civil justice is supposed to work and should 

work. That is also what is required by FRCP 11, which states that by filing a 

pleading, an attorney certifies that "the factual contentions have evidentiary 

support or, if specially so identified, will likely have evidentiary support after a 

reasonable opportunity for further investigation or discovery[.]"2 

The MDL process does not function in the same way as traditional tort 

litigation-a fact that came up in a recent congressional hearing on the impact of 

third-party litigation funding on mass torts and the MDL process.

3 In an exchange 

with Congressman Jamin Raskin, an accomplished legal scholar, my colleague 

Aviva Wein, who leads Johnson & Johnson's Litigation Policy and Risk 

Management Group, discussed this point. 

Ms. Wein explained: "We have no access to information regarding 

the thousands of claims brought against us because plaintiffs aren't 

required to actually produce evidence of product usage or injury 

alleged from the product. We're essentially hamstrung from using 

Rule 11 to bring sanctions on those individual cases. We're also 

hamstrung in many cases from filing 12(b )(6) motions because that 

motion practice is usually suspended in the MDL process." 

Congressman Raskin responded that this "might be something 

interesting to look at. ... To my understanding anybody who brings 

vexatious, frivolous or meritless litigation can be sanctioned by the 

courts."

5 

?FED. R. CI. P. 11(b)(3). 

3 Unsuitable Litigation: Oversight of Third-Party Litigation Funding, Sept. 13, 2023. 

4 Id. 

5 Id. 

2 

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Johnson&Johnson 

In reality, many claims become part of MDLs even when they have no 

basis to be filed in the first place. As you well know, the Advisory Committee 

issued a report estimating that 20%-30% of all claims in MDLs are 

"unsupportable ... either because the claimant did not use the product involved, 

... the claimant had not suffered the adverse consequence in the suit," or had 

some other deficiency, including where the statute of limitations has undisputedly 

expired.

6 In some litigations, the report continued, unsupported claims "may be 

as high as 40% or 50%."7 

This result is the by-product of how the mass tort MDL process operates in 

practice. Today, aggrieved plaintiffs do not seek out lawyers to achieve justice. 

Lawyers develop a tort theory, recruit investors, and use their money to advertise 

for plaintiffs and, in many situations, hire marketing firms to generate leads. 

Lawsuit ads are then blasted on television, the internet, and billboards instructing 

consumers to call, click, fill out forms, and their claims will quickly be filed. Many 

claims are collected by lead generators and sold to law firms who file them-with 

little to no vetting. The lawyers have likely never met or even spoken to their 

clients. In fact, a recently released survey of plaintiffs in mass tort MDL 

proceedings revealed that, "[l]ess than fifty percent could identify their attorney's 

name, fifty-nine percent disagreed that their attorneys kept them updated on their 

case's status, and only 16.6 percent ever even spoke with their lawyer on the 

phone."

8 The result is a mass of claims, many of which are completely nonviable 

for basic factual shortcomings. 

Once plaintiffs' lawyers amass a sufficient number of claims, they petition 

the United States Judicial Panel on Multidistrict Litigation ("JMPL") to establish an 

MDL. After the JPML establishes an MDL, lawsuits premised upon the subject 

matter designated to the MDL are filed directly into the MDL proceeding or 

transferred into the MDL proceeding, often without any vetting of underlying 

evidence to ensure the claims are colorable and not frivolous. Most of these 

individual lawsuits sit stagnant while the MDL court and parties address pre-trial 

issues. 

Thus, unlike in individual cases, where motions to dismiss can be filed 

prior to a defendant's answer to challenge the sufficiency of the claims asserted, 

plaintiffs who are part of an MDL do not have to substantiate the basics of their 

claims. Accordingly, Plaintiffs' lawyers can aggregate large numbers of claimants 

in an effort to pressure the courts and defendants toward settlement as the only 

realistic option to end what appears to be voluminous litigation. Indeed, even this 

draft rule directs MDL judges to contemplate settlement at the outset of the 

litigation-before addressing the merits, including whether or not the claims are 

valid, the scientific evidence supports the litigation or the federal regulatory 

6 Agenda Book, Advisory Committee on Civil Rules, Nov. 1, 2018, at 142. 

7 Id. 

8 Elizabeth Chamblee Burch, MDL for the People, 108 Iowa L. Rev. 1016, 1018 (2023). 

3 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 171 of 177
Johnson&Johnson 

process preempts state law claims. The thousands of claims inundating their 

dockets create "incentives for judges to treat settlement as the ultimate goal."

9 

Judge Land of the Middle District of Georgia explained these dynamics in 

a 2016 order in a mesh MDL. He observed that MDLs create "incentives for the 

filing of cases that otherwise would not be filed if they had to stand on their own 

merit" because the lawyers "seem to think that their case will be swept into the 

MDL where a global settlement will be reached, allowing them to obtain a 

recovery without the individual merit of their case being scrutinized."

10 This is 

why "many cases are filed ... with so little pre-filing preparation that counsel 

apparently has no idea whether or how she will prove" the case.

11 

The dynamics Judge Land described played out in the MDL involving 

Ethicon Pelvic Mesh devices.

12 In that MDL, 46,511 cases were filed against 

Ethicon. Out of these cases, 24,695 cases-more than half-were dismissed for 

basic factual shortcomings or inability to establish a cognizable injury. 

Similarly, when a a random sample of claimants in the 3M Combat Arms 

earplug litigation were ordered to produce evidence to substantiate their claims 

("Wave 1 plaintiffs"), the vast majority could not.13 Of 500 Wave 1 plaintiffs in 

that MDL, 126 (25.2%) reportedly produced no evidence and dropped out of the 

case, and nearly three quarters of the Wave 1 plaintiffs had no record of ever 

using the product at issue.

14 Those cases should not have been filed. 

Rule 16.1 Should Provide For Early Vetting of Claims. 

Any new rule focused specifically on MDLs should have a Rule 11 

analogue for MDLs. Lawyers should be sanctioned for filing baseless claimsnot incentivized to do so. Just as in individual claims, Plaintiffs should have to 

provide evidence supporting basic facts. The new Rule 16.1 should include the 

following safeguards: 

• Within 30 days of a case being filed in an MDL or transferred to an MDL, 

plaintiff must produce evidence (e.g., medical records) identifying the 

product he or she used and documenting his or her injury. If plaintiff fails 

to produce such evidence, the MDL court shall (1) dismiss the case with 

prejudice; (2) impose sanctions on the party or plaintiff's attorney for filing 

a case that lacks evidentiary support; and (3) allow the defendant to 

recover its costs and attorney's fees incurred in defending that claim. 

9 Andrew S. Polis, The Need for Non-Discretionary Interlocutory Appellate Review in Multidistrict Litigation, 79 Fordham L. 

Rev. 1643, 1669 (2011). 

10 In re Mentor Corp. Ob/ape Transobturator Sling Prods. Liab. Litig., No. 4:08-MD-2004 (CDL), 2016 WL 4705827, at 1 

(M.D. Ga. Sept. 7, 2016). 

14d. 

12 In re Ethicon, Inc., Pelvic Repair System Prods. Liab. Litig., MDL No. 2:12-MD-02327 (S.D.W. Va.). 

13 In re Aearo Tech. LL, Informational Brief of Aearo Techs. LLC, 38, No. 22-02890-JJG-25-28, Dkt. No. 12 (Bankr. S.D. 

Ind. filed July 26, 2022). 

1 1d. at 35, 38. 

4 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 172 of 177
Johnson&Johnson 

• The language could mirror Rule 11, requiring "the factual contentions [in 

MDL claims] have evidentiary support or, if specially so identified, will 

likely have evidentiary support after a reasonable opportunity for further 

investigation or discovery[.]"15 

• Further, the court should impose the same sanctions authorized under 

Rule 11 on attorneys or parties who violate the rule: "nonmonetary 

directives; an order to pay a penalty into court; or, if imposed on motion 

and warranted for effective deterrence, an order directing payment to the 

movant of part or all of the reasonable attorney's fees and other expenses 

directly resulting from the violation." 

The goal is not to impose the sanctions, but to require plaintiffs' lawyers to 

do basic due diligence before asserting claims on behalf of a new client-just as 

they would if they were going to pursue that person's claim individually. This 

basic due diligence is not burdensome. It is the same information plaintiffs would 

have to provide any lawyer during any initial case assessment before an attorney 

operating under a contingency fee would agree to represent them and file a 

lawsuit. 

These measures would go far toward combatting facially meritless claims 

that, when amassed in the thousands, substantially interfere with the ability of 

judges to effectively administer MDLs and help ensure MDLs reach their rightful 

outcomes. Only after these extraneous cases are removed and the core issues in 

the litigation are decided can the parties evaluate the merits of the litigation and 

determine whether, and if so under what terms, to settle the cases. We hope this 

Committee will welcome the opportunity to adopt these simple, common-sense 

measures and return the federal judiciary to a place where plaintiffs and 

defendants can achieve justice.

16 

Sincerely, 

Deirdre R. Kole 

Assistant General Counsel, Litigation 

Johnson & Johnson 

1 See Fed. R. Ci. P. 11(b)(3). 

16 1 also join the Comment submitted on September 18, 2023 by the Lawyers for Civil Justice. 

5 

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TAB 22

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 174 of 177
Montgomery 

218 Commerce Street 

P.O. Box 4160 

Montgomery, AL 36103-4160 

Atlanta 

4200 Northside Parkway 

Building One, Suite 100 

Atlanta, GA 30327 

 

(800) 898-2034 

BeasleyAllen.com 

P. Leigh O’Dell 

leigh.odell@beasleyallen.com 

October 6, 2023 

Mr. H. Thomas Byron, III, Secretary 

Advisory Committee on Civil Rules 

Administrative Office of the United States Courts 

One Columbus Circle, NE 

Washington, DC 20544 

Re: Proposed New Rule 16.1 on MDL Proceedings

Dear Mr. Byron: 

My firm and I have represented plaintiffs and served as Co-Lead Counsel, members of Plaintiffs’ 

Executive Committees, and members of Plaintiffs’ Steering Committees in numerous multidistrict 

litigations (MDL). Currently, I serve as Co-Lead Counsel in the In re: Johnson & Johnson Talcum 

Powder Prods. Mkting, Sales Practices, and Prods. Liab. Litig., MDL No. 2738. An MDL is a 

powerful and effective tool, particularly in the setting of mass tort product liability litigation, to 

create efficiencies and to facilitate the ability of plaintiffs to seek redress for their injuries. 

We support efforts to improve the MDL process. Further, we thank the Committee for its 

considerable time and efforts to create a rule intended to assist judges as they preside over the early 

stages of an MDL. 

Areas of Agreement 

There are aspects of the proposed new rule with which we agree. As outlined in proposed Rule 

16.1(a), we agree that the transferee court should be encouraged to schedule an initial management 

conference soon after the creation of an MDL. This has been a helpful first step in developing a 

preliminary case management plan for every MDL in which my firm has been involved. 

In relation to proposed Rule 16.1(c), we believe it could be very helpful for the court to order the 

parties to meet and confer and provide the court with a report on the following topics: 

 (1) whether leadership counsel should be appointed, leadership structure, and the 

appropriate procedure and timeline for appointing leadership; 

 (2) identifying any previously entered scheduling or other orders and stating whether they 

should be vacated or modified; 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 175 of 177
Mr. H. Thomas Byron, III, Secretary 

October 6, 2023 

Page 2 

 (3) identifying the principal factual basis of the case and legal issues to be presented in the 

MDL proceedings, to the degree known and without prejudice to leadership after their 

appointment;

1

 (10) how to manage the filing of new actions in the MDL proceedings; and 

 (11) whether related actions have been filed or are expected to be filed in other courts, and 

whether to consider possible methods for coordinating with them. 

This shortened list of topics focuses the court on the preliminary matters that need to be addressed 

at the beginning of the case. These topics allow the court to be informed of the general facts and 

law at issue in the litigation and to be apprised of the status of other cases, but they do not require 

substantive decision-making that will affect the direction of the MDL prior to the appointment of 

leadership. 

Areas of Disagreement and Concern 

Many of the provisions listed in proposed Rule 16.1(c) are premature to discuss at an initial 

conference. Why? Leadership is not in place at the time of the initial conference. To expect a 

“coordinating counsel” to provide adequate information on the remaining topics is unworkable. 

First, there are no qualifications provided for the coordinating counsel. And while there is no 

requirement that such a counsel be appointed, if one is appointed, there is no requirement that the 

counsel have a stake in the litigation. In some cases, there may be competing theories of the case 

and different slates of attorneys vying for leadership. In these instances, the court must make a 

leadership appointment before other substantive recommendations regarding the litigation can be 

provided to the court. 

Second, although the defense bar has its views about leadership, the appointment of leadership is 

an issue that affects almost exclusively the plaintiffs’ side. At the time of the initial conference, a 

defendant will have selected counsel and developed its initial theory of the case and a strategic 

plan for first steps in the litigation. This is not true for counsel representing plaintiffs. Thus, it is 

extremely important to lawyers who represent clients injured by talc or other defective products to 

have leadership appointed quickly. The use of a coordinating counsel inserts a two-step process 

into the selection of leadership without establishing any criteria or vetting process for the 

coordinating counsel that the Committee Note provides for leadership appointment. After the 

initial conference, the court would then have to undertake a second process of appointing more 

permanent leadership. We believe this process would be inefficient, and it is unnecessary. Should 

the court order that the parties meet and confer and produce a report to the court prior to the initial 

status conference, the parties in most cases are capable of preparing such a report without an 

official appointment, provided the topics of the report are limited as set forth above. 

1

 We suggest that the language in red be added to this provision of the proposed rule. 

Hearing on Proposed Amendments to Civil Rules | October 16, 2023 Page 176 of 177
Mr. H. Thomas Byron, III, Secretary 

October 6, 2023 

Page 3 

The following topics listed under proposed Rule 16.1(c) are premature to discuss prior to the 

appointment of leadership counsel: 

 (4) how and when the parties will exchange information about the factual bases for their 

claims and defenses; 

 (5) whether consolidated pleadings should be prepared to account for multiple actions 

included in the MDL proceedings; 

 (6) a proposed plan for discovery, including methods to handle it efficiently; 

 (7) any likely pretrial motions and a plan for addressing them; 

 (8) a schedule for additional management conferences with the court; 

 (9) whether the court should consider measures to facilitate settlement of some or all 

actions before the court, including measures identified in Rule 16(c)(2)(I); and 

 (12) whether matters should be referred to a magistrate judge or a master. 

These provisions have a couple of things in common. Many of them, such as a plan for exchanging 

information, a discovery plan, pretrial motions, along with settlement issues, require substantive 

decision-making about the case itself, which may not be possible in any MDL that requires a 

leadership appointment. The remaining issues require the litigation to be further along than an 

initial conference (and some provisions like the appointment of a special master and settlement 

easily fall into both categories). The proposed Rule 16.1(c) provisions, while meant to be a prompt 

for newly appointed transferee court judges, can easily become an ill-informed box-checking 

exercise. It is conceivable to have a case in which a judge appoints a coordinating counsel without 

knowledge of the case or a stake in the litigation to prepare a report that includes most of the 

proposed Rule 16.1(c) topics. Would such a report be accurate, let alone useful to the court? 

Our recommendation is for the Committee to promulgate a more limited rule where the initial 

management conference focuses on items that need to be done first. 

Thank you for the opportunity to address the Committee on October 16, 2023. I look forward to 

sharing my comments in greater detail and to answering any questions that members of the 

Committee might have. 

Respectfully submitted, 

/s/ P. Leigh O'Dell 

P. Leigh O'Dell 

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