ADVISORY COMMITTEE ON CIVIL RULES

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

PROPOSED NEW RULE 16.1

January 16, 2024 

Testimony Outlines and Comments 

Tab 

Number

Name Organization 

1 Jeannine Kenney Hausfeld

2 Lori Andrus Andrus Anderson LLP

3 Mark Chalos Lieff Cabraser Heimann & Bernstein, LLP

4 Tobi Millrood Kline & Specter PC

5 Alyson Oliver Oliver Law Group PC

6 Jose Rojas Levin, Rojas, Camassar & Reck

7 James Bilsborrow Weitz & Luxenberg

8 Diandra Debrosse Dicello Levitt

9 John Rabiej Rabiej Litigation Law Center

10 Dena Sharp Girard Sharp

11 Frederick Longer Levin Sedran & Berman LLP

12 Jennifer Hoekstra Aylstock, Witkin, Kreis & Overholtz

13 Patrick Luff Luff Law Firm PLLC

14 Emily Acosta Wagstaff Law Firm

15 A.J. de Bartolomeo Tadler Law LLP

16 Lee Mickus Evans Fears Schuttert McNulty & Mickus

17 Scott Partridge Partridge LLC

18 Erin Copeland Fibich, Leebron, Copeland & Briggs

19 Michael McGlamry Pope McGlamry

20 Lisa Ann Gorshe Johnson Becker PLLC

21 Rachel Hampton Sidley Austin LLP

22 Alan Rothman Sidley Austin LLP

23 David Cohen Reed Smith

24 Jennifer Scullion Seeger Weiss LLP

25 Norman Siegel Stueve Siegel Hanson LLP

26 Jayne Conroy Simmons Hanly Conroy

27 Anita Modak-Truran Butler Snow LLP

28 Toyja Kelley Locke Lord LLP

29 Chad Roberts eDiscovery CoCounsel PLLC

30 Andrew Myers Bayer U.S.
TAB 1 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 2 of 198
Jeannine Kenney

Partner 

325 Chestnut Street

Suite 900

Philadelphia, PA 19106

T: 215.309.7478

E: jkenney@hausfeld.com

hausfeld.com

AMSTERDAM | BERLIN | BOSTON | BRUSSELS | DÜSSELDORF | LONDON | NEW YORK | PARIS | PHILADELPHIA | 

SAN FRANCISCO | STOCKHOLM | WASHINGTON, DC

January 2, 2024

Via Electronic Submission

Committee on Rules of Practice and Procedure

Judicial Conference of the United States

Washington, D.C. 20544

Re: Proposed Amendments to Civil Rules 16 and 26 and Proposed New Rule 16.1

Dear Members of the Advisory Committee:

Thank you for the opportunity to comment on the Committee’s proposed amendments to Federal 

Rules of Civil Procedure 16 and 26 regarding privilege logs and the Committee’s proposed new 

Rule 16.1 regarding multi-district litigation. 

I am a partner at Hausfeld, a global claimants’ law firm with a focus on private enforcement of 

competition laws, with nearly 250 attorneys worldwide. Within the United States, Hausfeld’s 

practice comprises predominantly large, complex, multi-defendant (and often multi-district) class 

actions, including antitrust, consumer, technology, privacy, data breach, and human rights class 

actions. My firm and its attorneys are frequently appointed to leadership positions in these class 

actions. We currently serve as lead or co-lead counsel in dozens of pending class actions, many 

of them MDLs. 

Our clients are generally individuals or small to mid-sized businesses that are unable to seek 

redress for harms they suffered without recourse of the class action mechanism. Defendants in 

our matters are among the largest domestic and global concerns, including leading air carriers, 

financial institutions, food manufacturers, technology companies, health insurance providers, and 

industrial and consumer goods manufacturers, among others, usually represented by nationally 

recognized defense firms. 

I currently serve as court appointed co-lead counsel in In re Wawa Data Security Incident (19-

cv-6019, E.D. Pa.) involving consolidated data breach class actions for three classes and am a 

member of court-appointed leadership in two antitrust class action MDLs: In re Generic 

Pharmaceutical Pricing Antitrust Litig. (MDL No. 2724) (personal appointment to plaintiffs’ 

steering committee) and In re Domestic Air Travel Antitrust Litig. (MDL NO. 2656) (HLLP as 

co-lead counsel). I also served as a lead case team member for In re Fresh and Process Potatoes 

Antitrust Litig. (MDL No. 2186) and In re Processed Egg Products Antitrust Litig. (MDL No. 

2002) for which my firm was appointed lead and co-lead counsel, respectively. 

I am an active member of the Sedona Conference’s Working Group 1 on Electronic Document 

Retention and Production, often serving as a dialogue leader (including related to privilege logs) 

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and on WG1’s various brainstorming and drafting committees. I am a member of the board of 

directors for the Complex Litigation eDiscovery Forum (“CLEF”), serve on the advisory council 

for the Electronic Discovery Reference Model, which has attempted to find at least some 

consensus on privilege log issues, and am a member of the 2024 ASU-Arkfeld eDiscovery 

Advisory Committee. I frequently speak and conduct trainings on discovery issues, including 

matters related to privilege logging and complex case management. 

I. Proposed Amendments to Civil Rules 16 and 26 

The proposed amendments require that any discovery plan under Rule 26(f) state the parties’ 

views and proposals on “the timing and method for complying with Rule 26(b)(5)(A).” 

Correspondingly, the proposed amendments also encourage inclusion of a provision regarding 

the timing and methods for compliance with Rule 26(b)(5)(A) in the Rule 16(b) scheduling 

order. 

A. The Committee’s Appropriate and Balanced Approach to Privilege Logs Will 

Reduce Privilege Log Disputes and Reflects Current Best Practices. 

The Committee’s thoughtful approach to addressing privilege logs will advance case 

management, minimize avoidable disputes, and promote the efficient progress of litigation. 

Public comments provided to the Advisory Committee in response to the 2021 invitation for 

comments reflected widespread concern among parties receiving privilege logs that producing 

parties vastly over-designate documents as privileged or work-product protected, imposing 

enormous burdens on receiving parties to assess the log, identify the improperly withheld 

documents, undertake challenges to them, engage in meet and confers to resolve them, and file 

motions to compel their production. They also affirmed the necessity of complete privilege logs 

to make those assessments and confirmed that whether alternative approaches to privilege logs, 

in whole or in part is case-dependent but that, in a typical case, document-by-document logs are 

critical. The Committee recognized that there was a “pervasive divide” between requesting and 

receiving parties and appropriately identified an approach for which there was common ground. 

Requiring early Rule 26(f) meet and confers regarding the method for compliance with Rule 

26(b)(5(A) will encourage early resolution of the required format, content, and timing of 

privilege logs. Early resolution will help minimize or eliminate later time-consuming disputes 

regarding whether the log provides sufficient information to assess a claim of privilege by 

establishing the presumptively compliant format and content agreed to by the parties or ordered 

by the court. With prior agreement on the format and content of privilege logs, the parties will be 

able to focus their attention on substantive matters related to the logged documents—whether the 

withheld documents are properly withheld—rather than whether the log itself is deficient. 

The proposed rule amendments will also provide assurances to producing parties that the format 

and content of the logs they serve will be acceptable, reducing the need for “do-overs.” As the 

Committee has recognized, it is also important that discussions on the manner of compliance 

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with Rule 26(b)(5)(A) occur prior to document review and production because the format and 

means of compliance may implicate how that review proceeds. 

Importantly, the proposed amendments make clear that the discussions regarding log production 

timing and logging methods are focused on the means of compliance with Rule 26(b)(5)(A). Too 

often, proposals for privilege log “reform”—including some of those urged on the Advisory 

Committee—appear to seek endorsement of logging methods that side-step compliance by 

suggesting either forgoing disclosure or logging documents in a manner that makes it impossible 

for the recipient to assess the claims as to each document. The proposed amendment clarifies that 

the parties should focus discussions on a manner of logging that is compliant with Rule 

26(b)(5)(A)’s requirement that the method of disclosure enable the recipient to evaluate the 

appropriateness of the claim of privilege. 

This practice—early negotiation of the form and content of privilege logs at the 26(f) stage—is 

currently routine in most complex litigation in which I and others in my firm have been involved. 

These stipulations are ordinarily part of a negotiated protocol governing electronically stored 

information or included as part of a protective order and/or Rule 502(d) order. 

Early in multi-defendant complex litigation, even prior to serving discovery, it is expected that 

the parties will negotiate the form, specific content, and timing for the production of privilege 

logs, as well as a process for how the parties will address challenges to withholding prior to any 

motion practice that may be required. For example, the parties negotiate: the precise fields that 

should be provided in the log (e.g., to/from/cc/bcc, date, document type, subject 

matter/description, type of claim, bates # for redacted documents, etc.); the time period covered 

by the log (if different from the discovery period) and any temporal exceptions to logging 

requirements; if a metadata-type log is agreed to, how to address documents for which metadata 

provides little to no information or inaccurate information and any manual information that must 

be supplemented; how hard copy versus electronic documents shall be logged; any technical 

issues that are expected; the physical format of the logs (e.g. sortable spreadsheets); when the 

logs must be produced; and how the parties will proceed if challenges to claims of privilege 

arise. These provisions set appropriate expectations and provide a roadmap for the parties’ 

conduct going forward. 

To address concerns that a party may not have sufficient information about the case, its 

documents, or its production at the time of the Rule 26(f) conference, such protocols generally 

build in an escape hatch permitting modification of the protocol by agreement of the parties or by 

order of the court for good cause shown or include placeholders for later negotiations over 

certain questions. This provides the flexibility parties may desire. 

Although many have interpreted the language of Rule 26(f)(3)(D) to already require inclusion of 

logging methodology and timing of log production as part of a discovery plan, clarifying that the 

Rule requires the parties’ to address their positions on the means of compliance with Rule 

26(b)(5)(A) will encourage early resolution of privilege logging issues among parties that had 

not even contemplated the question of privilege logs or are reluctant to engage in those 

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discussions with the opposing side. 

I thus encourage the Rules Committee to adopt the text of the amendments to Rules 16 and 26 as 

proposed. 

B. The Draft Committee Notes Provide Helpful Guidance but Require Modification to 

Reflect Concerns of, and Burdens Faced by, Receiving Parties. 

The draft Committee Notes provides helpful guidance for courts and litigants in applying the 

proposed amendments. Importantly, they highlight: 

• that methods of compliance may be case-dependent and avoid endorsement of any 

particular “flexible” methodologies. 

• the importance of rolling privilege logs, noting that failure to do so may pose serious 

problems. These problems include, among others, exacerbating over-withholding where 

producing parties do not have early guidance on what may or may not be withheld that 

would inform later privilege reviews, delaying case progress (as deadlines for discovery 

and dispositive motions may need to be delayed until resolution of motions to compel),1

and prejudicing parties when they must move forward with depositions and dispositive 

briefing without the benefit of documents that have been withheld. These advantages 

outweigh any purported concerns about rolling privilege logs.2 

• the value of early discussions regarding the nature of potentially privileged materials 

involved in the case, which can reduce substantive disputes about certain claims. For 

example, disclosure of the nature of third parties involved in attorney communications or 

case-related investigations can facilitate early resolution about the roles of such parties 

and whether they are more or less likely to waive privilege or at least focus a party’s 

attention to such third parties’ roles during discovery. At present, such disclosures occur 

only during motion practice when a party seeks to justify its privilege claims. 

• that agreements among parties regarding what documents might be excluded from the 

logging requirement entirely “calls for careful drafting and application keyed to the 

specifics of the action.” In some types of cases, such as those involving allegations of 

1

 This occurred in the Domestic Airlines litigation where production of voluminous logs only after 

substantial completion of production and resulting motion practice required a one-year extension of the 

deadline for summary judgment motions. See ECF Nos. 430, 446, In re Domestic Airline Travel Antitrust 

Litig., No. 15-cv-1404 (MDL No. 2656) (D.D.C.). 

2 Those opposing rolling privilege logs suggest that earlier logs may have errors that could hypothetically 

be detected after all documents have been produced. But any documents improperly withheld can be later 

produced and, so long as there is a Rule 502(d) order, any documents missed in earlier privilege reviews 

may be clawed back. 

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price fixing that my firm frequently prosecutes, relevant communications regarding the 

litigation that involve in-house or outside counsel after the litigation has been filed are 

more likely than not to be privileged, and agreements to exclude them from the logging 

obligation are common. But in other types of actions where the conduct may be ongoing 

or documents relating to the litigation may or may not be trial preparation materials, such 

exclusions are not appropriate. In a data breach action, for example, internal and external 

discussions and analyses about the cause and effect of the conduct generally first begins 

after litigation has commenced and often involves in-house and outside counsel wearing 

both “legal” and “business” hats. In such actions, disputes over the protected nature of 

the post-litigation documents are frequent and fierce. The Committee’s caution is thus 

well-placed.

But there are also statements in the Notes that give pause and may merit reconsideration. While 

the proposed amendments reflect a balanced approach after the Advisory Committee’s careful 

consideration of all viewpoints expressed during the 2021 informal comment period, the draft 

Committee Note may lend credibility to producing parties’ concerns without affirming the 

importance of the rule in ensuring non-protected materials are not shielded by claims of 

privilege. The Notes thus appear to put the thumb on the scale in favor of so-called alternatives 

to identifying grounds for withholding documents without addressing the potential risks of 

alternative approaches in undermining the purpose of Rule 26(b)(5(A) as expressed during the 

prior comment period. 

• The Note does not address valid concerns regarding over-withholding and the value of 

document-by-document disclosures. 

The draft Committee Note begins by stating that Rule 26(f)(3)(D) is amended to address 

concerns about the application of Rule 26(b)((5)(a) but identifies only one of those 

concerns—the purported cost of compliance from document-by-document privilege logs. 

But the Discovery Subcommittee’s presentation of the proposed amendments (as set forth 

in the October 12, 2022 Agenda Book) discussed the views of receiving parties regarding 

over-withholding of non-protected documents and the importance of detailed logs in 

identifying erroneous claims. As discussed during that comment period, many such 

claims are quickly abandoned once informally challenged with many remaining claims 

rejected by courts. This suggests two things: (1) that at least one source of the purported 

burden of logging is significant over-designation of documents as protected; and (2) the 

necessity of appropriately detailed privilege logs to assess and challenge claims. 

The Committee’s emphasis on burdens of compliance without addressing the benefit of 

the rule in assuring compliance tips the scale by implicitly suggesting the amendments 

are designed to address only one side of that equation. Accordingly, the Committee Notes 

should emphasize that the Rule’s purpose and utility in ensuring non-protected 

documents are not improperly withheld by producing parties remain as important today 

as upon its initial adoption and requires balancing the burdens with the benefits of 

disclosure, recognizing that the purpose of the rule is to allow the receiving party to 

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assess the propriety of the claim.

• The Note over-emphasizes “flexible” alternatives without providing cautionary 

comments regarding risks associated with alternatives courts have gained since the 

Rule’s adoption. 

The draft Note goes advises that, from its adoption, the Rule was intended to recognize 

the need for flexibility, but adds, disapprovingly, that it has not been so applied, 

sometimes imposing undue burdens. This disregards that at the time of the Rule’s

adoption, courts and litigants did not have the benefit of the thirty years of experience 

with different approaches to compliance and the epidemic of over-designation. That 

experience, as reflected in comments received during the initial comment period, reveals

the limitations of certain “flexible” approaches as compared with traditional documentby-document logs. The draft Note also disregards that courts adopting traditional log 

approaches as a default have done so based on their own experiences with compliance.

While the draft Note recognizes that the means of compliance may depend on the nature 

of the case, it does not sufficiently emphasize that compliance with the Rule must always 

be the guiding standard. Purported burdens of compliance should not be a justification for 

non-compliance. 

• The Note discusses “undue” burdens of compliance without providing guidance on 

what constitutes an undue burden. 

The Note references purported “undue” burdens from traditional approaches but 

does not discuss when a burden is undue. Accordingly, the Note should 

acknowledge that a logging burden is “undue” only if it requires more information 

than necessary to assess the claim of privilege as the Rule requires. It should also 

make clear that when considering “flexible” approaches to compliance, courts and 

litigants should be careful to ensure that any such approach will provide sufficient 

information for courts and litigants to assess the correctness of the claims. 

• The Note inappropriately suggests that document-by-document listings with explanation 

of the ground for withholding is appropriate in only “some” cases.

The draft Note to Rule 26(f) posits that “[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.” This could suggest that a document-by-document 

log is not generally necessary even though it is the standard approach in most cases and 

in most courts. In my experience, which is consistent with that of my partners and my 

colleagues at other plaintiff-focused firms, a document-by-document log that includes an 

explanation for the withholding is generally the only meaningful method for assessing 

whether individual documents withheld are actually privileged. 

While the parties may be able to carve out exceptions to that rule for specific, narrow 

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agreed subsets of documents in a given case, no commentor before this Committee to 

date has explained how a receiving party is able to assess the propriety of a claim without 

disclosure of document-by-document information. Our experience with alternative forms 

of logs is that they ordinarily result in greater, not fewer, disputes and more motion 

practice precisely because it is impossible to assess the propriety of the claims without 

seeking court intervention. 

• The Note’s caveat with respect to document-by-document logs risks a presumption that 

such logs are inappropriate in large cases where, in practice, they are most necessary. 

The statement that such logs are appropriate in only “some” cases, together with the 1993 

Note that suggested detailed information about withheld documents may be unduly 

burdensome where voluminous documents are withheld, may suggest that such logs are 

appropriate when only a small number of documents are withheld. But it is largewithholding cases—where thousands or hundreds of thousands of documents are 

withheld—in which document-by-document information is most essential. Such cases 

pose the greatest risk that wide swaths of responsive documents will be withheld, making 

detailed disclosures critical. 

For example, in In re Blue Cross Blue Shield Antitrust Litigation, in which my firm was 

co-lead counsel, more than 450,000 of 700,000 documents withheld were de-designated 

after the plaintiffs were able to challenge withholding on a document-by-document basis, 

with some parties ultimately producing as much as 83% of initially withheld documents. 

In our In re Domestic Air Travel matter, of the 22,000 individually logged documents that 

Plaintiffs informally challenged, some 17,000 were voluntarily removed from the log 

following that challenge. Nearly 1,700 of those remaining were found to have been 

improperly withheld in whole or part after in camera review. Only through reviewing 

information about each document (e.g., whether an attorney was involved, whether the 

document involved business rather than legal advice, etc.) were plaintiffs able to identify 

which documents were improperly claimed as privilege by identifying inconsistencies 

between the descriptions and the documents. 

• The Note disregards that document-by-document logs are usually generated through 

automated processes, posing limited burden. 

Most document-by-document logs are initially generated through automated processes in 

which document-by-document metadata (to/from/date/subject matter, etc.) for documents 

tagged as privileged on document review platforms is exported in table form. This is 

especially true for large document cases. The entries are not manually drafted but are 

instead based on metadata that is later normalized and “cleaned up” to produce the final 

log. While this table “clean up” necessarily imposes some burden, that burden is not 

undue given the ready availability of document-by-document information and the 

importance of compliance with the Rule. 

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And “true” metadata logs (those for which metadata is not “cleaned up” but simply 

presented as it is exported), while posing their own challenges for receiving parties, are a 

type low-burden document-by-document log that remain an option for every type of case 

if descriptions are added (or exported from descriptions populated during review), 

particularly in large-withholding cases. 

To the extent that the Committee Note will continue to suggest that a document-bydocument log is appropriate in only “some” cases, it should likewise point out the 

challenges that purported “more flexible” alternatives pose in assessing whether the claim 

of privilege is valid. 

C. The Committee Should Reject Attempts to Shift Producing Parties’ Burdens and 

Weaken Their Obligations Under Rule 26(b)(5)(A). 

I have reviewed comments submitted to date to the Committee during this comment period. A 

number of these comments urge the Committee to go further and expressly endorse certain 

practices, either in the Rules themselves or in the Committee Notes. Many of these approaches 

are undefined and unworkable. To the extent they may make sense in a given case, it should be 

left to the parties to determine when and where they do, and if so, the conditions under which 

they should be applied. 

A number of these proposals were made during or prior to the 2021 informal comment period 

and the Committee should reject them for the same reasons it opted in favor of the amendments 

now proposed. As the Discovery Subcommittee previously noted, there was a pervasive divide 

between requesting parties and receiving parties during the prior comment period. That pervasive 

divide applies equally to new proposals as well. I briefly address some of these proposals below. 

• Categorical Logs: The shortcomings of “categorical logs” were widely discussed in 

CLEF’s comments during the informal comment period3

 and I will not repeat them here. 

But it is worth reiterating the experience of my firm with one of the cases discussed in 

those comments—In re Disposable Contact Lens Antitrust Litig. (15-md-2626) (D. Fla). 

There, 60% of some 16,000 documents that were initially categorically logged were 

ultimately produced after we challenged the categories and the court ordered, among 

other things, an explanation as to whether each document in the categories were reviewed

for privilege. 

This is not to say that in some cases for some narrow categories, logging multiple 

documents under a single category may be sufficient to assess the claim of privilege. In 

practice, however, there have been far too few cases in which categorical logs have been 

able to do so and far too many instances where they patently have not. Contrary to some 

3 See Complex Litigation eDiscovery Forum’s Aug. 2, 2021 Comments at 15-20. 

 

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comments, they are particularly ill-suited to large-withholding cases where permitting 

them would incentivize even greater improper withholding.4

 Any endorsement of this 

approach would come at a heavy price to our civil justice system. 

It is also important that so-called “categorical logs” not become a mechanism for failing 

to conduct a document-by-document privilege review at all—a fear that recent case law 

suggests is not without basis. Maxis v. YPF, No, 18-cv-50489, 2021 WL 3619900 (Bankr. 

D. Del. Aug. 16, 2021) involved a categorical log that lumped 5,692 documents into just 

three privileged categories. After the court found the categories not to be privileged, the 

withholding party asked to conduct a document-by-document review for privilege—a 

review it apparently had not conducted prior to claiming privilege over those documents. 

Our experience with Contact Lens also suggests categorical logs are a means of forgoing 

review given the number of withheld documents subsequently voluntarily produced after 

the court ordered an explanation regarding review and that more detailed information be 

provided.

• Tiered Logs: Some have suggested so-called “tiered” or “iterative” logging (as opposed 

to rolling logs), in which the producing party provides more detailed information for 

withheld documents that are supposedly “material” or “important” to the case and 

produces “broad categories” or “summaries” for other documents. These proposals 

should be rejected.

First, they fail to explain how a producing party that does not bear the burden of proof in 

a case would subjectively determine what is “material” or “important” to the other side’s 

case, much less why the producing party should be allowed to make that determination. 

Opening that door would lead only to gamesmanship. Second, by definition, all such 

documents are already responsive to discovery requests (otherwise they would not be on 

the log), and the receiving party has a right to their production if they are not protected. 

Endorsing such a proposal for “tiered” logs would allow producing parties to withhold 

discovery they subjectively deem to be less important with little obligation to defend that 

withholding. Third, such a proposal would only create more delay in the production of 

logs. At the same time privilege log opponents bemoan the burdens of having to review 

documents for actual privilege, a “tiered” approach would add yet another layer of 

subjectivity to that review: reviewers would not only have to make judgments about 

whether a document is privileged and why but also whether each document is “material”

4 Now well-known are allegations in In re: Google Play Store Antitrust Litigation that Google used “fake 

privilege”—the practice of unnecessarily involving a lawyer in a communication to provide an aura of 

privilege—to shield documents from discovery. See Bonnie Eslinger, Google In-House Attys Joked About 

‘Fake Privilege,’ Jury Told, Law360, Nov. 9, 2023. 

Such practices would be nearly impossible to detect in categorical logs. A document-by-document log, 

however, would show that the lawyer was peripheral to the communication as well as a pattern of 

including lawyers on standard business communications. 

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and why. 

To the extent the parties wish to agree to a rolling production that prioritizes withheld 

documents by time-period, custodian, or some other objective metric, they are free to do 

so under the proposed amendments. 

• Amendments to Rule 26(b)(5): Other proposals urge the Committee to require, by 

amendment to Rule 26(b)(5)(A), that a case-by-case determination on the manner of 

compliance be made. Doing so would impose greater, not lesser, burdens on courts and 

parties to identify a logging methodology, prohibit courts from adopting standing rules 

for compliance as they are free to do now, and prevent judges from establishing their own 

standing policies and procedures on privilege logs as they do for so many other discovery 

procedures (such as default ESI orders) where the parties have not agreed to alternative 

approaches. 

• Proportionality: Calls for incorporating proportionality in the Rule or its Committee Note

are also misplaced. As an initial matter, the factors embedded in Rule 26(b)(1) make little 

sense in the context of Rule 26(b)(5)(A) since proportionality is a test for what 

documents are discoverable. The only question posed by Rule 26(b)(5)(A) is how much 

information must be disclosed about documents that have already been deemed 

proportional to the needs of the case but have been withheld. In reality, calls for a 

“proportionality” determination are merely calls for a determination of whether a log 

involves undue burden. And since compliance with the Rule is not optional, undue 

burden arises only where the nature of the log demanded is more than necessary to allow 

the receiving party to assess the claim. 

• Proposals for Certain Presumptions: Other proposals—such as proposed presumptions 

related to logging emails, logging redacted documents, and relying on metadata logs—

require significant technical understanding of challenges inherent to them (and changes to 

technology) that put resolution well beyond what the Rules can address. They involve 

complex questions of what information exists within a document database and can be 

produced, and what information might be manually supplemented. All three approaches 

risk withholding critical information from the receiving party that is necessary to assess 

the claims. For example, a presumption that only the last email in a thread need be logged 

means that a producing party may be permitted to withhold all information regarding all 

the subordinate emails until and unless there is a technological means of assuring each 

subordinate email appears elsewhere in the log.

5

 A presumption that redacted documents 

need not be logged shifts the burden to the receiving party to identify all redacted 

documents in a production, review them for privilege, and infer what the redacted content 

contained and the reasons the producing party withheld it, when it is the producing 

party’s obligation to describe what has been withheld. Finally, a presumption that 

5

 To my knowledge, at present, there is no technology available that would allow this assessment. 

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metadata logs are sufficient ignores that metadata are often inaccurate or missing and 

may provide little insight into the nature of the document or why it was withheld.6

 

For these reasons, the Committee’s well-balanced proposed amendments are the better approach, 

providing the parties with flexibility and reducing the likelihood of privilege disputes. 

II. Proposed New Rule 16.1

The MDL Subcommittee has recommended new Rule 16.1 to govern multi-district litigation 

proceedings. Many of my colleagues that practice in the mass tort area have submitted (or will be 

submitting) comments regarding the substance and appropriateness of the proposed new rule as 

applied to mass tort MDLs. I defer to their expertise on those issues. My comments are, by 

contrast, focused on application of the proposed new Rule for MDL proceedings that do not 

involve mass torts. 

Of principle concern is the proposed new rule’s application to all multidistrict litigation when the 

deliberative history of the MDL subcommittee’s work and the draft Advisory Committee Note, 

make clear the rule is targeted principally to mass tort MDLs. Indeed, in that history and the draft 

Note, the Committee appears to use “MDLs” as shorthand for mass torts and the draft 

Committee Note itself contrasts “MDLs” with class actions.7

 

6 This is particularly true for attachments, stand-alone documents, and every email in a thread other than 

the top-most email. The information can be incorrect, uninformative, or, as in the last example, 

completely missing. The “author” metadata field for this document, for example, is “user.”

7

 As one example, the Note for 16.1(c)(1) states that “MDL proceedings do not have the same 

commonality requirements as class actions” such that “leadership may be made up of “attorneys who 

represent parties asserting a range of claims.” But in a class action MDL, of course, all claims of class 

members must be common and class counsel should not have conflicts with the class. As another, a now 

removed Note contrasted disfavored discovery of absentee class members in class actions with discovery 

of individual plaintiffs in MDLs. 

During the March 29, 2022 MDL Subcommittee meeting it was noted that “Rule 23 was amended to help 

judges and to enable lawyers to help judges. The prospect here is that something similarly useful can be 

done for MDLs.” Mar. 29, 2022 Draft Minutes (May 2022 draft), Civil Rules Advisory Committee at 20. 

During the January 2021 Standing Committee meeting, there was discussion comparing “MDLs and class 

actions” noting that courts approve class actions settlements, which “is not the case for MDLs.” Jan. 2021 

Standing Committee Meeting Minutes at 23. 

Indeed, the initial proposals for a rule were “mainly focused on ‘mass tort’ proceedings” and the initial

discussion addressed issues uniquely related to mass torts, such as the claimed unavailability in mass torts 

of traditional mechanisms like prompt discovery and summary judgment (which are available in class 

action MDLs) to address unsupportable claims. See Dec. 14, 2018 Advisory Committee on Civil Rules, 

Report to Standing Committee at 5-17. That report also discussed the lack of analog in MDLs for Rule 

23(g)(4) in class actions and the role of Rule 23(h) court approval of fee awards contrasted with mass 

torts where there are complicated questions of assessments on individual settlements to fund fee awards. 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 13 of 198
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In fact, most MDLs are not mass-torts. By my count, of the approximately 170 pending MDLs as 

of December 2023, about 100 are class actions or actions involving a handful of related cases

with a relatively small number of parties initially filed in different jurisdictions.

8 These cases 

stand in stark contrast to mass tort MDLs in which hundreds or thousands of individual cases 

with claims too individualized to be amenable to class treatment are consolidated and 

coordinated for pre-trial proceedings, with each retaining its individual identity and its own 

counsel and proceeding individually. 

Class action MDLs, by contrast, involve the following or some combination thereof: (1) multiple 

class actions on behalf of the same class filed in various jurisdictions that, following transfer to 

an MDL court, proceed as a single action; (2) multiple class actions brought on behalf of a small 

number of different classes (such as, in the case of price fixing class actions, direct purchasers

and indirect purchasers of the price-fixed product) that, following transfer, proceed as just two 

separate class actions with coordinated discovery; (3) actions that include class claims plus a 

small number of “opt-out” actions—usually larger businesses that fall within the class definition 

but that elect to prosecute their claims individually—all proceeding in parallel after transfer as a 

small number of discrete actions; and (4) actions that involve one or more of the foregoing class 

actions/opt-outs along with claims by public entities, such as states pursuing damages as parens 

patriae. Of these 100 non-mass tort MDLs, nearly 40 are antitrust class actions. Other class 

action MDLs include employment, privacy, data breach, securities, fraud, non-personal injury 

defective products, among others. Their commonality, however, is that they involve only single 

class action or small number of related actions following consolidation. 

These non-mass tort MDLs do not implicate the same case-management issues that are 

commonly associated with mass torts and that have been the subject of the Subcommittee’s 

deliberations. Further, they already proceed under other Rules of Civil Procedure, such as Rule 

23, and statutory requirements such as the Class Action Fairness Act and the Private Securities 

Litigation Reform Act (“PSLRA”). Ordinarily, the case progression and management are no 

different than any other class action (or any other action for that matter): complaint, answer or 

motion to dismiss, discovery, class certification, summary judgment, and trial. In short, a class 

action MDL proceeds as any other class action would in a district court; if there are multiple 

classes, then there are simply a handful of cases that move in tandem with coordinated discovery 

among them to avoid duplication and inefficiencies. 

Application of proposed new Rule 16.1 has the potential to disrupt and delay class action MDLs 

and sow unnecessary confusion as to the which rules apply to them. And in some cases, proposed 

Rule 16.1, may create conflicts with existing Rules and statutes. A few examples of where this 

8 This latter category involves commercial actions, such as intellectual property claims, often brought by a 

single corporate plaintiff against different infringers in various jurisdictions where the infringer is located. 

For example, a pending patent MDL involves claims by a patent holder against franchisees located in 

different jurisdictions. 

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may occur follow. 

• Rule 16.1(a). Rule 16.1(a) directs that the court should schedule an initial management 

conference to develop a management plan for MDL pre-trial activities. In most class 

action MDLs, however, the first step is generally appointment of leadership counsel 

authorized to direct the class action on behalf of the class, followed by the filing of a 

consolidated class action complaint by interim class counsel. In some cases, initial case 

management conference is not held until after leadership is appointed and a single set of 

counsel is approved to represent the class and sometimes not until after the consolidated 

amended complaint is filed. In any event, a case schedule and discovery plan are

ordinarily not negotiated or set until after appointment of interim class counsel. Setting an 

early conference to discuss discovery, fee awards, issues among counsel not authorized to 

speak on behalf of the class may be unnecessary and time-consuming. 

• Rule 16.1(b). Rule 16.1(b) asks courts to consider designating interim coordinating 

counsel prior to the initial case management conference and suggests in the draft Note 

that performance of such coordinating counsel may bear on appointment of leadership. In 

class actions, such coordinating counsel is unnecessary because, as discussed below, 

many of the management issues raised in mass torts are not implicated by class action 

MDLs. And the Note’s suggestion that performance of coordinating counsel may bear on

leadership appointment may conflict with the requirements of Rule 23(g)(1) for 

appointment of class counsel and requirements of PSLRA for appointment of the lead 

plaintiff (and therefore its counsel of choice). 9

 

• Rule 16.1(c)(1). Rule 16.1(c)(1) and the accompanying Note suggest that appointment of 

leadership counsel is not always necessary in an MDL (since it directs consideration of 

whether leadership counsel should be appointed). But in class action MDLs (or any class 

action where multiple complaints are filed on behalf of the same class), appointment of 

interim class counsel is necessary. Appointment of interim class counsel and a 

consolidated class action complaint that supersedes prior class action complaints for all 

purposes is essential in a class action MDL because the same class action cannot be 

prosecuted at once by dozens of counsel seeking to represent the same class but with 

different class representatives. Although interim appointment is optional under Rule 

23(g)(3), I am unaware of any class action MDL where interim class counsel has not been 

appointed. Smaller mass torts may not necessitate leadership appointment, but class 

action MDLs do.

Rule 16.1(c)(1)’s Note goes on to explain that leadership counsel play a facilitating role in 

claim resolution but that settlement decisions are made by individual parties. But in class 

actions (MDLs and otherwise), only court-appointed class counsel is authorized to settle 

9

 15 U.S. Code § 78u–4. 

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on behalf of the class.10 And under Rule 23(e), the court itself must approve class 

settlements (unlike settlement of individual cases in a mass tort); the Note’s reference to 

individual parties settling their own claims is inconsistent with Rule 23(e).

11 

Also problematic is the Note’s guidance that there may be tension between the approach 

leadership counsel takes to pretrial matters and the preferences of individual parties and 

how to address it. This is clearly targeted to mass tort MDLs where parties’ individual 

complaints are prosecuted individually, with leadership merely guiding the overall case. 

By contrast, in a class action, only court-appointed interim or litigation class counsel are 

authorized to direct pre-trial matters on behalf of the named class representatives and the 

absentee class. There is no “tension” between individual parties because the consolidated 

complaint supersedes the individual complaints. The Note thus threatens to create 

confusion in a class action MDL regarding the role of would-be class representatives and 

their counsel who were not selected to be named in the consolidated complaint and their 

own counsel and court appointed class counsel. 

Similarly, the Note raises the question as to whether and when leadership counsel should 

be compensated. In mass torts, this generally refers to the common-benefit fund fees paid 

from individual settlements (a “hold back fee”) to compensate leadership counsel for 

their work (in addition to compensation they may receive from their individual client 

settlements). By contrast, in class action MDLs, the compensation of court-appointed 

class counsel occurs only if there is a class-wide settlement overseen by the court or 

judgment at trial, after which class counsel move the court for fees and costs, generally as

a percentage of the class settlement amount (or according to any applicable fee shifting 

statute). Fee awards for class actions are governed by Rule 23(h) and criteria set by wellestablished case law for class actions. Suggestions that, at the outset of a class action 

MDL, the court should make decisions regarding class counsel’s compensation merely 

because it is an MDL seems unnecessary at best and runs the risk of sowing confusion 

regarding appropriate procedures and criteria compensation in class action MDLs. 

• Rule 16.1(c)(3). Rule 16.1(c)(3)’s directive that the report should address identification of 

principal legal and factual issues to be presented appears targeted exclusively to mass tort 

MDLs. In mass torts, where there may be a wide range of differing claims across the 

hundreds or thousands of individual plaintiffs, organization of the range of principal claims 

across parties may facilitate case management. In class action MDLs, however, the 

principal legal and factual issues as to everyone in the class are laid out in a single

10 Of course, class members may opt out of the class and choose to resolve their claims individually, but 

this is different than the settlement process in mass torts. 

11 The draft Note for Rule 16.1(c)(9) discusses means of promoting settlement and includes among them 

“selection of bellwether trials.” Bellwethers are applicable only in mass torts. In class action MDLs, 

bellwether trials are inapplicable as ordinarily there are only a few class actions at issue (and often only 

one) that proceed to a few class-wide trials. To suggest the applicability of a bellwether in a class action 

MDL would significantly confuse and prolong the litigation. 

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consolidated complaint; there is no need for a process to identify them for case 

management purposes. And although in class actions, there are sometimes pure legal issues 

that can be resolved early, that is true in any litigation. Ordinarily class actions proceed as 

any action would where the legal and factual issues are addressed through dispositive 

motions. The Rule thus threatens confusion in a class action MDL as to how or whether the 

new Rule applies, and if it does, what other type of procedure other than ordinary litigation 

tools (interrogatories, motion practice, etc.) should be employed to identify the legal and 

factual issues. 

• Rule 16.1(c)(4). Rule 16.1(c)(4) directs the report to address “how and when the parties 

will exchange factual bases for their claims and defenses.” The Note makes clear by its 

reference to “fact sheets” and “censuses,” that like Rule 16.1(c)(3), it is targeted and 

applicable only to mass torts MDLs. And while in mass tort MDLs, preparing “fact sheets” 

for individual plaintiffs or conducting a “census” may play a role in case organization, 

there is no analog in class actions. There are generally only a handful of class 

representatives on the consolidated complaint and their claims are the same. A directive 

that courts should consider such provisions may result in unnecessary confusion in 

otherwise relatively straightforward actions regarding what, precisely, the court should be 

identifying and opens the door to absent class member discovery that is already disfavored 

in class actions. Although the draft Note suggests that “[w]hether early exchanges should 

occur may depend on a number of factors, including the types of cases before the court,” 

the Note does not provide guidance that such approaches are generally applicable only to 

mass torts. 

• Rule 16.1(c)(5). Rule 16.1(c)(5) also risks confusion when it directs the report to address 

whether “consolidated pleadings should be prepared to account for multiple actions in the 

MDL proceedings.” While I understand from the draft Committee Note that this likely

refers to a “master” or “administrative” complaint common in mass torts that is filed solely 

for administrative purposes, a consolidated pleading has an entirely different meaning in 

class actions. 

An administrative or “master” complaint in mass torts does not supplant individual actions

but serves merely as a summary of the claims. But in a class action MDL, the consolidated 

pleading does and must supplant prior complaints on behalf of the same class.

12 The Rules’ 

12 This is the distinction made in note 3 of Gelboim v. Bank of America, 574 U.S. 405 (2015). To the 

extent the Committee’s reference to Gelboim is intended to clarify when administrative complaints are 

appropriate (in mass torts) and when consolidated complaints that merge claims are necessary (for class 

claims applicable to a single class), the Note should provide further guidance. As written, the Note 

cryptically suggests there are “significant implications” for using master complaints but does not explain 

what they are. The implication is only that an administrative/master complaint does not displace 

individual claims whereas a consolidated pleading for a single class does supersede all previously filed 

claims on behalf of that same class. Courts should thus clarify when use of a master complaint is purely 

for administrative purposes and that a consolidated class action complaint supersedes all prior complaints.

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suggestion that a consolidated complaint might be optional in a class action MDL is 

worrisome. An action on behalf of a particular class cannot proceed with multiple counsel 

prosecuting the same class action on behalf of different putative class representatives. The 

consolidated class action complaint thus supersedes all previously filed complaints for the 

same class that were transferred to the MDL court and merges them as a single action, 

serving as the sole pleading for that class. Where there are multiple classes in a class action 

MDL, there will be a single consolidated class action complaint for each class action and 

those two or three class actions remain distinct actions from one another throughout the 

proceeding; there is generally no consolidated complaint for all classes even for 

administrative purposes. 

The lack of clarity regarding the distinction between consolidated pleadings for mass tort 

MDLs and class action MDLs risks confusing the now relatively straightforward class 

action MDL process for consolidated pleadings. 

The MDL Subcommittee acknowledged the concern that a general MDL rule could create 

difficulties for non-mass tort MDLs during its March 29, 2022 meeting, noting that many MDLs 

“include a number of cases, parties, and attorneys that can be managed without any separate 

MDL rule and indeed might be impeded by a need to work through a separate rule.” The 

Subcommittee determined, however, that this would be resolved by creating a “flexible rule that 

is to be invoked only in the MDL judge’s discretion.” The draft Committee Note addresses this 

by advising that “[n]ot all MDL proceedings present the type of management challenges this rule 

addresses.” 

But problematically, neither the Note nor the proposed new rule itself provides any guidance on 

what types of MDLs “present the type of management challenges” the rule addresses and which 

do not, requiring the court and the parties to work through each aspect of the lengthy rule to 

determine which provisions a report “should” address and which are inapplicable and why. It 

will likely result in disputes over the applicability of a provision, how it should be applied, and 

unearth new areas for dispute. And it will be particularly problematic for new MDL judges who 

have managed neither type of MDL and lack familiarity with the different procedures associated 

with each. 

The bench and the bar would be better served by a revised Rule that is expressly limited to the 

types of MDLs that animated the proposed rule—mass torts—13or that clarifies in both the Rule 

and the Note when a particular provision is not applicable to class action and other simple 

MDLs. To properly craft such a Rule, greater input from the class action bar may be helpful. 

The Committee Note also recognizes that the Rule may provide guidance to “multiparty 

litigation that did not result from a Judicial Panel transfer order [that] may present similar 

management challenges.” From this I understand the Committee to be referring to non-MDL 

mass torts pending in a single court (for example, after removal of a mass action under CAFA 

13 I defer to my colleagues that practice mass torts as to whether and how that should be accomplished. 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 18 of 198
17

and/ or consolidation under Rule 42). To the extent the Rule is intended to provide guidance for 

all types of mass tort actions regardless of how they came to be consolidated, it may be more 

appropriate to devise a rule targeted to those types of actions rather than the means by which 

they were consolidated. 

Thank you for the Committee’s consideration. 

Respectfully, 

Jeannine Kenney

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_________________________________________________________ 

155 Montgomery Street ∙ Suite 900 ∙ San Francisco, California 94104 

T: 415.986.1400 ∙ F: 415.986.1474 ∙ lori@andrusanderson.com 

Testimony of Lori E. Andrus, Andrus Anderson LLP Regarding Privilege Logs 

Presented at the January 16, 2024 Civil Rules Hearing 

 Thank you for the opportunity to comment on proposed amendments 26(f) and 16(b). My 

name is Lori Andrus and I am President-Elect of the American Association for Justice. I have been 

a plaintiffs’ lawyer since graduating law school in 1999. I am a founding partner of Andrus 

Anderson LLP, a two-woman plaintiffs-side law firm based in San Francisco. Before that, I was a 

partner at Lieff, Cabraser, Heimann & Bernstein, LLP. My firm handles a broad range of complex 

cases. We litigate class actions of all descriptions (including employment, consumer, and product 

defect class actions) and also represent plaintiffs in mass torts. I have been appointed to leadership 

in multiple MDLs and have served as Class Counsel in many cases. The Advisory Committee on 

Civil Rules has spent considerable time reviewing privilege log issues and has come up with a rule 

that I support and that works well for cases regardless of the type or size of the litigation. This 

balance is extremely important to me personally and for plaintiffs, who always have less information 

than defendants generally and must obtain critical documents through discovery. 

I routinely find myself facing off against some of the best lawyers in the country, 

representing some of the largest companies in the world. My opponents have seemingly endless 

resources, and they uniformly, aggressively oppose every attempt of plaintiffs to uncover 

wrongdoing. Part of the standard defense strategy is to put as little information as possible on a 

privilege log, while withholding as many documents as possible. 

To combat over-designation, I insist on early dialogue regarding the format and timing of 

the log. I negotiate for a rolling production (typically 30 days after any document production). 

Without early agreement on the details and timing of a log, what gets produced is inevitably 

insufficient for the court to evaluate the privilege assertions, and is unhelpfully at the end of 

discovery. 

In the comment that I submitted in July 2021 in response to the Invitation to Comment on 

Privilege Log Practice, I explained my experience regarding over-designation in the mass tort In re 

Avandia Marketing Sales Practices and Products Liability Litigation, MDL No. 1871 in the Eastern District 

of Pennsylvania. I will not repeat the details of that ordeal except to say that after multiple rounds 

of challenges, the defendant was eventually ordered to completely re-do its privilege review, produce 

improperly withheld documents, and revise its privilege log accordingly. Thousands of documents 

that had been hidden came to light. 

Privilege logs are not merely an administrative exercise, nor are they a valid basis to complain 

about the rising costs of discovery or a tool for addressing proportionality.1 They are an 

1

 The Rules regarding privilege should not require any “proportionality” analysis for two reasons. 

First, protecting valid claims of privilege is important enough that the party invoking privilege 

should be prepared to expend the time and expense necessary to justify withholding information. 

Regardless of the size of the case, a party withholding documents on privilege grounds should have 

to explain the reasons for doing so. Second, when the privilege is applied too broadly (inadvertently 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 21 of 198
Testimony of Lori E. Andrus, Jan. 16, 2024 

Page 2 

exceptionally potent tool for burying evidence. To avoid abuses, robust policing of privilege logs is 

necessary. Without detailed logs, the court is asked by defendants to “take our word for it,” with no 

accountability. 

Moreover, so-called “categorical” logs fail to provide courts sufficient information to 

support privilege assertions. In some cases, I have agreed that certain limited categories of 

communications do not need to be logged at all, such as communications between in-house counsel 

and litigation counsel after the case has been filed. But I have never seen a case where categories of 

documents (like “memos,” or “agendas”) could be grouped together while, at the same time, 

providing “sufficient detail to permit a judgment as to whether the document is at least potentially 

protected from disclosure.” United States v. Constr. Prods. Research, Inc., 73 F.3d 464, 473 (2d. Cir. 

1996). Categorical logs “obscure[] rather than illuminate the nature of the materials withheld.” 

Chevron Corp. v. Salazar, No. 11 Civ. 3718(LAK(JCP), 2011 WL 4388326, * 1 (S.D.N.Y. Sept. 20, 

2011). 

Early engagement by the court on the issues of privilege logs will deter mischief, prevent 

misunderstandings, and curtail over-designation. Early engagement will also make the process of 

challenging privilege logs more efficient, thus saving time and money for all parties. Preserving 

flexibility for the parties to design an appropriate privilege log protocol for each particular case is 

important. One size does not fit all. This is particularly true for cases removed to federal court 

under diversity jurisdiction that may involve only a few dozen documents. A trucking case, for 

example, will likely involve many fewer documents than an antitrust matter. Less complex cases that 

wind up in federal court should not be bound by inflexible rules. 

For all these reasons, I support the proposed changes to Federal Rules of Civil 

Procedure 26(f)(3)(D) and 16(b)(3)(B). However, I urge the Committee to make the following 

important adjustments to increase the clarity and efficacy of the proposed amendments: 

First, I have never found that over-designation is the result of a “failure of the parties to 

communicate meaningfully about the nature of the privileges and materials involved in the given 

case.” I recommend striking that entire sentence from the Committee Note (last paragraph). 

I would also strike this sentence found in the first paragraph of the Committee Note: 

“Compliance with Rule 26(b)(5)(A) can involve very large costs, often including a document-bydocument “privilege log.” Technological advances have made privilege logs much cheaper to 

generate in the last few years, and those costs will continue to plummet, so the sentence isn’t 

necessarily accurate today and likely won’t be accurate in the future, either. 

Finally, I support the suggestion of Doug McNamara, who testified at the October 16, 2023 

Rules Committee Hearing, that specific language be added to the Committee Note explaining what 

should be in a privilege log, and citing to Judge Grimm’s article Discovery Problems and Their Solutions, 

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

2002). 

or otherwise), using “proportionality” as an excuse just doubles down on plaintiffs’ inability to 

uncover relevant, discoverable information. 

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Testimony of Lori E. Andrus, Jan. 16, 2024 

Page 3 

Thank you for the opportunity to address this important topic. I would be happy to answer 

any questions. 

Sincerely, 

Lori E. Andrus 

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TAB 3 

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Lieff Cabraser Heimann & Bernstein, LLP

222 2nd Avenue South, Suite 1640

Nashville, TN 37201-2379

t 615.313.9000

f 615.313.9965

Mark P. Chalos

Partner

mchalos@lchb.com

San Francisco New York Nashville Munich www.lieffcabraser.com

January 2, 2024

BY EMAIL

Committee on Rules of Practice and Procedure

Administrative Office of the United States Courts

One Columbus Circle, NE 

Washington, DC 20544

RE: Proposed Amendments to Rule 16.1

Dear Committee:

Thank you for opportunity to address the Committee.

Throughout my 25-year career, I have been involved in the leadership of numerous 

MDLs, ranging from deaths and personal injuries from contaminated epidural steroid injections 

(MDL No. 2419) to consumer class actions arising from moldy front-loading clothes washers 

(MDL No. 2001). Right now, for example, I am in the leadership of MDLs ranging from defective 

residential solar power systems (MDL No. 3078) to defective knee, hip, and ankle joints (MDL 

No. 3044) to falsely marketed child booster seats (MDL No. 2938). In addition to serving as 

Managing Partner of the Nashville Office of Lieff, Cabraser, Heimann & Bernstein, I am 

Immediate Past President of the Tennessee Trial Lawyers Association. I also serve on the 

adjunct faculty of Vanderbilt Law School, teaching The Practice of Aggregate Litigation1.

I. Flexibility

No two MDL are exactly alike. The needs of each MDL are different; the timing and

rhythms are different; the organization of the litigation and case management plans are 

different; and the paths to concluding the litigation are different.

Two guiding constants remain, however: justice and efficiency. They are enshrined in the 

text of 28 U.S.C. sec. 1407 (“transfers for such proceedings will ... promote the just and efficient 

conduct of such actions.”) and Rule 1 (“[the rules] should be construed, administered, and 

1

I submit these comments in my individual capacity and on behalf of the Tennessee Trial 

Lawyers Association. These comments do not necessarily reflect the views of my law firm, law 

partners, clients, or Vanderbilt Law School.

Comment ID 

USC-RULES-CV-2023-0003-0022

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Committee on Rules of Practice and Procedure

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Page 2

employed by the court and the parties to secure the just, speedy, and inexpensive determination 

of every action....”).

Achieving these twin goals requires, among other attributes, flexibility and, at times, 

creativity. And to be trans-substantive, as the civil rules ought to be – particularly a rule focused 

on MDLs - the rule must permit courts to be flexible. By not being phrased as an imperative, the 

proposed amendments contemplate and allow for such flexibility and creativity.

It might serve this undertaking, however, to make explicit at the outset that the Rule was 

crafted with this reality in view and it is not intended to suggest that there is a mandatory or a 

preferred framework for managing MDLs efficiently. 

Toward that end, here are two suggestions for the Committee Note:

Suggestion 1: In the last sentence of the first paragraph of the Draft Committee Note, 

add the word “flexible” before “framework”. So, that sentence would read: “There previously was 

no reference to multidistrict litigation in the Civil Rules and, thus, the addition of Rule 16.1 is 

designed to provide a flexible framework for the initial management of MDL proceedings.”

In addition, because MDLs vary significantly, some or all the provisions of Rule 16.1 may 

not apply in a particular MDL. Making this explicit in an overview would potentially relieve 

courts and parties from an unfounded notion that they should strive to deliberate and negotiate 

over each provision in the rule. While this is made somewhat clear in some of the Note’s 

discussions of specific provisions, an overview statement would provide clear guidance. 

Suggestion 2: Add after the first sentence of the second paragraph of the Draft Committee 

Note: “Because MDLs vary significantly, some or all of the provisions of Rule 16.1 may not apply 

in a particular MDL.”

II. Designating Coordinating Counsel

Respectfully, including a specific provision addressing the early designation of 

coordinating counsel carries substantial and unnecessary risks, without commensurate benefits. 

First, as presently drafted, the Rule says that the court may designate coordinating counsel but 

does not explicitly give the court space to implement a process to consider applicants for 

coordinating in advance of such designation. Without a selection process whereby the court 

would receive balanced input from a variety of sources, courts potentially will be inclined to base 

this designation only or mostly on the Court’s experience with the lawyer and/or the lawyer’s 

reputation. Moreover, the Draft Committee Note presently specifies that “experience with 

coordinating counsel’s performance in that role may support consideration of coordinating 

counsel for a leadership position....” While the Note makes clear that the coordinating counsel 

role should not focus on being a showcase of the lawyer’s organization and leadership skills, it 

seems likely that, at least in some instances, coordinating counsel will have an opportunity that 

other, equally or more competent counsel would not necessarily have to demonstrate her 

abilities. Taken together, the lack of process to receive full information prior to the Rule 16.1(b) 

Comment ID 

USC-RULES-CV-2023-0003-0022

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Committee on Rules of Practice and Procedure

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Page 3

designation and the potential advantage afforded coordinating counsel in the leadership 

selection process contemplated by Rule 16.1(c)(1) present a risk of exacerbating the “repeat 

player” concern that has arisen in MDL leadership selection. 

Second, early designation of coordinating counsel is unnecessary. Parties – particularly 

on the plaintiffs’ side – sometimes have divergent views of how litigation should proceed. 

Experience shows that they will either work out their differences and arrive at a consensus, or 

they will present their divergent views to the court in due course. And if the divergence is 

significant and irresolvable, it might require the Court to sort out the litigation leadership before 

formalizing an initial case management vision. But, importantly, that process would play out 

without the court imbuing any one counsel with its imprimatur at the outset of the litigation at 

which point the court has little of the relevant information. 

In short, including a notion of appointing coordinating counsel in the text of the rule 

potentially exacerbates the “repeat player” concern and is unnecessary.

Suggestion 3: eliminate paragraph 16.1(b) and perhaps instead include the concept in 

the Committee Note.

* * *

III. Interplay Among Rule 16, Rule 16.1, and Rule 26(f)

The interplay among Rules 16, 16.1, and 26(f) is not entirely clear from the text of the

proposed rule or from the Draft Committee Note. In specific, it is not clear whether the 

conference contemplated by Rule 16.1(c) satisfies the provision of Rule 26(f)(1) that states, “the 

parties must confer as soon as practicable—and in any event at least 21 days before a scheduling 

conference is to be held or a scheduling order is due under Rule 16(b).” This is particularly 

significant given Rule 26(e)(1)’s mandate that, “[a] party may not seek discovery from any 

source before the parties have conferred as required by Rule 26(f), except in a proceeding 

exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by 

stipulation, or by court order.” Moreover, Rule 26(a)(1)(C) keys the deadline for mandatory 

initial disclosures under Rule 26(a)(1)(A) to the Rule 26(f) conference: “A party must make the 

initial disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a different 

time is set by stipulation or court order....”

Suggestion 4: Add in the Committee Note a sentence in the section addressing Rule 

16.1(c), “The court should state in its order whether the Rule 16.1(c) conference of the parties 

supplants the conference contemplated by Rule 26(f), including for purposes of Rule 26(a)(1)(C) 

and 26(e).”

* * *

Comment ID 

USC-RULES-CV-2023-0003-0022

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Page 4

Thank you, again, for the opportunity to address the Committee.

Sincerely,

Mark P. Chalos

Comment ID 

USC-RULES-CV-2023-0003-0022

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_________________________________________________________________

Statement of Tobi L. Millrood

Past President, American Association for Justice

Before the Advisory Committee on Civil Rules

January 16, 2024 

Thank you for providing an opportunity to comment on proposed Rule 16.1 on multidistrict 

litigation (MDL) and privilege logs. Both issues are extremely important to the American 

Association for Justice (AAJ) and its members. My name is Tobi Millrood, I’m a past president of 

AAJ, and chair of the mass torts practice at Kline & Specter in Philadelphia, Pennsylvania. 

I have served in leadership of numerous complex product liability litigations in both federal 

and state courts. Most recently, I was Co-Lead Counsel of the Zimmer NexGen Knee Product 

Liability litigation, MDL 2272, before Hon. Rebecca Pallmeyer and Co-Lead Counsel of the 

Zofran (Ondansetron) Products Liability Litigation, MDL 2657, before Hon. F. Dennis Saylor. I 

have served on multiple MDL Plaintiffs’ Steering Committees and Executive Committees and

have served on and/or chaired numerous committees including Discovery, Science, Law & 

Briefing, and Settlement Committees. In these capacities, I have worked with presiding MDL 

judges and opposing counsel to arrive at numerous case management orders to help facilitate the 

efficient management of MDL litigation. I have also served as Lead Counsel in numerous 

coordinated proceedings in state courts as well, also employing pre-trial case management efforts 

for the efficient handling of complex litigation. I have been involved in the informal MDL rule 

discussions since it was first considered by the Advisory Committee on Civil Rules, and my 

comments today will focus on proposed Rule 16.1. 

The AAJ will file public comments on both MDLs and privilege logs, and the PresidentElect of AAJ, Lori Andrus, will speak to the privilege log rule at today’s hearing. AAJ would like 

to thank the Advisory Committee on Civil Rules for its continued and careful consideration of the 

plaintiffs’ perspective. AAJ supports the view that an early conference and report can facilitate 

efficiency in MDLs, and we offer several suggestions for improving the text of the rule. 

I. Preliminary Considerations 

One of the stated purposes of the proposed rule is to provide direction for judges and 

attorneys handling their first MDL. A rule must provide clarity and not inject unintended ambiguity 

or uncertainty into complex litigation, while applying to the full spectrum of possible MDL

litigation categories. The recommended additions from Lawyers for Civil Justice (LCJ), the 

Defense Research Institute (DRI), and other defense-side interests are purely focused on product 

liability MDLs and ignore the vast array of complex litigation before transferee judges. For 

example, it would be a mistake to establish “claims sufficiency” as a topic for the preliminary 

conference because it assumes a product liability theory for establishing claims that is too limited

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in scope.

1 A final rule must work for all MDLs, including mass actions, class actions, antitrust, 

securities fraud, marketing and sales practices, employment practices, intellectual property, and 

other MDLs not related to product liability claims. 

The discretionary nature of the rule does not ameliorate this problem. If enacted, Rule

16.1(c) provides that the parties “must” address any matter designated by the court, followed by a 

long list of possible topics in (c)(1) through (12), plus any other matter designated by the court.

For judges without experience in MDLs, the list of topics will often become a de facto checklist 

of matters that must be considered by the parties. It can be expected that whatever checklist exists 

in a rule, experience foretells that defendants in an MDL will urge the transferee judge to address 

all listed topics. Therefore, only topics of general application that should be discussed and reported 

on early should be listed in the rule. 

II. Two Important Changes to the Proposed Rule Text 

A. Appointment of Coordinating Counsel May Not Be Beneficial 

AAJ has deep reservations about a rule that requires the early appointment of “coordinating 

counsel.” Concerns about early organization can be addressed without a rule-mandated 

appointment that may very well lead to unintended consequences. As an initial and practical 

matter, there is no requirement in the text of the rule that the coordinating counsel even have a 

stake in the plaintiffs’ side of the litigation and nothing in the Committee Note defines the 

qualifications of this position. While there is no requirement that coordinating counsel be 

appointed, once it appears in the rule, it is likely to become routine practice (similar to a de facto

designation that all or most topics be included in the report). 

Second, AAJ has logistical concerns about the coordinating counsel role, as there is no 

direction provided about what to do if there are competing slates jockeying for this appointment

(which is likely to occur once a formal rule-based title could be seen as the logical steppingstone 

to permanent leadership). While in some instances it could be intuitive who should be appointed 

as “coordinating counsel,” in many other MDL instances, the creation of the coordinating counsel 

position could simply lead to a secondary fight over appointment of leadership. Finally, it may be 

premature to have a coordinating counsel confer and report on several of the topics proposed by 

proposed Rule 16.1(c). It is permanent leadership who ultimately needs to decide: 

 (6) a proposed plan for discovery and how to handle it efficiently; 

(7) any likely pretrial motions and a plan for addressing them; 

1 LCJ suggests and others have echoed adding language to 16.1(c)(4) that substitute the neutral “how and when parties 

will exchange information” found in the draft text for “how and when sufficient information regarding each plaintiff 

will be provided to establish standing and the facts necessary to state a claim, including facts establishing the use of 

any products involved in the MDL proceeding, and the nature and time frame of each plaintiff’s alleged injury.” This 

proposed language biased against plaintiffs and would insert a product liability theory framework into a conceptually 

broader MDL rule. 

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Page 3 of 4 

(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. 

It may also be premature—or simply not aid the litigation—to have coordinating counsel 

recommend leadership under (c)(1). Depending on who is appointed coordinating counsel, 

recommendations for leadership could serve some interests while other aspects of the litigation

could simply be ignored. It may serve both the interests of the court and the plaintiffs to appoint 

interim leadership or to allow the plaintiffs to self-select leaders until the court officially appoints 

leadership.

Ultimately, this Committee can achieve the same objectives of early organization, without 

the formally appointed title. A Committee Note could urge the MDL judge to use the preliminary 

conference as an opportunity to invite those counsel who have vested interest, resources and are 

engaged in the litigation to assist the Court with some of the preliminary matters that need to be 

addressed before the more substantive matters reserved for the formal appointment of lead counsel. 

This would still allow the MDL court to address preliminary matters without the distracting 

sideshow that can result from the desire to obtain a title of “coordinating counsel.” 

B. Several of the Topics for the Meet and Confer are Premature or Untimely

Although AAJ agrees with the Committee that early attention to some of the matters 

identified in proposed section (c) “may be of great value,” consideration of several listed topics 

during an initial conference is untimely and imprudent. Again, a long menu of topics—some of 

which have no bearing on the preliminary organization of an MDL—may have unintended 

consequences, or worse, empower MDL courts beyond their charge of managing pre-trial 

discovery. The rule cannot be a substitute for training new judges or for Manual on Complex 

Litigation, which is still a beacon for MDL courts. Moreover, once a formal rule lists multiple 

topics, a fulsome discussion of all those multiple topics will become the default even if the parties 

need to focus on the basic structure of the MDL early in the litigation. 

As a starting point, settlement discussions (likely to be unrelated to the charge of managing 

pretrial discovery) and the appointment of special masters are very premature topics, and a judge’s 

insistence on a report that contains all topics borders on a waste of resources for parties to spend 

time on issues that cannot reasonably be discussed. In MDLs where leadership or interim 

leadership has been appointed, topics relating to discovery and pretrial orders might be able to be 

discussed initially. However, where leadership has not been appointed and an appointment is likely 

to be made later or is recommended in the report itself, then many topics should be deferred until

an appointment is made. The proposed rule provides no such direction about the timing of topics 

and leadership, and thus there is a mismatch between these parts of the proposed rule. 

C. Solving the Problem 

AAJ recommends amending the proposed rule to remove the coordinating counsel position 

and provide a shorter list of options that could be more easily agreed to and reported on by the 

parties early in the litigation. This option would provide a roadmap to establish the MDL without 

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Page 4 of 4 

wading into issues that need to be resolved by leadership or that need additional time and 

information to develop a plan for the litigation.

2

 

Another option that the Advisory Committee could consider is removing “coordinating 

counsel” and replacing it with an option to appoint leadership, signaling that the appointment of 

leadership can be made first. With this change, some topics listed under 16.1(c)(1) regarding the 

appointment of leadership would be moved to 16.1(b) and would no longer be listed as separate 

topics. AAJ would still recommend removing certain topics as premature, including topics under

(c)(9) regarding measures to facilitate settlement and (c)(12) regarding referring matters to a 

special master, but with leadership in place, the court can have more confidence about the meet 

and confer process establishing some parameters and direction to the litigation. 

III. Conclusion 

AAJ thanks the Advisory Committee for their extremely thorough and diligent 

consideration of MDLs and proposed Rule 16.1. An initial management conference can help the 

parties and court plan for the litigation. Thus, AAJ recommends removing the undefined 

coordinating counsel position from the proposed text and shortening the list of topics to those 

which can truly be discussed during an early management conference. I would be happy to answer 

your questions. 

2 Inasmuch as AAJ and LCJ are most often found in opposing positions, the fact that AAJ agrees with LCJ that topics 

16.1(C)(9) (whether the court should consider measures to facilitate settlement) and 16.1(c)(12) (whether matters 

should be referred to a magistrate judge or master) should be removed from the list, is a strong indicator that these 

topics should be excised from the proposed rule. 

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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

VIA EMAIL ONLY TO: RulesCommittee_Secretary@ao.uscourts.gov

January 3, 2023

RE: Proposed New Rule 16.1 on MDL Proceedings

Dear Members of the Advisory Committee:

Thank you for the opportunity to address the Committee.

My name is Alyson Oliver, and I am the founding and managing partner of 

Oliver Law Group PC. I have been practicing for twenty-six years, with the last 

fifteen years or so being in the context of mass torts and other consolidated 

proceedings. I have been court-appointed to plaintiff’s leadership positions in both 

state and federal court in mass tort and class actions including Zimmer NexGen 

Knee, Transvaginal Mesh, Valsartan, and most recently in the Philips C-Pap MDL 

currently pending before the Hon. Joy Conti-Flowers in Pittsburgh, Pennsylvania in 

the role of Time and Expense Committee. I write to provide my perspective to the 

Advisory Committee from my perspective as a practitioner in these proceedings.

It is necessary to emphasize that each MDL is different. An MDL involving a 

medical product will have different needs. While some comments focus on a lack 

of specificity, particularly related to the qualifications of the proposed addition 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 35 of 198
regarding coordinating counsel; if coordinating counsel ultimately is part of Rule 

16.1 it should remain as flexible as possible to allow the court to utilize this role in 

a meaningful way given the vagaries of the particular MDL at issue. That said, I 

believe the inclusion of a provision for appointment of coordinating counsel is not 

necessary and should be eliminated in whole, because it will substantially increase 

costs of the litigation, without providing sufficient benefit. 

Without a vetting process to determine who best meets the needs of the MDL 

and the court for the purposes of coordinating the initial report for the initial case 

management hearing; the court will be left with no input from lawyers who have 

stake in the litigation and no input from lawyers who are experienced in the 

particular complex litigation. The resulting work product will then likely involve a 

significant learning curve for the appointee, both in regard to the litigation itself and 

in regard to the lawyers involved. This learning curve is not free; the appointee will 

rightfully seek compensation for their work. Whereas counsel involved in the 

litigation itself, who is experienced in the type of MDL, the issues therein, and the 

counsel involved would also deserve compensation if appointed in this role, the lift 

for the appointee with these qualifications will be dramatically less than an appointee 

trying to learn the case and the attorneys from scratch. Where each MDL Plaintiff 

at the end of the case will be paying for attorney fees through the common benefit 

fund to all attorneys billing time for common benefit, employing an attorney ‘green’ 

in the litigation will directly harm the Plaintiffs, and is therefore neither efficient or 

just. This is in direct contravention of 28 U.S.C. sec. 1407 (“transfers for such 

proceedings will...promote the just and efficient conduct of such actions.”) and Rule 

1 (“[the rules] should be construed, administered, and employed by the court and the 

parties to secure the just, speedy, and inexpensive determination of every action..”)

Appreciating this, the natural train of thought becomes that an MDL court 

could benefit from guidance as to how to vet a coordinating counsel from the many 

attorneys on the courts docket with related actions transferred into the MDL so as to 

avoid the imposition of unnecessary costs to the Plaintiffs as discussed above. But 

this logical next step would actually slow the proceedings down, again in 

contravention of the guiding principles of efficiency and just resolution. To convene 

a vetting process for a coordinating counsel, and yet another vetting process for 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 36 of 198
leadership counsel at some time thereafter is unnecessary duplication. This 

duplication imposes unnecessary costs to Plaintiffs and is inherently inefficient. For 

these reasons, I support the elimination of paragraph 16.1(b).

Sincerely,

Alyson Oliver

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TAB 6 

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LEVIN, ROJAS, CAMASSAR, AND RECK, LLC

 

 

P.O. BOX 431

NORTH STONINGTON, CT 06359

PHONE: 860-535-4040 

FAX: 860-535-3434 

Jose M. Rojas

jose@LRCR.law

PROTECTING THE MOST VULNERABLE

January 9, 2024

Committee on Rules of Practice and Procedure

Administrative Office of the United States Courts

One Columbus Circle, NE

Washington, DC 20544

BY PDF EMAIL (RulesCommittee_Secretary@ao.uscourts.gov)

RE: Proposed Rule 16.1 – Multidistrict Litigation

Dear Committee Members,

I serve as co-lead counsel on MDL 3026, the Preterm Infant Formula-Necrotizing 

Enterocolitis product liability litigation, presided over by Chief Judge Rebecca Pallmeyer, in the 

Northern District of Illinois. I write today to offer comments on Proposed Rule 16.1 (Multidistrict 

Litigation). My professional experience includes twenty-six years as a trial lawyer. I have worked as a 

JAG Officer, Special Assistant United States Attorney (Prosecutor), criminal defense attorney, civil 

defense attorney, and, for the last eighteen years, a plaintiff’s attorney. 

In 2019, my firm filed the first case of its kind against the formula industry, alleging that infant 

formula causes a horrific intestinal disease, necrotizing enterocolitis, in premature infants. For two 

years, we led the charge in this litigation. We developed the pleadings, retained the experts, and 

survived motions to dismiss. We retained hundreds of clients and developed a small network of 

plaintiff’s attorneys who litigated these claims with us in federal court. Ultimately, our foundational 

work led Abbott Laboratories to file with the Judicial Panel on Multidistrict Litigation (“JPML”) 

seeking consolidation. Following JPML, things rapidly changed. A national interest arose in the 

litigation, and large, powerful firms entered the fray.

This experience provided our firm with insight into the process of MDL development and an 

inside view of the formation of leadership teams. My comments come from the perspective of a small 

law firm, made up of trial lawyers, who entered the MDL world through an individual case.

1. Selection of Leadership Counsel.

Leadership appointments in MDLs have, in many instances, become a revolving door. The 

same law firms and their appointees make repeat appearances on leadership teams. There is a logic to 

this. Repeat players have experience in the management of MDLs, which surely benefits the tort. Their 

history provides a court with some comfort that comes with dealing with lawyers who have been there 

before. Familiar faces give the court reassurance that the lawyers managing their MDL have the 

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PROTECTING THE MOST VULNERABLE

experience, financial, and structural resources to advance the litigation. These are all legitimate 

considerations for appointment to leadership. 

However, an over-emphasis on prior MDL experience often results in appointments that fail 

to be representative of the plaintiffs, fail to include true subject matter experts in the litigation, and 

fail to ensure diversity of experience and background. Often, highly competent trial lawyers with 

valuable litigation experience are excluded from top leadership roles.

Although leadership appointments are addressed within the proposed rule, this topic is worthy 

of additional emphasis. Transferee judges should bear in mind the goals of diversity of 

experience and background while filling leadership positions, but too often the very lawyers 

who began and developed the litigation, who arguably have the greatest vested interest in the 

outcome and the deepest understanding of the nuances of the litigation, are not considered.

My firm is one of the rare exceptions; I know of only one other firm that initiated a litigation 

and was also elevated to a co-lead position in an MDL. Despite my firm’s extensive knowledge of the 

tort, my lack of prior MDL experience was considered a hurdle to my appointment as a co-lead. This 

occurred even though my firm was, in some part, responsible for every case filed prior to JPML. After 

the motion for consolidation was filed, the litigation exploded, and firms with more MDL experience 

and resources joined the effort. Ultimately, it was my firm’s knowledge and experience with the tort, 

in combination with Chief Judge Pallmeyer’s commitment to diversity, which secured my position as 

co-lead counsel in the MDL.

It is my opinion that there is an exaggerated emphasis on “MDL experience” as a criterion for 

leadership. Experience comes in many forms. While it is undeniable that MDL experience is an 

important factor, it should not be the sole or even most important criterion. Often, the more a lawyer 

becomes entrenched in the world of MDL leadership and management, the more there is a necessary 

decline in that lawyer’s trial practice of individual cases. More problematic, an over-emphasis on 

“MDL experience” may have the unintended consequence of creating homogenous leaders, absent of 

meaningful diversity of experience and background.

As pointed out by Diandra Debrosse Zimmerman, black and brown babies bore the brunt of 

the harm in the infant formula litigation. Disproportionately, persons of color are impacted by the 

harmful effects of this product. This disproportionate harm called for a leadership team that aptly 

represented the people it was formed to serve.

Seeming to agree, Judge Pallmeyer entered a case management order directing counsel “to be 

sensitive to the need for diversity with respect to relevant considerations, including (but not limited 

to) geography, gender, size of practice, litigation experience, and experience with MDLs.” When Judge 

Pallmeyer ultimately appointed five co-leads, she indicated that “the court seeks lawyers who are 

capable and experienced, and who will responsibly and fairly represent all plaintiffs, keeping in mind 

the benefits of diversity of experience, skills, and backgrounds.” (CMO # 2). With regard to my own 

appointment, Judge Pallmeyer noted that “the newly added Mr. Rojas (who brings diversity of 

experience and background) litigated several of the early lawsuits concerning necrotizing enterocolitis 

(“NEC”) and baby formula (the focus of this MDL) and currently has thirteen active federal cases.” 

Judge Pallmeyer was keenly sensitive to the importance of diversity of both background and 

experience, despite being well aware of my lack of prior MDL experience. Notably, she also focused 

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PROTECTING THE MOST VULNERABLE

on the role played leading up to the formation of the MDL. In my opinion, this is a commendable 

and appropriate step in the right direction.

Our fine cadre of federal judges undoubtedly know the importance of diversity and social 

equity. An emphasis in the Committee Note or the Rule will further empower and encourage judges 

to make appointments that specifically consider diversity of both background and experience. 

Making room for representatives of law firms who have been involved from the outset in such 

litigations, who have made the commitment and litigated in the trenches so that the leadership teams 

appointed truly embrace the soul of the litigation, should be an important consideration. Such firms 

often have the deepest understanding of the science, the law, and the established relationships with 

experts. In many instances, pairing them with firms that have MDL experience will be of practical 

benefit. But this simply has not happened with sufficient regularity.

Selection should specifically consider: (1) Role in advancing the litigation to date; (2) 

Expertise/experience relevant to the subject matter of the litigation (e.g., product liability, 

pharmaceutical, environmental, etc.); (3) Diversity of experience; (4) Diversity of background; (5) 

Representative racial and ethnic diversity; (6) MDL experience; and (7) Availability of time 

commitment for the litigation.

Current Proposed Rule:

(1) Whether leadership counsel should be appointed, and if so:

(a) The procedure for selecting them and whether appointment should be 

reviewed periodically during the MDL proceedings:

Suggested Edit (suggested edit in red):

(1) Whether leadership counsel should be appointed, and if so:

(a) The procedure for selecting them and whether appointment should be reviewed 

periodically during the MDL proceedings. In considering the appointment of 

leadership counsel, the transferee court should evaluate potential 

candidates based on their role in advancing the litigation to date, 

experience and expertise relevant to the subject matter of the litigation, 

diversity of experience, diversity of background, geographical 

distribution, nature of claims, and other relevant factors. The court’s 

responsibility is to ensure diverse and capable representation, without 

unduly emphasizing prior MDL experience. 

2. Selection of Coordinating Counsel.

Turning to the issue of Coordinating Counsel, the rule does not provide explicit criteria or 

guidance on who should be selected as Coordinating Counsel. The rule does not clarify if serving as 

Coordinating Counsel would preclude someone from subsequently taking on a leadership role. Since, 

however, the selection of Coordinating Counsel is purely discretionary and meant to assist the court 

as well as the parties, it would seem that, except in an extraordinary instance, the transition from 

Coordinating Counsel to leadership counsel should be discouraged, absent evidence that Coordinating 

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PROTECTING THE MOST VULNERABLE

Counsel satisfies the requirements of leadership as outlined in my proposed changes to 16.1. There 

being no automatic assumption that the Coordinating Counsel role will transition into a leadership 

position best assures the proper focus and scope of Coordinating Counsel’s efforts. It also enables the 

court to appoint whomever it deems most capable of driving efficiencies without having to consider 

the full range of considerations for making leadership appointments. 

As discussed above, leadership appointments in the MDL context have become a revolving 

door with the same firms and their appointees making repeat appearances. To the extent that 

Transferee Judges deem it appropriate to appoint Coordinating Counsel, one of the tasks assigned 

should be an effort to identify and assure broader participation on leadership teams amongst the ranks 

of lawyers who were instrumental in developing the litigation in the first instance (firms that may 

otherwise be overlooked or outmaneuvered and, in a functional sense, be sidelined from continuing 

to represent the pool of clients they represent). The selection of such firms often engenders geographic 

and other manners of diversity, which may be accorded a premium weighting during the selection 

process. Coordinating Counsel and the Transferee Judge may actively support the broadening out of 

leadership committees, which, in the end, better represent the interests of the entire client pool and 

serve to educate and empower committed trial lawyers who care deeply about the litigation’s outcome 

as well as its processes. 

I suggest that Rule 16.1(b)(1)(A) be edited as follows:

Current Proposed Rule:

(b) Designation of Coordinating Counsel for The Conference. The transferee court 

may designate coordinating counsel to:

(1) assist the court with the conference

Suggested Edit (Suggested edit in red):

(b) Designation of Coordinating Counsel for The Conference. The transferee court 

may designate coordinating counsel to:

(1) assist the court with the conference. Designation as Coordinating Counsel 

does not presuppose a subsequent leadership role in the MDL 

proceedings.

Committee Note:

Remove the following sentence: “If the court has appointed Coordinating Counsel 

under Rule 16.1(b), experience with Coordinating Counsel’s performance in that role 

may support consideration of Coordinating Counsel for a leadership position, but 

appointment under Rule 16(b) is primarily focused on coordination of the Rule 16.1(c) 

meeting and preparation of the resulting report to the court for use at the initial MDL 

management conference under Rule 16.1(a).”

Replace with: “While there is no requirement that the court designate 

Coordinating Counsel, the court should consider whether such a designation 

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PROTECTING THE MOST VULNERABLE

could facilitate the organization and management of the action at the initial 

MDL management conference.

I thank the Committee for the opportunity to comment.

Sincerely, 

Jose M. Rojas, Esq.

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TAB 7 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 44 of 198
220 LAKE DRIVE EAST, SUITE 210 • CHERRY HILL, NJ 08002 • TEL 856-755-1115

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WWW.WEITZLUX.COM

Statement of James J. Bilsborrow

Partner and Co-Chair, Environmental and Toxic Tort Department

Weitz & Luxenberg, PC

Before the Advisory Committee on Civil Rules

January 16, 2023

Thank you for providing an opportunity for public comment on proposed Federal Rule of 

Civil Procedure 16.1. My name is James Bilsborrow and I am a partner at the law firm of Weitz & 

Luxenberg and the co-chair of the firm’s environmental and toxic tort practice. In that role, I oversee 

and participate in litigation involving mass torts and environmental harms. For example, I was

appointed to the Plaintiffs’ Executive Committee in the Dicamba Herbicides MDL, a case 

centralized in the Eastern District of Missouri in which farmers brought product liability claims 

against pesticide manufacturers over defective dicamba herbicide products. Though not multidistrict 

litigation, I have also been appointed to the Plaintiffs’ Executive Committee in the recent train 

derailment and chemical contamination case in East Palestine, Ohio, and as class counsel in multiple 

cases representing communities impacted by PFAS contamination. My law partners and colleagues

have also been appointed to leadership positions in the Roundup herbicides MDL, the BP oil spill 

litigation, and the aqueous film-forming foam MDL, to name just a few. In these and other 

multidistrict litigations, my firm has represented municipalities, water providers, businesses, and 

individuals injured both physically and economically by toxic chemicals and hazardous pollution.

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 45 of 198
2

I know the Committee is aware that MDLs are not one-size-fits-all and many of the 

environmental and toxic tort cases I litigate involve diverse claims pursued by a range of people and 

entities. For this reason, I am encouraged that proposed Rule 16.1 embraces a flexible approach to 

the initial MDL case management conference. Not all MDLs involve pharmaceutical injuries. In 

many large, complex MDLs it is not possible at the initial case management conference to 

implement a census or procedure to ensure that every plaintiff took the “right drug” or has the “right 

diagnosis.” In the BP oil spill MDL, for example, the spill caused economic losses to businesses, 

depleted the tourism revenue of beach communities, closed fishing waters relied on by commercial 

fishermen, soiled waterfront properties, damaged states’ natural resources, and caused physical 

injuries to clean-up workers exposed to oil on water and land. Similarly, in the current MDL 

concerning aqueous film-forming foam, plaintiffs include water providers and municipalities 

dealing with drinking water remediation costs, state governments seeking to clean and remediate 

natural resources, firefighters who trained with and were unwittingly exposed to the toxic foam, and 

individuals who consumed contaminated water and developed an array of human health conditions 

for which the science is evolving. A federal rule guiding the organization and orderly litigation over 

such diverse claims must necessarily be flexible to allow the transferee judge to adapt to the 

circumstances presented and manage the litigation with input, drawing from the experience of

lawyers that are likely to be involved in such cases. For this reason, I encourage the Committee to 

maintain the flexibility of the proposed Rule.

The Role of Coordinating Counsel is Likely to Have Negative Effects

Although the proposed Rule does not require it, I remain concerned that proposed Rule 

16.1(b) encourages the transferee court to designate a coordinating counsel prior to the initial case 

management conference. The Rule provides no parameters for this appointment and, given the early 

stage of the litigation, this means that the appointment will likely go to an attorney familiar to the 

transferee court rather than counsel most familiar with and best positioned to successfully litigate 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 46 of 198
3

the matter. Under the current proposed Rule, coordinating counsel need not represent any client 

interests at all and may have had no involvement in the litigation prior to centralization in their home 

jurisdiction. How could such counsel effectively prepare the report envisioned by Rule 16.1(c)? 

Other counsel will appropriately view coordinating counsel as de facto lead, which may lead to 

unhelpful alliances that may or may not be beneficial to the litigation’s success.

In most MDLs, the transferee court encourages plaintiffs’ counsel to informally coordinate 

amongst themselves to address a set of issues identified in an initial order. This informal 

coordination is especially important in MDLs consisting of diverse claims or counsel representing 

diverse client interests because it allows for the various stakeholders to be heard, either as part of a 

coordinated group or on their own if certain counsel is not in agreement with the coordinated 

submission. For example, in the dicamba herbicides MDL, the transferee court issued an initial order 

following centralization that identified certain issues (many reflected in proposed Rule 16.1(c)) to 

be addressed by plaintiffs’ counsel at the initial conference. The majority of plaintiffs’ counsel 

focused on tort claims pursued by farmers and submitted a coordinated report addressing issues

pertinent to those claims; a smaller group of plaintiffs’ counsel submitted a separate report 

encouraging the court to appoint counsel pursuing antitrust claims and recognizing a separate 

litigation track for those claims. The transferee court ultimately appointed members of both groups

to leadership and created a separate litigation track for antitrust claims, as recommended by the 

smaller group of attorneys. Had the court simply appointed coordinating counsel, this minority 

proposal may not have made it into the Rule 16.1(c) report, depriving the court of the options with 

which it was presented.

There is little harm in permitting interested counsel to present multiple Rule 16.1(c) reports 

for the court’s consideration at the initial conference or, if plaintiffs’ counsel are well-coordinated, 

from allowing that coordinated group to address the Rule 16.1(c) issues identified by the court. The 

court may then devote the initial case management conference to selection of lead counsel, followed 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 47 of 198
4

by a conference to address the overall organization of the litigation. Proposed Rule 16.1(b)’s 

preference for appointment of coordinating counsel, however, will likely curtail presentation of 

diverse plaintiff viewpoints at the initial case management conference. Accordingly, and for the 

reasons set forth above, I recommend that the proposed Rule be modified to eliminate its preference 

for appointment of coordinating counsel. The Committee note could still suggest this as an option

for the transferee court’s consideration, but it should not be recommended by the Rule, especially 

where it is likely to add little efficiency and deprive the court of diverse organizational viewpoints.

Court-Appointed Leadership Should Make Substantive Case Decisions, Not 

Coordinating Counsel

Even if the Committee maintains Rule 16.1(b)’s preference for appointment of coordinating 

counsel, the Rule should ensure that substantive decisions that will affect the course of the litigation 

will not be made until the appointment of lead counsel and a plaintiffs’ steering committee. Proposed 

Rule 16.1 encourages the transferee court to require a Rule 16.1(c) report prior to appointment of 

leadership, overseen by a coordinating counsel who may or may not be well-versed in the subject 

matter of the litigation. As a result, substantive negotiations regarding the conduct of the MDL, 

discovery procedures, plaintiff or defense fact sheets, and even early orders such as ESI protocols 

should be reserved for counsel appointed to lead the case, as those attorneys will be best suited and 

most knowledgeable about the individuals or entities who allege harm and the subject matter of the 

litigation.

Coordinating Counsel Should Not Be Permitted to Make Decisions Regarding 

“Unsupported” Claims or a Plaintiff Census

The Committee has received comments from defense counsel and interest groups aligned 

with defendants encouraging a modification to the Rule to require the Rule 16.1(c) report to address 

“unsupported claims,” or to propose procedures for a plaintiff census. The Committee should reject 

such proposals. As I’ve addressed in my remarks, even in a case where such procedures are 

warranted, coordinating counsel is not likely to be best positioned to negotiate such procedures. It 

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5

is possible that coordinating counsel will not represent any clients at all, or will represent a narrow 

subset of client interests. Further, in cases that do not involve pharmaceutical injuries, such as those 

I litigate, any early census or procedures required to screen “unsupportable” claims are likely to 

vary significantly based on the claims and entities involved, and this will necessarily require input 

from the entire court-appointed leadership committee that represent the range of clients and claims 

involved in the case. This is not a job for coordinating counsel and it is not a role that should be 

encompassed by an initial, organizational Rule 16.1(c) report. Instead, the transferee court should 

deal with these case-specific scenarios as transferee courts have done throughout the life of MDLs: 

by applying its discretion to manage complex litigation with input from the experienced attorneys 

appointed to leadership roles or retained by defense counsel.

In sum, I encourage the Committee to retain the flexibility set forth in proposed Rule 16.1, 

which will allow transferee courts to address the diverse claims and claimants routinely present in 

large, complex MDLs. That said, Rule 16.1(b)’s preference for appointment of coordinating counsel 

is likely to lead to negative outcomes, the appointment of counsel who are familiar to the transferee 

court rather than best-suited to organize the case, and to a restriction on the organizational proposals 

presented to the court at the outset of proceedings. The Committee should eliminate the Rule’s 

preference for coordinating counsel and instead identify this as one possible option in the Committee 

note. If the Rule retains its preference for appointment of coordinating counsel, Rule 16.1 should 

not permit coordinating counsel to make substantive decisions that will affect the litigation, such as 

negotiating proposals to conduct a plaintiff census or to deal with “unsupported” claims. Those 

negotiations, if they are necessary at all, should be conducted by court-appointed leadership best 

suited to litigate the MDL.

Thank you and I appreciate the Committee’s time and attention.

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 49 of 198
TAB 8 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 50 of 198
420 20TH STREET NORTH SUITE 2525 BIRMINGHAM, ALABAMA 35203

485 LEXINGTON AVENUE SUITE 1001 NEW YORK, NEW YORK 10017

801 17TH STREET NW SUITE 430 WASHINGTON DC 20006

DIANDRA DEBROSSE

FU@DICELLOLEVITT.COM

205.855.5700

BIRMINGHAM • CHICAGO • CLEVELAND • NEW YORK • SAN DIEGO • WASHINGTON DC• DICELLOLEVITT.COM

January 2, 2024 

BY .PDF EMAIL (RulesCommittee_Secretary@ao.uscourts.gov) 

Committee on Rules of Practice and Procedure 

Administrative Office of the United States Courts 

One Columbus Circle, NE 

Washington, DC 20544 

 Re: Hearing on Proposed Amendments to Civil Rule 16.1 

Dear Committee Members:

My name is Diandra “Fu” Debrosse, and I am the Co-Chair of DiCello Levitt’s 

Mass Tort Practice Group and the Managing Partner of the firm’s Birmingham office. In 

addition to co-leading DiCello Levitt’s Mass Tort practice, I Co-Chair the firm’s National 

Civil Rights Practice Groups and I am also a member of firm’s the Public Entity, 

Catastrophic Personal Injury, Environmental and Trial Practice Groups. I believe in a just 

system that allows those who have been injured—and the families of those who have been 

wrongfully killed—to seek justice. 

As a life-long plaintiffs’ side attorney, I have been honored to represent thousands 

of people who have been injured by wrongful products and practices. To date, I hold and 

have held leadership positions in numerous multidistrict litigations (“MDL” or “MDLs”) 

across the United States, protecting and pursuing the rights of tens of thousands of victims 

of wrongful corporate conduct. I am Co-Lead Counsel in In re: Abbott Laboratories, et 

al., Preterm Infant Nutrition Products Liability Litigation, MDL No. 3026, and am also 

Co-Lead Counsel in In re: Hair Relaxer Marketing, Sales Practices, and Products Liability 

Litigation, MDL 3060. I also serve on the Plaintiffs’ Executive Committee (“PEC”) in In 

re: Paraquat Products Liability Litigation, MDL No. 3004, and on the Plaintiff Sterring 

Committee (“PSC”) in In re: Social Media Adolescent Addiction/Personal Injury Products 

Liability Litigation, MDL No. 3047. In addition, I lead the firm in representing more than 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 51 of 198
 2 / 4 

sixty cities and counties in In re: National Prescription Opiate Litigation, MDL No. 2804 

and in In re: McKinsey & Company, Inc., National Prescription Opiate Consultant 

Litigation, MDL No. 2996, as well as other significant litigations involving public entities 

across the United States. I previously held leadership positions on the Plaintiffs’ Steering 

Committees in In re: Smith & Nephew Birmingham Hip Resurfacing Hip Implant Liability 

Litigation, MDL No. 2775, and in In re: Higher One Account Marketing and Sales 

Practices Litigation, MDL No. 2407. I also speak and teach on MDL practice at law 

schools and conferences across the United States, including co-founding an organization 

and conference which seeks to promote diversity in the leadership of MDLs called Shades 

of Mass. 

I write in opposition to proposed Federal Rule of Civil Procedure (“Rule” or 

“Rules”) 16.1. Specifically, subsection 16.1(c)(4) is intended to—and would—wrongfully 

limit the rights of millions of injured people and restrict their rightful access to the 

courthouse. 

Proposed Rule 16.1(c)(4) seeks early disclosure of product use information. The 

proposed rule is fraught with issues and is based upon a grossly false premise—namely, 

that scores of injured people are filing baseless claims against miscellaneous defendants. 

But this point of view is mistaken, and—while trying to be helpful to corporate clients—is 

often parroted by attorneys who are not “in the trenches” of these cases, but are providing 

commentary based upon the opinions of other counsel. I hope that, by providing my firsthand experience in litigating these cases, I may be of some assistance to the Committee.

 

First, millions of people are harmed by products that are defectively manufactured 

or designed each year. When these people and/or their families step forward to assert their 

legitimate claims—of death, of being maimed, or of developing cancer, among other 

horrors—they and their lawyers face a rigorous gauntlet of high-powered corporate defense 

machinations and challenging legal hurdles. Despite these challenges, our clients have the 

strength to come forward and pursue justice in what is the strongest and most equitable 

court system in the world. This strength is why, today, millions of Americans understand 

the risks associated with, for example, tobacco and opioid use. Those litigations and other 

litigations have and will save lives and have enabled hard-working American citizens to 

obtain economic justice for the wrongs that have befallen them. 

Second, the Rules provide that plaintiffs must plead, in good faith, the elements of 

their claim. To be clear, the Federal Rules of Civil Procedure do not require that plaintiffs 

establish elements of their claim—i.e., proof of use of the product—even before discovery 

has commenced. Our system operates as it does to enable those who have been aggrieved 

to have the opportunity to prove their claims, especially in a system wherein the aggrieved 

are often facing multinational, billion-dollar, lobbyist-protected Goliaths hiding behind the 

country’s wealthiest defense firms—who ensure that we need to fight for every piece of 

evidence to which our clients are entitled. 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 52 of 198
 3 / 4 

Third, “proof of product use” is not a fixed and defined term. Proof of product use 

is driven by the nature of the litigation, the stage of the litigation, and the decisions of an 

informed Court. In some cases, an affidavit may be sufficient for proof purposes, while, 

in other cases, receipts may be warranted. There is no uniform definition of “proof of 

product use.” Requiring the artificial production of “product use” evidence prior to 

discovery will destroy countless valid claims under what proponents of this proposed Rule 

change tout as being increased “efficiency” for those who have been so aggrieved. 

Fourth, in many instances, the defendants or third parties are the gatekeepers of 

product use information—hiding key product information in defense strategy and 

obfuscation. For example, in In re: Paraquat Products Liability Litigation, MDL No. 

3004, records related to use of paraquat by California plaintiffs who suffer from 

Parkinson’s disease, were maintained by the State of California. As such, the ability to 

obtain these records and tie the records back to the plaintiffs’ exposures in the early stages 

of the action remains largely in the hands of a government entity. Requiring that plaintiffs

provide proof of use at or before the date of the first Case Management Conference in that 

litigation would have stripped plaintiffs of their ability to prosecute their claims. 

Another key example of defendants’ gamesmanship inherit in hiding proof of 

product use is exemplified in In re: Abbott Laboratories, et al., Preterm Infant Nutrition 

Products Liability Litigation, MDL No. 3026. There, Defendant Mead Johnson moved the 

court to dismiss several plaintiffs’ cases on the grounds that those plaintiffs failed to 

identify the manufacturer of the defective infant formula used. However, many of these 

plaintiffs’ medical records did not identify the manufacturer of the infant formula. Instead, 

Defendant Mead Johnson refused to produce the product information on the basis that the 

cases1 were not cases that the Court had selected as “bellwether” or test cases in the 

litigation. To her credit, the Honorable Rebecca R. Pallmeyer—the presiding judge in this 

MDL and the Chief Judge of the United States District Court for the Northern District of 

Illinois—found that the product information that Mead Johnson was strategically refusing 

to produce “will satisfy the court for purposes of a Rule 12(b)(6) challenge.” See Minute 

Entry, dated December 21, 2023, attached hereto as Exhibit A. 

Similarly, in In re: Hair Relaxer Marketing, Sales Practices, and Products Liability 

Litigation, MDL 3060, the Honorable Mary M. Rowland—also of the United States 

District Court for the Northern District of Illinois—ordered the defendants to produce core 

and key product identification directly relating to the plaintiffs’ ability to establish product 

use. See Minute Entry, dated July, 14, 2023, attached hereto as Exhibit B. 

We are bound by our ethical obligations to ensure that we file claims, on behalf of 

our clients, in good faith—and we do. When we do not, the remedy is dismissal or Rule 

11 motion practice. Respectfully, a rule change that would require that plaintiffs prove key 

1

 Discovery in these cases has been stayed because they are not bellwether cases (which would be 

set for additional discovery).

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 53 of 198
 4 / 4 

elements of their claims prior to discovery would “do harm”—the very thing that this 

Committee strives not to do by their rule changes. 

 

I also write to encourage the Rules Committee to expressly include diversity as a

factor in case leadership appointments. While proposed Rule 16.1(c)(1) notes that the 

MDL transferee judge has a responsibility in the leadership selection process to ensure that 

the lawyers appointed to leadership positions are capable and experienced and that they 

will responsibly and fairly represent all plaintiffs, keeping in mind the benefits of different 

experiences, skill, knowledge, geographical distributions, and backgrounds,” the proposed 

Rule does not squarely address the need for the transferee judge to consider racial, ethnic, 

sexual orientation and identity, disability, gender and religious diversity in making a 

leadership determination. The importance of considering these additional factors is 

paramount—especially as class and multidistrict litigation are frequently the only avenues 

that promote access to justice for marginalized communities. Other MDLs have suffered 

from “blind spots” that a lack of diversity creates—through no malice or ill intent. 

Ensuring that the attorneys who represent marginalized communities have experiences 

which mimic their own not only promotes trust in the judicial process, but it also 

encourages fairness and equity when fashioning remedies that directly impact these 

communities. 

 Respectfully submitted, 

 

 

Diandra “Fu” Debrosse 

DICELLO LEVITT LLP 

505 20th Street North, Suite 1500 

Birmingham, Alabama 35203 

485 Lexington Avenue, Tenth Floor 

New York, New York 10017 

801 17th Street Northwest, Suite 430 

Washington, DC 20006 

(205) 855-5700 

fu@dicellolevitt.com 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 54 of 198
Exhibit A

 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 55 of 198
UNITED STATES DISTRICT COURT

FOR THE Northern District of Illinois − CM/ECF NextGen 1.7.1.1

Eastern Division

Shannon E. Hall, et al.

Plaintiff,

v. Case No.: 1:22−cv−00071

Honorable Rebecca R. Pallmeyer

Abbott Laboratories, et al.

Defendant.

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Thursday, December 21, 2023:

 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Telephone

conference held. Mead has filed motions to dismiss in certain individual member cases,

arguing that Plaintiffs have not established that Mead is the manufacturer of the infant

formula at issue. To determine whether Mead is in fact the manufacturer of the formula in

these cases, the court directs Plaintiffs in each case at issue to serve (or re−serve) targeted

requests for information from medical providers concerning the products administered to

their infants. If Plaintiffs demonstrate to the court that these targeted requests yield no or

only inconclusive information, Mead will be directed to confirm or deny the existence of

an "exclusive contract" with the medical providers; the court recognizes that an

affirmative answer to this question will not establish that the infant was in fact provided

with Mead products, but will satisfy the court for purposes of a Rule 12(b)(6) challenge.

Mailed notice. (cp, )

ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of

Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was

generated by CM/ECF, the automated docketing system used to maintain the civil and

criminal dockets of this District. If a minute order or other document is enclosed, please

refer to it for additional information.

For scheduled events, motion practices, recent opinions and other information, visit our

web site at www.ilnd.uscourts.gov.

Case: 1:22-cv-00071 Document #: 450 Filed: 12/21/23 Page 1 of 1 PageID #:6944

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 56 of 198
Exhibit B 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 57 of 198
UNITED STATES DISTRICT COURT

FOR THE Northern District of Illinois − CM/ECF NextGen 1.7.1.1

Eastern Division

In RE: Hair Relaxer Marketing, Sales Practices, And

Products Liability Litigation, et al.

Plaintiff,

v. Case No.:

1:23−cv−00818

Honorable Mary

M. Rowland

L'Oreal USA, Inc, et al.

Defendant.

NOTIFICATION OF DOCKET ENTRY

This docket entry was made by the Clerk on Friday, July 14, 2023:

 MINUTE entry before the Honorable Mary M. Rowland: Counsel for Plaintiffs

and Defendants and respective bankruptcy counsel appeared. The Court heard further

argument about the short form complaint (SFC) and about the Revlon bankruptcy

proceeding as it relates to the September 14, 2023 MDL filing deadline set in the

bankruptcy court's April 2023 confirmation order. The Court rules as follows: first, to

facilitate finalizing the SFC, Defendants must respond to Plaintiffs' interrogatories

requesting that Defendants identify the products and product ID's by Tuesday 7/18/23 at

noon central time. By 7/21/23, the interrogatories must be verified (and can be

supplemented if necessary). Parties can meet and confer about the remaining interrogatory

responses and deadline extensions if needed. The Court also raised the issue of

incorporating an additional question on the SFC to establish subject matter jurisdiction.

The revised SFC shall be filed on the docket by 8/1/23. Second, for the reasons explained

during the hearing, the Court declined to move the September 14, 2023 date or enter a

new direct file order. Status hearing on 8/23/23 at 1:00pm CST remains set. All parties

present remotely (NON−VIDEO) for today's hearing who wish to have their appearance

reflected of record are directed to provide their name and firm to liaison counsel, who

shall provide that information to the official court reporter by email,

Laura_Renke@ilnd.uscourts.gov, by noon Monday, 7/17/23. Mailed notice. (dm, )

ATTENTION: This notice is being sent pursuant to Rule 77(d) of the Federal Rules of

Civil Procedure or Rule 49(c) of the Federal Rules of Criminal Procedure. It was

generated by CM/ECF, the automated docketing system used to maintain the civil and

criminal dockets of this District. If a minute order or other document is enclosed, please

refer to it for additional information.

Case: 1:23-cv-00818 Document #: 161 Filed: 07/14/23 Page 1 of 2 PageID #:2160

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 58 of 198
For scheduled events, motion practices, recent opinions and other information, visit our

web site at www.ilnd.uscourts.gov.

Case: 1:23-cv-00818 Document #: 161 Filed: 07/14/23 Page 2 of 2 PageID #:2161

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 59 of 198
TAB 9 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 60 of 198
1 | Page

WRITTEN TESTIMONY ON PROPOSED NEW RULE 16.1 

ADVISORY COMMITTEE ON CIVIL RULES HEARING (JANUARY 16, 2024) 

December 22, 2023

Thank you for the opportunity to submit my statement on the preliminary draft of 

proposed new Rule 16.1 of the Federal Rules of Civil Procedure. I included my 

earlier comments’ submission, which recommends 43 style and formatting 

corrections and suggestions as well as 26 substantive suggestions. I speak on my 

behalf only. I hope that the Committee finds the comments and suggestions useful.

The suggestions are self-explanatory. I would be pleased to answer any questions 

about them. To the untrained eye, many of the 43 style suggestions may seem 

inconsequential, but vigilantly maintaining word and formatting consistency as well 

as adherence to the committees’ style guidelines throughout the rules is important

otherwise the painstaking decades-long work of previous committees will suffer

degradation. 

At the hearing, I would appreciate the opportunity to first address two earlier 

substantive suggestions and one new substantive suggestion as well as two 

administrative suggestions concerning the publication of amendments for public 

comment and style consultants. 

I would like again to congratulate the Committee for its dogged persistence in 

advancing a major improvement to the administration of justice and persuading a 

skeptical bench and bar of the merits and necessity of the proposed rule, which I 

wholeheartedly endorse. 

SUMMARY STATMENT OF TESTIMONY AT JANUARY 16, 2024, HEARING

ONE --- One of the main features of Rule 16.1 is a list of matters that can be 

considered at the initial-management conference. The Committee Note explains 

that the individual matters in the list were selected because “(e)xperience has 

shown, however, that the matters identified in Rule 16.1(c)(1)-(12) are often 

important to the management of MDL proceedings.” The discretionary selection 

recognizes that “(n)ot all MDL proceedings present the type of management 

challenges this rule addresses,” and the listed matters are most relevant in the 

largest mass-tort MDLs. The problem is that the list is not as comprehensive as 

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2 | Page

the list of matters currently contained in pretrial orders of virtually every mega 

MDL, which consist of 97.43 percent of all pending actions in MDLs as of December 

15, 2023. 

While acknowledging that “a transferee judge regularly schedules an initial MDL 

management conference,” the Committee Note neglects recognizing the near 

unanimity in the pretrial orders of mega mass-tort MDLs that refer to the same 

matters listed for consideration. The orders in these MDLs include the standard 

line: “The items listed in MCL 4th Sections 22.6. 22.61, 22.62, and 22.63 shall, to the 

extent applicable, constitute a tentative agenda for the Initial Conference.” The 

matters listed in the MCL are more comprehensive than in Rule 16.1. The orders 

also separately refer to a handful of additional items, e.g., class actions and 

statements summarizing issues. 

Although the draft expressly provides that the judge or lawyers can address any 

matter, the consequence is predictable that transferee judges, particularly the 

majority who will be new to MDLs, will rely on the rule for guidance and use the 

same language of yesteryear, but substitute “Rule 16.1,” i.e., “The items listed in 

Rule 16.1 shall, to the extent applicable, constitute a tentative agenda for the Initial 

Conference.” The language will become entrenched over time and important 

matters that should have been raised, may go unnoticed at the initial-management 

conference. 

For example, Brown Greer’s MDL Centrality is an information-exchange platform

that many mega mass-tort MDLs are beginning to use as a standard tool to manage 

the enormous volume of data. As former Judge Vaughn Walker noted at a Center 

conference, technology has become indispensable in meeting the MDL challenge. It 

is a topic that should not be overlooked at the MDL’s outset. (See Substantive 

Comment 17.) 

The Committee Note rightfully recognizes that a “mandatory checklist” is 

inappropriate. But unless clear guidance is provided prompting the judge and 

lawyers to affirmatively look to other sources for additional matters, human nature 

will take over and the Rule’s listed matters will become the default. 

The three new sentences recommended in “Substantive Suggestion 8” would alert 

judges and lawyers to look at other sources, which list additional topics that might 

be more useful in particular MDLs. And in some MDLs, these other topics might be 

critical.

TWO ---- At the Committee’s first hearing, there was a discussion about making 

explicit, what I had believed obvious, that the other Federal Rules of Civil 

Procedure apply to MDLs. If the Committee decides to add a statement in the 

Committee Note to that effect, I suggest that careful thought be given to how Rule 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 62 of 198
3 | Page

16, which overlaps, is intended to apply to a Rule 16.1 initial-management 

conference. Analyzing the interplay between the rules, which both cover pretrial 

conferences, raises interesting questions. 

One case in point is that Rule 16(d) also addresses the contents of orders made after 

a pretrial conference. Which provision applies to an MDL order? Probably Rule 

16.1(d), but why invite litigation? Moreover, to my eyes, the language of Rule 16(d), 

though similar, is better than the language in Rule 16.1(d), and the Committee Note 

to Rule 16(d) explains the procedure and its implications much clearer than the 

Note to Rule 16.1 as well. Similar questions arise about the interplay between the 

overlapping MCL §§ 11.2, et seq., which deals with initial conferences in complex 

litigation and MCL §§ 22.6 et seq., which deals with initial case-management orders 

in mass torts. That has caused confusion and offers a warning. 

Clarity is needed in the rule, otherwise unnecessary ambiguity and confusion will 

result. Whatever the Committee decides, the interplay between Rule 16 and Rule 

16.1 should be clear to prevent future litigation. 

THREE — At the Committee’s first hearing, several witnesses indicated that large 

percentages (25%-50%) of actions filed in mass-tort MDLs were unsupportable and 

possibly fraudulent. Several committee members asked the witnesses to provide 

empirical data on the claimed high percentages. I would be grateful if the 

Committee shared any empirical data on the number of unsupportable claims that 

might be provided. 

The Center is holding a unique workshop under the leadership of Ken Feinberg 

with five top MDL judges and 15 plaintiff and 15 defense MDL lead counsel at 

Northwestern University School of Law in August. Ken will try to hammer out 

practical procedures and practices acceptable to both sides and the judges to

address the problem of questionable tag-along claims. 

Our first panel will examine the available empirical data. Bayer’s comment 

submitted on October 15, 2023, noted that plaintiffs voluntarily dismissed 98 cases 

(2.3% of the pending 4,174 actions) and requested delays for 200 more cases (4.8% of 

pending actions) in the Roundup MDL. Additional data is needed to ascertain the 

extent of the problem, especially whether it reaches 25%-50% levels. 

The Committee may want to consider requesting the defense and plaintiff witnesses 

to provide data from the claims administrators whom they work with on the 

number of claimants who are determined to be ineligible to receive any amount post 

settlement and the reasons for the ineligibility. Claims administrators have this 

data but will not reveal it, because it may risk alienating their clients, usually the 

plaintiff lead counsel. This data would be useful in determining the true 

parameters of the problem and to the extent that the Committee can induce defense 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 63 of 198
4 | Page

and plaintiff lawyers to urge claims administrators to disclose the information the 

better we will understand the problem. 

FOUR --- At the Center conferences over the years, judges and lawyers have 

expressed much interest in proposed Rule 16.1. Many expressed strong opinions 

going both ways. Based on the interest and my past experience, I would have 

expected comments on the proposal to be submitted by 5 -10 judges and more than 

100 lawyers. As of December 21, not a single judge submitted a comment, and only

eight submissions were posted on the <Regulations.gov > website. (It is true that 

the number of witnesses is solid, but I suspect unrelated reasons for this.) The 

miniscule number submitting written comments should sound alarm bells for every 

Committee member about the effectiveness of the public notice seeking comments. 

Two recommendations are offered to increase the number of public comments: 

(A) The instructions on how to submit comments on the AO rulemaking website are

difficult to locate and understand and the information on the <Regulations.gov> 

website, which is linked to the AO website to submit a comment, is even more 

frustrating to understand and navigate. 

I, along with many judges and lawyers are from the older generation and find 

websites unfriendly. If the Committee wants more comments from the public the 

instructions need to be revised wholesale to simplify and clarify step-by-step the 

comment-submission process. The location of the instructions should also be 

highlighted and easy to find on the website. 

The rules committees have always strived to make the public-comment process as 

user-friendly as possible. There should be no fear of insulting our intelligence by 

“dumbing down” the instructions.

(B) The Committee should reconsider the decision not to publish the proposed 

amendments in hard copy. Again, many lawyers and judges in my age category 

refrain from reading long passages on the computer screen. In fact, studies have 

shown that most people will read longer passages only in print, not on the computer 

screen. 

Of course, any document can be printed from the computer, but many rule 

amendments are long, and printing is inconvenient. It is understood that the cost of 

printing hard copies is not insignificant (back in the day, it cost my office $12K to 

print and mail 10,000 copies to all federal judges, state supreme court justices, all 

state bars, all law schools, and a separate mailing list for those interested in the 

rulemaking process). But the effort was worthwhile, and we believed that it was

necessary to fulfill our statutory responsibility to provide “appropriate public 

notice.” The goal was never to provide the minimum notice, but the best notice that 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 64 of 198
5 | Page

is practicable to get the public’s input to ensure the legitimacy of the rulemaking 

process.

Because the Federal Rules have the force of law, the Judicial Conference has always 

given top priority to the rules committees’ work. There is little doubt that the AO 

would accede to a Committee request to incur the added expense in notifying the 

bench, bar, and public in the most effective way to get as many comments as 

possible on rule amendments. And the Judicial Conference Budget Committee 

would assuredly be sympathetic to any such request for funding, if the AO 

concluded otherwise. 

From personal experience, I saw the benefit of hard-copy versus electronic print. As 

the Director of the Duke Center on Judicial Studies, I acquired and ran the journal 

Judicature for three years. The first question was whether to publish the journal 

only electronically or in hard copy. The cost for hard copies was more than 

$100,000 annually. After much research on marketing studies, it was decided to 

publish the journal both electronically and in hard copy. The cost was paid from 

revenue that the Center earned (no school funding), which made my decision more 

difficult because I had to find ways to earn the revenue. But the decision was never 

regretted.

FIVE — Lastly, I would encourage the Committee to consider asking the 

Committee’s style consultants to provide comments and suggestions on the 

reporters’ draft Committee Notes. I well recognize the reluctance having style 

consultants second guess the work of top scholars, but Joe Kimble and Bryan 

Garner, when he is available, are national treasures not only because of their 

expertise and acumen but almost as importantly for their institutional knowledge of 

consistent word usage and formatting as well as adherence to the committees’ style 

guidelines throughout the rules. The latter is becoming more important with the 

addition of new reporters. Of course, the reporters can accept or reject any styleconsultant suggestion. 

The goal continues to be to produce substantively neutral rules that are “easy to 

read and understand – as clear in content and meaning as it is possible to make 

them, and as crisp and readable as clarity permits.”

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COMMENTS SUBMITTED ON OCTOBER 1, 2023

The proposed new rule is particularly gratifying as it fulfills my own decade-long 

crusade championing an amendment to the Federal Rules to Civil Procedure to 

address MDLs.1 Although some in the bench and bar will remain skeptical and 

even hostile, I urge the Committee to stay the course. 

I would like to take this opportunity to clarify the data that drew attention to the 

need for a new rule. Nearly a decade ago, I was the first to compare the statistics 

maintained by the JPML staff with those of the Administrative Office of the U.S. 

courts and found that the individual actions centralized in MDLs represented more 

than 40% of the pending civil cases in all the district courts. That percentage has 

jumped to more than 60%, largely because of the recently settled 3M Combat 

Earplug MDL. 

My statistical discovery has been cited often, but it has caused some confusion. 

Statements are often cavalierly made in the literature that MDL actions represent 

more than 60% of the federal courts’ docket. But that is accurate only if the 

“docket” means pending civil cases. It is inaccurate if it refers to the number of civil 

cases filed during the year, which is the common understanding of most people 

when you say “docket.” In fact, the annual filings of new actions in MDLs is now 

about 60,000, which represents 20% of the annual civil-case filings. In other words, 

MDLs are adding 60,000 new cases annually to the courts’ dockets. The 20% is 

hefty, and it is rising, but it is far lower than 60%.

I have grouped my comments into two categories: (1) style and formatting 

corrections and suggestions; and (2) substantive suggestions. Regarding the first 

category, many of the corrections and edits are admittedly nit-picks, but they 

further the critical value of consistency throughout the rules promoted by the 

Committees’ various style projects to limit confusion and ambiguity. 

I hope that the Committee finds these comments useful, which are my own and do 

not necessarily reflect the views of the Center nor of any persons associated with 

the Center.

A. STYLE AND FORMATTING CORRECTIONS AND SUGGESTIONS

1. Header: “PROPOSED AMENDMENTS TO THE FEDERAL RULES OF 

CIVIL PROCEDURE” -- The word “Amendments” in the headers to proposed 

amendments to the Bankruptcy Rules (pages 61 and 80) and Appellate Rules 

1 See AS I SEE IT, editorial comment, Rabiej, John, 101 Judicature, No. 3, p. 2 (2017). (“Providing 

uniform procedures that are consistently followed throughout the country is the raison d’être of the 

federal civil rules....Yet no civil rule provides uniform procedures that can be applied consistently to 

MDL litigation throughout the country.”

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(pages 26 and 47) are plural. The word “Amendments” in the headers for the 

Civil Rules (pages 120 and 123) should be plural to be consistent.

2. Line 2. “Initial MDL Management Conference.” The Modifier “MDL” before 

“Management Conference” should be struck. It is verbiage. Line 5 got it right 

by omitting the “MDL” modifier in front of “management conference.” The 

caption of Rule 16.1 is “Multidistrict Litigation.” All subsequent provisions 

must refer to MDL proceedings. There simply is no need to add the word 

“MDL” in front of “management conference” every time it is mentioned. 

Although a single reference to the unnecessary modifier would not be 

significant, the problem with the draft is that the modifier is used often 

throughout the draft. The fear that someone will somehow misread the 

reference to apply to some proceeding in another type of case is not 

reasonable. For example, the Supplemental Rules for Admiralty or Maritime 

Claims and Asset Forfeiture Actions do not constantly add the modifier 

“admiralty” before every noun or action because it is already clear. 

3. Line 12: “work with plaintiffs or with defendants to prepare....” The second 

“with” is not incorrect but it is verbiage, unless the Committee believes that 

added emphasis is needed to focus on “defendants” in this provision, which 

seems unlikely.

4. Line 17: “to meet and prepare a report to be submitted to the court filed

before the conference begins.” Substituting the word “filing” reduces verbiage. 

More importantly, it makes clear that the report is part of the official record, 

which is important in this instance because all the other lawyers in the MDL 

should have the opportunity to view it. (But filing has other consequences, 

which are addressed in Substantive Comment 2 directed at Lines 46-48 and 

Substantive Comment 19 directed at Lines 260-266, infra.)

5. Lines 18-23: “The report must address any matter designated by the court,. 

which may include any matter listed below or in Rule 26. The report may 

also address any matter in Rule 16 or any other matter that the parties wish 

to bring to the court’s attention, including the following.:” The transition from 

subdivision (c) to paragraph (1) is awkward. With a little tweaking that was 

done above, it was smoothed over without changing the substance. 

6. Line 52: “whether consolidated pleadings should be prepared to account for 

multiple actions included in the MDL proceedings;” Verbiage.

7. Line 73: “Initial MDL Management Order.” Verbiage.

8. Line 74: “the court should enter an initial MDL management order” 

Verbiage. 

9. Lines 75-77: “address the matters designated under Rule 16.1(c) -- and any 

other matter in the court’s discretion.” Verbiage. The court always has the 

discretion to address whatever it wants in its orders. Retaining the language 

is inconsistent with the long-established style tradition of eliminating the 

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words “in the discretion of the court,” which was heavily sprinkled 

throughout the rules. Is there any doubt that a judge can insert whatever 

matters they want in their own orders? The style projects uprooted these 

weeds. 

10.Lines 82-83: “It empowers the Judicial Panel on Multidistrict Litigation to 

transfer one or more actions for coordinated or consolidated pretrial 

proceedings, upon its determination that transfers for such proceedings will 

be for the convenience of parties and witnesses and will to promote the just 

and efficient conduct of such actions.” Initially, the suggestion was limited to 

deleting the unnecessary comma punctuation. But in checking on the 

statutory § 1407, it might be worthwhile to consider adding the full text of 

the statute. Frankly, I had not focused on this criterion, because it has not 

attracted much attention. But perhaps under certain circumstances, it might 

have some significance and adding the full statutory text cannot harm.

11.Line 89: “in the Federal Rules of Civil Procedure Rules....” Customary to 

refer to the formal title.

12.Line 105: “Rule 16.1 Subdivision (a).” I suspect the caption was inadvertent. 

But a hallmark feature of the rules committees’ style projects, which 

painstakingly scrutinized and restylized every federal rule, was to maintain 

consistency throughout the rules. It is important that the draft rules and 

Committee Notes conform with consistent usage, otherwise future 

committees will need to undertake comprehensive restylization projects. 

13.Line 105: “Rule 16.1(a) recognized that the a transferee judge...” For me, this 

is a close call, but the more general reference sounds a bit better.

14.Line 106: “an initial MDL management conference” Verbiage, especially 

because the lead-in clause refers to actions taken by a transferee judge, which 

can only mean an MDL proceeding.

15.Line 108: “an initial MDL management conference” Verbiage. 

16.Line 109: “That initial MDL management conference.” Verbiage.

17.Lines 111-112: “Although holding an initial MDL management conference in 

an MDL proceedings is not mandatory.” The unnecessary reference to an 

MDL conference in an MDL proceeding highlights the verbiage. Also, 

singular is more consistent with the style guidelines and is more appropriate

in this sentence.

18.Line 116: “Rule 16.1 Subdivision (b).” Consistency.

19.Line 116. “Rule 16.1(b) recognizes that the court may designate...” 

Consistent usage; see line 105: “Rule 16.1 (a) recognizes that...” 

20.Line 120: “the initial MDL management conference” Verbiage.

21.Line 129: “the initial MDL management conference” Verbiage.

22.Line 132: “Rule 16.1 Subdivision (c).” Consistency.

23.Lines 148-149: “the initial MDL management conference” Verbiage.

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24.Line 150: “Rule 16.1 Subdivision (c)(1).” Consistency.

25.Lines 150-151: “Appointment of leadership counsel is not universally needed 

in every MDL proceedings.” Singular is more consistent with the style 

guidelines.

26.Line 152: “manage the MDL proceedings” Verbiage. The immediately 

preceding sentence refers to appointment of counsel in “MDL proceedings” 

and sets the context for the next sentence, making it clear that managing 

proceedings means the MDL proceedings.

27.Line 177: “claims by individuals who suffered injuries, and also claims by 

third-party”. Unnecessary comma punctuation.

28.Line 191: “the initial MDL management conference” Verbiage.

29.Lines 199-200: “Subparagraph (B) of the rule therefore prompts” Verbiage 

and inconsistent usage. (See line 203, omitting reference to “of the rule”).

30.Line 239: “the responsibilities non-leadership counsel” Delete the hyphen 

punctuation in “nonleadership,” consistent with lines 39 and 232.

31.Line 248: “Rule 16.1 Subdivision (c)(2).” Consistency.

32.Line 260: “Rule 16.1 Subdivision (c)(3).” Consistency.

33.“Rule 16.1 Subdivision (c)(4).” Consistency.

34.Line 285: “Rule 16.1 Subdivision (c)(5).” Consistency.

35.Line 285: “For case-management purposes” Insert hyphen between the 

words, consistent with the style guidelines.

36.Line 299: “Rule 16.1 Subdivision (c)(6).” Consistency.

37.“Rule 16.1 Subdivision (c)(7).” Consistency.

38.“Rule 16.1 Subdivision (c)(8).” Consistency.

39.“Rule 16.1 Subdivision (c)(9).” Consistency.

40.Line 331: “Rule 16.1 Subdivision (c)(10).” Consistency.

41.Line 347: “Rule 16.1 Subdivision (c)(11).” Consistency.

42.Line 364: “Rule 16.1 Subdivision (c)(12).” Consistency.

43.Line 364: “An MDL transferee judges may refer” Singular is more consistent 

with the style guidelines.

B. SUBSTANTIVE SUGGESTIONS

1. Lines 40-42: “whether and, if so, when to establish a means for compensating 

leadership counsel for common-benefit work.” The intent of the text is to 

address common-benefit funds as explained in the Committee Note (lines 

240-247). The text refers only to compensating leadership counsel. It is 

ambiguous and does not reflect existing practices, which address 

compensation of hundreds of nonleadership lawyers for doing common-benefit 

work. It would be more useful to expand the text to reflect existing practices 

and include all counsel instead of addressing only compensating “leadership 

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counsel,” which will cause confusion as to the compensation of nonleadership 

counsel. 

2. Lines 46-48: “identifying the principal factual and legal issues likely to be 

presented in the MDL proceedings, which should be presented in a separate 

submission to the court” The Committee Note explains the general purpose 

and benefits of the provision, but it differs from present practices of many 

large MDLs in important respects. The insertion of the added clause is 

designed to make clear that the position statements are not part of the 

report, which might raise unwanted problems. (The reasons for the separate 

submissions are explained in the suggestions to Lines 260-266, infra.) 

3. Lines 73-77: “After the conference, the court should enter an initial MDL

management order addressing the matters raised in the report or at the 

initial management conference designated under Rule 16.1(c)” The draft 

language is ambiguous. The lawyers are to address the “matters designated 

in Rule 16.1(c).” The miscue is whether the lawyers must address the items 

designated in subdivision (c) or those designated by the transferee judge. The 

text of the draft rule at line 19 indicates that the “report must address any 

matter designated by the court,” which adds weight on focusing solely on the 

matters the judge selected. But in addition to this miscue, the draft may be 

read to omit reference to items that the lawyers themselves raise 

independently, which may be outside of Rule 16 or Rule 16.1, for example, 

one of the topics in the Manual for Complex Litigation. Clearly the order 

should not be read to necessarily exclude matters raised by the lawyers. The 

suggested language covers both and fulfills the purpose of the draft language. 

4. Lines 93-103: “On the other hand, other multiparty litigation that did not 

result from a Judicial Panel transfer order may present similar management 

challenges. For example, multiple actions in a single district (sometimes 

called related cases and assigned by local rule to a single judge) may exhibit 

characteristics similar to MDL proceedings. In such situations, courts may 

find it useful to employ procedures similar to those Rule 16.1 identifies for 

MDL proceedings in their handling of those multiparty proceedings.” The 

purpose of this rule is to provide general guidance to the bench and bar on 

MDL proceedings and not prescriptive requirements, which diverges with 

traditional rulemaking. But the draft goes too far and ventures into areas far 

afield. Its usefulness is modest. The Manual for Complex Litigation is the 

more appropriate place for such information. 

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5. Lines 102-104: “In both MDL proceedings and other multiparty litigation, the

The Manual for Complex Litigation also may be is a source of guidance for 

these other proceedings as well as all MDL proceedings.” Transition language 

is added to account for the deletion of the preceding sentences in the draft. 

6. Lines 122-126: “While there is no requirement that the court designate 

coordinating counsel, the court could consider whether such a designation 

could facilitate the organization and management of the action at the initial 

MDL management conference.” This language adds little to what is better 

said in lines 118-121, which nicely and concisely explains the purpose of the 

coordinating counsel. The added language also is ambiguous and creates 

confusion. What does “facilitate the management of the action at the initial 

conference” mean? Is it limited to the discussions at the conference; but then 

why expand it to the “management of the action,” which might give counsel 

an inside advantage on leadership appointments. 

7. Lines 126-127: “After the initial management conference, the court may 

designate can consider retaining the coordinating counsel to assist the court

it on administrative matters before leadership counsel is appointed.” The 

draft is ambiguous. Does it only refer to appointing coordinating counsel 

before the initial conference and before appointing leadership counsel, or is it

intended to apply to an appointment that continues after the initial 

management conference until leadership counsel is appointed. It is one thing 

to “assist the court” in holding the initial management conference, and 

another thing in “assisting the court” in other matters before leadership 

counsel is appointed, which usually is about 30 days after the initial 

conference is held. 

Many transferee judges retain the services of a coordinating counsel, but on a 

limited basis, so as not to provide that counsel with an advantage in the 

selection of leadership counsel. Members of the bar are rightfully sensitive 

about the possibility that the court’s designation of a coordinating counsel 

provides an inside advantage to the individual lawyer before the other 

lawyers interested in a leadership appointment have had an opportunity to 

present their own qualifications for the consideration of the court. The 

suggested language clarifies the counsel’s duties.

8. Lines 132-143: “The germaneness and urgency to address certain topics at 

the initial management conference will depend on the nature of the MDL, the 

judge’s and parties’ familiarity with MDL practices and procedures, and the 

importance and necessity of input from leadership counsel, who may not yet 

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have been appointed. Subdivision (c) lists certain case-management topics 

that might be useful to discuss at the initial management conference, 

particularly in some large MDLs, but expressly provides discretion to the 

court and the parties to address other topics. These other topics are described 

in the Manual for Complex Litigation, which contains more comprehensive 

lists of topics that may be useful. The court ordinarily should order the 

parties to meet to provide a report to the court about the matters it

designatesd in the court’s Rule 16.1(c) order prior before to the initial 

management conference. This should be a single report, but it may reflect 

the parties’ divergent views on these matters.” 

It was reported at the Center’s recent MDL Bench-Bar Leadership conference 

held at the Northwestern University School of Law that the Committee 

considered the results of a study that showed there was little uniformity 

about the topics listed by MDL courts in their pretrial orders. The inference 

being that there is little consensus about what topics should be considered at 

the initial management conference. As of September 15, 2023, there were 

172 pending MDLs. It is not surprising that many of the pretrial orders in 

these 172 MDLs were not unanimous in listing the same topics or any topics 

for consideration at the initial management conference. 

To be clear, however, the substantial majority of pretrial orders in the 19 

mega mass-tort MDLs, which list the topics to be considered at an initial 

management conference, are remarkably the same. 2 These mega mass-tort 

MDLs consist of more than 97% of actions pending in all 172 MDLs (i.e., 

408,636 actions). 

How these mega mass-tort MDL courts manage their actions should be the 

touchstone for Rule 16.1. The Committee Note acknowledges as much at lines 

92-93, 150-151, and 206. The orders in these MDLs refer to topics listed in § 

22.6 of the Manual for Complex Litigation, e.g., “The items listed in MCL 4th

2 Zantac MDL 2924, Pretrial Order # 1 (Feb. 14, 2020). The identical or very similar language is 

contained in the case-management orders in the following large MDLs; (i) Vioxx, MDL 1657 – 

pretrial order # 1; (ii) Propulsid MDL 1355 – pretrial order # 1 (Aug. 22, 2000); (iii) Xarelto, MDL 

2592 – pretrial order # 1 (Dec. 17, 2014); (iv) Elmiron MDL 2973 – case management order No. 1 

(Dec. 18, 2020); (v) Taxotere MDL 3023, pretrial order # 1 (Feb. 25, 2022); (vi) Avandia MDL case 

management order No.1, Feb. 28, 2008); (vii) Zoloft, MDL 2342 – pretrial order No.1 (May 4, 2012); 

(viii) Syngenta, MDL 2591 – preliminary practice and procedure order (Dec. 22, 2014); (ix) 3M 

Combat Arms Earplug, MDL 2885—pretrial order No. 2 (April 5, 2019); (x) Acetaminophen-ASDADHD, MDL 3043 – pretrial: preconference submissions (Oct. 10, 2022); (xi) Paraquat MDL 3004 – 

case-management order No. 1 (June 10, 2021); and (xii) Baycol MDL 1431 – pretrial order (Jan. 16, 

2002).

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Sections 22.6. 22.61, 22.62, and 22.63 shall, to the extent applicable, 

constitute a tentative agenda for the Initial Conference.” 3 

The problem with focusing on a select number of topics, like Rule 16.1, is that 

it fails to take into account how the bench and bar will apply the rule after it 

is promulgated. There is no reason to believe that the bench and bar will 

behave differently after the Rule takes effect. In fact, by enshrining these 

selected topics in the rule without meaningful clarification, the bench and bar 

likely will focus solely on them, disregarding many topics that might be more 

important under the specific circumstances of the case solely because the rule 

provided no guidance pointing them in the right direction. Unless revised, I 

suspect that the language of the pretrial orders will change to: “The items 

listed in Rule 16.1(c) shall, to the extent applicable, constitute a tentative 

agenda for the initial conference.” The revised Committee Note is intended to 

alert the bench and bar that there are many other topics that are often raised 

at these conferences that may be particularly pertinent and useful in their 

MDL.

9. Lines 143-145: “Experience has shown, however, that the matters identified 

in Rule 16.1(c)(1)-(12) are often especially important to the management of 

large MDL proceedings.” The added qualifiers are necessary because the 

items in (c)(1)-(12) are irrelevant in many, if not, in most smaller MDLs. 

Common-benefit funds are not established in most MDLs, as only one 

example. 

10.Lines 151-153: “But, to manage the proceedings, the court may decide to 

appoint leadership counsel, which may include lead counsel, members of a 

leadership committee (executive or steering committee), and chairs of 

subcommittees.” A court typically appoints two-three lead counsel. But it 

also appoints others to leadership positions, as acknowledged in Lines 199-

202. Several MDL courts have been giving increased attention to 

appointments to these subordinate leadership positions. The revision clarifies 

the scope of the rule provision.

3 There are a few notable exceptions today where the court in a large MDL enumerated specific topics 

to discuss at the initial management conference instead of referring to the Manual’s lists of topics. But 

the suggested revision of the Committee Note would apply to most other MDLs and clarify the purpose 

of listing only some of the topics, which might exclude very important topics to the judge and lawyers. 

See Philips Recalled CPAP, MDL 3014 – Pretrial Order # 1, enumerating 12 topics: BARD Implanted 

Port Catheter, MDL 3081, pretrial order regarding initial case management conference, enumerating 

21 topics with many subtopics (Aug. 22, 2023). 

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11.Lines 170-175: “MDL proceedings do not have the same commonality 

requirements as class actions, so substantially The MDL court may 

sometimes need to account for different categories or parties that may be 

included in the same MDL proceeding and appoint leadership comprised of 

attorneys who represent parties asserting a range of claims in the 

proceeding.” The deleted language is unnecessary. It introduces the concept 

of mass-tort MDLs as quasi-class actions and may add confusion. 

12.Lines 179-180: “The court may sometimes need to take these differences into 

account in making leadership appointments.” The sentence was moved up in 

the suggested revision above.

13.Line 181-182: “Courts have selected leadership counsel through combinations 

of formal applications, interviews, consensus-selection proposing a slate of 

candidates, and recommendations from other counsel and judges who have 

experience with MDL proceedings.” In smaller MDLs, the slate-selection 

approach is common. In larger MDLs, the slate-selection approach is making 

a comeback with lawyers consciously making an effort to propose diversified 

candidates. The draft language, which includes “recommendations from other 

counsel and judges” may be intended to address the slate-selection method. 

But, if so, the reference is too opaque. In many situations, the slate-selection 

is the most appropriate. The rule should be neutral on which method may 

work best in a particular case.

14.Lines 203-206: “Subparagraph (C) recognizes that, in addition to managing 

pretrial proceedings, another important role for leadership counsel in some 

MDL proceedings is to facilitate possible settlement, when the timing is 

appropriate.” Lawyers have expressed strong concerns about some judges 

pressuring for premature settlement before they have had an opportunity to 

contest the validity of the claims. And there is concern that MDL judges view 

remand of cases as failure. The suggested language addresses these 

concerns.

15.Lines 209-211: “Nevertheless, leadership counsel ordinarily play a key role in 

communicating and working with counsel and with opposing counsel and the 

court about settlement and facilitating discussions about resolution.” The 

suggestion recognizes the need to consult with nonleadership counsel in 

reaching a settlement.

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16.Lines 214-217: “In its supervision of leadership counsel, the court should 

make every effort to ensure that leadership regularly communicate with 

nonleadership counsel as to developments in the MDL so that nonleadership

counsel are properly informed and can effectively represent their respective 

clients. counsel’s participation in any settlement process is appropriate.” 

The draft is unclear as to its purpose, i.e., what is “appropriate” settlement 

conduct. The ambiguity may create confusion and raise unnecessary 

concerns about judicial intervention in settlement negotiations. The 

suggested language is aimed at a clearly defined objective. If the Committee 

intends to address another problem, the language should be clear to be 

useful. 

17.Line 226: “for monitoring the proceedings. The court and leadership counsel 

should consider deploying a dynamic, online central-exchange platform as a 

shared-document management tool to facilitate the exchange, storage, access, 

search, and analysis of hundreds and thousands of gigabytes of data and 

documents in the larger MDLs.” The draft Committee Note omits reference to 

technology tools, which are becoming indispensable in managing the larger 

and even the smaller MDLs. The importance of deploying these shared 

information platforms early in the litigation should be acknowledged in the 

rule.

18.Lines 245-247: “But it may be best to defer entering a specific order the court 

should consider whether to set a fixed percentage of the estimated settlement 

proceeds as the assessment or a tentative percentage adjusted in the course 

of the proceedings until well into the proceedings, when the court is more 

familiar with the proceedings.” The draft provision deferring the 

establishment of a common benefit fund is not feasible. Lawyers incur 

substantial out-of-pocket expenses, which must be paid immediately.4 The 

real question deals with what percentage. Some courts have fixed an early

percentage, which had to be increased later in the proceedings requiring 

additional consents from all involved. The better practice is to make clear to 

everyone as early as possible that the common-benefit fund assessment will 

be assessed but that it may be adjusted later in the proceeding. 

19.Lines 260-266: “Orderly and efficient pretrial activity in MDL proceedings 

can be facilitated by early identification of the principal factual and legal 

issues likely to be presented. Depending on the issues presented, the court 

may conclude that certain factual issues should be pursued through early 

4 See Social Media Adolescent Addiction, MDL 3047, common bene�it order (Mar. 6, 2023) �iled a few months 

after the JPML transfer, which assessed a 10% common-bene�it fund percentage.

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discovery, and certain legal issues should be addressed through early motion 

practice. In a separate transmission to the court, the plaintiffs and 

defendants should submit to the court a brief written statement indicating 

their preliminary understanding of the facts involved in the litigation and the 

critical factual and legal issues. The court should make clear that these 

statements will not be filed, will not be binding, will not waive claims or 

defenses, and may not be offered in evidence against a party in later 

proceedings. The parties’ statement should list all pending motions, as well 

as all related cases pending in state or federal court, together with their 

current status, including any discovery taken to date, to the extent known. 

The parties should be limited to one such submission for all plaintiffs and one 

submission for all defendants.” The suggested language is the standard 

language used in many case-management orders in large MDLs.5 As stated 

by the transferee judge in Tasignia MDL 3006, pretrial order No. 1, the 

purpose of these position statements is “to assist the Court with an overview of 

the litigation.” (emphasis added) 

The usefulness of the position statements would be severely undermined if 

the statements could be used against a party later in the proceeding. It would 

effectively eliminate frank discussions and create unwarranted confusion and 

wasted efforts on producing watered-down position statements that have 

little use. The suggestions explain what information the transferee judges 

find useful in these position statements and explain why they specifically do 

not bind the parties. If the provision cannot be cleanly distinguished within 

subdivision (c) as a document separate from the report, it probably makes 

more sense to separate this provision from subdivision (c) entirely and insert 

it as a new subdivision (d). 

The differences from the draft language are apparent. Instead of speculation

about how the provision might be used and their value, the suggested 

5 The identical language is contained in the case-management orders in the following large MDLs; (i) 

Vioxx, MDL 1657 – pretrial order # 1; (ii) Zantac, MDL 2924 – pretrial order # 1; (iii) Xarelto, MDL 

2592 – pretrial order # 1; (iv) Elmiron MDL 2973; (v) Taxotere MDL 3023, pretrial order # 1; (vi) 

Avandia MDL case management order No.1; (vii) Zoloft, MDL 2342 – pretrial order No.1; and (viii) 

Syngenta, MDL 2591 – preliminary practice and procedure order. Case Management Order No. 1 in 

Paraquat MDL 3004, the transferee judge deferred the submission of the position statements until 

after the appointment of leadership counsel: “After the court appoints plaintiffs’ leadership counsel, 

the court will solicit position briefs from the parties outlining their views on the primary facts, 

claims, and defenses involved in the litigation, as well as the critical factual and legal issues.” The 

transferee judge in Tasignia MDL 3006, pretrial order No. 1 took a slightly different approach and 

required submission of briefs of no more than five pages in each member case outlining their views of 

the factual and legal issues and many more topics. The order stated that “These briefs are not 

binding, will not waive any claims or defenses, and may not be referenced or offered in evidence 

against any party in later proceedings.” 

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language is intended to provide useful information to the lawyers trying to 

comply with the rule. Most importantly, the suggestions make clear that 

these position statements are not binding, do not waive any claims or 

defenses, and may not be referenced or offered in evidence in later 

proceedings. The reasons are self-evident. 

20.Lines 270-273: “Some courts have utilized “fact sheets” or a “census” as 

methods to take a survey of the claims and defenses presented, largely as a 

management method for planning and organizing the proceedings as well as 

identifying unsupportable claims.” Although the extent of the filing of 

meritless claims is hotly disputed, there is virtually universal consensus that 

some unsupportable claims are filed in large MDLs. Growing numbers of 

calls for better screening measures are being discussed to reduce the 

numbers. Fact sheets have become increasingly longer (e.g., 20-70 pages) and 

are used for screening purposes, with provisions requiring submission of 

some evidence of product use or exposure. As the larger MDLs grow in size 

from tens to hundreds of thousands of claims, the importance of fact sheets as 

a screening mechanism will become more pronounced. The rule should not 

ignore this important role of fact sheets.

21.Lines 299-303: “A major task for the MDL transferee judge is to supervise 

discovery in an efficient manner. The principal issues in the MDL 

proceedings may help guide the discovery plan and avoid inefficiencies and 

unnecessary duplication. Information on methods to handle discovery 

efficiently can address, for example, the following: (i) common-issue 

discovery; (ii) procedures for handling already-completed common-issue 

discovery in pre-MDL cases; (iii) establishment of early ESI protocols; (iv) 

overall time limits on each side’s number of deposition hours; (v) benefits of 

forbidding written discovery motions; (vi) necessary early protective orders; 

and (vii) procedures to handle privilege disputes.” To many eyes, consolidated 

discovery is the primary purpose for MDLs. The suggested language adds 

meat to the draft, which makes it more useful. The items were recommended 

by Judge David Campbell, former chair of the Advisory Committee on Civil 

Rules and preeminent jurist, in a law review article.6 

22.Lines 313-314: “courts generally conduct management conferences, often 

online so that lawyers from around the country can participate, throughout 

the duration of the MDL proceedings....” Judges are increasingly holding 

6 ADVICE TO A NEW MDL JUDGE ON DISCOVERY MANAGEMENT, Judge David Campbell & Jeffrey 

Kilmark, 89.4 UMKC Law Review 889 (2021).

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remotely held conferences as a general matter. It may be helpful to highlight 

this in the MDL context, even if obvious.

23.Lines 319-321: “it may be that judicial assistance could facilitate the 

settlement at the appropriate time of some or all actions before the transferee 

judge.” The suggested language may eliminate unnecessary controversy, 

which may be raised by those who object to viewing MDL solely as a means of 

settlement or even hint at such a conclusion. The suggestion fortifies the 

sentiment expressed in the next sentence in the draft Committee Note: 

“Ultimately, the question whether parties reach a settlement is just that – a 

decision to be made by the parties.”

24.Lines 343-344: “identifying the appropriate transferor district court for 

transfer at the end of the pretrial phase on remand...” I believe the draft 

Note is aimed at addressing remands. The draft language may raise 

questions about the meaning of the pretrial phase and when it ends for all or 

some cases; better to clarify the meaning so that all can easily understand.

25.Lines 357-361: “If the court is considering adopting a common benefit fund 

order, it should consideration of the relative importance of the various 

proceedings may be important to ensure a fair arrangement and be aware of 

the unsettled law regarding assessing common benefit fees on lawyers 

involved in related state-court actions, with or without their consent.” If the 

intent of the draft Committee Notes is to address Judge Chhabria’s concern 

about assessing a common-benefit assessment on counsel in related statecourt MDL actions, the language is opaque. The suggested language tries to 

clarify the intent.

26.Lines 379-383: “Because active judicial management of MDL proceedings 

must be flexible, the court should be open to anticipate modifying its 

management order....” The initial management order is entered at the 

beginning of the case, when the judge is grappling with scores of issues that 

need immediate action at a time when the judge has had insufficient time to 

learn about the case. The suggested language is stronger and clearer in 

describing what happens in these MDLs.

I look forward to the Committee hearing on January 16, 2024. 

Thank you.

John Rabiej, 

Founder and President

Rabiej Litigation Law Center 

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Advisory Committee on Civil Rules 

Administrative Office of the United States Courts 

One Columbus Circle, NE 

Washington, DC 20544 

RulesCommittee_Secretary@ao.uscourts.gov 

Re: Proposed New Federal Rule of Civil Procedure 16.1 

Dear Members of the Advisory Committee on Civil Rules:

My name is Dena Sharp, and I am a partner with Girard Sharp LLP. We represent 

plaintiffs in class actions and other complex cases. I serve as co-lead counsel in the In re JUUL 

MDL before Judge William H. Orrick III. I am also lead counsel in several other complex 

antitrust MDLs (and non-MDLs), and serve on the plaintiffs’ steering committee in the In re 

Philips CPAP MDL. 

Before I offer a small handful of observations and suggestions for the Committee’s 

consideration, I wish to acknowledge the considerable effort the Committee has obviously 

devoted to the important objective of creating a toolkit for effective judicial management of

MDLs. The draft Rule and Note promote the flexibility and discretion that an MDL transferee 

court needs to effectively manage its docket in a manner that is tailored to the needs of the 

unique MDL before it, while consistent with Rule 1’s principles. 

The modest amendments suggested below aim to underscore the proposed Rule’s 

flexibility; round out the transferee court’s toolkit by providing additional context for MDL 

practice, including in matters with a class action component; and address the important subject of 

sequencing—of the Rule 16.1(c) topics, of the leadership proceedings and interim appointments, 

and the many other moving parts in the early stages of an MDL. 

1) Clarification that certain Rule 16.1(c) topics may be addressed at the initial

conference on a preliminary basis only, or deferred to later case management

conferences, will promote flexibility.

The topics listed in Rule 16.1(c) are comprehensive. Each may raise complex,

multifaceted, and highly dynamic questions over the life of a case. Even in the best of 

circumstances, there is only so much the parties and court can cover in the initial conference. 

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Effective judicial management of an MDL often calls for periodic status conferences, resulting in 

what amounts to an ongoing conversation between the court and counsel on both sides of the 

“v.” Consequently, as a matter of sequencing and in the interest of the orderly conduct of the 

proceedings, in most cases the topics identified in 16.1(c) are best addressed on an iterative basis 

over a series of case management orders entered in the MDL (as Rule 16.1(d) implicitly 

acknowledges). 

Though the draft Rule is not prohibitive in this regard, express language clarifying that 

the initial MDL management conference is likely not the last will leave less margin for error in 

the reading of Rules 16.1(a) and 16.1(c) together. Minor adjustments along these lines may also 

address concerns that have been raised about how best to handle the 16.1(c) topics meaningfully 

prior to leadership appointments (discussed further below), and may encourage MDL judges to 

hold periodic conferences with counsel, a practice most practitioners believe correlates with 

greater efficiency and speedier outcomes. 

One option is to include language in the text of Rule 16.1(c) that specifies that the 

transferee court may determine, on its own or on the suggestion of a party, that certain topics on 

the 16.1(c) list are best addressed on a preliminary basis at the initial conference, or deferred to a 

later conference: 

The report must address any matter designated by the court, which may 

include any matter addressed in the list below or in Rule 16. The transferee 

court may determine, or a party may suggest, that certain topics should be 

addressed on a preliminary basis at the initial conference, or deferred to a 

subsequent conference, as appropriate for the needs of the MDL, and 

consistent with Rule 16.1(d). The report may also address any other matter 

the parties wish to bring to the court’s attention.

Alternatively, if the Committee is not inclined to revise the language of the proposed 

Rule itself, similar points could be made in the Note to Rule 16.1.(c). 

2) Frontloading leadership appointments and encouraging the transferee court to set 

expectations about that process will help advance the case and shorten the preleadership appointment phase. 

To address concerns about setting an overly ambitious Rule 16.1(c) agenda before 

appointment of leadership, the Committee should consider encouraging the transferee court to 

use its initial MDL order to: (1) expedite leadership proceedings by entertaining applications at 

the initial status conference or as soon after as practicable, and (2) provide guidance on the 

court’s expectations and preferences for the leadership application process. 

Prioritizing leadership appointments reduces costs and is consistent with Rule 1, allowing 

the parties and the court to reach the merits of the claims as soon as possible, and with less 

wheel-spinning. Early guidance from the transferee court as to leadership may include: the 

number of lead or co-lead counsel the court is inclined to appoint; whether the court is inclined 

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to appoint a plaintiffs’ steering committee, executive committee, or some other committee 

structure; whether the court is receptive to “slates” or prefers individual applications; whether the 

court will accept “self-ordered” proposals, or make its own appointments; whether the court 

prefers formal motion practice or shorter letters accompanied by resumes (brevity, and no reply 

briefs, are often favored by courts and counsel); whether the court wishes the parties to provide 

contact information for other judges before whom applicants have appeared; and whether the 

court prefers to hold a formal hearing, or conduct interviews of applicants, or decide leadership 

based on written submissions. With the court’s direction, applicants can tailor their efforts, all in 

the hopes of getting leadership appointments in place as quickly as possible. 

In the JUUL MDL, for example, Judge Orrick’s initial pretrial order set out his plan for 

leadership appointments, specified topics each leadership applicant should address, identified 

criteria the court intended to apply, set a timeline for submissions, and notified leadership 

applicants that they would have an opportunity to address the court briefly at the initial status 

conference in the MDL. See In re JUUL Labs Inc., Mktg., Sales Pracs., & Prod. Liab. Litig., No. 

3:19-md-02913-WHO, ECF 2 ¶ 7 (N.D. Cal. Oct. 02, 2019) (pretrial order) (attached as Exhibit 

1). The court also identified topics in the Manual for Complex Litigation relating to initial and 

subsequent case management orders, and organization of counsel as “a tentative agenda for the 

conference,” and invited suggestions from the parties as to any other case management proposals

or additional agenda items. Id. ¶8. And while Judge Orrick directed the parties to submit “a brief 

written statement indicating their preliminary understanding of the facts involved in the litigation and 

the critical factual and legal issues,” the order noted that these “statements will not be binding, will 

not waive claims or defenses, and may not be offered in evidence against a party in later 

proceedings.” Id. ¶9.

Focusing the initial status conference in the MDL on appointing leadership and otherwise 

addressing topics that the parties are able to productively, if preliminarily, cover in that preleadership circumstance has the net effect of advancing the MDL, while acknowledging the 

limited authority the various parties and counsel may have prior to leadership appointments.

3) Designation of “interim counsel,” where appropriate, may be an alternative to 

“coordinating counsel.” 

The idea behind streamlining leadership appointments is to shorten the pre-leadership 

phase, thereby reducing costs and time to disposition. Designation of “coordinating counsel” as 

proposed in draft Rule 16.1(b) has the potential to help expedite early stage proceedings as well, 

but concerns have been expressed over the practical implications of creating an additional 

position for counsel. 

To address those concerns, the Committee may wish to instead adopt the nomenclature 

and approach already followed by some MDL judges to describe this temporary role as an 

“interim counsel” position, thus emphasizing that counsel’s appointment is limited to serving 

until the court considers the full complement of leadership applications and attendant proposals. 

See, e.g., JUUL, No. 3:19-md-02913-WHO, ECF 250 (N.D. Cal. Nov. 11, 2019) (minute order

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appointing counsel in an “interim capacity” to “move the initial discovery process forward and to 

address other issues as necessary,” but emphasizing that “interim MDL appointments are just 

that, interim”); In re Philips Recalled Cpap, Bi-Level Pap, & Mech. Ventilator Prod. Liab. Litig., 

No. 2:21-mc-01230-JFC (W.D. Pa. Nov. 11, 2021), ECF 33 (pretrial order appointing “interim 

lead plaintiffs’ counsel” for the purpose of negotiating an interim proposed preservation order). 

The “interim counsel” language aligns with Rule 23(g)(3)’s provision for appointment of 

class counsel before determining whether to certify any class. See id. (“The court may designate 

interim counsel to act on behalf of a putative class before determining whether to certify the 

action as a class action.”). While the duties of interim class counsel under Rule 23 will differ 

from those of interim counsel in a mass tort MDL (as discussed further below), the “interim” 

concept better captures the intent of Rule 16.1(b) without introducing a new titled counsel 

position. 

4) The Rule and Note should reflect that not all MDLs are product or device mass tort 

cases. 

The draft Rule focuses largely on product and device mass tort MDLs, which to be sure 

present many of the difficult case management issues that prompted the Committee to undertake 

these revisions. As the Committee recognizes, however, cases that are centralized under section 

1407 include a range of cases beyond product and mass tort claims, such as antitrust, securities, 

privacy, consumer protection cases, and more. Recent years have also seen an increase in 

“hybrid MDL” proceedings, which may include personal injury claims, class action claims, 

claims brought on behalf of public entities like school districts and Native American tribes, 

medical monitoring claims, and more.

The proposed adjustments below intend to account for the range of matters that fall 

within the ambit of section 1407 by adding express references to Rule 23(g) and class counsel 

appointments to the leadership considerations, focusing on the “legal effect” of a consolidated 

class action complaint under draft Rule 16.1(c)(5), and differentiating between types of MDLs in 

certain instances. 

a) Leadership proceedings and Rule 23(g). 

With respect to leadership appointments, the Note acknowledges that a transferee court 

faced with leadership decisions may need to take into account the range of claims and plaintiff 

interests in the MDL. The draft does not reference Rule 23(g), however, which governs the 

appointment of counsel in a class action.

Leadership considerations in a class action differ from those in a mass tort case. A

leadership appointment under Rule 23(g) is often “winner take all,” in the sense that class 

counsel is appointed by the court to represent the proposed class(es) as a whole and is vested 

with authority over all the class’s potential claims. Rather than presiding as lead counsel over 

claims brought by individuals or entities who have retained different lawyers to represent them, 

as may be the case in a mass tort MDL, Rule 23(g) vests class counsel with not just the authority, 

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but the obligation, to prosecute the class’s claims in the best interests of the class—“an 

obligation that may be different from the customary obligations of counsel to individual clients.” 

Fed. R. Civ. P. 23(g) advisory committee's note to 2003 amendment; see also id. (“Appointment 

as class counsel means that the primary obligation of counsel is to the class rather than to any 

individual members of it.”).

Parallel class and non-class leadership appointments in a single MDL may be appropriate 

in some proceedings. The transferee court can make that determination, with an understanding 

that Rule 23(g) places class counsel in a unique position, and does not invite backseat driving by 

other counsel (which does occur in non-class cases, as illustrated by the draft Rule’s discussion 

of how leadership may handle activity by “nonleadership counsel”). 

Including explicit cross-references to Rule 23(g) in Rule 16.1(c)(1)(B) and its Note, along 

with a handful of other suggestions noted below, will provide the transferee court with important 

perspective on class actions and the unqiue characteristics of a Rule 23(g) appointment, 

particularly for those MDLs that are comprised of class actions or include a class action 

component:

Rule 16.1(c)(1)(B):

...the structure of leadership counsel, including their responsibilities and 

authority in conducting pretrial activities, and whether appointment of 

counsel for the proposed class(es) under Rule 23(g) is warranted. 

Note to Rule 16.1(c)(1): 

... MDL proceedings in non-class cases may do not have the same 

commonality requirements as class actions, so substantially different 

categories of claims or parties may be included in the same MDL

proceeding and leadership may be comprised of attorneys who represent 

parties asserting a range of claims in the MDL proceeding. For example, 

in some mass tort MDL proceedings there may be claims by individuals 

who suffered injuries, and also claims by third-party payors who paid for 

medical treatment. The court may sometimes need to take these types of

differences into account in making leadership appointments, including 

whether appointment of counsel for the proposed class(es) under Rule 

23(g) is warranted.

b) Consolidated pleadings. 

The consolidated pleadings question that Rule 16.1(c)(5) considers—“whether 

consolidated pleadings should be prepared to account for multiple actions included in the MDL 

proceedings”—also raises an issue specific to class actions. As the Note acknowledges, the 

relationship between consolidated pleadings and individual pleadings “depends on the purpose of 

the consolidated pleadings in the MDL proceedings.” And as the Supreme Court explained in the 

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Gelboim v. Bank of America case cited in the Note (a class action), a key question is whether the 

master complaint is “meant to be a pleading with legal effect” or, instead, “only an 

administrative summary of the claims brought by all the plaintiffs.” 574 U.S. 405, 413 n.3

(2015). 

The consolidated complaint in a class action serves the critical purpose of aggregating all

the class’s claims into a single pleading that has “legal effect” for the class through judgment. A 

key feature of Rule 23 is that the class action binds together the class members it implicates 

(absent a request for exclusion). The class action complaint is intended by its nature to have

preclusive effect, in other words. 

The master complaint in a mass tort MDL, in contrast, often serves the distinct purpose of 

providing a single complaint defendants may move against through omnibus or “cross-cutting” 

Rule 12 motions. The master complaint identifies the claims and defenses that will inform the 

scope of discovery and other aspects of trial preparation. It does not have the same binding “legal 

effect” as a consolidated class action complaint, however. 

To address this important difference, the following addition could be made to the Note to

Rule 16.1(c)(5): 

The relationship between the consolidated pleadings and individual pleadings 

filed in or transferred to the MDL proceeding depends on the purpose of the 

consolidated pleadings in the MDL proceedings. Cases proceeding under 

Rule 23 may, for example, require only a consolidated complaint which 

supercedes individual class action complaints falling with the class or classes 

defined in the consolidated complaint. Decisions regarding whether to use 

master pleadings can have significant implications in MDL proceedings, as 

the Supreme Court noted in Gelboim v. Bank of America Corp., 574 U.S. 405, 

413 n.3 (2015).

**************

Thank you again for the opportunity to address the Committee on January 16, 2024. I 

look forward to answering any questions that members of the Committee might have.

Respectfully submitted,

/s/ Dena C. Sharp

Dena C. Sharp

GIRARD SHARP LLP

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United States District Court 

Northern District of California 

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

IN RE: JUUL LABS INC., MARKETING, 

SALES PRACTICES, AND PRODUCTS 

LIABILITY LITIGATION 

____________________________________ 

This Document Relates to: 

ALL ACTIONS 

Case No. 19-md-02913-WHO 

PRETRIAL ORDER #1 

The Judicial Panel on Multidistrict Litigation (“the Panel”) has transferred certain product 

liability and marketing sales practices actions relating to Juul Labs. Inc.’s products to this Court 

for coordinated pretrial proceedings. As the number and complexity of these actions warrant 

holding a single, coordinated initial status conference for all actions in In Re: Juul Labs, Inc. 

Marketing, Sales Practices, and Products Liability Litigation, MDL No. 2913, the Court 

ORDERS as follows:

1. APPLICABILITY OF ORDER

Prior to the initial case management conference and entry of a comprehensive order 

governing all further proceedings in this case, the provisions of this Order shall govern the practice 

and procedure in those actions that were transferred to this Court by the Panel. This Order also 

applies to all related cases filed in all divisions of the Northern District of California and all “tagalong actions” later filed in, removed to, or transferred to this Court.

2. COORDINATION

The civil actions transferred to this Court or related to the actions already pending before 

this Court are coordinated for pretrial purposes. Any “tag-along actions” later filed in, removed

to, or transferred to this Court, or directly filed in the Northern District of California, will 

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automatically be coordinated with this action without the necessity of future motions or orders. 

This coordination does not constitute a determination whether the actions should be consolidated 

for trial, nor does it have the effect of making any entity a party to any action in which he, she, or 

it has not been named, served, or added in accordance with the Federal Rules of Civil Procedure. 

To facilitate the efficient coordination of cases in this matter, all parties to this action shall notify 

the Panel of other potential related or “tag-along” actions of which they are aware or become 

aware.

3. MASTER DOCKET FILE

The Clerk of Court will maintain a master docket case file under the style “In Re: Juul 

Labs, Inc., Marketing, Sales Practices, and Products Liability Litigation” and the identification 

“MDL No. 2913.” When a pleading is intended to apply to all actions, this shall be indicated by 

the words: “This Document Relates to: ALL ACTIONS.” When a pleading is intended to apply to 

fewer than all cases, this Court’s docket number for each individual case to which the document 

relates shall appear immediately after the words “This Document Relates to.”

4. FILING

Each attorney of record is obligated to become a Northern District of California ECF User 

and be assigned a user ID and password for access to the system. If she or he has not already done 

so, counsel shall register forthwith as an ECF User and be issued an ECF User ID and password. 

Forms and instructions can be found on the Court’s website at www.cand.uscourts.gov/cm-ecf. 

All documents shall be e-filed in the Master file, 19-md-02913. Documents that pertain to one or 

only some of the pending actions shall also be e-filed in the individual case(s) to which the 

document pertains. Registration instructions for pro se parties who wish to e-file can be found on 

the Court’s website at www.cand.uscourts.gov/ECF/proseregistration.

5. APPEARANCES

Counsel who are not admitted to practice before the Northern District of California must 

file an application to be admitted pro hac vice. See N.D. Cal. Civil Local Rule 11-3. The 

requirement that pro hac vice counsel retain local counsel, see N.D. Cal. Civil Local Rule 11-

3(a)(3) and 11-3(e), is waived and does not apply to this MDL action. The Court generally 

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requires in person as opposed to telephonic appearances for any counsel wishing to participate in a 

hearing and allows attorneys to listen to the proceedings by telephone if they do not intend to 

speak.

6. LIAISON COUNSEL

Prior to the initial status conference, counsel for the plaintiffs and counsel for defendants 

shall, to the extent they have not already done so, confer and seek consensus on the selection of a 

candidate for the position of liaison counsel for each group who will be charged with essentially 

administrative matters. For example, liaison counsel shall be authorized to receive orders and 

notices from the Court on behalf of all parties within their liaison group and shall be responsible 

for the preparation and transmittal of copies of such orders and notices to the parties in their 

liaison group and perform other tasks determined by the Court. Liaison counsel shall be required 

to maintain complete files with copies of all documents served upon them and shall make such 

files available to parties within their liaison group upon request. Liaison counsel are also

authorized to receive orders and notices from the Panel or from the transferee court on behalf of 

all parties within their liaison group and shall be responsible for the preparation and transmittal of 

copies of such orders and notices to the parties in their liaison group. The expenses incurred in 

performing the services of liaison counsel shall be shared equally by all members of the liaison 

group in a manner agreeable to the parties or set by the Court failing such agreement. 

Appointment of liaison counsel shall be subject to the approval of the Court.

7. LEAD COUNSEL & PLAINTIFFS’ STEERING COMMITTEE

The Court will consider the appointment of lead counsel(s) and a Plaintiffs’ Steering 

Committee (“PSC”) to conduct and coordinate the pretrial stage of this litigation with the 

defendants’ representatives or committee. The Court requires individual application for a lead 

counsel or steering committee position. Any attorney who has filed an action in this MD

litigation may apply for a lead counsel or steering committee position or both. 

Applications/nominations for plaintiffs’ lead counsel(s) and PSC positions must be e-filed in 

master case no. 19-md-02913 on or before October 16, 2019. A courtesy copy must be mailed 

directly to chambers.

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Each attorney’s application shall include a resume no longer than two pages and a letter no 

longer than three pages (single-spaced) addressing the following criteria:

(1) professional experience in this type of litigation, including MDL experience as lead or 

liaison counsel and/or service on any plaintiffs’ committees or subcommittees;

(2) the names and contact information of judges before whom the applicant has appeared in 

the matters discussed in response to No. 1 above;

(3) willingness and ability immediately to commit to time-consuming litigation;

(4) willingness and ability to work cooperatively with other plaintiffs’ counsel and defense 

counsel;

(5) access to resources to prosecute the litigation in a timely manner;

(6) willingness to serve as lead counsel, a member of a steering committee, or both;

(7) any other considerations that qualify counsel for a leadership position.

Applications may also include an attachment indicating the names of other counsel who 

have filed cases in this MDL litigation and support the applicant’s appointment as lead counsel or

a PSC member.

The main criteria for membership in the PSC will be: (a) willingness and availability to 

commit to a time-consuming project; (b) ability to work cooperatively with others; and (c) 

professional experience in this type of litigation.

All responses or objections to applications must be e-filed in the Master file, 19-md-02913, 

on or before October 23, 2019, and are likewise limited to three single-spaced pages. The Court 

will hold an initial status conference on November 8, 2019, at 2:00 p.m., in Courtroom 2, 17th 

Floor, United States Courthouse, 450 Golden Gate Avenue, San Francisco, California. At that 

time applicants will have the opportunity to address the Court briefly in person. Thereafter, the 

Court will appoint lead counsel(s) and members of the steering committee(s), if needed, as 

promptly as practicable.

8. DATE OF INITIAL STATUS CONFERENCE AND CONFERENCE 

AGENDA

Matters relating to pretrial proceedings in these cases will be addressed at an initial status 

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conference to be held on November 8, 2019, at 2:00 p.m., in Courtroom 2, 17th Floor, United 

States Courthouse, 450 Golden Gate Avenue, San Francisco, California. Counsel are expected to 

familiarize themselves with the Manual for Complex Litigation, Fourth (“MCL 4th”) and be 

prepared at the conference to suggest procedures that will facilitate the expeditious, economical, 

and just resolution of this litigation. The items listed in MCL 4th Sections 22.6 (case management 

orders), 22.61 (initial orders), 22.62 (organization of counsel), and 22.63 (subsequent case 

management orders) shall, to the extent applicable, constitute a tentative agenda for the conference 

If the parties have any suggestions as to any case management orders or additional agenda items, 

these suggestions shall be filed with the Court by October 23, 2019.

9. POSITION STATEMENT

Plaintiffs and defendants shall submit to the Court by October 23, 2019, a brief written 

statement indicating their preliminary understanding of the facts involved in the litigation and the 

critical factual and legal issues. These statements will not be binding, will not waive claims or 

defenses, and may not be offered in evidence against a party in later proceedings. The parties’ 

statements shall identify all cases that have been transferred to or related before this Court, and 

shall identify all pending motions in those cases. The statements shall also list all related cases 

pending in state or federal court (that have not already been transferred to this Court), together 

with their current status, including any discovery taken to date, to the extent known.

10. INITIAL CONFERENCE APPEARANCES

Each party represented by counsel shall appear at the initial status conference through the 

party’s attorney who will have primary responsibility for the party’s interest in this litigation. 

Parties not represented by counsel may appear in person or through an authorized and responsible 

agent. To minimize costs and facilitate a manageable conference, parties with similar interests 

may agree, to the extent practicable, to have an attending attorney represent the party’s interest at

the conference. A party will not by designating an attorney to represent the party’s interest at the 

conference be precluded from other representation during the litigation, nor will attendance at the 

conference waive objections to jurisdiction, venue or service.

Case 3:19-md-02913-WHO Document 2 Filed 10/02/19 Page 5 of 7

Comment ID 

USC-RULES-CV-2023-0003-0023

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11. RESPONSE EXTENSION AND STAY

Defendants are granted an extension of time for responding by motion or answer to the 

complaint(s) until a date to be set by this Court. Pending the initial case management conference 

and further orders of this Court, all outstanding discovery proceedings are stayed, and no further 

discovery shall be initiated. Moreover, all pending motions must be re-noticed for resolution once 

the Court sets a schedule for any such motions. Any orders, including protective orders, previously 

entered by any transferor district court shall remain in full force and effect unless modified by this 

Court upon application.

12. PRESERVATION OF EVIDENCE

All parties and counsel are reminded of their duty to preserve evidence that may be 

relevant to this action, including electronically stored information. Any evidence preservation 

order previously entered in any of the transferred actions shall remain in full force and effect until 

further order of the Court. Until the parties reach an agreement on a preservation plan for all cases 

or the Court orders otherwise, each party shall take reasonable steps to preserve all evidence that 

may be relevant to this litigation. Counsel, as officers of the court, are obligated to exercise all 

reasonable efforts to identify and notify parties and non-parties, including employees of corporate 

or institutional parties, of their preservation obligations.

13. COMMUNICATION WITH THE COURT

Unless otherwise ordered by this Court, all substantive communications with the Court 

shall be in writing and e-filed. The Court recognizes that cooperation by and among plaintiffs’ 

counsel and by and among defendants’ counsel is essential for the orderly and expeditious 

resolution of this litigation. The communication of information among and between plaintiffs’ 

counsel and among and between defendants’ counsel shall not be deemed a waiver of the attorneyclient privilege or the protection afforded attorneys’ work product, and cooperative efforts

contemplated above shall in no way be used against any plaintiff by any defendant or against any 

defendant by any plaintiff. Nothing contained in this provision shall be construed to limit the 

rights of any party or counsel to assert the attorney-client privilege or attorney work product 

doctrine.

Case 3:19-md-02913-WHO Document 2 Filed 10/02/19 Page 6 of 7

Comment ID 

USC-RULES-CV-2023-0003-0023

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14. DATE OF INITIAL CASE MANAGEMENT CONFERENCE

Once the structure for plaintiffs’ representation has been determined, the Court will set a 

date for an initial case management conference, which will address discovery and other issues.

IT IS SO ORDERED.

Dated: October 2, 2019

William H. Orrick

United States District Judge

Case 3:19-md-02913-WHO Document 2 Filed 10/02/19 Page 7 of 7

Comment ID 

USC-RULES-CV-2023-0003-0023

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TAB 11 

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1

LEVIN SEDRAN & BERMAN LLP

Counsellors at Law and Proctors in Admiralty

_____

ARNOLD LEVIN

LAURENCE S. BERMAN

FREDERICK S. LONGER*

DANIEL C. LEVIN

CHARLES E. SCHAFFER

AUSTIN B. COHEN*

MICHAEL M.

WEINKOWITZ*

+

KEITH J. VERRIER*

NICHOLAS J. ELIA

ZANETTA MOOREDRIGGERS

ALICIA B. ARMSTRONG

510 WALNUT STREET

SUITE 500

PHILADELPHIA, PA 19106-

3697

www.lfsblaw.com

_______

TELEPHONE (215) 592-1500

FACSIMILE (215) 592-4663

OF COUNSEL:

HOWARD J. SEDRAN

SANDRA L. DUGGAN

*also admitted in New

Jersey

+also admitted in New York

December 29, 2023

Committee on Rules of Practice and Procedure

Administrative Office of the United States Courts

One Columbus Circle, NE

Washington, DC 20544

Re: Comment on Proposed New Federal Rule of Civil 

 Procedure 16.1 – Multidistrict Litigation

Dear Members of the Rules Committee: 

My name is Fred Longer. I am a practicing attorney and partner in the law firm of Levin, 

Sedran & Berman LLC in Philadelphia, Pennsylvania. I submit these comments about the 

proposed Rule 16.1 to the Federal Rules of Civil Procedure which I understand is designed to 

address perceived abuses or flaws in existing Multidistrict Litigation (MDL) practice. I thank the 

Committee for its considerable time and efforts to draft a rule intended to assist judges presiding 

over an MDL. 

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 

MDLs. In this space, I frequently chair or co-chair law and briefing committees. Currently, I am 

Co-Chair of the law and briefing committee in In re: Aqueous Film-Forming Foams Products 

Liability Litigation, MDL No. 2873 (D.S.C.) and In re Zantac Products Liability Litigation, 

MDL No. 2924 (S.D. Fla.). 

Comment ID 

USC-RULES-CV-2023-0003-0019

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 95 of 198
2

Years ago, I authored an article, The federal judiciary’s supermagnet, TRIAL at 19 (July 

2009), which noted that the Judicial Panel on Multidistrict Litigation does not centralize 

litigation based on its merits, “[r]ather it acts as a weigh station along the federal highway of 

docket management.” Implicit in my thought is the notion that an MDL is just a docket 

management tool; it is not monolithic, nor is it outcome determinative. An MDL affords a 

transferee judge enormous opportunities to employ different management techniques – novel 

(e.g., appointment of a Leadership Development Committee) and traditional (e.g., Rule 12 or 56 

motions practice) – to create efficiencies and facilitate the prosecution and defense of the case for 

all parties involved. So, while I support efforts to improve the MDL process, the imposition of a 

Rule of Civil Procedure (which should be trans-substantive) on a management tool seems 

misguided. For this reason, I oppose regulating MDL practice through rulemaking as it is 

unnecessary. However, if proposed Rule 16.1 is to be implemented, I have a few suggestions to 

improve it.

While I commend the Rules Committee for its efforts to apply some structure to modern 

MDL practice, many of the proposed Rule’s fixes amount to solutions to problems that do not 

exist or are matters ordinarily left to best practices guides. Some comments have homed in on 

this, particularly those of Lawyers for Civil Justice, who likened this Committee’s efforts to a 

vanity project, calling the proposal “aspirational,” not a rule.1 Others are less complimentary, 

calling the proposal an “absurdity” and declaring that the “‘MDL Rule’ isn’t worth the paper it’s

printed on.”2I prefer to think that much ado is being made by those possessing the most 

resources who are interested in rigging the system to suit their purposes. For equal justice under 

the law to apply, those with the loudest megaphones should not be heard above those who can 

barely whisper.

Proposed Rule 16.1 is unnecessary.

The Draft Minutes of the June 2023 Meeting of the Committee on Rules of Practice and 

Procedure report an MDL rule is needed to address concerns that 1) “MDLs account for a large 

portion of the federal docket” and 2) some transferee judges perceive “they lack clear, explicit 

authority [to do things] necessary to manage an MDL.”3 The proposed Rule 16.1 does nothing to 

address the first concern since the proposed rule focuses on considerations a transferee court is to 

take for effective case management. Many defense-oriented comments complain of docket 

congestion allegedly caused by the lack of vetting by counsel for personal injury plaintiffs in 

pharmaceutical cases. But many of the problems attributed to pharmaceutical product MDLs are 

not present in other types of MDLs. Calls for a uniform MDL rule mandating receipts or 

medical records at jump street amounts to overkill for most other MDLs. Their variety 

1 LCJ Comment to the Advisory Committee on Civil Rules at 1 (Sept. 18, 2023) [Comment ID 

SC-RULES-CV-2023-0003-0004].

2

See James M. (Bexis) Beck, CPAP MDL Overinflates Plaintiffs’ Claims (Dec. 4, 2023), 

available at https://www.druganddevicelawblog.com/2023/12/cpap-mdl-overinflates-plaintiffsclaims.html. 

3Agenda, Meeting of the Advisory Committee on Civil Rules at Page 38-39 of 570 (Oct. 17, 

2023), available at https://www.uscourts.gov/file/76890/download. 

Comment ID 

USC-RULES-CV-2023-0003-0019

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practically defies the requested vetting conditions. At present, there exists by “docket types” 

consolidated litigations involving air disasters, antitrust, common disasters, contract, 

employment practices, intellectual property, miscellaneous (from National Security Agency 

Telecommunications Records Litigation to Uber Technologies, Inc., Passenger Sexual Assault 

Litigation), Products Liability, and Securities.4 And the second concern – whether explicit 

authority exists for judges to manage their dockets – is already addressed by Rule 83.

As the sky is not falling, I believe that benign neglect is the better course of action for 

this Committee. The phrase “If it ain’t broke, don’t fix it” comes to mind as some things are 

better left well enough alone. MDL judges need flexibility to address myriad differences that 

exist between MDLs, such as the number of defendants, the number of plaintiffs, the number of 

counsel, the presence of class actions vs. individual actions or a combination of both, issues with 

foreign sovereigns, third-parties, and state-federal coordination, just to name a few. To confine 

them with a rule could restrict them from nurturing new methods to accommodate their unique 

circumstances. Incubating new ideas is the touchstone of MDL practice. For example, to my 

knowledge, Plaintiffs Fact Sheets were first developed in the Fenphen litigation. Defense Fact 

Sheets were first implemented in the Vioxx litigation. Censuses were first evaluated in the 

Zantac, JUUL, and 3M Earplug litigations. Innovations such as these could unintentionally be 

snuffed out with too much regulation. I recognize that great efforts have been made to craft a 

dedicated rule to address the so-called “rulelessness of MDLs” that causes some anxiety from a 

perceived lack of “predictability.”5 These criticisms are as misguided as they are incorrect. 

Congress has broadly granted through the MDL statute permission for consolidated proceedings 

which are limited only to procedures “not inconsistent with ... the Federal Rules of Civil 

Procedure.”6 And, in addition to the judiciary’s inherent authority, the Federal Rules of Civil 

Procedure already afford district court’s broad discretion to fashion procedures in their 

courtrooms to fit their needs.7 

In the event proposed Rule 16.1 proceeds, some modifications are in order.

If a Rule must be enacted to address these apprehensions, then it must adhere to the 

aphorism primum non nocere, i.e., "First, do no harm.” And it is here that the proposed Rule 16.1 

largely succeeds. It is chock full of useful guideposts for the uninitiated transferee judge to 

consider at the onset of any new MDL. But most, if not all of the guideposts provided in the 

4 See https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_Docket_TypeDecember-15-2023.pdf. 

5 Testimony of Christopher Campbell, In the matter of Proposed Amendments to the Federal 

Rules of Civil Procedure, Transcript of Proceeding at 101 (Oct. 16, 2023) [available at 

https://www.uscourts.gov/file/76799/download]. 

6

28 U.S.C. §1407(f).

7

See Fed.R.Civ.P. 83(b), and the comment thereto (“This rule provides flexibility to the court in 

regulating practice when there is no controlling law. Specifically, it permits the court to regulate 

practice in any manner consistent with Acts of Congress, with rules adopted under 28 U.S.C. 

§§2072 and 2075, and with the district local rules.”).

Comment ID 

USC-RULES-CV-2023-0003-0019

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 97 of 198
4

proposed Rule 16.1, are already available in Westlaw/Lexis, reference manuals, docket entries 

from prior MDLs, or through a telephone call seeking advice from a veteran colleague. 

Nevertheless, certain provisions in the proposed Rule 16.1 give me pause. To begin, Subsection 

(a) calls for an “Initial MDL Case Management” conference at which all of the matters described

in Subsection (c) are to be reported on and discussed. But what if the transferee court first

wanted to appoint Plaintiffs’ leadership so that the report contemplated by Subsection (c) could

be accomplished by counsel empowered to represent all the plaintiffs in the litigation before the

initial case management conference? That option is precluded by the proposed Rule 16.1.

Perhaps, my concern about timing is just a technicality of drafting, but as written, the proposed

Rule dictates a sequential structure for the first judicial conference that may be unwanted.

For a second example, Subsection (b) creates the post of “Coordinating Counsel,” which 

has never existed in my experience. In the past, courts have appointed liaison counsel sometimes 

to administer initial communications between the bench and the bar before leadership 

appointments are completed. This newly minted designee is not well described in the proposed 

Rule nor the accompanying comments. Adding new layers of counsel could spur contests within 

the plaintiffs’ bar for an interim, undefined position that is unnecessary if the court were to 

instead focus on immediately addressing plaintiffs’ leadership appointments. And, as drafted, the 

proposed Rule could be interpreted to invite the appointment of a complete outsider who has no 

meaningful connection to the litigation and who creates turmoil in the ranks of Plaintiffs’ and 

Defendants’ counsel. Who is to pay for this potential designee and how does this provision 

comport with Rule 1’s directive to administer justice speedily and inexpensively? The answer is 

not explained. I recommend against including this Subsection.

Third, the proposed Rule 16.1 mentions Rule 16 but provides no guidance on how the 

two rules will be co-administered. How the two rules are to work in tandem should be made 

clearer.

The Committee Notes are overbroad, and some are inaccurate

Finally, some of the Committee’s notes are inaccurate, which could potentially distort 

later proceedings. As the Committee is no doubt aware advisory committee notes are often relied 

upon to interpret the meaning of the rule.8 My principal concern is with this sentence : “MDL 

proceedings do not have the same commonality requirements as class actions, so substantially 

different categories of claims or parties may be included in the same MDL proceeding, and 

leadership may be comprised of attorneys who represent parties asserting a range of claims in the 

MDL proceeding.” In a data breach or antitrust MDL comprised solely of consolidated class 

actions, this reference paints with too broad a brush and could haunt class counsel from ever 

obtaining class certification. I recommend its removal. While I understand the focus of the 

proposed Rule 16.1 is to address mass torts or product liability cases, it should not be lost on the 

Committee that the one-size-fits-all proposal will apply to other docket types and, therefore,

should not unwittingly prejudice parties ab initio. 

8

See, e.g., United States v. Vonn, 535 U.S. 55, 64 n.6 (2002) (“[T]he Advisory Committee Notes 

provide a reliable source of insight into the meaning of a rule”).

Comment ID 

USC-RULES-CV-2023-0003-0019

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 98 of 198
5

I also take issue with the comment to Rule 16.1(c)(11). The rule addresses “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.” However, the Comment veers into “avoiding 

overlapping discovery” and the “fair arrangement” of allocating common benefit funds. These 

tangential and speculative concerns are troublesome in a Committee Note. I recommend the 

removal of this Comment.

Conclusion

MDL judges should have the utmost flexibility to administer their dockets of often 

complex and protracted litigation. To hamstring them at the outset with criteria available in best 

practices guides seems unduly patronizing and restrictive. Nevertheless, should the Committee 

resolve that more regulation of the judiciary is warranted, then my few suggestions to avoid the 

requirements being imposed at the “initial” conference, and the imposition of a needless 

coordinating counsel should be followed.

Respectfully,

/S/

FREDERICK S. LONGER

Comment ID 

USC-RULES-CV-2023-0003-0019

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TAB 12 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 100 of 198
1 

January 02, 2024 

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 Federal Rule of Civil Procedure 16.1 Comment 

Dear Mr. Secretary and Committee Members of the Advisory Committee on Civil Rules: 

I am a partner at Aylstock, Witkin, Kreis, and Overholtz, PLLC and have focused my practice on 

complex litigation of all forms since I began practicing law in 2007. My partners and I have 

specialized knowledge and experience with complex litigation, multidistrict litigations (MDL), 

and class action cases including all litigation-related proceedings and procedures from inception

through resolution. Our firm have been routinely appointed by various courts across the country 

to MDL committees and subcommittees with diverse roles and responsibilities too numerous to 

set forth comprehensively herein.1

 I am currently appointed to leadership in the 3M Combat 

Arms Earplug MDL 2885 (on the Discovery Committee and assist my partner Bryan Aylstock in 

his role as Lead Counsel), Hair Relaxer MDL 3060 (Plaintiffs Executive Committee) and Proton 

Pump Inhibitor MDL 2789 (Plaintiffs Executive Committee). 

1. Background and Flexibility of MDLs

The Federal Rules of Civil Procedure (FRCP) were promulgated in 1937 to “govern civil 

proceedings in the United States” with the primary purpose “to secure the just, speedy, and 

inexpensive determination of every action and proceeding.”2 While the FCRP are a mechanism 

of the court system, the MDL process is also a mechanism of the court process. The intersection 

between the two is unique to this area of legal practice. In MDLs, the civil rules are applied 

appropriately and MDLs counsel and court are not attempting to circumvent the FRCP. As such, 

there is a lack of urgency and need for an MDL specific rule. 

Due to need, there are areas of litigation – such as social security and class action claims – which 

have been enacted by law. Specifically, the Social Security Act was enacted in 1935 whereas 

1 Please refer to my resume and the firm’s resume for specific appointments and notable 

complex/multidistrict litigation experience.

2 Fed. R. Civ. P. 1. 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 101 of 198
FRCP 23 paved the way for class actions to be filed in federal court. The Class Action Fairness 

Act of 2005 (CAFA) further expanded federal jurisdiction for class actions. In 1968, Congress 

enacted 28 U.S.C. section 1407 which established the Judicial Panel on Multidistrict Litigation 

(JPML) with the authority to consolidate numerous claims into one jurisdiction before a 

transferee judge for the purpose of coordinating pretrial discovery. 

Some legal historians or academic enthusiasts for mass joinder might argue that the mass torts of 

today were never the intention of a strict reading of USC 1407. It is true that the JPML was 

created during a different era. It was a time when moving all claims made sense due to the nexus 

of the physical injury point. Over time mass torts have been expanded due to the nature of 

national commerce. Now, it is not the nexus of the injury at a specific point but instead the 

nexus of litigation in a specific location based on a variety of factors focused on during decades 

of JPML rulings and USC 1407. 

While the FRCP are a mechanism of the court system, the MDL process is also a mechanism of 

the court process. At no point prior to now has there been an intersection between the two. In 

MDLs, the civil rules are applied and there is no way that MDLs are attempting to circumvent 

the FRCP. 

Each MDL has distinct and unique claims, injuries, products, and parties involved. It would be 

entirely limiting and unreasonable to expect that each litigation that is deemed “complex” follow 

the same exact trajectory. To quote, Judge Rodgers’ perspective on MDLs in the 3M Litigation, 

the largest mass tort to date, during the First Case Management Conference: 

One thing that certainly I’ve learned from my experience just as a judicial officer but also 

specifically in the complex litigation realm with the Abilify MDL is that there is no 

magic formula or recipe for handling any MDL. Every one is unique, has its own unique 

challenges. Approaches that may work in one context do not necessarily fit or work in 

another (3M MDL First Management Conference Transcript, 04/17/2019, p. 8: 05-12). 

The committee must understand that there have been decades of MDL litigation where the 

FRCP, as they exist, have already been adequately applied. Codifying the types of clauses 

included in proposed Rule 16.1 will have an unintended consequence of changing the fabric of 

mass torts unless this committee considers the comments provided herein. There is not an urgent 

need for change because mass torts have existed for 50 years working hand in hand with the 

FRCP. 

While there is a shift toward larger MDLs and an ever growing volume of cases that are in the 

federal judiciary related to mass torts, that does not indicate on its face that a rule should be 

created to “fix” a system that is not inherently flawed. The size of mass torts are being driven by 

the size of consumer sales and consumption as well as by ever growing access to information in 

a digital age. Mass torts themselves do not generate larger mass torts; the increased sale and 

defect of the products over which consumers bring lawsuits expand the size of an MDL. As such 

there is no urgency or broken system that needs to be resolved to fix the MDL process to the 

extent as outlined in Rule 16.1. 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 102 of 198
The MDL mechanism as it relates to products liability litigation furthers the main objective of 

the FRCP: it provides individual consumers across America who have been negatively harmed, 

impacted, or injured by the products of corporations an opportunity to hold those corporations 

accountable for their wrongdoing. There is no similar check on widespread corporate 

malfeasance other than the MDL. Any perceived or actual limitations on individual consumers 

to seek redress in the court system could be improper without careful consideration prior to

enacting any changes to existing procedures, rules, and practices. 

2. Unsupportable Claims

I appreciate the hard work of the committee in carefully considering all that has resulted in the 

creation of the Proposed Rule 16.1. While I acknowledge that the MDL process is not without 

flaws, I seek to enhance awareness about how proposed Rule 16.1 in its current draft requires 

additional changes and why certain provisions in the proposed rule, including Rule 16.1 (b) and 

Rule 16.1(c), are not appropriate nor necessary to be addressed at an initial conference per Rule 

16.1 (a). Before jumping into the specifics of those changes, I will briefly address the defenseside comments that focus on “unmeritorious claims.” 

Despite widespread efforts to change tort litigation and reduce damages over the past 50 years

via tort reform, there is an ever shifting momentum in this country to ensure plaintiffs have a 

right to a day in court -- especially when harmed by defective or dangerous products and devices. 

One example of this was the recent repeal in Michigan of a law that has been in effect for nearly 

30 years and has banned pharmaceutical liability lawsuits in the state. This legislative change 

will provide an avenue for residents of the 10th largest state in the country (by population) to seek 

recourse against pharmaceutical companies that have manufactured products and devices that 

have injured or killed individuals. 

The FRCP enumerates the requirements for filing a lawsuit. These requirements have been and 

continue to be utilized in MDL. A plaintiff understands and believes their claim meets the 

requirements at the time of filing. However, until proven otherwise that does not mean a 

plaintiff’s claim is meritorious or supportable by science as well as law. The Lawyers for Civil 

Justice credits, in their comment, the filing of large amounts of mass tort cases to the 

“unaddressed FRCP problem” for “inviting counsel to ‘get a name, file a claim.’3

 There is no 

prohibition on filing meritorious cases simply because defense counsel does not want to defend 

against a large volume of lawsuits by those harmed by the exact companies against who lawsuits 

are brought. Furthermore, as discussed throughout, the MDL process remains one of the only 

mechanisms in our country for consumers to hold companies accountable for their dangerous and 

defective products. 

In the 3M Litigation, concerns over unmeritorious claims or potentially fraudulent (or missingin-action plaintiffs) were raised repeatedly throughout multiple years of litigation. The volume 

of filed cases swelled rapidly to 20,000 with hundreds of thousands of additional claims being 

tolled on agreements between the parties. The tolled (or other unfiled cases) were uniquely 

addressed by Judge Rodgers – requiring establishment of an administrative docket, a rapid 

census process and eventually, requirement of production of a DD214 to establish military 

3 Lawyers for Civil Justice (LCJ Comment), p.5.

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 103 of 198
service (or an alternative proof) of use of the 3M earplugs during the timeframe they were 

commercially available. The 3M Combat Arms Earplug litigation at its height had over 300,000 

claimants with filed lawsuits. More than 270,000 unique claimants were identified for 

participation in the Settlement program announced in August of 2023 within an ongoing 

settlement program today4. A large volume of claims is not enough for a prima facie case that the 

claims are an “unaddressed FRCP problem” or that counsel “get a name, file a claim.” This 

resolution occurred in large part due to the flexibility the MDL Court had to address the unique 

issues central to the litigation and the flexibility to direct discovery to the best result for all 

parties. 

3. Discretionary Nature of Rule 16.1 

Proposed Rule 16.1 appears to provide discretionary guidance during the inception of a mass tort 

by suggesting that the transferee court schedule an initial MDL management conference, 

designate a coordinating counsel as well as ask that the parties prepare a report containing 

suggested topics in preparation for the management conference. While a rule like this one could 

be helpful to the court in clarifying initial objectives of the parties, the current draft as it stands 

provides unnecessary suggestive framework that will result in creating redundancy and 

potentially even more complications during initial formation. 

In the 3M litigation, the JPML order consolidating the 3M cases was entered on April 3, 2019 

and by April 17, 2019, the court held the First Case Management conference during which 

multiple important threshold topics were discussed including the leadership appointment 

structure, the direct filing process, and pleadings, to name a few (3M MDL First Management 

Conference Transcript, 04/17/2019).

There are currently multiple authorities that judges and parties currently rely on and that have 

meaningfully been utilized in complex litigation. The existing procedures and practices 

contained in the Annotated Manual for Complex Litigation (2017), the updated version of the 

Manual for Complex Litigation (4th ed.) (“MCL”), has served as sufficient framework and 

guardrails to assist the court and litigants in setting the pace and foundation for the formation of 

a mass tort and beyond. For example, at the outset of the 3M litigation, the court via the Pretrial 

Order No. 2, required counsel “to familiarize themselves with the MCL and be prepared at the 

conference to suggest procedures that will facilitate the expeditious, economical, and just 

resolution of this litigation” (3M Litigation Pretrial Order No. 2, 2019-04-05). The court even 

went as far as to include the most updated version of the Manual, the Annotated Manual for 

Complex Litigation (2017), to be the most up to date version relied upon during this MDL (3M 

MDL First Management Conference Transcript, 04/17/2019, 16:19- 17:02). 

Again, there currently exists sufficient framework and safeguards for MDLs to operate absent 

Rule 16.1. Specifically, the Annotated Manual for Complex Litigation (2023) includes the 

following general principles: 

4 At the time of this submission, Registration and Election to participate in the Combat Arms settlement 

closes on January 25, 2024, and more than 2/3 of the identified claimants have made an election in the 

program to date. The process speaks for itself. 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 104 of 198
“Fair and efficient resolution of complex litigation requires at least that (1) the court 

exercise early and effective supervision (and, where necessary, control); (2) counsel act 

cooperatively and professionally; and (3) the judge and counsel collaborate to develop 

and carry out a comprehensive plan for the conduct of pretrial and trial proceedings.” 

(Annotated Manual for Complex Litigation | May 2023 Update)5

4. Rule 16.1(b) – Coordinating Counsel

While the rule appears inherently flexible, providing discretionary guidance to designate a 

coordinating counsel seems to be redundant and duplicative. The appointment of a coordinating 

counsel early in the litigation would be entirely and frustratingly inefficient. For one, the 

language of the rule is silent as to the requirements of the experience of the coordinating counsel 

with complex litigation. How will the court determine who the coordinating counsel will be? 

Will this add a layer to the leadership appointment process requiring yet another round of 

leadership applications? Will this coordinating counsel be neutral? Or will coordinating counsel 

become a de facto interim lead counsel for one party or the other? 

Additionally, the rule is ambiguous as well as silent about the familiarity of the coordinating 

counsel with the current litigation as well as prior experience of coordinating counsel with 

complex litigation. Would someone who was involved in the Talc litigation be appointed to 

coordinating counsel in an antitrust litigation? How can the court expect an individual in the 

position of coordinating counsel to meaningfully contribute to and complete the requirements of 

the below provisions, (b)(1) and (b)(2), of Rule 16.1 if the coordinating counsel has no 

familiarity with the parties and current issues before the court?

(b)(1) assist with the conference; and

(b)(2) work with plaintiffs or with defendants to prepare for the conference and prepare 

any report ordered under Rule 16.1(c). 

 

Although criticism of “repeat players” in mass torts exists, the expertise gained from years of 

experience working on complex litigation cannot be substituted by an inexperienced third party. 

In the 3M MDL, the court appointed Bryan Aylstock, a law partner of mine and one the founders 

of our firm, to be the interim lead and liaison counsel on April 5, 2019 (3M MDL Pretrial Order 

No. 2, 04/05/2019, p. 4 – 5). Mr. Aylstock was not only conveniently located to the court but 

had the recognized expertise and known reputation of doing “an outstanding job” in prior MDL 

litigations before the court (3M MDL First Management Conference Transcript, 04/17/2019, p. 

19: 03-25). Mr. Aylstock was ultimately appointed lead counsel of the 3M litigation after the 

court conducted a fair and transparent appointment process (3M MDL First Management 

Conference Transcript, 04/17/2019, p. 19: 16-25). 

Personally, it was not until after more than a decade of practice, focused solely on mass torts and 

complex litigation, that I had gained the experience to handle the complexities of this type of 

work. Prior to experiencing multiple MDLs from start to completion – whether it be dismissal or 

settlement resolution – it can be difficult for any practicing attorney to fully realize all of the 

5 Ann. Manual Complex Lit. § 10 (4th ed.)

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 105 of 198
different components or be prepared to address layered complexities within a specific litigation. 

The underlying defect or injury varies widely across MDLs; you “learn a new industry” every 

few years when working as a litigator in MDLs. But the underlying process, formalities and 

guidance provided by the MCL are applied through the lens of experience gained in prior 

litigation. Handling a litigation with a large volume of individual plaintiffs is complex and 

different than handling a litigation against multiple unique defendants who sold similar products 

resulting in related injuries. MDLs rarely involve plaintiffs with identical circumstances against

a single defendant. While much criticism is brought about “repeat players” in MDLs; 

experienced litigators are needed to lead and guide these cases through the MDL system 

appropriately and effectively. Furthermore, it is well known that “transferee judges tend to seek 

guidance from predecessors, peers, and lawyers who have litigated other multidistrict 

proceedings.”6

The leadership process is better left addressed during the leadership appointment and application 

period. During the leadership period in the 3M litigation, the court set out to establish a “diverse 

team” of “individuals who have demonstrated the capacity, the knowledge, and the skill set, 

reputation, resources, and energy to effectively and efficiently lead the MDL” (3M MDL First 

Management Conference Transcript, 04/17/2019, p. 20: 01-09). Again, this underscores the 

importance of and the for need for practitioners who understand the complexity and intricacies of 

complex litigation as well as understand what future problems can arise from the very start of 

any litigation. 

Finally, I would be remiss to fail to mention that any additional costs and fees placed on clients 

by this discretionary appointment would no doubt decrease the ultimate recovery, if successful,

for a client on the plaintiff’s side. These associated fees and costs are avoidable by the current 

practice of appointing a neutral party such as a magistrate or special master to assist the court 

with the initial management conference. 

The coordinating counsel appointment appears duplicative of the purpose of the magistrate or 

special master in supporting the court. It also appears to step into the process of the JPML in 

appointing a judge to oversee the MDL. The JPML has already gone through the arduous process 

of determining where to consolidate and which judge to consolidate in front of. Why is it needed 

to add another layer of court appointed counsel to coordinate for the judge who has just been 

appointed and selected? This is not the process in the Manual for Complex Litigation where the 

court appoints an intermediate lead counsel and an intermediate lead counsel for defendant. If the 

court needs assistance, the neutral should be the magistrate or special master. 

Prior to the First Management Conference in the 3M Litigation, Judge Rodgers assigned 

Magistrate Judge Gary Jones to be the magistrate in the litigation (3M MDL PTO 1, 2019-04-

05). On the record, Judge Rodgers recognized Magistrate Judge Jones’ prior experience working 

on the Abilify MDL and stated that he would be relied on for many issues including electronic 

discovery, ESI, in the 3M Litigation (3M MDL First Management Conference Transcript, 

04/17/2019, p. 5: 15-25). Additionally, Ellen Reisman was appointed the Common Benefit 

6 Elizabeth Chamblee Burch and Margaret S. Williams, Repeat Players in Multidistrict Litigation: The

Social Network, 102 CORNELL L. REV. 1445 (2017)

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 106 of 198
Special Master to work closely with Lead Counsel and the Common Benefit Fund Committee 

(3M MDL Order of Appointment, May 28, 2019). 

Further, during the leadership appointment process in 3M, Judge Rodgers utilized a panel 

consisting of three neutrals, in addition to herself, to help with seating plaintiff’s leadership. The 

panel members were Judge Rodgers, Judge Jones, Orran Brown, and Ellen Reisman (3M MDL 

Civil Minutes – General, 05/21/2019). The neutrals were appointed to assist the judge early on 

with managing the litigation. Further, retired Judge David Herndon was appointed a Special 

Master to help the court “in moving the affirmative defenses into a posture for dispositive motion 

practice as well as “help facilitate and manage discovery” (3M MDL Order of Appointment, 

10/15/2019). The requirement for a coordinating counsel appears to be a limitation on an MDL 

judge’s authority to appoint those neutrals, magistrates or Special Masters required for the 

efficient management of a unique litigation.

As it relates to the committee note related to 16.1(b), “recognizing the court may designate of 

coordinating counsel and specifically the inclusion of “perhaps more often on the plaintiff side 

than the defendant side –”; there are already mechanisms and steps for MDL judges to address 

this need.7

 

5. Rule 16.1(a) in conjunction with Rule 16.1(c)

Rule 16.1(a) guides the transferee court to schedule an initial MDL management conference. 

This conference can and does set the stage and pave the way for an efficient and clear MDL case 

management plan. 

However, based on experience, it is most appropriate to only include the below topics currently 

referenced in the proposed Rule.16.1(c) report to be provided to the court during the Rule 16.1(a) 

initial management conference:

(1) whether leadership counsel should be appointed, procedure for appointment, structure 

of leadership counsel, and related responsibilities; 

(2) identifying any previously entered scheduling or other orders and stating whether 

they should be vacated or modified; 

(3) to the extent possible and without prejudice to leadership counsel after appointment,8

identifying the principal factual and legal issues likely to be presented in the MDL 

proceedings; 

7 In re: Actos (Pioglitazone), three special masters were appointed to assist the court when the court 

realized that additional neutrals were necessary to assist in the organization of the litigation and appointed 

them via the court’s inherent powers. The court wrote “Other MDL Courts, facing similar challenges, 

have easily concluded that appointment of Special Masters was appropriate to help the Court with various 

pretrial, trial, and post-trial tasks...The 2003 amendments to Rule 53 specifically recognize the pretrial, 

trial, and post-trial functions of masters in contemporary litigation” (Actos Order Appointing Special 

Masters, 04/11/2012).

8 I recommend that the underlined language be incorporated into 16.1.(c)(3) of the draft rule.

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 107 of 198
(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 them. 

Limiting the inclusion to the above provisions directs the parties and the court to only consider 

what is essential at this stage of the case. Addressing additional topics confuses the issues and is, 

quite frankly, too early in the discovery process to do anything other than hamstring the parties 

and the Court from achieving the purpose provided by 28 USC 1407 – coordination for pretrial 

discovery. 

There is a significant disadvantage to Plaintiffs’ counsel made by requiring additional specific 

discovery requirements prior to any leadership structure being appointed; regardless of the 

usefulness of an appointed coordinating counsel. Although the provisions of Rule 16.1(c) proport 

to be a tool for the court to use, if the language of the proposed rule is not adapted to limit the 

topics, individual plaintiff’s counsel will be required to make decisions that are more appropriate 

for an appointed leadership counsel. 

Further, any decisions made to include the below provisions would substantially impair the 

development of the MDL resulting in plaintiff’s counsels inability to represent our clients

adequately and responsibly: 

 

(4) how and when 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 assessing 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);

 

(12) whether matters should be referred to a magistrate judge or a master.

These items should be removed from Rule 16.1 or made entirely optional within the associated 

comments. 

For the above reasons, there is not an urgent nor dire need for the provisions included in the 

current draft of Rule 16. However, if it is ultimately enacted, the Proposed Rule should be 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 108 of 198
narrowed to remove inappropriate and unnecessary provisions better left to the discretion of the 

MDL Court and the parties. 

I appreciate the effort and time that the Committee has spent on this matter and look forward to 

speaking with the Committee during the remote hearings on January 16, 2024. Every individual 

who has been involved in the process of developing Rule 16.1 shares the goal and hope that final 

promulgation of this Rule will not hinder the adjudication of justice for claimants across the 

country. The recommendations submitted herein are in furtherance of that intention. At that 

time, I intend to answer any questions that Committee members may have for me and elaborate 

on my comments if afforded the opportunity. 

 Sincerely,

 Jennifer Hoekstra

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 109 of 198
FIRM RESUME

With twenty-four licensed attorneys and over three hundred staff members, AWKO 

has the resources, infrastructure, and experience to prosecute even the most complex 

national litigations. The firm utilizes a robust case management database designed for 

use in class and other complex litigation, which can track client communications, 

written pleadings, correspondence, and other case information for tens of thousands of 

matters and clients. AWKO employs an on-site IT team and database administrators as 

well as software developers to remain on the cutting edge of litigation and claims 

administration technology. 

MULTIDISTRICT LITIGATION

Since AWKO’s formation twenty-one years ago, courts around the country have 

appointed the firms’ attorneys to leadership roles in product liability litigation, 

involving the claims of hundreds of thousands of plaintiffs, collectively. Most 

recently, after serving as Lead Counsel as well as lead trial counsel in multiple 

successful trial verdicts, AWKO attorneys successfully spearheaded the successful 

resolution of the largest MDL in history: 

• In re: 3M Combat Arms Earplug Products Liability Litigation, 3:19-md-2885 

(Lead Counsel on behalf of Plaintiffs; Executive Committee; Discovery & ESI 

Committee; Experts and Science Committee);

Other representative examples include: 

• In Re: Ethicon, Inc., Pelvic Repair System Prod. Liab. Litig., MDL 2327 

(Coordinating Co-Lead Counsel and PEC) (overseeing MDLs 2187, 2325, 2326, 2327, 

2387, 2440, 2511) and (Co-Lead, overseeing In Re: Ethicon, Inc.); 

• In Re: Mentor Corp. Obtape Transobturator Sling Prod. Liab. Litig., MDL 2004 

(Co-Lead); 

• McLaughlin v. Bayer Essure, Inc., et al., 14-7315 (E.P. Pa.) (Co-Lead Counsel 

and PSC); 

• In Re: Abilify Prod. Liab. Litig., MDL 2734 (Liaison Counsel, PEC and CoChair of the Common Benefit Committee); 

• In Re: Zoloft (Sertraline Hydrochloride) Prod. Liab. Litig., MDL 2342 (Coordin. 

Counsel); 

• In Re: Effexor (Venlafaxine Hydrochloride) Prod. Liab. Litig., MDL 2458 (CoLead and Multi-District Coordin. Counsel); 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 110 of 198
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• In Re: Avandia Marketing, Sales Practices and Prod. Liab. Litig., MDL 1871 

(Co-Lead; Advisory Committee, and Common Benefit Fee Committee); 

• In Re: Proton-Pump Inhibitor Prod. Liab. Litig., MDL 2789 (Co-Chair, PEC); 

• In Re: Elmiron (Pentosan Polysulfate Sodium) Prod. Liab. Litig., MDL 2973 

(PEC);

• In Re: Fluoroquinolone Prod. Liab. Litig., MDL 2642 (PEC); 

• In Re: Biomet M2a Magnum Hip Implant Prod. Liab. Litig., MDL 2391 (PEC); 

• In Re: Incretin Mimetics Prod. Liab. Litig., MDL 2452 (PEC); 

• In Re: Pradaxa (Dabigatran Etexilate) Prod. Liab. Litig., MDL 2385 (PEC); 

• In Re: Actos (Pioglitazone) Product Liability Litigation, MDL 2299 (PSC and Pl. 

Settlement Rev. Comm’ee); 

• In Re: Viagra Products Liability, MDL 1724 (PSC and Co-Lead Settlement 

Counsel); 

• In Re: Stryker Rejuvenate and ABGII Hip Implant Prod. Liab. Litig., MDL 2441 

(PSC); 

• In Re: Ethicon, Inc. Power Morcellator Prod. Liab. Litig., MDL 2652 (PSC); 

• In Re: Xarelto (Rivaroxaban) Prod. Liab. Litig., MDL 2592 (PSC); 

• In Re: Zimmer NexGen Knee Implant Prod. Liab. Litig., MDL 2272 (PSC); 

• In Re: Fleet Oral Sodium Phosphate Litigation, MDL 2066 (PSC); 

• In Re: Trasylol Prod. Liab. Litig., MDL 1928 (PSC). 

• In Re: Recalled Abbott Infant Formula Prod. Liab. Litig., MDL 3037 (N.D. Ill.) 

(Co-Lead);

• In Re: Hair Relaxer Marketing, Sales Practices, and Prod. Liab. Litig., MDL 

3060 (N.D. Ill.) (PEC); 

• In Re: Tepezza Marketing, Sales Practices, and Prod. Liab. Litig., MDL 3079 

(N.D. Ill.) (PEC); and

• In Re: Social Media Adolescent Addiction/Personal Injury Prod. Liab. Litig., 

MDL 3047 (N.D. Cal.) (PSC). 

Judges nationwide also routinely appoint AWKO attorneys to committees and 

subcommittees with diverse roles and responsibilities too numerous to set forth 

comprehensively herein. 

CLASS ACTIONS

The firm’s attorneys have significant experience as lead counsel in class litigation 

in national and state class actions, including: 

• In re: Johnson & Johnson Sunscreen Marketing, Sales Practices and Products 

Liability Litigation, MDL Docket No. 3015 (S.D. Fla.); 

• Beth Bowen v. Energizer Holdings, Inc., Edgewell Personal Care Company, 

Edgewell Personal Care Brands, LLC, Edgewell Personal Care, LLC, Playtex 

Products, Inc., and Sun Pharmaceuticals, LLC, Case No. 20:21-cv-04356-MWFAGR, (C.D. Ca., Western Division); 

• In re: Procter & Gamble Aerosol Products Marketing and Sales Practices 

Litigation, Case No. 2:22-md-3025, (S.D. Ohio, Eastern Division); 

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• In re: MCI Non‐Subscriber Telephone Rates Litig., MDL Docket No. 1275 (S.D. 

Ill); 

• In re: America Online, Inc. Version 5.0 Software Litig., MDL Docket No. 1341 

(S.D. Fla); 

• Ouellette v. Wal‐Mart, Circuit Court, Washington Co., Fla., Case No. 67‐01‐CA‐

32; 

• In re: DryClean USA Litig., Circuit Court, Dade Co., Fla., Case No. 02‐27169‐

CA‐27; 

• In re: Shell Defective Gas Litigation, Circuit Court, Dade Co., Florida, Case No. 

04‐12297‐CA‐10; 

• Begley v Ocwen Loan Servicing, LLC, Case No. 3:16-cv-00149-MCR-CJK (N.D. 

Fla.); and 

• Hinote, et al. v. Ford Motor Company, et al., Circuit Court, Escambia Co., Fla., 

Case No. 2004‐CA‐01658; and

• In Re: East Palestine Train Derailment, 4:23-CV-00242 (N.D. Oh.) (PSC). 

Members of the firm have also litigated other national class action cases, including: 

In re: Honey Transshipping Litigation, 13‐cv‐02905, (N.D. Ill.); Cottrell, et al. v. 

Alcon Laboratories, et al., 3:14‐cv‐05859 (Dist. of N.J.); Gustavesen, et al. v. Alcon 

Laboratories, 1:14-11961 (Dist. of Mass.); In re: Microsoft Antitrust Litigation, MDL 

Docket No. 1332 (D. Md.); as well as numerous state court class actions such as In re: 

Baker v. Baptist Hospital, Inc., Circuit Court, Santa Rosa County, Florida, Case No. 

2010‐CA‐1591; Patel v. Citizens Property Ins. Corp., Circuit Court, Escambia County, 

Florida, No. 05‐284; and Lowry v. Vanguard Fire & Cas. Co., Circuit Court, Santa 

Rosa County, Florida, Case No. 05‐674. 

AWKO attorneys present and publish nationwide on diverse topics pertinent to 

litigating complex, medical product liability cases, including ESI, general and specific 

discovery topics, legal issues, scientific and medical topics, as well as claims 

administration.

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JENNIFER M. HOEKSTRA

AYLSTOCK WITKIN KREIS & OVERHOLTZ

17 E. MAIN STREET, SUITE 200

PENSACOLA, FL 32502

jhoekstra@awkolaw.com

(850) 202-1010

JULY 2018-PRESENT

_______________________________________ 

___________________________________________________________________________________ 

CURRICULUM VITAE

Practice area focuses exclusively on nationwide Complex/Multidistrict Litigation proceedings, including 

substantive participation in the following cases: 

• In re: Hair Relaxer Marketing Sales Practices and Products Liability Litigation (NDIL)

o Appointed, Plaintiffs’ Executive Committee

o Co-Chair Discovery Coordination Committee

o Co-Chair Electronically Stored Information/Discovery (ESI) Committee

o Co-Chari Hair Relaxer Product Testing Committee

o Member, Godrej/Strength of Nature Discovery Committee

• In re: 3M Earplugs Product Liability Litigation (NDFL)

o Appointed, Discovery & ESI Subcommittee

o Member of Estes-Hacker-Keefer March 2021 Bellwether Trial Team

o Trial Counsel for McCombs May 2021 Bellwether Trial

o Member of Baker June 2021 Bellwether Trial Team 

o Trial Counsel for Adkins September 2021 Bellwether Trial

o Trial Counsel for Blum October 2021 Bellwether Trial

o Trial Counsel for Camarillo October 2021 Bellwether Trial 

o Trial Counsel for Finley December 2021 Bellwether Trial Team

o Member of Montero December 2021 Bellwether Trial Team

o Member of Sloan-Wayman January 2022 Bellwether Trial Team 

o Trial Counsel for Vilsmeyer March 2022 Bellwether Trial Team

o Member of Kelley April 2022 Bellwether Trial Team

o Member of Vaughn April 2022 Bellwether Trial Team 

o Trial Counsel for Beal May 2022 Bellwether Trial Team

• In re: Proton-Pump Inhibitor Product Liability Litigation (D. NJ)

o Member of May 2023 and September 2023 Trial Teams 

o Appointed, Plaintiffs’ Executive Committee

o Team Leader for Takeda Defendants Deposition and Discovery

o Member of Third Party Discovery Team

o Member of Regulatory and Clinical Discovery Teams

o Member of Privilege Log Review Team

• In re: Xarelto (Rivaroxaban) Product Liability Litigation (E.D. La.)

o Member of the Philadelphia Cooney trial in August 2018 

• In re: In re: Actos (Pioglitazone) Product Liability Litigation (W.D. La.) 

o Plaintiffs’ Verdict: Allen v. Takeda Pharmaceutical and Eli Lilly & Co. ($9 billion).

o Global Settlement of $2.7 billion. 

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• In re: DePuy Orthopaedics, Inc., Pinnacle Hip Implant Products Liability Litigation (N.D. Tex.) 

o Appointed, Law and Briefing Committee

o Plaintiffs’ Verdicts: Aoki et. al. v. DePuy et. al. ($498 million); Andrews et. al. v. DePuy 

et al. ($1 billion); Alicea et al. v. DePuy et al. ($248 million).

• In re: Genetically Modified Rice Litigation (E.D. Mo.) 

o Six Plaintiffs’ Verdicts totaling over $52 million. 

o Overturned Arkansas statutory punitive damages cap (upheld by Ark. Supr. Ct.) 

o Global Settlement of $750 million. 

_______________________________________________________________________________ 

EDUCATION

Columbia College of Columbia University (Deans List). B.A. 2001 

Tulane University Law School. J.D. 2007 

Tulane University Law School. Certification in Environmental Law 2007 

 

____________________________________________________________________________________ 

BAR ADMISSIONS

Louisiana State Courts, 2008 

United States District Court, Eastern District of Louisiana, 2009

United States District Court, Western District of Louisiana, 2010 

United States Court of Appeals, Fifth Circuit, 2009 

United States Court of Appeals, Eighth Circuit, 2010 

__________________________________________________________________________________ 

MEMBERSHIPS

Louisiana State Bar Association

Federal Bar Association

American Association for Justice

Florida Justice Association

____________________________________________________________________________________ 

HONORS & ACHIEVEMENTS

Senior Articles Editor, Tulane Journal of Technology and Intellectual Property. 

Gary Lawton Fretwell Crest Award, Tulane University Law School. 

Society of Women Trial Lawyers Board Member.

_________________________________________________________________________________ 

NOTABLE COMPLEX/MULTIDISTRICT LITIGATION EXPERIENCE

Point person for Lead Counsel in In re: 3M Earplugs Product Liability Litigation (NDFL, Rodgers, J.). 

Trial Counsel (or Member of trial teams) for more than a dozen of the sixteen bellwether trials that 

obtained more than $300 million in verdicts against 3M. Member of the Discovery & ESI Committee; 

Coordinator of discovery and pre-trial matters, communication with Special Masters, court officials, 

defense counsel, and Plaintiffs’ Leadership. Co-Chair of Bellwether ESI and point person for Remand 

Discovery issues. 

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Point person for Lead Counsel in In re: Actos (Pioglitazone) Product Liability Litigation, MDL 2299 

(W.D. La., Doherty, J.). Coordinator of discovery and pre-trial matters for Special Masters, court officials, 

defense counsel, and Plaintiff Steering Committee members. Member of bellwether trial team that 

obtained $9 billion verdict against Takeda Pharmaceuticals (N.A. and Int’l.) and Eli Lilly & Co. (Allen v. 

Takeda et al) and integrally involved in the subsequent $2.7 billion global settlement. Prepared for and 

participated in more than forty fact-discovery depositions relating to liability of Takeda Pharmaceuticals 

and Eli Lilly employees. 

Appointed by Judge Ed Kinkeade Member of Law and Briefing Committee in In re: DePuy Orthopaedics, 

Inc., Pinnacle Hip Implant Products Liability Litigation, MDL 2244 (N.D. Tex.). Coordinator of 

discovery and pre-trial matters for Special Masters, court officials, defense counsel, and Plaintiff Steering 

Committee members. Member of trial team in bellwether trials resulting in a $498 million verdict (Aoki 

et al), $1 billion verdict (Metzler et al) and $250 million verdict (Alicea et al). Prepared for and 

participated in more than forty fact-discovery depositions relating to liability of DePuy Orthopaedics and 

Johnson & Johnson employees. 

Member of trial team for five bellwether trials that obtained over $4 million in judgments prior to a global 

$750 million global settlement in In re: LLRICE 601 Contamination Litigation, MDL 1811 (E.D. Mo., 

Perry, J.). Responsible for participating in preparation of exhibit lists and witness designations and 

evidentiary arguments as well as drafting oppositions to Motions in Limine and Motions for Directed 

Verdict, Post-Trial Motions and 8th Circuit Appellate briefing. Prepared report for and participated in 

Economic Expert depositions relating to market loss damages. Prepared and participated in more than 

seventy-five fact-discovery depositions relating to liability of Bayer CropScience and Bayer AG 

employees. 

Member of trial team that obtained $48 million verdict against Bayer AG, Bayer CropScience AG, and 

Bayer CropScience LP on behalf of 12 rice farmers in Lonoke County, Arkansas relating to the discovery 

of Bayer's regulated genetically modified rice in the U.S. commercial rice supply. Schafer v. Bayer 

CropScience LP, CV-06-413 (Ark. Cir. Lonoke Co. 2010). Assisted with the appellate process and 

successfully upheld $48 million verdict and overturned the statutory Arkansas punitive damages cap as 

unconstitutional at the Arkansas Supreme Court. Bayer CropScience LP v. Schafer, 2011 Ark. 518 (2011). 

(GMO Rice). 

Prepared for and participated as first or second chair in 30(b)(6) Hard Copy Retention, Information 

Technology, Retention, Corporate Organization and Spoliation depositions, involving corporate 

representatives from Takeda, Eli Lilly, Bristol-Myers Squibb, Sanofi Synthelabo, Johnson & Johnson, 

DePuy Synthes and Zimmer Holdings. 

____________________________________________________________________________________ 

INVITED PRESENTATIONS & SPEAKING ENGAGEMENTS

TLMT Bench & Bar Conference and Women’s Summit Panel Moderator, December 5-7, 2023. Topics: 

“Behind the Curtain,” “Deposition Tips and Tricks” and “AI Judgement Day” 

Co-Chair and Moderator of HarrisMartin's MDL Conference: Oral Decongestant and Mass Tort Updates, 

November 29, 2023 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 115 of 198
4 

EDI Judicial Training Symposium Panel Speaker, November 15, 2023. Topic: “The 26(g) Statement: 

Understanding a Proportional Search” 

MTMP Panel speaker, October 12, 2023. Topic: “3M Military Earplugs Settlement” 

MTMP Panel speaker, October 10, 2023. Topic: “You’ve Got Cases, Now What?”

HarrisMartin’s MDL Conference Speaker, September 27, 2023. Topic: “3M Earplugs Update” 

Women En Mass Pannel Speaker, September 12, 2023. Topic: “3M Ear Plug Litigation: The End Game 

is Finally Here! Details and Deadlines Regarding the Global Resolution Program” 

Minnesota Associate for Justice, 41st Annual Convention Panel Speaker, August 19, 2023. Topic: 

“Keeping your Sh*t Together through Career Transitions and Life Challenges” 

Co-Chair and Moderator of HarrisMartin’s MDL Conference: Class Action and Mass Tort - Examining 

the Blurred Lines in Recent Complex Litigation, July 26, 2023 

AAJ Hair Relaxer Litigation Group Panel Speaker, July18, 2023 

HarrisMartin Webinar Speaker, June 28, 2023. Topic: “Bard Powerport Implantable Port” 

Society of Women Trial Lawyers 2023 Conference Panelist, May 11, 2023. Topic: “Civil “Baston 

Challenge” a Case Study with Lessons Learned”

TLMT Panel Speaker, March 21, 2023. Title: “Complex Litigation Trials – Effective Opening Statements”

Law and Forensics Webinar, March 15, 2023. Title: “Everything E-Discovery: The 2023 Attorney’s 

Guide” 

MTMP Connect Chemical Hair Relaxer Litigation Update Webinar, February 7, 2023 

Co-Chair of Harris Martin’s MDL Conference: Hair Straightener and Social Media Update, January 25, 

2023 

MTMP Connect Webinar Speaker, December 7, 2022. Topic: “Chemical Hair Relaxer Litigation” 

HarrisMartin’s MDL Conference: Navigating Current Mass Tort Litigation Panel Speaker, November 30, 

2022. Topic: “Mass Tort Update” 

George Washington University Bench Bar Conference Panel Speaker, November 17, 2022. Topic: 

“Preparing the Mass Tort Trial”

Women En Mass Panel Speaker, October 04, 2022. Topic: “3M Litigation: What is Happening Here and 

What is the End Game?”

AAJ Technology and Science Section Speaker, July 19, 2022. Topic: “Big Brother is Watching: Biometric 

and Other App Tracking from Your Fitbit and Apple Watch – Drawing a Line on Discoverability” 

Mass Tort Special Masters Summit Speaker, June 7, 2022. Topic: “eDiscovery issues in Mass Tort MDLs” 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 116 of 198
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MTMP Panel Speaker, April 5, 2022. Topic: “Case Study of a Mass Tort Project: 3M Earplugs” 

Society of Women Trial Lawyers Panel Speaker, March 13, 2022; Topic: “Deposition Designations and 

Process During Trial” 

AAJ 3M Combat Earplugs Litigation Group Speaker, February 14, 2022 

Law & Forensics web seminar, November 19, 2012. Topic: “A Guide to eDiscovery in Artificial 

Intelligence” 

AAJ Technology and Science Section Speaker, August 26, 2021 

Law & Forensics web seminar, July 13, 2021. Topic: “What Lawyers Must Know About Technology to 

Avoid Losing Clients or Their License” 

Law & Forensics web seminar, July 8, 2021. Topic: “Understand the Federal Rules of Civil Procedure in 

the eDiscovery Process”

HarrisMartin web seminar, April 20, 2021. Topic: “TX Power Outage” 

Bioethics Course Guest Lecture, April 1, 2021. Tulane University School of Law, New Orleans, LA

Law & Forensics web seminar, March 16, 2021. Topic: “Preparing Social Medial Evidence for Trial – 

Part 2”

Harris Martin web seminar, March 12, 2021. Topic: “3M Combat Arms Earplugs – Litigating with the 

Government as a Witness”

AAJ web seminar, December 8, 2020. Topic “E-Discovery and Client Management During COVID-19” 

AAJ web seminar, July 27, 2020. Topic: “Hot Topics in Mass Tort Litigation” 

AAJ web seminar, January 16, 2020. Topic: “ESI Protocols, Social Media, and Emerging Personal 

Devices” 

HarrisMartin's 3M Combat Earplugs Litigation Conference, May 30, 2019. Topic: “Military Discovery, 

Science and Other MDL 2885 Hurdles.” 

MTMP Panel Speaker, April 11, 2019. Topic: “3M Ear Plug Litigation” 

MTMP Panel Speaker, April 10, 2019. Topic: “Proton-Pump Inhibitor Panel”

MTMP Panel Speaker, April 10, 2019. Topic: “3M in NDFL Leadership.” 

Thompson Reuters web seminar, March 5, 2019. Topic: “Best Practices in e-Discovery: Let the Rules 

Guide You.” 

Thompson Reuters web seminar, February 13, 2019. Topic: “Cutting E-Discovery Costs Can Save Your 

Clients Time and Money.” 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 117 of 198
6 

AAJ February 2, 2019. Specialized Track: Discovery and Litigation Strategies for Drug and Device Cases 

CLE Titled: “Trends in Phased Discovery: Making It Work for Your Client’s Case.”

HarrisMartin's MDL Conference Panel Speaker January 30, 2019. Topic: “The Significance of Proposed 

Rule Changes in MDL Procedures & Valsartan.”

_________________________________________________________________________________ 

PUBLICATIONS

“Pharmaceutical Document Review – More Robot Than Lawyer?” American Bar Association Tort Trial 

& Insurance Practice, Vol. 18, No, 2, Winter 2016. 

Faulkner v. Nat’l Geographic Enter. Inc.: Conflict over Defining Revisions, 8 Tul. J. Tech & Intell. Prop. 

247 (2006). 

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TAB 13 

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Patrick Luff

luff@lufflaw.com

10440 N. Central Expressway Toll Free: (844) 636-7459

Suite 950 Local: (469) 607-5822

Dallas, TX 75231 Fax: (469) 949-2614

January 2, 2024

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 am a practicing attorney and the founder of the Luff Law Firm, a nationwide law firm that 

regularly represents individuals in multidistrict litigation. In the course of my practice, I have 

served as co-lead counsel of a state-level multidistrict litigation and on the steering committee for 

several federal multidistrict litigations. I am also a former professor of law, having taught civil 

procedure, administrative law, and statutory interpretation at Washington and Lee University 

School of Law, Sandra Day O’Connor College of Law - Arizona State University, and the 

University of Oklahoma College of Law. I have also published extensively on mass torts and related 

matters. It is with this diverse experience that I submit the following written testimony on Proposed 

Federal Rule of Civil Procedure 16.1 to the Advisory Committee on Civil Rules.

1. Multidistrict Litigation is Multifaceted

As the Committee correctly observes, “[t]here is no single method that is best for all MDL 

proceedings.”1 That is not surprising, given the variety of cases found in multidistrict litigation. 

Consider the types of cases listed in the Judicial Panel on Multidistrict Litigation’s Docket Type 

Summary from December 15, 2023: (1) air disaster; (2) antitrust; (3) common disaster; (4) 

contract; (5) employment practices; (5) intellectual property; (6) products liability; (7) sales 

practices; (8) securities; and the catchall (9) miscellaneous.

2 For this very reason, the Committee 

should eschew one-size-fits-all rulemaking for multidistrict litigation—prescriptive or otherwise. 

The current, fourth edition of the Manual for Complex Litigation contains 786 pages of 

1 Proposed Rule 16.1(c)(1), Committee Note.

2 See MDL Statistics Report – Docket Type Summary, U.S. Judicial Panel on Multidistrict Litigation, Jan. 2, 

2024, available at https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_District-January2-2024.pdf.

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guidance. While it is true that the Manual for Complex Litigation is about more than multidistrict 

litigation, and it addresses more than just early-stage case management, the fact remains that to 

the extent that multidistrict litigation judges need guidance, they have it. Indeed, the Committee 

acknowledges as much when it writes “[i]n both MDL proceedings and other multiparty litigation, 

the Manual for Complex Litigation also may be a source of guidance.”3 True, given its length and 

breadth the Manual for Complex Litigation “may not be easily digested by a judge (or lawyer) 

newly introduced into MDL proceedings,”4 but this fact simply underscores the complex nature 

of multidistrict litigation and serves as further caution against attempting to conform such a diverse 

field of litigation into a brief set of suggestions. 

2. Rulemaking Should Not Beget Rulemaking

One judicial member of the Committee has observed that while Proposed Rule 16.1 is 

entitled “Multidistrict Litigation,” the Proposed Rule in fact is largely concerned with the initial 

status conference.5 I share the concern voiced by a judicial member of the Committee about 

“‘mission creep.’”6 What begins as a discussion of initial matters to be discussed in the first status 

conference quickly becomes a clarion call for a comprehensive set of procedures to govern 

multidistrict litigation. A seemingly innocuous rule providing mere suggestions for early 

management could quickly become an unwieldy leviathan; recall again the length of the Manual for 

Complex Litigation. 

Lest this concern be dismissed as an unrealistic slippery slope, it bears observing that 

corporations, their trade associations, and the attorneys who serve as their counsel—all wellrepresented in these proceedings—have used this forum to advocate for far more than the 

“valuable starting point for the court and the attorneys” intended by Proposed Rule 16.1.7 Instead, 

the self-styled “Lawyers for Civil Justice,” Bayer, and attorneys who regularly represent 

defendant-corporations in multidistrict litigation have all asked the Committee to deal with 

something completely different: the issue of “claim insufficiency.” The Committee should refuse 

this request for broader rulemaking related to multidistrict litigation. If the committee were

inclined in the future to discuss “claim insufficiency,” however, that matter would better be dealt 

with through an amendment to FED. R. CIV. P. 23 that allows class certification of individuals 

3 Proposed Rule 16.1, Committee Note.

4 Draft Minutes, Civil Rules Advisory Committee, March 28, 2023, at 6.

5 Id.

6 See id. at 8.

7 See id. at 6.

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injured by corporate misconduct.

3. Claim Insufficiency is Best Dealt with Through Class Treatment

When corporate defendants, their counsel, and their trade organizations bemoan claim 

insufficiency in multidistrict litigation, their concerns tend to focus on a particular type of 

multidistrict litigation—that involving personal injury and consumer protection claims. For 

example, Bayer’s comment bemoans the “wasteful and expensive distraction” insufficient claims 

cause because of “a protracted PFS process that operates as a multi-step discovery dispute; 

through selection (and then voluntary dismissal) of cases for initial or post-remand trials; and 

during settlement discussions where other complicating issues like double-representations, 

deceased clients, or clients who cannot be located or contacted, reveal themselves.”8

The solution is simple. Amend Rule 23 to relax certification requirements and allow for 

class treatment of personal injury and consumer protection claims. If companies like Bayer truly 

wish to hasten “resolution of meritorious claims,”9 class treatment of these claims would do so. It 

would be unnecessary for injured individuals to file their claims during the pendency of the 

litigation due to statute of limitations concerns, since limitations would be tolled during that time.

10

The burden of preparing and filing tens or hundreds of thousands of complaints would be 

eliminated. The burden on courts to process those complaints would be eliminated. And the 

burden on corporations to hire expensive defense counsel to review and answer each such 

complaint would be eliminated. Similarly, there would be no need for time-consuming and 

expensive diversions relating to plaintiff fact sheets. Neither the court nor the parties would be 

saddled with time-consuming, expensive ancillary litigation about what should and should not be 

contained in the fact sheets. Plaintiffs’ counsel would not have to complete fact sheets, and

defendants’ counsel would not have to review them. There would be no need for the inevitable, 

protracted process of raising and correcting deficiencies allegedly contained in those fact sheets.

And of course, the efficiencies would not stop there. Bayer’s and others’ criticisms of short-form 

complaints, bellwether selections, remands, and other matters common in multidistrict litigation 

involving personal injury and consumer protection claims would likewise be diminished greatly or 

eliminated. To be sure, there would still be claims that would ultimately be unsupported, but they 

would be better addressed during the claims resolution process as opposed to the litigation process, 

requiring far fewer collective resources to weed out as a result.

8 Comment on Proposed Federal Rule of Civil Procedure 16.1 of Bayer U.S. LLC, Oct. 15, 2023, at 2.

9 Id.

10 See, e.g., Am. Pipe & Const. Co. v. Utah, 414 U.S. 538, 554 (1974).

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Freed of these distractions, the parties and the courts could focus on the merits of the 

litigation and enjoy a far more just, speedy, and inexpensive resolution of claims. 

Respectfully,

 Patrick A. Luff

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TAB 14 

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Emily T. Acosta

Senior Counsel

940 Lincoln Street

Denver, Colorado 80203

Office: (303) 376-6360

Fax: (303) 376-6361

www.WagstaffLawFirm.com

January 2, 2024

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 Members of the Advisory Committee:

My name is Emily Acosta, and I am Senior Counsel at Wagstaff Law Firm. I have more than 

a decade of complex litigation experience, primarily in the context of mass torts, where I have 

represented both defendants and plaintiffs. I have been court-appointed to plaintiffs’ leadership 

positions in state and federal court; most of my experience relates to preparing cases for trial and, in 

recent years, I have played a consequential role in trials involving dangerous pharmaceuticals like the 

blood thinner Pradaxa, and defective medical devices like IVC filters and transvaginal mesh, as well 

as faulty consumer products like the cancer-causing weedkiller, Roundup. I write to provide my 

perspective to the Advisory Committee, based on my experience.

I. PURPOSE OF THE FEDERAL RULES

While many of the comments submitted, thus far, are quick to note that the Federal Rules aim 

to ensure the just and speedy determination of every action and proceeding, many of the same 

comments are also quick to advocate for changes, which would almost certainly ensure the opposite.

Over the course of my career, I have seen that the multidistrict litigation format—particularly 

in personal injury-type products liability cases—is a powerful and effective mechanism for creating 

efficiencies and empowering ordinary citizens to hold corporations accountable for wrongdoing. To 

be sure, for someone injured by a corporation’s negligence (or even deliberate indifference) an MDL 

is, perhaps, the only place where a single individual can stand toe-to-toe with a multinational 

corporation and ask that it be held accountable for harms it has caused. 

And so—consistent with the Federal Rules—any changes to the Rules should endeavor to 

promote fairness and justice as much as efficiency. As discussed in greater detail below, I believe some 

of the proposed changes strike an appropriate balance, while others raise serious concerns. 

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2

II. MULTIDISTRICT LITIGATIONS

A. AREAS OF AGREEMENT AND SUPPORT

Proposed Rule 16(c): Report for Initial MDL Management Conference

Subsections 1, 3, 10 & 11

I generally support the idea of an initial MDL Management Conference and believe the topics 

covered in subsections 1 (appropriateness and scope of leadership appointments), 3 (likely factual and 

legal issues presented),1 10 (management of new actions); and 11 (management of related actions)

could be appropriately addressed at an initial case management conference. 

And unlike other matters addressed in subsection c, which I discuss below, counsel for both 

parties—even if not technically appointed by the Court—can likely address these preliminary matters 

accurately and without (inadvertently) contradicting or undermining a later-appointed leadership team. 

B. AREAS OF DISAGREEMENT AND CONCERN:

1. Subsection (b): Designation of Coordinating Counsel

Subsection B provides the option for the Court to designate “coordinating counsel.” See 

Proposed Rule 16.1(b) (“The transferee court may designate coordinating counsel . . .”). While the 

intention may be to facilitate an efficient initial management conference, the Proposed Rule lacks 

clarity and, in practice, is not needed since a fair amount of coordination occurs naturally between the 

parties.

It is unclear how to select coordinating counsel. As an initial matter, the Proposed Rule 

provides no guidance as to how the Court should select coordinating counsel, including what criteria 

or qualifications to consider. And, as my colleague, Ms. O’Dell points out, the Proposed Rule also 

does not contain a requirement that the appointed coordinating counsel actually have a stake in the 

litigation—something critical to ensuring that coordinating counsel “speaks” for the side she purports 

to represent.

2

Who is this solution for? Setting aside the ambiguity of the Proposed Rule, in practice, there 

is actually little need for this kind of Rule. For a single defendant case, the Proposed Rule is somewhat 

superfluous because that party will already have a lawyer positioned to take a lead speaking (and, often, 

strategic) role at an initial management conference. Similarly, in multi-defendant MDLs, there will be 

1 Because of the limitations associated with not having leadership appointed at the time of an initial MDL management 

conference, discussed below, if the parties are required to identify “the principal factual and legal issues likely presented in 

the MDL proceedings,” they should be permitted to revise those statements—if needed—later. For example, one lawyers’ 

theory of liability might be slightly different (and, thus, implicate different factual issues) than the theory ultimately pursued 

by leadership counsel; another lawyer may have consulted with an expert, who believes the product is defective for a 

particular reason, (and certain facts are needed to explore the viability of that theory), while the expert ultimately put forth 

by the MDL sees the case differently. While, in practice, it is rare that lawyers have truly divergent views of a litigation, 

binding all plaintiffs to a particular sub-set of (unappointed) lawyers’ views of the case is inappropriate. And likely 

problematic in the long run.

2 See Comment from P. Leigh O’Dell (Oct. 6, 2023).

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3

a certain amount of informal coordination in anticipation of the conference and there is a limit to the 

Court’s ability to minimize the number of lawyers speaking for each defendant since, as a matter of 

due process, each defendant is entitled to designate a lawyer to speak on its behalf.

By contrast, a plaintiffs’ leadership structure will rarely be in place at this early stage of an 

MDL. In this regard, this proposed subsection targets an issue that affects almost exclusively the

plaintiffs’ side, which the comments seem to acknowledge.

Does it create another problem? Additionally, if the goal is efficiency—as the Comments 

to the Proposed Rule suggest—the solution should be to select and appoint a permanent leadership 

structure quickly, not to delay that process by first appointing a lawyer (or lawyers) to temporary 

positions before formally adopting a more lasting structure. While perhaps an obvious and related

point, it is worth reiterating: both sides cannot have productive conversations about how to organize 

and move a litigation forward unless and until both sides are vested with decision-making authority. 

Appointing coordinating counsel, then a formal plaintiffs’ leadership structure only delays and hinders 

the parties’ ability to work together and to present legitimate disputes to the Court. 

Is this a problem that needs solving? Again, since the justification for the Proposed Rule 

is to promote efficiency, it is notable that this “problem” is more hypothetical than verifiable. In 

practice, it is rare that multitudes of plaintiffs’ lawyers show up to an initial MDL conference and 

demand to address the Court. And even in those rare circumstances, forcing the Court to choose 

between competing plaintiffs’ lawyers—each with their own perspective on the trajectory of the 

litigation and its overall strategy—seems to create inefficiency, not minimize it. 

Proposed solution. In short, there is no need to enact Subsection B because doing so will 

disrupt the natural coordination that already occurs and, as written, it is ambiguous and does not 

provide the court with appropriate guidance for how to select coordinating counsel. Accordingly, I 

recommend it is removed. 

2. Proposed Rule 16(c): Report for Initial MDL Management Conference

Subsections 2, 4, 5, 6, 7, 8, 9, & 12

Lack of authority to negotiate. Many of the issues set forth in subsection c are undoubtedly 

important to the efficient and appropriate management of an MDL. But to make decisions about 

whether prior CMOs should be vacated (subsection 2) or propose a discovery plan (subsection 6), for 

example, both sides will likely need decision-making authority, which is something that likely cannot 

be conferred until leadership counsel is appointed.

3

Prematurity. Other provisions are premature and will do little to advance the litigation, if 

addressed at an initial management conference (rather than later, when both sides have more 

information). Subsection 12, for instance, simply asks “whether” a magistrate judge or a master should 

be appointed. But “whether” is usually not the difficult question, but rather “how.” And the question 

of “how” or “what” the magistrate or master should oversee is almost never clear at the beginning of 

a litigation. Sometimes guidance related to initial pleadings or electronic discovery efforts is helpful 

and sometimes having a third party that can rule in real-time on objections in depositions is desirable. 

3 Subsections 4, 5, 7, and 8, likewise, usually require the kind of substantive decision-making that is ordinarily reserved for 

leadership counsel. 

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4

But neither party has enough information about the claims and defenses at the time of an initial 

management conference to make a cogent recommendation to the court. 

Lack of information. Similarly, neither side has enough information to evaluate resolution 

(subsection 9) in a meaningful way. Without the benefit of discovery, the plaintiffs do not have any 

ability to assess liability and punitive conduct and, similarly, the defendant does not have enough 

information to determine possible exposure or the strength of any legal or factual defenses. Of course, 

the goal of an MDL is to reach some sort of resolution, but what that resolution looks like cannot be 

addressed before both parties have enough information to form opinions on critical issues. Further, 

addressing settlement at an initial conference is not only futile, but could, in fact, frustrate later efforts 

to ultimately resolve a dispute. 

Proposed solution. It is indisputable that addressing some (or all) of the issues set forth in 

Subsections 2, 4, 5, 6, 7, 8, 9, & 12 are often necessary and critical to efficiently and effectively 

managing an MDL, so the issue is not so much whether these should be addressed by the parties and 

the court, but rather when. As written, the rule requires a formal, written report in advance of the 

conference, which as discussed above presents both the problem of (1) identifying who exactly is 

empowered to negotiate on each side and (2) whether each side has enough input (and possibly 

information) to engage productively. 

Accordingly, I suggest changing the rule to order litigants to be prepared to discuss any matter 

designated by the Court. Accordingly, the Rule would be revised as follows: 

(c) Preparation For Initial MDL Management Conference. The 

transferee court should order the parties to meet and be prepared to address 

any matter designated by the court, which may include any matter addressed 

in the list below or in Rule 16.

This proposed solution avoids duplicative or counterproductive work caused by negotiations between 

parties that do not actually have proper authority, and gives the Court the flexibility to decide—with 

the input of the litigants—how and when to address certain matters efficiently. 

C. SO-CALLED “UNSUPPORTABLE CLAIMS” & THE APPROPRIATE SOLUTION

As defined by the MDL subcommittee, “unsupportable claims” are claims that fall into three 

categories: (1) a claim where the plaintiff did not use the product involved; (2) a claim where the 

plaintiff did not suffer the adverse consequence at issue; or (3) where the claim is time-barred under 

applicable law. And while the first category is clearly problematic, the other two—in practice—are 

much more difficult to define. 

1. In practice, identifying an “unsupportable claim” can be difficult.

To be clear, verifying whether a client used the product at issue is usually not challenging or 

ambiguous. By contrast, the inquiry into whether a claim is time-barred or whether a client has been 

hurt in the “right” way, is often highly fact-specific. Because two of these situations are not like the 

first, it is misleading to lump all three together. 

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5

i. “Compensable Injuries” often evolve with a litigation.

Proof of a compensable injury is difficult to define because the universe of compensable 

injuries is often developing over the course of a litigation, both as a function of civil discovery, but 

also of scientific discovery. For example, in a case where the plaintiffs claim use of the product caused 

cancer, the analysis of whether any particular client has a compensable injury is not as simple as 

determining whether she has cancer. Rather, it is an analysis involving whether there is sufficient 

exposure, other explanations for the cancer, and whether—generally—it is the kind of cancer 

attributable to this specific product. And so, these “questions” are often not answered definitively 

until expert reports are disclosed. Notably, experts often rely not only on published literature, but also 

on internal studies and data performed either by the defendant (or authorized third parties) regarding 

the product at issue. 

ii. Whether a claim is “time-barred” is often litigated, not clear-cut.

As an initial matter, including claims “where the claim is time-barred under applicable law” 

within the definition of “unsupportable claim” is overly simplistic because it does not take into account 

the actual realities of how statutes of limitation are applied in practice. The majority of states have 

some form of a discovery rule that will apply in product liability cases.4In those states, the evidence 

as to when an individual plaintiff should have appreciated that her injury was wrongfully caused is 

often highly fact-specific and will vary from plaintiff to plaintiff. Sometimes the plaintiff’s claim will 

not be time-barred and sometimes it will be. 

Indeed, because this inquiry is specific to each plaintiff, this issue—i.e., whether a claim is timebarred—is often extensively litigated. And simply arguing that a specific claim is time-barred, does not 

make it so (and even when the moving party prevails, it still does not automatically make the exercise 

of litigating the issue worthless or wasteful). 

Certainly, if it were the case that a party occasionally (or even frequently) winning a particular 

motion was sufficient to deem such a motion categorically frivolous, then motions related to federal 

preemption would surely be frivolous under this standard. To be sure, federal preemption is raised in 

virtually every medical device, pharmaceutical and consumer products case, but rarely disposes of a 

personal injury-type litigation as a matter of law (despite most corporate defendants insisting that the 

cause of action is preempted by federal law). 

In short, whether a claim is time-barred or the claimant has suffered a compensable injury is 

often not as straightforward as failing to use the product at issue; grouping all three circumstances 

together is misleading and somewhat obscures the issues, and attempts to inject a rules-based solution 

into state-based product liability law.

4 See, for example, Matthiesen, Wickert & Lehrer, S.C.’s “PRODUCT LIABILITY IN ALL 50 STATES,” available online 

at: https://www.mwl-law.com/wp-content/uploads/2018/02/PRODUCT-LIABILITY-LAW-CHART.pdf.

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6

2. Proposed solution (which is already exists): Rule 11.

While many commenters suggest a “rules-based” solution is needed to address so-called 

“unsupportable claims,”5there is little discussion of enforcing the Rules already in place that are 

designed to prevent foul play. In particular, Rule 11 empowers a court to impose a broad array of 

sanctions to deter inappropriate behavior and provides a mechanism for the allegedly offending 

attorney (or law firm) to correct filings that (arguably) violate the Rule on an expedited basis to avoid 

the imposition of sanctions. 

Put another way, there is no problem raised by commenters, like DRI, that cannot be 

addressed using Rule 11.6 To the extent that there is problem with “unsupportable claims,” the 

solution is not to merely enact more rules, but rather to enforce those that litigants already have. 

3. MDL Size Reflects Overall Trends, it’s not Inherently Nefarious.

 It is undeniable that MDLs are growing in size. But why is less clear... or, at least, it should 

be. Many commenters simply attribute this trend to an increased carelessness and willingness to file 

meritless claims. But that theory, completely ignores a significant drivers of MDL size: potential 

claimants. 

MDLs concerning consumer products (not drugs or medical devices) usually have 

more potential claimants. Just as it is indisputable that MDLs are growing in size, it is likewise 

apparent that more MDLs are focused on alleged defects in consumer products, not in drugs or 

medical devices. And a product that can be bought at a grocery or convenience store is much more 

widely available than something like a drug or medical device, which usually requires a prescription 

from a physician. Put another way, a consumer product-centered MDL will usually have many, many 

more potential plaintiffs than an MDL centered around a defective drug or medical device (and will, 

almost certainly, involve more plaintiffs simply by virtue of the fact that there are more potential 

claimants). 

Large ≠ Unmanageable. Implicit in many comments submitted thus far is the idea that large 

litigations are inherently and necessarily unmanageable. This simply is not true. Indeed, there are recent 

examples of large, consolidated litigations being resolved efficiently. Take In re: Facebook, Inc. Consumer 

Privacy User Profile Litigation, No. 3:18-md-02843-VC, for example. The litigation was originally 

prompted by news media reports in March 2018 that Cambridge Analytica—a data mining firm—had 

improperly harvested information from up to 87 million Facebook users. And as discovery progressed, 

the litigation expanded to more broadly target the social media giant’s data-sharing practices (which, 

naturally resulted in even more possible claimants). In the end, on October 10, 2023, District Court 

Judge Chhabria, issued an order granting final approval of the $725 million class action settlement; 

nearly 18 million people submitted valid claims.7

5 See Comments from The DRI Center for Law and Public Policy (Oct. 11, 2023).

6 Notably, many comments were written and submitted before the recent changes to FCC rules, which closed a previous 

“lead generator” loophole. See FCC Press Release, available online at: https://docs.fcc.gov/public/attachments/DOC399082A1.pdf.

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7

In sum, to peg frivolity and unscrupulous practices as the sole (or even primary) drivers of 

MDL size is overly simplistic and completely ignores recent trends like the shift in product liability 

litigation towards torts centered around consumer products, where there are (usually) many, many 

more potential claimants.

III. PRIVILEGE LOGS

Some comments, like Mr. Keeling’s from October 5, 2023, encourage a loosening of the 

current Rules and practices for “large cases,” citing the considerable time and expense needed to 

prepare an appropriate privilege log. But these comments seem to completely ignore the widespread 

practice of over-designating documents as privileged (when they are not) and the astronomical 

increases in law firm salaries, both of which are much more meaningful cost-drivers. 

Many privilege logs are too long because documents have been improperly 

designated. Over-designation or “fake privilege” is increasingly pervasive, and the most prolific 

offenders are often large corporations. For example, in a recent jury trial involving Google and Epic 

Games, lawyers for Epic showed jurors emails from two in-house Google lawyers communicating on 

an internal company chat, who joked about so-called “fake privilege”—a practice of unnecessarily 

involving a lawyer in a matter to make it confidential.

8 But this practice is not confined to improper 

claims of privilege, it is also very common for corporate defendants to claim nearly every document 

produced in a litigation is “confidential” or “highly confidential,” only to have that designation 

withdrawn when challenged—often without motion practice.

Put another way, if the transaction costs associated with privilege logs and confidentiality 

designations are “too high” in “large cases,” that is, at least partially, a direct result of choices made 

by many corporations (and their lawyers) pre-suit as well as during litigation; indeed, the decision to 

over-classify as privileged (and to over-designate as confidential) documents that are not actually 

privileged (or confidential) increases costs and is completely avoidable. 

Increased costs are a reflection of recent rate hikes and salary trends, too. Since many 

law firms bill for their time, the cost of creating an appropriate privilege log is directly related to the 

amount of time it takes to create one (and the “cost” of that time). But despite this obvious relationship 

between costs and hourly rates, many comments say nothing about this significant cost-driver. And 

that is a big piece of the puzzle. Just in past few years, many law firms have increased billing rates (and 

salaries) dramatically, and there is no reason to believe this trend is over. In fact, the opposite may be 

true: annual rate hikes are likely the new reality. Law.com described this phenomenon as follows:

. . . multiple analysts this month have suggested the average standard rate increase in 

2024 could be between 6% and 8%.

7 See Forbes article describing the settlement, available online at: https://www.forbes.com/advisor/legal/facebook-classaction-lawsuitsettlement/#:~:text=About%2017.7%20million%20Facebook%20users,lawyers%20involved%20in%20the%20suit.

8 See “Google In-House Attys Joked About ‘Fake Privilege,’ Jury Told,” Law360, available online at: 

https://www.law360.com/articles/1765405/google-in-house-attys-joked-about-fake-privilege-jury-told.

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For context, the average increase in standard rates, . . . through the first half of 

2023 among Am Law 200 firms was roughly 7.7%, according to Wells Fargo Private 

Bank Legal Specialty Group, with analysts there calling it ‘some of the highest growth 

in billing rates we’ve seen.’”

Of course, some law firms go well above the average rates. About 15% of Am 

Law 100 firms increased their rates more significantly—between 10% and 20%—last 

year. Thomson Reuters . . . found the average across segments was near 6% through 

the first half, with Am Law 100, Second Hundred and midsize firms all setting highwater marks not seen since at least the first decade of the 21st century.9

Associate salaries are also rising dramatically. For firms of 501-700 lawyers, for instance, the 

median first-year salary grew from $155,000 in 2021 to $200,000 in 2023.

10 And exploding salaries are 

not just a recent trend; associate salaries have been on the rise for decades. In 1999, for example, a 

starting associate salary in 1999 was $115,000, and in 1987 it was $68,000.

Here, reform rewards bad behavior. Put simply, “large cases”—like the kind I handle every 

day—do not need different rules and should not have different rules when it comes to producing 

privilege logs and providing confidentiality designations. This is another example of a problem that 

corporate defendants have largely created and now complain about; to reward them with reform would 

be manifestly unjust and counter to the stated purpose of the Federal Rules. The changes made during 

informal rulemaking are fitting and strike the appropriate balance between justice and efficiency. 

IV. Conclusion

I agree with others that have suggested that the Committee should promulgate a more limited 

rule, which focuses on items that need to be done first, like appointing leadership and establishing a 

general framework for the administration of the MDL.

Thank you for the opportunity to address the Committee on January 16, 2024. I look forward 

to sharing my comments in greater detail and to answering any questions that members of the

Committee might have.

Sincerely, 

Emily T. Acosta

9 See “Big Law's Approach to Billing Rate Hikes in 2024,” Law.com, available online at: 

https://www.law.com/americanlawyer/2023/10/30/big-laws-approach-to-billing-rate-hikes-in2024/#:~:text=What%20You%20Need%20to%20Know,%25%2C%20according%20to%20Wells%20Fargo.

10 See AboveTheLaw real-time coverage of this topic, available online at: https://abovethelaw.com/2023/12/biglaw-raisebonus-tracker-2023/#:~:text=Since%20we%20broke%20the%20news,salaries%20for%20midlevel%20and%20senior. 

Comment ID 

USC-RULES-CV-2023-0003-0020

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 132 of 198
TAB 15 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 133 of 198
New York, NY  San Francisco, CA 

 January 2, 2024 

Via Electronic mail to: RulesCommittee_Secretary@ao.uscourts.gov

Statement of A.J. de Bartolomeo 

Co-Managing Partner, Tadler Law LLP 

Before the Advisory Committee on Federal Rules of Civil Procedure 

for Proposed FRCP 16.1 

January 16, 2024 Hearing (Virtual) 

 Thank you for providing an opportunity for public comment on the [Proposed] Federal 

Rule of Civil Procedure 16.1. My name is A.J. de Bartolomeo and I am a Partner at Tadler Law 

LLP. I have over 30 years of experience practicing law in and managing complex litigation, 

including class actions, mass torts, business to business, and bankruptcy litigation. Many of these 

cases have been prosecuted using the multidistrict litigation (MDL) process. 

Designating Coordinating Counsel for the [Initial] Conference (Rule 16.1(b). 

 Based on my experience in MDLs, I respectfully request that the Committee provide 

more clarity as to the role and responsibility of Coordinating Counsel as provided for in this 

provision. The primary concern I see with the “Designating Coordinating Counsel” provision is 

that proposed Rule 16.1(b) does not define the role or identify any qualifications or credentials 

necessary for this position. Proposed Rule 16.1(b)(1) and (2) set out that coordinating counsel 

will work with the Court, the plaintiffs or the defendants to “assist the court with the [initial] 

conference” and “work with plaintiffs or with defendants to prepare for the conference and 

prepare any report ordered under Rule 16.1(c).” 

Given that Proposed Rule 16.1 is intended to assist the MDL judge with case 

management of the MDL in the interests of efficiency and economy, the absence of any defining 

role or responsibility for Coordinating Counsel may create more complications in the ultimate 

management of an MDL after the court appoints a lead counsel structure. 

 If the Committee intends for Coordinating Counsel to proceed akin to Liaison Counsel in 

the MDL, the Manual on Complex Litigation for Liaison or Lead Counsel in MDLs provides 

helpful guidance that delineates the roles and responsibilities of that designated liaison counsel. 

To that end, Proposed Rule 16.1(b) could be revamped to provide specific responsibilities to 

“Coordinating Counsel” as follows: 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 134 of 198
Testimony of A.J. de Bartolomeo of Tadler Law LLP 

Before the Advisory Committee on Federal Rules of Civil Procedure 

Proposed Rule 16.1 

January 16, 2024 Hearing 

Submitted January 2, 2024 

Page 2. 

Liaison counsel. Charged with essentially administrative matters, such 

as communications between the court and other counsel (including 

receiving and distributing notices, orders, motions, and briefs on 

behalf of the group), convening meetings of counsel, advising parties 

of developments, and otherwise assisting in the coordination of 

activities and positions. Such counsel may act for the group in 

managing document depositories and in resolving scheduling conflicts. 

Liaison counsel will usually have offices in the same locality as the 

court. The court may appoint (or the parties may select) a liaison for 

each side, and fi their functions are strictly limited to administrative 

matters, they need not be attorneys. 

See Manual for Complex Litigation, 4th Ed., 2009, §10.221 (Organizational Structure). 

 Furthermore, because the current draft does not identify if the “Coordinating Counsel” is 

intended to be acting on behalf of plaintiffs or defendants, and again, if the intention is to serve 

as a liaison to the Court to avoid multiple and conflicting presentations at the early stage of an 

MDL, appointing one from each of plaintiffs’ and defendants’ counsel would provide a balanced 

approach with those two appointed firms/lawyers coordinating the positions of each respective 

side. This addresses a concern over the absence of any requirement that the designated 

Coordinating Counsel have any interest in the subject MDL litigation, have a case filed in the 

subject MDL litigation, be familiar with the legal or factual issues in the MDL litigation, or even 

if the designated Coordinating Counsel would be acting on behalf of the plaintiffs or the 

defendants. Amending the proposed Rule 16.1 to clearly identify whose position(s) 

“Coordinating Counsel” represents will provide the court with a better process in managing the 

complex litigation before it. 

Timing for Addressing the Issues to be Included In the Report for the Initial Conference 

(Proposed Rule 16.1 (c)(1) –(12)). 

 Proposed Rule 16.1(c) requires that the transferee court “should order the parties to meet 

and prepare a report submitted to the court before the conference begins” and then sets out 12 

items to be included in report submitted by the parties in advance of the Initial Conference. 

The Proposed Rule begins by codifying a general practice in MDL litigation, that is, 

having the court address “whether leadership counsel should be appointed, and if so. . .” 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 135 of 198
Testimony of A.J. de Bartolomeo of Tadler Law LLP 

Before the Advisory Committee on Federal Rules of Civil Procedure 

Proposed Rule 16.1 

January 16, 2024 Hearing 

Submitted January 2, 2024 

Page 3. 

identifying considerations as to the procedure for selection, structure, role and other issues 

pertaining to plaintiffs’ counsel organization.1

 Once the court establishes that leadership structure, those counsel have the responsibility 

to address the matters listed in Proposed Rule 16.1(c)(2)-(12). Without first appointing the 

counsel that will manage and run the prosecution of the MDL action, presenting competing 

views on how to manage the case going forward before appointing case leadership may foster 

confusion rather than efficient management of the complex litigation. Organizing the lawyers 

first provides the necessary predicate for organizing the case. In a recent MDL data breach class 

action in which our firm holds a leadership position, In re: Marriott International, Inc. Customer 

Data Security Breach Litigation, No. 19-md-2879 (D. Md.) (Hon. Paul Grimm) (5 separate 

plaintiff tracks), at the Initial Conference, the Honorable Paul Grimm (Ret.) issued a case 

management order designating the plaintiffs’ counsel leadership and liaison counsel structure for 

each of the 5 plaintiffs’ tracks, plus a discovery liaison between and among the tracks. In that 

way, after the Initial Conference the different plaintiff’s tracks were able to prepare for and be 

properly represented in the meet and confer discussions with defense counsel leading up to the 

first Rule 26(f) conference. 

In the [proposed] Rule 16.1, the recitation of matters identified in the Proposed Rule 

16.1(c) are best divided into two conferences defined by before appointment of counsel and after. 

The Proposed Rule can still include the series of items identified at (2)-(12), though in a new 

subparagraph, adding 16.1(e) immediately after 16.1(d) as follows: 

(e) After the appointment of lead counsel through the process identified in 

 subparagraph (c) above, the court shall direct plaintiffs’ lead counsel to meet with 

 defense counsel to consider and report to the Court on the following matters in 

 connection with the Rule 26(f) conference, to the extent that these matters are not 

 already addressed by Rule 26(f): 

[* renumbering (2)-(12) as (1)-(11) here] 

 (1) identifying any previously entered scheduling or other orders and stating 

whether they should be vacated or modified; 

1

 Proposed Rule 16.1(c)(1)(A) through (F) raise detailed questions pertaining to the selection 

process, structure, cope and content of role, limitations on activities, and compensation. The 

Proposed Rule should consider including the same considerations in the designation of 

“Coordinating Counsel” in Rule 16.1(b). 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 136 of 198
Testimony of A.J. de Bartolomeo of Tadler Law LLP 

Before the Advisory Committee on Federal Rules of Civil Procedure 

Proposed Rule 16.1 

January 16, 2024 Hearing 

Submitted January 2, 2024 

Page 4. 

(2) identifying the principal factual and legal issues likely to be presented in the MDL 

proceedings; 

(3) how and when the parties will exchange information about the factual bases for their 

 claims and defenses; 

(4) whether consolidated pleadings should be prepared to account for multiple actions 

 included in the MDL proceedings; 

(5) a proposed plan for discovery, including methods to handle it efficiently; 

(6) any likely pretrial motions and a plan for addressing them; 

(7) a schedule for additional management conferences with the court; 

(8) 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); 

(9) how to manage the filing of new actions in the MDL proceedings; 

(10) 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; and 

(11) whether matters should be referred to a magistrate judge or a master. 

 In this way, the Proposed Rule does not inadvertently operate to put the plaintiffs and 

their counsel at a disadvantage when meeting and discussing the items now listed at Proposed 

Rule 16.1(c) (2) through (12) -- the consolidated pleadings, facts, legal issues, discovery and 

witnesses, settlement and other matters about which the defendants may likely have more 

information. Moreover, without an established leadership structure in advance of discussing the 

core issues and procedures to manage the case, who negotiates and discusses these issues with 

defendants’ counsel? And if among plaintiffs’ counsel there are different approaches, interests 

and legal claims, whose will control and bind the prosecution of the case? The Proposed Rule of 

course cannot answer these questions and so dividing the items listed in subparagraph (c) avoids 

the problems the Proposed Rule and the MDL process seek to avoid. As the Manual for Complex 

Litigation guides, “The types of appointments and assignments of responsibilities will depend on 

many factors. The most important is achieving efficiency and economy without jeopardizing 

fairness to the parties.” 

 Moreover, Proposed Rule 16.1(c)(2) through (12) will be prioritized differently 

depending on the legal claims and defenses presented in the MDL and the strategy determined by 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 137 of 198
Testimony of A.J. de Bartolomeo of Tadler Law LLP 

Before the Advisory Committee on Federal Rules of Civil Procedure 

Proposed Rule 16.1 

January 16, 2024 Hearing 

Submitted January 2, 2024 

Page 5. 

appointed Lead Counsel. Again, “one size does not fit all.” It seems reasonable, efficient and 

productive to allow counsel leadership to meet and confer on the 11 specified issues to prioritize, 

sequence and quantify each of the issues depending on the issues in the case. Based on my 

experience in MDLs, I can see a different prioritization for a mass tort case than for an antitrust 

case, a consumer protection case, or a consumer data breach case. To allow the parties – after 

meaningful discussions in their meet and confer meetings on the actual issues in that case– to 

present their agreed-to positions and their separate positions to the Court seems to be the more 

judicially efficient and economical choice. It also ensures consistency in the procedures outlined 

in Fed. R. Civ. P. 26(f) which also apply to MDLs. 

 Thank you for your consideration of these comments and for your hard and dedicated 

work on the Federal Rules. 

Yours very truly, 

A.J. de Bartolomeo 

TADLER LAW LLP 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 138 of 198
TAB 16 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 139 of 198
3900 E. Mexico Avenue, Suite 1300 

Denver, Colorado 80210

Phone: (303) 656-2199

efsmmlaw.com

Lee Mickus

Phone: (303) 656-2199

lmickus@efstriallaw.com

January 2, 2024

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: 

Thank you for the opportunity to submit my comments regarding the proposed Rule of Civil 

Procedure 16.1. What follows are my personal observations on the proposed new rule for 

addressing multidistrict litigation cases, offered in the hope that the Committee will find them 

useful. I anticipate that my testimony at the January 16, 2024 hearing will follow the outline of 

these comments.

RULE 16.1 SHOULD ESTABLISH A DISCLOSURE REQUIREMENT TO ELIMINATE 

CLAIMS THAT ARE NOT VIABLE.

MDL litigation needs a rules-based mechanism to require each plaintiff to demonstrate shortly 

after filing those basic facts showing claim viability, such as pertinent injury and exposure to the 

product at issue. The MDL Subcommittee has recognized the existence of the “unsupportable 

claims” problem, estimating that non-viable cases make up between one-fifth to one-half of all 

claims filed in any given MDL matter would fail to withstand scrutiny of these most fundamental 

elements.1 

1 MDL Subcommittee Report at p.3, line 166 -p.4, line188 in ADVISORY COMMITTEE ON CIVIL RULES 

NOVEMBER 2019 AGENDA BOOK 139 (2019), available at https://www.uscourts.gov/sites/default/files/2018-

11_civil_rules_agenda_book_0.pdf

Comment ID 

USC-RULES-CV-2023-0003-0021

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 140 of 198
P a g e | 2

Judges who have experienced the challenge of managing MDL litigation concur that aggregation

attracts unsupportable claims, and that there should be a procedure to weed out non-viable cases

before they clog the consolidated proceeding. Chief Judge Clay Land observed after handling 

two MDL matters that “many cases are filed with little regard for the statute of limitations and 

with so little pre-filing preparation that counsel apparently has no idea whether or how she will 

prove causation,” which lead to MDL proceedings “becom[ing] populated with many nonmeritorious cases that must nevertheless be managed by the transferee judge.”

2

 Chief Judge 

Land urged that “[a]t a minimum” judges in MDL consolidated proceedings should have 

available “approaches that weed out non-meritorious cases early, efficiently, and justly.”

3

 

Similarly, after handling the massive asbestos MDL, Judge Eduardo C. Robreno recognized that 

“aggregation promotes the filing of cases of uncertain merit.”

4 Based on his experience, 

unless the court establishes a toll gate at which entrance to the litigation is 

controlled, non-meritorious cases will clog the process. Therefore, courts must 

establish procedures by which, at an early point, each plaintiff is required to provide 

facts which support the claim through expert diagnostics reports or risk dismissal 

of the case.5

The Preliminary Draft of Rule 16.1 does not establish this critical “toll gate.” Subsection (c)(4) 

takes an approach that fails to accomplish the necessary result: identifying early in the life of a 

claim if there is evidentiary support for the most basic factual allegations underlying a viable 

claim covered by the MDL proceeding. To make a meaningful impact on the unsupported claim 

problem, the text of subsection (c)(4) should be modified to project that disclosures

demonstrating fundamental claim viability is a necessary step that plaintiffs must take in order to 

participate in the MDL proceeding. The revision suggested by Lawyers for Civil Justice would 

substantially improve the proposed rule.6

2

In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., 4:08-MD-2004 (CDL), 2016 WL 4705827, at 

*1 (M.D. Ga. Sept. 7, 2016).

3

Id. at *2 (emphasis added).

4 Eduardo C. Robreno, The Federal Asbestos Product Liability Multidistrict Litigation (MDL-875): Black Hole or 

New Paradigm?, 23 Widener L.J. 97, 187 (2013).

5

Id. at 186-87 (emphasis added). See also Douglas G. Smith, The Myth of Settlement in MDL Proceedings, 107 Ky. 

L.J. 467, 492 (2018):

early scrutiny of individual claims is critical to the fair and efficient resolution of an MDL 

proceeding. In many MDLs, a large percentage of the claims that are filed have no merit. The failure 

of MDL courts to weed out such claims can significantly impair the effective resolution of such 

proceedings.

6 Lawyers for Civil Justice, 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 

Comment ID 

USC-RULES-CV-2023-0003-0021

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P a g e | 3

DISCUSSING SETTLEMENT IN RULE 16.1 OR THE COMMITTEE NOTE IS 

UNHELPFUL AND PROBLEMATIC.

The Preliminary Draft of Rule 16.1 and Draft Note, as presently phrased, is counter-productive

with respect to the unsupportable case problem because the emphasis on settlement as a court 

interest encourages the filing of non-viable claims. With two mentions of settlement in the text 

of the rule itself, and ten more references in the Draft Note — including the trumpet blast that 

“[i]t is often important that the court be regularly apprised of developments regarding potential 

settlement” — the Preliminary Draft and Draft Note reinforce the widespread misperception that 

MDL consolidation is a mechanism for global settlement rather than management of pretrial 

proceedings.7 Chief Judge Land observed that signaling settlement to be a significant court 

concern spurs the filing of meritless claims:

[T]he 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.8

Other commentators have similarly concluded that “to the extent the settlement narrative is 

perpetuated in MDL proceedings, it is likely to have a profoundly negative effect--incentivizing 

that Are Inconsistent with Existing Rules and Other Law at 6 (Sept. 23, 2023), available at 

https://www.regulations.gov/comment/USC-RULES-CV-2023-0003-0004.

7 One commentator observes that it has become “accepted wisdom within both the academy and among 

practitioners” that “the goal of multidistrict litigation, or at least its frequent result, is a global settlement of asserted 

claims that resolves the litigation.” Smith, supra n. 5, at 468. See also, e.g., Delaventura v. Columbia Acorn Tr., 

417 F. Supp. 2d 147, 150-52 (D. Mass. 2006) (“the ‘settlement culture’ ... is nowhere more prevalent than in MDL 

practice. ... Thus, it is almost a point of honor among transferee judges ... that cases so transferred shall be settled 

rather than sent back to their home courts for trial. ... Indeed, MDL practice actively encourages retention even of 

trial-ready cases in order to “encourage” settlement.”); Abbe R. Gluck & Elizabeth Chamblee Burch, MDL 

Revolution, 96 N.Y.U. L. Rev. 1, 4 (2021) (Noting MDL proceedings’ “relentless drive to global settlement.”); 

Howard M. Erichson, MDL and the Allure of Sidestepping Litigation, 53 Ga. L. Rev. 1287, 1288 (2019) (“In federal 

multidistrict litigation (MDL) in particular, . . ., transferee judges often work hard to move the parties toward a 

negotiated global resolution.”); S. Todd Brown, Plaintiff Control and Domination in Multidistrict Mass Torts, 61 

Clev. St. L. Rev. 391, 393 (2013) (“federal multidistrict consolidation under 28 U.S.C. § 1407, . . . has become the 

most common mechanism for the collective management and settlement of mass tort matters in the last decade.”). 

8

In re Mentor, 2016 WL 4705827, at *1. 

Comment ID 

USC-RULES-CV-2023-0003-0021

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 142 of 198
P a g e | 4

counsel to file meritless claims at the expense of both defendants and those plaintiffs whose 

claims have merit.”

9

A rules-based emphasis on global settlement is not consistent with the purposes of MDL 

consolidation, namely promotion of “the just and efficient conduct” of cases with respect to 

“pretrial proceedings.”

10 MDL courts should focus their attention on case development and 

management issues, as doing so will lead to data points that shed light on the merits of the parties 

claims and defenses.11 The references to settlement in subsections (c)(1)(C) and (c)(9) of the 

Preliminary Draft Rule, as well as those discussions of settlement in Draft Note, should be 

dropped. 

I look forward to the opportunity during the January 16, 2024 hearing to address these issues 

further and to answer any questions that the Committee members may have.

Very Truly Yours,

Lee Mickus

9 Smith, supra n. 5, at 473. See also Brown, supra n. 7, at 395-96 (2013) (“The demand for streamlined settlement 

increases as the volume of claims increases. This, in turn, may lead to an influx of dubious claims.”).

1028 U.S.C. §1407.

11 For example, Prof. Erichson notes the irony that after Judge Polster in the Nat’l Opiate Litigation MDL had 

initially focused on settlement negotiations, declaring that “[p]eople aren't interested in figuring out the answer to 

interesting legal questions like preemption ... or unraveling complicated conspiracy theories[,]” the case progressed 

toward resolution only after “the judge ruled on numerous legal issues including the statute of limitations, civil 

RICO, civil conspiracy, public nuisance, and preemption.” Erichson, supra n. 7, at 1301 (citations omitted). As 

another example, state-to-state variation on issues such as the liability of product distributors may have outcomedeterminative effects but may be “overlooked or sometimes even conceptualized as one part of a generalized — and 

nonexistent — 'national tort law’ that MDL judges apply in the aggregate with an eye toward settlement.” Gluck 

and Burch, supra n. 7, at 5.

Comment ID 

USC-RULES-CV-2023-0003-0021

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 143 of 198
TAB 17 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 144 of 198
From:

To:

Scott Partridge

RulesCommittee Secretary

Subject: Re: Request to testify at MDL Rules Hearing

Date: Tuesday, January 02, 2024 3:11:40 PM

Dear Secretary,

Thank you for forwarding the schedule of witnesses for the January 16 hearing. I look forward to

providing testimony before the Advisory Committee on Rule 16.1 and wish to provide a brief

overview of the perspective I will offer.

I spent 27 years in private practice with a focus on representing defendants in strategic litigation,

mass torts, class actions and MDLs. I joined Monsanto Company in 2006 and as Chief Deputy General

Counsel had responsibility for the Company’s litigation. After five years, I moved into a newly created

business role to lead a coordinated effort across the Company to resolve disputes and prevent

conflicts. I led that initiative for seven years settling Monsanto’s most significant litigations. After

participating in negotiating and completing the sale of Monsanto to Bayer, I served as General

Counsel of Bayer US from 2018 to 2022. On January 1, 2023, I formed Partridge LLC to assist parties

in resolving disputes, with a focus on mass torts and MDLs. During my years of practice as outside

counsel, Head of Litigation, Business Strategy Lead, and General Counsel, I have been involved in the

settlements of hundreds of thousands of claims in litigation, most of those being claims in MDLs and

class actions.

The Advisory Committee is proposing to put settlement issues prominently in the Rule. In my

experience, the most critical factor in facilitating the settlement of any mass tort, and particularly

MDLs, is the accurate understanding of the universe of claims. It should be noted that the structure

of a well-managed litigation is the same structure that encourages early and efficient settlement: a

clear presentation of the factual and legal bases for claims, an understanding of the nature and

scope of damages, and a statement of defenses.

The accumulation of meritless claims in an MDL will delay and often prevent a settlement. In my

experience, a large percentage of meritless claims ultimately fall out of MDLs, most frequently

because, for instance, in product liability cases, the product at issue was not used or the individual

did not have a compensable injury. As a result of the assertion of such a large volume of meritless

claims and the lack of an early and efficient process to screen those claims, it usually takes years

before those claims are removed from the litigation. Thus, a path for early resolution is often

blocked.

Most defendants wishing to pursue settlement of an MDL favor an early and efficient path to do so.

To illustrate issues confronting an MDL defendant, particularly a publicly traded company, assume

100,000 claims have been filed in the MDL. Based upon prior experience with products MDLs, it is

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 145 of 198
anticipated that that approximately 30% of the claims will not qualify for compensation under a

contemplated settlement plan. Assuming a hypothetical average individual claim value of $100,000,

the publicized volume of 100,000 claims produces an inflated theoretical exposure to the defendant

of $10 billion. Although the 100,000 total number of filed claims has been reported to the court by

the parties and has been widely reported in popular media and by financial analysts, the defendant

knows that the true potential exposure is substantially reduced and realistically is in the range of $7

billion.

The publicly traded MDL defendant is faced with a myriad of issues given the volume of meritless

claims parked in the MDL. What should be reported in quarterly and annual securities filings –

100,000 claims as shown in court records? What financial exposure is contemplated and to be

reported – the inflated $10B or anticipated realistic number $7B? What dollar number does the

company use for a reserve? Which number is reported to insurers to give timely notice of a covered

claim? Are shareholders and employees advised to ignore the court records showing 100,000

claims? And importantly, if the defendant wishes to pursue settlement, and needs to borrow funds,

what numbers will form the basis of securing financing, at what interest rate, and what

representations will lenders seek?

These are some of the issues that an MDL defendant faces because of the typical volume of

meritless claims inflating the size of an MDL. These issues confound the Court’s administration of the

litigation, complicate the settlement process, and can prevent settlements from taking place until

the meritless claims have been removed from the system and an understanding of compensable

claims has been determined. Unfortunately, under the current Rules, this does not occur until years

of MDL litigation. To promote early and efficient settlements, the MDL courts and the parties need a

Rule to prevent meritless claims from entering the system.

Respectfully submitted,

Scott S. Partridge 

Scott S. Partridge

314-952-4132

Partridge LLC

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Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 146 of 198
TAB 18 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 147 of 198
No testimony outline or comment was submitted 

by January 2, 2024. 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 148 of 198
TAB 19 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 149 of 198
\,1ic.:h;K:! L McGbmry 

111111cglamry@p111km,ct)J11 POPE MCGLAMRY 

--ATTORNEYS AT LAW--

January 3, 2024 

VIA EMAIL TRANSMISSION 

Committee on Rules of Practice and Procedure 

Administrative Office of the United States Courts 

One Columbus Circle, NE 

Washington, DC 20544 

3391 Peachtree Road, NE, Suite 300 

Atlanta, Georgia 30326 

Mailing Address 

P.O. Box 19337 

Atlanta, Georgia 31126 

404.523.7706 

www.popemcglamry.com 

Re: Comment on Proposed New Federal Rule of Civil Procedure 16.1 -

Multidistrict Litigation 

Dear Members of the Rules Committee: 

My name is Mike McGlamry. I am a practicing attorney, President, and shareholder in the 

law firm of Pope, McGlamry, Kilpatrick, Morrison & Norwood, P.C. in Atlanta, Georgia. I 

submit my comments about the proposed Rule 16.1 to the Federal Rules of Civil Procedure, a 

proposed rule aimed at addressing what some believe are abuses or flaws in existing Multidistrict 

Litigation practice. The Committee has worked diligently and exhaustively for a long time, on 

very difficult and contentious issues, and for that you should be commended. 

I have practiced continually since 1982 in state and federal courts around the country and 

have had extensive involvement in mass tort and class action litigation in numerous capacities. 

Over the past 20 plus years, I have been appointed class counsel in 54 state and federal court 

class actions, the most recent being in September 2023, in Vanzant v. Hill's Pet Nutrition Inc., et 

al, Civil Action No. 17-C-2535, in the Northern District of Illinois, Eastern Division. I have been 

appointed lead or co-lead counsel in multiple MDLs, including in In Re: Zantac (Ranitidine) 

Products Liability Litigation, MDL No. 2924, Southern District of Florida, West Palm Beach 

Division; and In Re: Wright Medical Technology, Inc. Conserve Hip Implant Products Liability 

Litigation, MDL No. 2329, Northern District of Georgia, Atlanta Division. I have also served as 

a member of the Plaintiff's Executive Committee or Plaintiff's Steering Committee in at least a 

half dozen additional MDLs and/or state court consolidations. In addition, I have participated, 

since its inception, with Emory Law School's Institute for Complex Litigation and Mass Claims. 

Rule 16.1 is far reaching, extremely complex and encompasses most, if not all, of the 

most critical decisions in an MDL, including case strategy, case direction, motions practice, 

discovery, and settlement. Although I applaud the Committee for its efforts to better manage 

MDLs, which is needed, I want to focus my attention and hopefully the Committee's, on the 

selection of Plaintiff's Leadership. My testimony is directed at what I consider the most critical 

issue in an MDL from the Plaintiff's perspective: who will lead the case for the Plaintiffs. 

Pope, McGlamry, Kilpatrick, Morrison & Norwood, P.C. 

Atlanta Columbus 

Comment ID 

USC-RULES-CV-2023-0003-0024

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Comment ID 

USC-RULES-CV-2023-0003-0024
Comment ID 

USC-RULES-CV-2023-0003-0024
Comment ID 

USC-RULES-CV-2023-0003-0024
TAB 20

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 154 of 198
January 2, 2024

Mr. H. Thomas Byron, III, Secretary

Advisory Committee on Civil Rules

Administrative Office of the United States Courts

One Columbus Circle, NE

Washington, D.C. 20544

RE: Summary of Testimony Before the Advisory Committee on Civil Rule 16.1 concerning 

MDL Proceedings

Dear Mr. Byron:

I am partner at Johnson Becker, PLLC. Our firm specializes in representing plaintiffs who 

have been injured in products liabilities actions as a result of medical devices, pharmaceuticals or 

consumer products. Our firm has served as Co-Lead Counsel, members of Plaintiffs’ Executive 

Committees, and members of Plaintiffs’ Steering Committees in several multi-district litigations 

(MDLs). Over the past twenty years, I have held a variety of leadership, as well as support, roles 

in multi-district litigations. Currently, I serve as Vice Chair Settlement in the In re: Philips 

Recalled CPAP, Bi-Level Pap, and Mechanical Ventilator Products Liability Litigation (MDL 

3014). 

I support the proposed Rule 16.1 as a method to provide guidance to the Courts and parties. 

The considerable effort by the Committee to improve the MDL process through implementation 

of this rule is appreciated. Rather than highlight the areas of agreement with the proposed rule, I 

would like to focus on those areas I find most concerning in the mass tort context.

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 155 of 198
I. Coordinating Counsel vs. Leadership Counsel

The proposed rule contemplates that a separate coordinating counsel may be 

appointed in order to facilitate a coordination process. The comments accurately reflect

this is an issue primarily on the plaintiffs’ side. Whereas, defendant(s) will have likely 

selected their lead and liaison counsel by the time an initial conference is scheduled. 

Unfortunately, this two-step approach in the mass tort context, lacks the necessary 

continuity. In fact, this two-step approach may result subsequent delays once qualified 

leadership is appointed. 

Selection of plaintiffs’ counsel often hinge upon several factors including whether 

an agreed upon leadership structure exists from cooperative counsel prior to the MDL 

formation, competing plaintiff cooperative groups that have collaborated on the 

litigation as well as judicial preference for creating their own plaintiff appointed 

leadership who have a stake in the litigation. In fact, the comments contemplate a 

variety of factors for the court to consider when appointing leadership while the 

comments related to coordinating counsel provide little guidance. 

Leadership, in the mass tort arena, is best served when there exists a continuity

related to who is tasked with overall representation of plaintiffs. In fact, appointing 

first a coordinating counsel that is later replaced by leadership counsel may slow the 

process when continuity is lacking. Additionally, strategic planning may be impacted 

should changes occur between coordinated counsel and final appointed leadership. 

II. Report Subject Matter described in Rule 16.1 (c)

The proposed rule reiterates that the rule may contemplate the subject matter 

identified in Rule 16, any of the 12 topical areas described within the proposed 16.1 as 

well as any matter designated by the court or issues the parties wish to bring to the 

court’s attention. In this respect, much of subpart (c) is duplicative of the topical areas 

in the existing rule. However, when you take into consideration the complexities 

surrounding mass tort claims addressing this breadth of issues at the initial status is 

premature.

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 156 of 198
A. Topics at Issue

... 

(4) how and when the parties will exchange information about the factual basis 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;

... 

(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);

... 

(12) whether matters should be referred to a magistrate judge or a master. 

The six topical areas above are better suited in the mass tort context once leadership 

has been appointed. Appointed leadership should be afforded the opportunity to 

coordinate, and where necessary reach out to non-appointed leadership firms, in order 

to develop a cohesive plan that takes into account not only the potential size of the 

MDL but how best to facilitate the sharing of information in a timely manner that does 

not disproportionately impact individual plaintiff firms. 

Delaying these discussion points until a leadership team is appointed will not 

disproportionately impact the parties Rather, it allows for a streamline focus during 

the initial 60 to 90 days of the consolidated mass tort to collect and analyze previously 

entered orders to determine their potential impact to move coordinated discovery 

forward as well as to hone the principal factual and legal issues which will be common 

to individual claims. In fact, it will likely allow for procedures to be implemented that 

may streamline the litigation creating efficiencies by allowing leadership to develop a 

comprehensive plan.

The regularly scheduling of case management conferences between appointed 

leadership and defendants will keep the court for matters essential to move forward in 

the litigation. This is a common practice within established MDLs including MDL 

3014 Philips Recalled Respiratory Devices, MDL 3026 Abbott Laboratories, et al, 

Preterm Infant Nutrition, MDL 3037 Recalled Abbott Infant Formula and MDL 3079 

Tepezza. 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 157 of 198
Therefore, I encourage the Committee to finalize a limited rule that focuses on the 

critical first steps of a developing mass tort. I thank you for this opportunity to address 

the Committee later this month and look forward to sharing my comments in more 

detail as well as answering any questions that the panel may present. 

Respectfully submitted,

/s/Lisa Ann Gorshe

Lisa Ann Gorshe, Esq.

Partner

Johnson Becker PLLC

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 158 of 198
TAB 21 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 159 of 198
SIDLEY AUSTIN LLP 

ONE SOUTH DEARBORN STREET 

CHICAGO, IL 60603 

+1 312 853 7000 

+1 312 853 7036 FAX 

AMERICA  ASIA PACIFIC  EUROPE 

+1 312 853 7424 

RHAMPTON@SIDLEY.COM 

Sidley Austin LLP is a limited liability partnership practicing in affiliation with other Sidley Austin partnerships. 

January 2, 2024 

VIA EMAIL 

RulesCommittee_Secretary@ao.uscourts.gov 

Committee on Rules of Practice and Procedure 

Judicial Conference of the United States 

Washington, D.C. 20544 

Re: R. Hampton Testimony Regarding Proposed Rule 16.1 

Dear Members of the Advisory Committee: 

My name is Rachel Hampton, and I am a Senior Managing Associate at Sidley Austin LLP with 

a focus on complex litigation, including the defense of mass torts. I joined the bar in 2017, and 

became a full-time associate at Sidley in 2019, after clerking for nearly two years. At the January 

16, 2024 Hearing on the Proposed Amendments to the Civil Rules, I plan to offer my perspective 

regarding the proposed new Rule 16.1 as a more junior member of the bar and as someone who 

has been closely following this amendment process, but is less experienced in the world of 

MDLs.1

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

Advisory Committee for the opportunity to present my views on this topic. 

Rachel L. Hampton 

Senior Managing Associate 

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 | Jan. 16, 2024 Page 160 of 198
TAB 22

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 161 of 198
SIDLEY AUSTIN LLP

787 SEVENTH AVENUE

NEW YORK, NY 10019

+1 212 839 5300

+1 212 839 5599 FAX

AMERICA • ASIA PACIFIC • EUROPE

+1 212 839 5941

AROTHMAN@SIDLEY.COM

Sidley Austin LLP is a limited liability partnership practicing in affiliation with other Sidley Austin partnerships.

January 2, 2024

VIA EMAIL

RulesCommittee_Secretary@ao.uscourts.gov

Committee on Rules of Practice and Procedure

Judicial Conference of the United States

Washington, D.C. 20544 

Re: A. Rothman Testimony Regarding Proposed Rule 16.1

Dear Members of the Advisory Committee:

My name is Alan Rothman, and I am a Partner at Sidley Austin LLP.

1

 Over the past two 

decades, I have been involved in more than two dozen MDL proceedings in a wide array of 

matters for defendants in the pharmaceutical, medical device, consumer product, chemical and 

other industries. I am also the author of “And Now a Word from the Panel,” a Law360 column 

regarding the Judicial Panel on Multidistrict Litigation and MDL practice (a column which just 

completed its 11th year).

At the January 16, 2024 Hearing on the Proposed Amendments to the Civil Rules, I plan 

to address the proposed new Rule 16.1, including its proposed subsection 16.1(c)(4). I intend to 

focus on the efficiencies gained, and resources conserved, by obtaining limited information at an 

early stage of MDL proceedings regarding the product(s) allegedly ingested by plaintiffs (or to 

which they were exposed) and their alleged subsequent injuries. I offer this perspective from my 

MDL experience as well as a topic about which I have written. See, e.g., Alan E. Rothman & 

Mallika Balachandran, Early Vetting: A Simple Plan to Shed MDL Docket Bloat, 881 UMKC 

Law Rev. 89.4 (2021), available at 

https://irlaw.umkc.edu/cgi/viewcontent.cgi?article=1006&context=lawreview (copy also 

enclosed).

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 | Jan. 16, 2024 Page 162 of 198
Page 2

I thank the Committee for the opportunity to present at the January 16 Hearing and for its 

consideration. 

Respectfully,

Alan E. Rothman

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 163 of 198
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Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 164 of 198
EARLY VETTING: A SIMPLE PLAN TO SHED MDL 

DOCKET BLOAT 

Alan E. Rothman* & Mallika Balachandran** 

I. INTRODUCTION 

The scales of justice are clearly tipping. Even the most cursory review of 

Multidistrict Litigation (“MDL”) statistics reflects a docket imbalance which 

cannot be ignored. There can be little dispute that “the number of federal cases 

swept into an MDL” has “exploded.”1

 As of the end of fiscal year 2019, there were 

a total of 134,462 individual actions in nearly 200 pending MDL proceedings.2

 By 

the end of fiscal year 2020, that number had ballooned to 327,204 individual 

actions in 176 MDL proceedings.3

 The burgeoning MDL dockets are particularly 

acute in product liability and other personal injury MDLs (“Product 

Liability/Personal Injury MDLs”), where the creation of an MDL (or even the mere 

filing of an MDL petition) is inevitably followed by a jump in the number of new 

cases. In fact, some MDL judges recognize that creation of an MDL often leads to 

the filing of claims with questionable merit.4

 

The current system enables plaintiffs to file claims with ease, at a low cost 

and without a procedure in place to quickly determine whether the case should 

 

*Alan E. Rothman is Counsel at the law firm of Sidley Austin LLP and a member of its Product 

Liability Practice Group. He has two decades of experience representing pharmaceutical, medical 

device, consumer products and other companies in connection with more than twenty MDL 

proceedings. Mr. Rothman has written scores of articles, and is a frequent lecturer, on topics related 

to MDL and jurisdictional issues. Mr. Rothman notes that this article has been prepared for 

informational purposes only and does not constitute legal advice. This information is not intended to 

create, and the receipt of it does not constitute, a lawyer-client relationship. Readers should not act 

upon this without seeking advice from professional advisers. The content therein does not reflect the 

views of the firm. 

**Mallika Balachandran is an associate at Sidley Austin LLP and a member of its Litigation Practice 

Group. 

1 Ryan C. Hudson, Rex Sharp & Nancy Levit, MDL Cartography: Mapping the Five Stages of a 

Federal MDL, 89 UMKC L. REV. 801 (2021). 2

 United States Panel on Multidistrict Litigation, JPML Statistical Analysis of Multidistrict LitigationFY-2019, 

www.jpml.uscourts.gov/sites/jpml/files/JPML_Statistical_Analysis_of_Multidistrict_LitigationFY-2019_0.pdf. See also Hudson et al., supra note 1; Alan Rothman, And Now a Word from the 

Panel: MDLs Continue to Thrive, LAW360 (Feb. 21, 2020). 3 United States Panel on Multidistrict Litigation, JPML Statistical Analysis of Multidistrict LitigationFY-2020, www.jpml.uscourts.gov/sites/jpml/files/Fiscal_Year_Statistics-2020_1.pdf. In early 2021, 

MDLs surpassed a new milestone. Since the inception of MDL proceedings, there have now been 

more than one million individual actions in those litigations. Alison Frankel, As MDL Cases Surpass 

1 Million, Defense Group's Push for Early Vetting Heats Up, Reuters (Mar. 17, 2021). 4 In re Mentor Corp. Obtape Transobturator Sling Prods. Liab. Litig., 2016 WL 4705827, at *2 (M.D. 

Ga. Sept. 7, 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”). See also Alan Rothman, Managing MDL Mania: A Modest 

Early Vetting Proposal, NEW YORK L. J. (2019).

1

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882 UMKC LAW REVIEW [Vol. 89.4 

even be on the docket. There are two gateway questions that should be asked and 

answered every time a case is filed: Did the plaintiff ingest, use (or was the 

plaintiff otherwise exposed to) the named defendant’s (or defendants’) product? 

Did the plaintiff sustain an injury subsequent to use of that product? Absent an 

affirmative answer to those two basic questions, with at least some documentation 

as support, there would be no good faith basis to file an action. Thus, this 

information should be readily available to plaintiffs’ counsel. The time has come 

to adopt and implement a simple early vetting remedy to support the bona fides of 

these MDL actions. 

With these principles in mind, we are prepared to delve deeper into the 

underpinnings of the docket bloat, what efforts have previously been made and 

why they have fallen short of the mark. Section II examines the data behind the 

explosion of case filings in MDLs. Section III provides an explanation as to why 

MDLs facilitate a surge in case filings, cases that would never have been filed 

outside of the MDL context. Section IV provides an historical overview of 

approaches taken by MDL courts to screen cases before them, as well as recent 

MDL reform efforts with respect to early vetting. Thereafter, Section V explains 

why a streamlined early vetting process with limited information offers a quick, 

efficient solution, whereas other winnowing tools used by MDL courts do not 

provide the essential relief required to quickly “reduce the waistline” and bring 

MDLs back into shape. 

II. EXPLODING MDL DOCKETS: DELVING INTO THE DATA 

MDLs comprise a large portion of the federal civil caseload. In recent 

years, the number of individual actions in MDL proceedings have comprised more 

than 50% of the overall federal civil docket.5

 As noted above, by the end of FY 

2020, there were 327,204 individual actions pending in MDL proceedings.6

 It is 

the spiraling number of individual actions in a particular type of MDL proceeding 

(namely, Product Liability/Personal Injury MDLs) which should raise eyebrows. 

Product liability and personal injury cases occupy a large portion of the 

MDL population. Based on a review of the MDL dockets, approximately only onethird of the pending MDL proceedings involve this genre of litigation, but those 

MDLs include the vast majority of the individual actions in all of the MDL 

proceedings.7

 

 

5 See Hudson et al., supra note 1. For purposes of this analysis, the overall federal civil docket figure 

(the denominator) excludes habeas corpus and social security cases. 

6 See United States Panel on Multidistrict Litigation, supra note 2. 7 See Hudson et al., supra note 1, at 803 (top 10 MDL proceedings alone by number of actions, which 

each included product liability and/or personal injury claims, embodied most of the individual actions 

in MDL proceedings); see also United States Judicial Panel on Multidistrict Litigation, Calendar 

Year Statistics,

www.jpml.uscourts.gov/sites/jpml/files/JPML_Calendar_Year_Statistics%202020.pdf (61 of the 

185 pending MDL proceeding were product liability MDLs). Even the most cursory review of more 

current MDL data reflects that individual actions continue to flood Product Liability/Personal MDLs. 

United States Judicial Panel on Multidistrict Litigation, MDL Statistics Report-Distribution of 

2

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Another unusual feature of MDL proceedings is the rapid pace with which 

individual actions surge at the outset of those proceedings. In the six Product 

Liability/Personal Injury MDLs created after January 1, 2019 through the end of 

FY 2019, 203,706 individual actions were pending by the end of the following 

fiscal year (FY 2020).8

III. FUELING THE FIRE: WHY MDLs FACILITATE A SURGE IN 

CASES 

Before addressing a solution to MDL docket bloat, it is important to 

understand what is fueling this growth within Product Liability/Personal Injury 

MDLs, not seen in mill-run litigations. A key reason for the increase in the number 

of cases in MDL proceedings is the ease with which plaintiffs are able to add their 

cases to the MDL and avoid individual scrutiny. But why is it so easy to file cases 

in an MDL proceeding as compared to the overall federal docket? And why does 

the system appear to enable the filing of meritless cases? 

First and foremost, an MDL proceeding creates a “piggyback” effect. In 

many MDLs, a plaintiffs’ leadership group is appointed by the court with 

responsibility for spearheading the litigation on behalf of plaintiffs. This allows for 

other plaintiffs’ counsel who are willing to sit on the sidelines (and later pay a 

“common benefit” fee from any ultimate recovery to be divided among plaintiffs’ 

leadership)9

 to file a case and leave the heavy lifting to others. Moreover, the 

ensuing growth in cases encourages even more filings – often fueled by plaintiffs’ 

attorney advertising – because the more cases are filed, the less likely it is that any 

individual complaint from among the growing pool of cases will be subject to early 

challenges, whether via a motion to dismiss or otherwise. 

In addition, there are also two often utilized devices in MDL litigation 

which can be drivers of the increase: (1) Master Complaints; and (2) Direct Filing 

Orders. These factors, even if they have value for other purposes, minimize the 

marginal cost of adding a case to the MDL. A Master Complaint is an omnibus 

complaint filed by plaintiffs’ leadership which includes all of the common 

allegations, including causes of actions, against the defendants. New plaintiffs can 

adopt the Master Complaint and file a Short-Form Complaint which includes 

 

Pending MDL Dockets by Actions Pending, 

www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_Actions_Pending-March-15-

2021.pdf. 

(almost all of MDL proceedings with 500 or more individual actions are Product Liability/Personal 

Injury MDL proceedings). Product Liability/Personal Injury MDLs consisting primarily of class 

actions generally have few actions due to the collective nature of a putative class (often embodying 

thousands or more class members). 

8 This data is based on a review of the MDL statistical data as of the end of FY 2020 for the six 

Product Liability and Personal Injury MDLs created between January 1, 2019 and September 30, 

2019 (including MDL Nos., 2875, 2885, 2886, 2887, 2903 and 2905), available at 

www.jpml.uscourts.gov/sites/jpml/files/Fiscal_Year_Statistics-2020_1.pdf. (which includes data 

regarding the number of cases filed in, and transferred to, MDL proceedings). 

9 See Hudson et al., supra note 1, at 809. 

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certain information about their case (but with no proof to support their claim 

required), without spending the time to prepare their own detailed complaints. 

Moreover, to avoid the need to file cases in plaintiffs’ home states – where personal 

jurisdiction and venue would likely be proper – and avoid the costs of retaining 

local counsel and MDL transfer, MDL courts often enter a Direct Filing Order. 

Such orders enable plaintiffs from around the country to file their cases directly in 

the MDL forum, even if personal jurisdiction and venue are improper there. 

(Defendants preserve personal jurisdiction and venue objections until the 

conclusion of pretrial proceedings.) 

Moreover, the data suggests that the attraction of filing directly in an MDL 

proceeding is fueling the increase in cases. As of the end of FY 2020, more than 

200,000 of the 203,706 individual actions pending in Product Liability/Personal 

Injury MDLs created since January 1, 2019 through the end of FY 2019, had been 

filed directly in the transferee court.

10

IV. HISTORICAL AND CURRENT APPROACHES

 

a. The Historical Approach: Modified MDL Discovery 

Historically, attempts to deal with information relating to individual cases 

within an MDL have taken the form of modified discovery, albeit by different 

names. The goal has been to create a uniform set of questions and streamline the 

discovery process so as to avoid the need for typical individual case-specific 

discovery. The most common form of that substitute discovery has been the use of 

a “Plaintiff Fact Sheet” (“PFS”).11 The PFS has commonly been a lengthy 

questionnaire, often consisting of dozens of pages, with numerous questions 

(including subparts and charts) ranging from personal background (residence, 

education, employment) to medical histories of the plaintiff and family members, 

identity of physicians, prior litigations filed by the plaintiff, insurance coverage 

and damages sought. Tucked away are numerous questions relating to product use 

(or exposure) and its duration. The typical PFS also includes document requests to 

support the answers to the wide range of information sought, including a request 

for medical authorizations to release a slew of records. 

In practice, the PFS questions are a result of a heavily negotiated, 

protracted process. Although the bidding often begins with using a template PFS 

from another MDL, that does little to avoid what is usually months of negotiations 

among counsel before finalizing the treatise of questions ultimately used in a given 

MDL proceeding. 

Moreover, the PFS is hardly an expeditious process. Once a PFS is agreed 

upon, which is often months (and in some instances more than a year) after creation 

of the MDL, there is a drawn-out timeline for information to be provided and for 

 

10 United States Panel on Multidistrict Litigation, supra note 3. 11 In cases with a PFS, a Defendant Fact Sheet (“DFS”), requiring defendants to respond to a set of 

case-specific questions (often relating to contact between sales representatives and plaintiffs’ 

physicians) is typically negotiated and ordered as to certain actions within the MDL as well. 

4

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deficiencies to be challenged. That process often takes many months. When a 

plaintiff fails to provide information, the plaintiff is offered an opportunity to cure 

the defects. Fighting over the sufficiency of a PFS itself can become a litigation 

within a litigation.12

While the hope of some may have been that the PFS process would 

identify and eliminate meritless claims, the process is so tortured and protracted 

that it in no way resembles an early vetting process. Nor is the PFS simple enough 

to provide just the basic information necessary to determine whether a plaintiff has 

an initial basis to file a case. 

A limited number of courts have used shorter questionnaires at the outset 

of an MDL proceeding, well before the PFS process, to specifically target the bona 

fides of plaintiffs’ allegations of exposure to the product and/or a relevant injury.13 

This approach is much more useful as a gateway function at “an early stage” to 

“help resolve certain issues in this litigation in a timely manner.”14 But such 

targeted efforts at the outset of an MDL are exceedingly rare. 

b. Help Is on the Way?: Recent MDL Reform Efforts 

Over the past several years, there have been a number of MDL reform 

efforts to tackle the surge in MDL case filings (among other issues). The subject 

of early vetting has been on the agenda of the MDL Subcommittee of the Advisory 

Committee on Civil Rules (the “MDL Subcommittee”) for potential amendment 

of the Federal Rules. The MDL Subcommittee has acknowledged that “the early 

vetting proposals have been in response to the ‘Field of Dreams’ problem -- 

sometimes JPML centralization of litigation is followed by the filing of a large 

number of new claims,” but “how to best address the issue has evolved [and] [t]hat 

evolution continues.”15

In 2017, a House bill included a provision to require evidentiary support 

of exposure and injury within forty-five days and for the court to thereafter rule on 

the sufficiency of that evidence. That bill died in Congress and “the focus of the 

[MDL] Subcommittee turned to the [PFS].”16 As part of the “evolution” of the 

process, “[i]n place of reliance on PFS/DFS practice, the more promising idea 

came to be known as a ‘census,’ an effort to gain some basic details on the claims 

 

12 In fairness, the most effective use of the PFS to whittle down cases is not in determining whether 

a case is meritless, but in enabling a defendant to ultimately seek dismissal of a case for failure to 

complete the PFS. 

13 See, e.g., In re Zofran (Ondansetron) Prod. Liab. Litig., No. 1:15-cv-2657-FDS, 2016 WL 

3058475 (D. Mass. 

May 26, 2016) (early disclosure order requiring each plaintiff to provide certain product 

identification information, with supporting records identifying the manufacturer of the product, 

within thirty days).

14 Id. 

15 Advisory Committee on Civil Rules, Agenda Book, 145-46 

https://www.uscourts.gov/sites/default/files/04-2020_civil_rules_agenda_book.pdf (April 2, 2020) 

(citing Fairness in Class Action Act (H.R. 985)). 

16 Id. at 147. 

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presented -- evidence of exposure to the product at issue -- so as to permit an initial 

assessment.”17 Recently, a few MDL courts have entered a “census order,” but the 

“census” includes a considerable number of questions, as well as topics not 

exclusively limited to proof of exposure and injury. The length of that process 

suggests that while it may ultimately have value to obtain case-specific 

information, it (like the PFS) is not an early vetting solution to quickly identify 

meritless claims. 

V. MDL EARLY VETTING: SHORT, SWEET, AND EFFECTIVE 

To put it all together, there appears to be an evolving consensus that there 

must be a system for an initial assessment of claims. Precisely as the MDL 

Subcommittee articulated, “there should be a beginning for an information 

exchange.”18 But the processes adopted in MDL proceedings have not facilitated 

the necessary immediate exchange of information. What is needed is effective and 

simple early vetting that is truly a “beginning,” consisting of the limited 

information that counsel should have had the moment a case is filed. And what is 

that information? Answers to two questions which could fit on a postcard: 

Proof of Exposure: Did you ingest, use or were you otherwise 

exposed to the named defendant’s/defendants’ product? 

Proof of Injury: Did you sustain an injury subsequent to that 

ingestion, use or exposure? 

And what documentation is needed? Two pieces of paper: One page of a record 

documenting and identifying the exposure (ingestion or use) to a named 

defendant’s product, and one page of a record reflecting the alleged injury 

subsequent to the date of exposure (ingestion or use). This is a form of an initial 

disclosure, which the Federal Rules should require be provided in every case 

within an MDL proceeding. It will winnow the cases which should never have 

been filed and reduce the bloat that meritless cases create on an MDL court’s 

docket. In multiple defendant cases, it will enable defendants who do not belong 

to be dismissed at the outset. 

Some might (and in fact do) argue that the system cannot sustain such early 

scrutiny in the context of a large MDL because there are simply too many cases. 

But such an argument is circular. There are so many cases in an MDL because it 

is too easy to file a case which can fly under the scrutiny radar for months, if not 

years. We have reached a point where a rule to address the spike in MDL cases is 

critical. 

 

 

17 Id. 18 Id. 

6

UMKC Law Review, Vol. 89, No. 4 [2021], Art. 7

https://irlaw.umkc.edu/lawreview/vol89/iss4/7

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 170 of 198
2021] EARLY VETTING: A SIMPLE PLAN 887 

VI. CONCLUSION 

Keep it simple and start early. With these two critical ingredients, a 

realistic early vetting procedure will have the best chance to succeed across all 

Product Liability/Personal Injury MDL proceedings. At the same time, it will 

enable MDL courts and the parties to thereafter fashion discovery best suited for 

the particular needs of that MDL (whether as a PFS, census order or otherwise) 

without the bloat of clearly meritless claims. Even more importantly, this proposed 

early vetting is a sustainable “weight loss” program which can readily be applied 

as new cases are filed, leaving a more fit, manageable docket for the benefit of all. 

 

7

Rothman and Balachandran: Early Vetting: A Simple Plan to Shed MDL Docket Bloat

Published by UMKC School of Law Institutional Repository, 2021

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 171 of 198
888 UMKC LAW REVIEW [Vol. 89.4 

8

UMKC Law Review, Vol. 89, No. 4 [2021], Art. 7

https://irlaw.umkc.edu/lawreview/vol89/iss4/7

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 172 of 198
TAB 23

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 173 of 198
No testimony outline or comment was submitted 

by January 2, 2024. 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 174 of 198
TAB 24

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 175 of 198
55 C HALLENGER R OAD • R IDGEFIELD P ARK , NJ 07660 • T: 877.541.3273 • F: 973.679.8656 • seegerweiss.com

January 2, 2024

VIA ELECTRONIC MAIL

Rules Committee Staff

Office of the General Counsel

Administrative Office of the U.S. Courts

One Columbus Circle NE, Room 7-300

Washington, DC 20544

Re: Draft Federal Rule of Civil Procedure 16.1

Written Testimony of Jennifer Scullion

To the Advisory Committee on Civil Rule:

Thank you for providing this opportunity to testify concerning proposed Federal Rule of Civil 

Procedure 16.1 (Multidistrict Litigation) (the “Draft Rule”.

I am a partner at Seeger Weiss. Our firm exclusively represents plaintiffs in complex litigation, 

including MDLs and class actions. We represent clients in many areas, including product liability, drug 

injury, environmental contamination, and public nuisance. My own practice also includes representing 

clients damaged through antitrust violations and consumer fraud.

As the draft Committee Note observes, MDLs come in many shapes and sizes and with varying 

levels of complexity. It is critically important that organization and management begin early, as the Draft 

Rule contemplates. However, it also is critically important to try to ensure that whatever organization and 

management structures are put in place “fit” the unique needs and challenges of that MDL. In practice, 

that is best done through a focused series of initial case management conferences (a) to examine what type 

of leadership structure is needed and whether any immediate orders are needed pending leadership1 and 

(b) once a structure is in place, to formulate and put in place appropriate schedules and protocols tailored 

to the particular needs of the MDL—i.e., are there multiple “tracks” of plaintiffs, are there any class

actions contemplated within the MDL, are there state court proceedings to coordinate with, are there 

ongoing criminal investigations to accommodate?

Respectfully, as presently proposed, the Draft Rule appears to try to do too much, too soon, 

suggesting a combined report addressing both how to decide leadership within the MDL and what

leadership would then propose to do to advance the MDL. This overlooks the significant role that MDL 

leadership plays in weighing in on nearly all of the matters the Draft Rule identifies as potential topics for 

the Initial MDL Management Conference Report. For example:

1 Such as to address already-pending scheduling orders.

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 176 of 198
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55 C HALLENGER R OAD • R IDGEFIELD P ARK , NJ 07660 • T: 877.541.3273 • F: 973.679.8656 • seegerweiss.com

• In antitrust and consumer fraud matters (among others), it is not uncommon for different 

counsel to have very different views on how to frame the core theories of the case. Until 

leadership (and or interim class counsel)2 is appointed, it often will not be practical or

useful to provide a report “identifying the principal factual and legal issues likely to be 

presented in the MDL.” Draft Rule 16.1(c)(3). Moreover, the Draft Committee Note seems 

to contemplate that this portion of the Initial MDL Management Conference Report would

be used not only to identify “principal” issues, but to propose “early discovery” or “early 

motion practice” on such issues. The potential for phasing, bifurcation, or “prioritization”

of isolated factual or legal issues is among the most contested and consequential in an

MDL, including because of the delay and prejudice it can visit on plaintiffs. For that reason, 

such proposals often are the subject of full briefing and argument by the parties. It does not 

serve the interests of justice or the courts to try to make such decisions at the very threshold 

of the MDL through a preliminary, ad hoc report.

• Similarly, modifications to existing scheduling orders (16.1(c)(2)), the potential for use of 

consolidated pleadings or for use of “master” pleadings (16.1(c)(5)), timing and nature of 

motions to dismiss and for class certification (16.1(c)(7)), and a proposed discovery plan

(16.1(c)(6)) are all matters that the parties should be given some time to confer on once 

leadership is set. But the Draft Rule contemplates having these matters addressed (on the 

plaintiff side) through an ad hoc group potentially led by “coordinating counsel.” The

likely, practical result of this is that the Initial MDL Management Conference Report will 

discuss these matters in only the most superficial of ways and not be of any real value to 

the MDL court.

• How and when to approach settlement discussions is among the most important issues in 

an MDL. And those issues often may be impacted by other choices, such as how to frame 

up the core theories in the case, how many “tracks” of plaintiffs and defendants are set up, 

and what class actions, if any, are contemplated within the MDL. While it certainly can be 

helpful to begin addressing settlement processes early, it makes better sense to settle on a 

leadership structure and map out some of the “big picture” issues first, rather than having 

the parties submit premature proposals through an ad hoc drafting process (as Draft Rule 

16.1(c)(1)(C) and 16.1(c)(9) contemplate).

I recognize that the Draft Rule states that all of the “matters” listed under 16.1(c) are optional. But 

codifying them in a rule will tend to make them more mandatory in practice (or, potentially, lead to 

disputes over what is or not appropriate to include in the Initial MDL Management Conference Report in 

any particular case). That the Draft Rule also contemplates the need for “coordinating counsel” to help the 

parties prepare the Initial MDL Management Conference Report only underscores that the kind of report 

the Draft Rule contemplates is premature and that nearly all of the matters listed in Draft Rule 16.1(c) are 

better left to MDL Leadership and/or Interim Class Counsel (for MDLs that include one or more classes)

to address in a timely and orderly manner after organization and an opportunity to confer.

To the extent that the Committee’s goal is to draft a rule that seeks to help MDLs get organized 

and managed relatively quickly and efficiently, the Draft Rule could be recrafted:

2 Many MDLs, including antitrust and consumer fraud MDLs, include one or more class actions. As currently drafted, neither

the Draft Rule nor the Committee Note seem to contemplate this additional level of complexity.

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 177 of 198
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55 C HALLENGER R OAD • R IDGEFIELD P ARK , NJ 07660 • T: 877.541.3273 • F: 973.679.8656 • seegerweiss.com

• To clarify in 16.1(a) that the purpose of the Initial MDL Management Conference is to 

allow the MDL court to “consider and take appropriate action” (borrowed from FRCP 

16(c)(2)) on the leadership and imminent scheduling matters set forth in Draft Rule 

16.1(c)(1) and (2) [each as modified below].

• To eliminate the provision for designation of coordinating counsel (16.1(b)).

• To revise 16.1(c) to eliminate the requirement of a report and instead allow the MDL Court 

to set a schedule and format (such as letter briefs of no more than X pages) for the parties 

to make submissions on:

[Modified 16.1(c)(1)] “whether leadership counsel and/or interim class counsel

should be appointed, and if so”

a. the procedure for selecting them and, in the case of leadership counsel, 

whether the appointment should be reviewed periodically during the 

MDL proceedings; and

b. the structure of leadership counsel, including their responsibilities and 

authority in conducting pretrial activities.

[Modified 16.1(c)(2)] “identifying any imminent deadlines in any previously 

entered scheduling or other orders and stating whether they should be vacated or 

stayed or modified.” and

[16.1(c)(11)] “whether related civil or criminal actions have been filed or are 

expected to be filed in other courts [including state courts] and whether to consider 

possible methods for coordinating with them.”3

The balance of the matters listed under Draft Rule 16.1(c) can be addressed in the ordinary course 

at subsequent case management (or discovery case management) conferences, as is done now. That said,

the Committee Note could include the suggestion that, during any leadership application process, the MDL 

Court may want to solicit views of applicants on such issues as case tracks, schedule, core claims and 

theories, and other issues that will demonstrate an understanding of the case and of the critical role of 

competent leadership in MDL proceedings.

I look forward to addressing the above and any questions the Committee may have.

Respectfully submitted, 

/s/ Jennifer Scullion

Jennifer Scullion

3 In antitrust cases, it is important to know whether the Antitrust Division of the DOJ has any pending 

criminal proceedings that overlap with the claims in an MDL. In addition, in the Committee Note on this 

provision, it would be useful to refer to the State Antitrust Enforcement Venue Act, which precludes the 

JPML from forcing the transfer into an MDL of antitrust actions brought by state attorneys general or by 

the DOJ Antitrust Division. It will be important for an MDL court to be aware of such actions early on 

for planning and coordination.

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 178 of 198
TAB 25

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 179 of 198
Norman E. Siegel | (816) 714-7112 | siegel@stuevesiegel.com

(816) 714-7100 | stuevesiegel.com | 460 Nichols Road, Suite 200 | Kansas City, MO 64112

January 2, 2024

VIA EMAIL TO:

RulesCommittee_Secretary@ao.uscourts.gov

Statement of Norman E. Siegel

Partner, Stueve Siegel Hanson LLP

Before the Committee on Rules of Practice and Procedure

January 16, 2024

Thank you for providing an opportunity to testify before the Committee regarding the 

proposed Rule 16.1 addressing Multidistrict Litigation. My name is Norman Siegel, and I am a 

partner at Stueve Siegel Hanson LLP, a 30-lawyer firm in Kansas City, Missouri. Over my 30-

year career, I have primarily practiced in complex litigation, including on the defense side as a 

partner at Sonnenschein (now Dentons), and on the plaintiff side over the last two decades at 

Stueve Siegel Hanson. My firm has served as lead counsel in some of the largest class action cases 

recently centralized by the Judicial Panel on Multi-District Litigation, including In Re: Syngenta 

AG MIR162 Corn Litigation (MDL 2591), In Re: Equifax Inc. Customer Data Security Breach 

Litigation (MDL 2800), In Re: American Medical Collection Agency Data Security Breach 

Litigation (MDL 2904), In Re: Capital One Consumer Data Security Breach Litigation (MDL 

2915), and In Re: T-Mobile Customer Data Security Litigation (MDL 3019).

I submit this testimony to address a facial disconnect between proposed Rule 16.1, which 

appears to be drafted to address product liability MDLs, and the MDL cases my firm typically 

handles, which are class actions. The disconnect is apparent throughout the proposed rule and the 

comments, which distinguish MDLs and class actions without acknowledging that many MDLs 

are centralized class actions.

1 The Comment to Rule 16.1(c)(1) is illustrative of the problem—the 

third paragraph provides that “MDL proceedings do not have the same commonality requirements 

as class actions,” a statement that is accurate only if “MDL proceedings” is read as “product 

liability and common disaster MDLs centralizing individual claims.” 

The issue also manifests in proposed Rule 16.1(b), which provides that the Court “may 

designate coordinating counsel” to perform various ministerial and substantive roles at the initial 

MDL Management Conference contemplated by Rule 16.1(a). While this procedure may lead to 

1 The JPML's latest data reveals 68 pending MDLs classified as “products liability” or “common 

disaster”—most of which are consolidated individual actions. There are 73 pending MDLs 

classified as “antitrust” or “miscellaneous actions”—most of which are consolidated class actions, 

including data breach and privacy class actions. There are 13 pending “sales practices” MDLs, and 

3 pending “securities” MDLs, all of which are class actions.

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 180 of 198
January 2, 2024

Page 2

some efficiencies in product liability and common disaster MDLs seeking to redress personal 

injuries, it is counterproductive to the efficient management of class actions. Instead, overlapping 

class actions centralized in an MDL should start with the consideration and appointment of interim 

class counsel that will represent the class throughout the pendency of the MDL. In my experience

in MDLs centralizing upwards of 300 class actions, an initial order from the transferee court 

providing for a schedule for motions for appointment of interim class counsel should always be 

the first order of business in any case involving overlapping class actions. Once appointed, interim 

class counsel is empowered to speak for the class and enter agreements with opposing parties on 

matters that typically would be addressed during the initial case management conference, including 

a discovery plan and pretrial motion schedule—issues likely to impact the merits of the case that 

should not be handled by a separately designated “coordinating counsel.”

Moreover, proposed Rule 16.1(c)(1) fails to acknowledge that there is already a rule that 

provides for the appointment of interim class counsel to address pretrial activities in class actions. 

Rule 23(g)(3) provides that “The court may designate interim counsel to act on behalf of a putative 

class before determining whether to certify the action as a class action.” Contrary to the openended language in proposed Rule 16.1(c)(1)(A)-(C) for consideration of “leadership counsel,”

Rule 23(g) also provides the specific criteria the court “must consider” in appointing interim class 

counsel (Rule 23(g)(1)(A)) and provides that where multiple lawyers seek appointment—as in 

most class action MDLs—“the court must appoint the applicant best able to represent the interests 

of the class” (Rule 23(g)(2)). The Comments to the 2003 Amendments make clear the purpose of 

Rule 23(g): “It responds to the reality that the selection and activity of class counsel are often 

critically important to the successful handling of a class action.” The Manual elaborates that such 

appointment should occur before (or at) the initial case management conference, particularly in 

instances where class actions may be consolidated and where a number of lawyers may compete 

for class counsel appointment—the situation in most class action MDLs: “In such cases, 

designation of interim counsel clarifies responsibility for protecting the interests of the class during 

precertification activities, such as making and responding to motions, conducting any necessary 

discovery, moving for class certification, and negotiating settlement.” Manual for Complex 

Litigation, Fourth § 21.11. This construct, now well established in Rule 23(g) and the practice of 

most transferee courts in class action MDLs, runs counter to the proposed so-called “coordinating 

counsel” and “leadership counsel,” which may undertake actions or agreements that conflict with 

the designated role of interim class counsel. 

I respectfully propose three potential solutions for this problem. First, MDLs consisting 

solely of centralized class actions should be excluded from the proposed rule by indicating the rule 

will not apply to centralized cases brought under Rule 23. Second, in MDLs that may include both 

individual claims and separately representative claims brought under Rule 23 (“hybrid MDLs”), 

language can be added to the Committee Note to make clear that nothing in Rule 16.1 should be 

read as superseding Rule 23(g), including consideration of the appointment of interim class 

counsel prior to the initial conference. Third, if the need for “coordinating counsel” is deemed 

necessary in class action or hybrid MDLs, the Committee Note should make clear that the role of 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 181 of 198
January 2, 2024

Page 3

“coordinating counsel” is limited to purely ministerial duties pending the appointment of interim 

class counsel pursuant to Rule 23(g).

Thank you for you work on these rules, and I look forward to addressing any questions 

from the Committee. 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 182 of 198
TAB 26

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 183 of 198
No testimony outline or comment was submitted 

by January 2, 2024. 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 184 of 198
TAB 27

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 185 of 198
No testimony outline or comment was submitted 

by January 2, 2024. 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 186 of 198
TAB 28

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 187 of 198
No testimony outline or comment was submitted 

by January 2, 2024. 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 188 of 198
TAB 29

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 189 of 198
Chad S. Roberts

+1.305.240.5148

chad.roberts@edcclaw.com

eDiscovery CoCounsel, pllc

Miami - Jacksonville

www.edcclaw.com

________________________________________________________________________________________________________

Page 1 of 3

January 8, 2024

Committee on Rules of Practice and Procedure

Judicial Conference of the United States

Washington, D.C. 20544 

Subj: Testimony and Comments Regarding Proposed Amendments to Civil Rules 16 and 26 

Related to Privilege Logs 

Dear Members of the Committee: 

Thank you for the opportunity to provide comments and testimony concerning the 

proposed amendments to Federal Rules of Civil Procedure 16(b) and 26(f). 

Summary

Rapidly emerging technologies are highly likely to fundamentally change historical

assumptions concerning the costs and burdens of document-by-document privilege logs and 

compliance with Rule 26(b)(5)(A). 

The language of the proposed amendments and corresponding Committee Notes prudently

emphasizes flexibility. This approach will continue to promote innovation and efficiencies tailored

to the specific needs of each case.

Calls by some commentators for the proposed amendments to go further in the form of 

substantive presumptions or specifics concerning privilege logging would likely result in a Rule

that had become obsolete by the time of its effective date. 

Professional Background

My name is Chad Roberts and I am in my thirty-third year of civil litigation practice with 

an emphasis in complex litigation, mass torts, and multi-district litigation. An engineer by training, 

my practice since 2014 has been dedicated to the conduct of electronic discovery in complex civil 

litigation, with an emphasis on the use of technology to leverage the management of very large 

volumes of electronic evidence. My firm primarily represents consumers, small business owners, 

and local governments with electronic discovery in civil litigation. My curriculum vitae is 

attached. 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 190 of 198
Page 2 of 3

I am very familiar with current litigation support technologies and corresponding 

workflows used in large scale electronic discovery productions, including those technologies used 

in the creation of privilege logs with thousands of entries. 

The more difficult task in privilege logging

The preparation of a document-by-document privilege log requires two unique tasks: 1) 

the identification of responsive evidence that contains privileged content; and 2) the 

summarization of the content in a way that complies with Rule 26(b)(5)(A)(ii), specifically, a 

summary created “. . . in a manner that, without revealing information itself privileged or protected, 

will enable other parties to assess the claim [of privilege].”

In modern electronic discovery, it is this second task – the task of textually summarizing 

the privileged content without compromising the privilege itself – that generates the preponderance 

of costs associated with document-by-document privilege logging.

Current Approaches to Privilege Logging

There is a healthy and robust commercial marketplace for litigation support technologies 

that address both the growing diversity of digital evidence and the increasing volumes in which it

occurs. Over the past several decades, this commercial marketplace has constantly responded – in 

waves and cycles – with technology solutions to these challenges. Some electronic discovery 

problems that seemed insurmountable in the recent past are no longer so. 

Modern electronic discovery is conducted using evidence management software platforms. 

These platforms are used to host potentially responsive information while that information is being 

analyzed for responsiveness and privilege. Typically in this process, discrete files (documents) of 

potentially responsive digital information are collected from the producing party’s information

environment. Using processing software, the files are broken down into their constituent parts that 

include the metadata associated with the file (document) and the textual content of the file

(document). The extracted information about these processed document files is then ingested into 

the evidence management platform. 

In the past ten years, powerful analytics software associated with these evidence 

management platforms has greatly economized the task of identifying responsive content within a 

larger collected data set. While the discrimination of privileged responsive content from nonprivileged responsive content remains a more nuanced challenge for software analytics, there exist

well established work-flows using a variety of search methodologies that can reliably and 

satisfactorily identify the vast preponderance of documents likely to contain privileged 

information. Thus, using the evidence management platforms to generate a list of the privileged 

content, the creation of the privilege log itself tends to be a manageable task. 

In the past, the task of summarizing the privileged content “. . . in a manner that, without 

revealing information itself privileged or protected, will enable other parties to assess the claim

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 191 of 198
Page 3 of 3

[of privilege]” has remained a repetitive manual task typically assigned to new lawyers. Rapidly 

emerging technologies, however, have the potential to reliably automate these kinds of tasks. 

The next generation of litigation support tools

Most every major developer of evidence management platforms has disclosed research, 

development, and testing initiatives associated with plans to deploy the technologies of large 

language models (LLM’s) applied to electronic discovery tasks. These technologies have the 

potential to reliably generate non-privileged summaries of textual content based upon established

criteria, and are likely to automate the repetitive and more expensive lawyer-intensive process of 

privilege log creation in ways not previously available.

Conclusion

The purpose of my comments is to reinforce the wisdom and prudence of the Committee’s 

current approach to addressing compliance with Rule 26(b)(5)(A)(ii): flexibility. This includes 

flexibility available to the parties and flexibility available to the Court. 

Working assumptions about the costs, burdens, and case-specific reasonableness of 

privilege logging will be constantly evolving in fundamental ways. The Committee’s present 

approach emphasizing flexibility will encourage continuing innovation and creativity in crafting 

case-appropriate solutions to Rule 26(b)(5)(A) compliance. It is the only approach that will permit 

the proposed amendments to remain relevant and impactful over the course of future years. 

Thank you for the opportunity to contribute to the dialog. 

 EDISCOVERY COCOUNSEL, PLLC

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 192 of 198
Page 1 of 4

Chad S. Roberts

+1.305.240.5148

www.edcclaw.com

Chad.Roberts@edcclaw.com

~ Jacksonville, Florida ~

Professional

2014-Present eDISCOVERY CoCOUNSEL, PLLC, Jacksonville, FL

Principal and Founder

2000-2014 SPOHRER & DODD, P.L., Jacksonville, FL

Partner and Trial Lawyer

1992-2000 HOLLAND & KNIGHT, LLP, Jacksonville, FL

Litigation Partner

1991-1992 FOLEY & LARDNER, Jacksonville, FL

Litigation Associate

Educational

1991 FLORIDA STATE UNIVERSITY COLLEGE OF LAW

J.D., magna cum laude

Associate Editor, Florida State University Law Review

1989-1991 Speech Writer and Research Assistant to Dean Talbot D’Alemberte

President-Elect of the American Bar Association

1981 GEORGIA INSTITUTE OF TECHNOLOGY

B.S., Engineering Science and Mechanics

Civic

2003-2008 JACKSONVILLE AREA LEGAL AID, INC.

Board of Directors (President, 2007)

2004 Florida Bar President’s Pro Bono Award, Fourth Judicial Circuit

1992-Present American Inns of Court, Chester Bedell Chapter

2004-Present Master of the Court

Martindale Hubbel “AV” Rated since 1996

Bar Admissions: Florida (FBN: 896977), Georgia (GBN: 608307),

Eleventh Circuit Court of Appeals, Southern, Middle, and Northern 

District Courts of Florida

Other

1981-1988 Lieutenant (Surface Warfare), UNITED STATES NAVY

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 193 of 198
Page 2 of 4

Electronic Discovery

Positions: 

American Association for Justice

- Co-Chairman, Electronic Discovery Litigation Group (2017 – present)

- MDL Rules Amendments Committee (2021 – present) 

Samford University Cumberland School of Law (Adjunct Professor)

- Legal Project Management and Electronic Discovery (2019 - 2020)

The Sedona Conference – Working Group 1 (2019 – present)

Certifications:

CEDS (2016 - present); Association of Electronic Discovery Specialists. 

RCA (2017 – present); RelativityTM Certified Administrator

CLE Presentations:

Conference Name Title Date

The Sedona Conference

Jacksonville Bar Association

Complex Litigation E-Discovery Forum

University of Florida E-Discovery Conference

Georgetown University School of Law –

Advanced Electronic Discovery Institute –

Washington, DC

Louisiana Bar Judicial Conference – Destin, FL

eDiscovery and Information Governance 

Retreat – Newport, CA

CLEF - Complex Litigation eDiscovery Forum

National Employment Lawyers Association

University of Florida E-Discovery Conference

EDRMTM

ACEDS-Jacksonville

Jacksonville Justice Association

Generative AI in Electronic Discovery

Effective Meet and Confers with contemporary

electronic information sources

Cyber Security Trends for eDiscovery Practice

Emerging Trends in eDiscovery Sources

The Duty of Competence – Professional 

Standards for Practitioners

Digital Evidence in the Courtroom

Plaintiffs’ Side Electronic Discovery Issues

Pending Rule Amendments and Case Law

e-Discovery & ESI Primer

eDiscovery in Healthcare

Privacy as a Rule 26 Burden

Electronic Health Records

E-Discovery Workflows

2023

2023

2023

2023

2022

2022

2022

2022

2022

2022

2021

2021

2021

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 194 of 198
Page 3 of 4

Conference Name Title Date

MTMPTM

Louisiana Association for Justice

Louisiana Association for Justice

American Association for Justice

E-Discovery Basics

Louisiana Judicial Conference

Evidence Visualization in the Courtroom

Electronic Discovery during Covid 19

2021

2021

2021

2020

The Florida Bar Annual Evidence Seminar Electronic Discovery by the Rules 2020

The Master’s Conference – Washington DC Proportionality Objections under Rule 26 2019

2019 Louisiana Judicial College Electronic Discovery Practice and Procedure 2019

RelativityFest 2018 Plaintiffs' Side Rule 26 Conferences 2018

National Legal Aid and Defender Association 

2018 Annual Conference

ESI for Legal Aid Clients and Causes 2018

MDL Conference 2018 American Association 

for Justice

eDiscovery ESI Protocol Orders 2018

Advanced 30(b)(6) Seminar - 2018 Rule 30(b)(6) Depositions for ESI Information 

Sources and Electronic Discovery

2018

The Master's Conference - Orlando Electronic Discovery for Plaintiffs - Evidence 

Management (Legal Project Management) 

Principles

2017

Florida Justice Association Workhorse Seminar eDiscovery for Plaintiffs' Counsel 2017

Technology and Law Conference of the 

Jacksonville Bar Association CLE

Electronic Discovery and Information 

Governance CLE

2016

North Carolina Advocates for Justice Discovery 

Conference CLE

Plaintiffs' Discovery for the Contemporary 

Plaintiffs' Practice CLE

2016

Jacksonville ACEDS Chapter Analysis in the EDRM 2016

Florida Justice Association CLE Conference CLE Electronic Discovery for the Plaintiffs' 

Paralegal

2015

Publications

Publication name Title Date

Trial Magazine – July 2023

Trial Magazine – May 2020 

Navigating Data Security in eDiscovery

Artificial Intelligence in the E-Discovery 

Toolkit

2023

2020

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 195 of 198
Page 4 of 4

Publication name Title Date

American Association for Justice (AAJ) ESI Protocol Orders - Strategic Purposes 

for Plaintiffs

2018

Trial Magazine - November 2018 Turn the Tables on ESI 2018

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 196 of 198
TAB 30

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 197 of 198
No testimony outline or comment was submitted 

by January 2, 2024. 

Hearing on Proposed Amendments to Civil Rules | Jan. 16, 2024 Page 198 of 198