ADVISORY COMMITTEE ON CIVIL RULES

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

PROPOSED NEW RULE 16.1

February 6, 2024 

Tab 

No.

Time Slot

(estimated) Name Organization 

1 9:35–9:45 Kelly Hyman Hyman Law Firm

2 9:45–9:55 Seth Carroll Commonwealth Law Group

3 9:55–10:05 Bill Rossbach Rossbach Law

4 10:05–10:15 Lexi Hazam Lieff Cabraser

5 10:15–10:25 Jonathan Orent Motley Rice

6 10:25–10:35 Amy Zeman Gibbs Law Group

7 10:35–10:45 Mark Lanier Lanier Law Firm

8 10:45–10:55 Mark Abramowitz Dicello Levitt

Morning Break (estimated) 

9 11:10–11:20 Ellen Relkin Weitz & Luxenberg, P.C.

10 11:20–11:30 Jennie Lee Anderson Andrus Anderson

11 11:30–11:40 Andre Mura Gibbs Law Group

12 11:40–11:50 Adam Polk Girard Sharp

13 11:50–12:00 Ashleigh Raso Nigh Goldenberg Raso & Vaughn

14 12:00–12:10 Kate Baxter-Kauf Lockridge Grindal Nauen PLLP

15 12:10–12:20 Yvonne Flaherty Lockridge Grindal Nauen PLLP

16 12:20–12:30 Seth Katz BurgSimpson

Lunch Break (estimated) 

17 1:30–1:40 Larry Taylor The Cochran Firm

18 1:40–1:50 Adam Evans Dickerson Oxton

19 1:50–2:00 Roger Mandel Jeeves Mandell Law Group

20 2:00–2:10 Lauren Barnes Hagens Berman Sobol Shapiro LLP

21 2:10–2:20 Anthony Mosquera Johnson & Johnson

22 2:20–2:30 Kellie Lerner Robins Kaplan LLP

23 2:30–2:40 Robert Levy Exxon Mobil Corporation

24 2:40–2:50 Aaron Marks Cohen Milstein Sellers & Toll PLLC

25 2:50–3:00 Pearl Robertson Irpino Avin Hawkins Law Firm

Please note that all times are Eastern. Timing is approximate and subject to change. 
ADVISORY COMMITTEE ON CIVIL RULES

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

PROPOSED NEW RULE 16.1

February 6, 2024 

Tab 

No.

Time Slot

(estimated) Name Organization 

Afternoon Break (estimated) 

26 3:20–3:30 David Cooner Product Liability Advisory Council

27 3:30–3:40 William Cash Levin, Papantonio, Rafferty, Proctor, 

Buchanan, O’Brien, Barr, & Mougey, 

P.A.

28 3:40–3:50 Max Heerman Medtronic

29 3:50–4:00 Maria Salacuse Equal Employment Opportunity 

Commission

30 4:00–4:10 Brian Clark Lockridge Grindal Nauen PLLP

31 4:10–4:20 Jessica Glitz Johnson Law Group

32 4:20–4:30 Amber Schubert Schubert Jonckheer & Kolbe

33 4:30–4:40 Christopher Seeger Seeger Weiss

Please note that all times are Eastern. Timing is approximate and subject to change. 
TAB 1
515 N. Flagler Drive, Suite 

P-300, West Palm Beach, 

Florida 33401 (561)538 -

9050

January 25, 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: 

Thank you for the opportunity to address the Committee. My name is Kelly Hyman, and I 

am the founding and managing partner of The Hyman Law Firm, P.A. I have been licensed to 

practice law for over nineteen years, with the last ten-plus years focusing on representing Plaintiff 

in mass torts and class actions. I have represented clients and served on the discovery committee 

in a pending tobacco marketing and sales practice class action against American Spirit, which the 

JPML consolidated in the U.S. District Court for the District of New Mexico. I have also 

represented clients in various class actions involving data breaches and privacy violations against 

some of the largest U.S. technology companies, including Facebook, Inc. and Google, LLC. 

Additionally, I have extensive experience in mass tort litigation, having represented hundreds of 

claimants in individual actions filed in federal courts involving transvaginal mesh and bladder 

slings.

I write to provide my perspective as a solo plaintiff-side practitioner in mass torts and class 

actions and to offer comments on Proposed Rule 16.1 (Multidistrict Litigation). While this rule 

could be helpful to the court in clarifying initial objectives of parties, as it stands, the current draft 

will result in creating redundancies and potentially even more complications and expenses during 

the initial formation of the MDL. 

The inclusion of a provision for appointment of “coordinating counsel” raises concerns for 

practitioners like me because the proposed rule text and Committee Note, as written, do not provide 

clear criteria for who should be selected to serve in this role. Rather, the Committee Note provides 

that “performance in that role may support consideration of coordinating counsel for a leadership 

position.” Therefore, without clear guidance otherwise, courts are likely to appoint repeat players 

from prior leadership slates to this pre-leadership role; larger firms with more notoriety and 

familiarity will typically be favored, while smaller firms and solo practitioners will not be given 

the same leadership opportunities. Without clarification, this vagueness changes the position of 

“coordinating counsel” from an administrator for the court to an automatic leadership 

appointment—the former relying on efficiency, and the latter requiring a broader scope of 

consideration. This framework will ultimately create a secondary fight for leadership and an 

unnecessary repetition of work that will be detrimental to the litigation by taking away valuable 
resources needed to serve clients, which could in turn further inhibit other qualified, small firm 

attorneys from being able to take on leadership roles. 

Moreover, the current draft does not require the court to appoint a lawyer with a stake in 

the litigation to the coordinating counsel position, which may indicate that courts should treat the 

role as a special master. This does not favor efficiency or cost-consciousness. Each MDL is 

different because of its distinct and complex claims, injuries, products, and parties involved. Thus, 

a neutral appointee would be subject to a steep learning curve, and the associated costs and time 

could dilute the ultimate compensation available to plaintiffs. 

In agreement with testimony from attorney Jose M. Rojas, who testified on January 16, 

2024, I support proposed changes to 16.1 which allow for “broadening the leadership committee” 

in effort to “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.”

Rather than rely on repeat players from larger firms, it is in the best interest of all parties to consider 

attorneys familiar with the litigation from smaller firms who could bring practiced experiences and 

real-world insights to the position. 

In summary, the discretionary appointment of a “coordinating counsel” limits 

diversification of practitioners with specialized interest and experience in the litigation to assume 

leadership roles. Unless the language is amended to specify the distinction between “coordinating 

counsel” and criteria for a leadership role in the litigation, my recommendation would be to 

eliminate this section of the ruling completely, as it unnecessarily leads to more questions and 

potential conflicts of interest for all involved. I thank the committee for the opportunity to 

comment. 

Kelly Hyman 
TAB 2
3311 W. Broad Street, Richmond, VA 23230 

Mail: P.O. Box 8630, Richmond, VA 23226 

Tel: 804.999.9999 

 Fax: 866.238.6415 

Ǥ

TESTIMONY OF SETH R. CARROLL, COMMONWEALTH LAW GROUP 

REGARDING PROPOSED AMENDMENTS TO CIVIL RULES 16 AND 26 

Presented at the February 6, 2024 hearing on Proposed Amendments to Civil Rules 

My name is Seth Carroll and I am a plaintiff civil rights lawyer. I bring claims on behalf 

of individuals who suffer constitutional deprivations at the hands of municipalities, law 

enforcement officers, correctional officers, correctional health care providers, and government 

contractors. 

I believe the proposed textual amendments to Rules 16 and 26 will ensure flexibility for 

parties in civil litigation to adjust to privilege concerns based on the circumstances of each case, 

and will likely help avoid unnecessarily specific or rigid application that may not meet the varying 

needs of discovery. 

REASONABLE FLEXIBILITY, WITH JUDICIAL OVERSIGHT, IS CRITICAL TO 

FACILITATING EFFICIENT AND BALANCED DISCOVERY FROM CASE TO CASE. 

Already baked into Rule 26(f) are requirements that the parties to civil litigation meet and 

confer early and come to agreement on the scope and parameters of discovery. In particular, 

privilege claims have a unique ability to contribute to discovery delays if the parties disagree on 

the basic framework for how to identify and resolve claims of privilege. The proposed 

amendments recognize the reality that agreement amongst the parties will likely reduce discovery 

disputes, promote judicial efficiency and strike reasonable balance of countervailing interests in 

each case. 

 This sort of flexibility is particularly important in accomplishing broad, meaningful 

application of the Rules. The civil rights arena in which I practice provides helpful illustrations of 

how different the scope of discovery might shape up from case to case. 

 For example, in a straightforward excessive force case against a single officer, both parties 

will likely have relatively few documents and corresponding claims of privilege are often limited 

to standard attorney-client and work product concerns. In such cases, the burden on the parties to 

identify specifically the individual documents being withheld is relatively low, as is the 

opportunity for parties to hide-the-ball by obstructing evidence in privilege logs. 

 On the other end of the spectrum are circumstances arising in a correctional heat-stroke 

case involving a middle-aged man who suffered a global brain injury after being subjected to 

multiple days of extreme heat in a facility without air conditioning. In that case, the local 

municipality was responsible for the physical aspect of the facility, a state official was responsible 

for personnel and correctional operations within the facility, a medical contractor was responsible 

for medical operations within the facility, and numerous individuals had various degrees of contact 

with the plaintiff as his condition worsened. Discovery implicated hundreds of thousands of pages 
Ͷ 

of documents and a variety of privilege claims, including self-evaluative privilege, joint-defense 

privilege, and claims involving proprietary information. In such a case, while the costs and 

expense associated with review and production, on both sides, is significantly greater – so too is 

the risk that privilege logs can be used to obstruct discovery of relevant evidence. 

 These opposite ends of the spectrum – and everything in between – reflect the need for 

flexibility in the Rules that will permit the parties to reach agreement on most, if not all, areas of 

the timing and form of privilege claims. Beginning this process early on in the Rule 26(f) 

conference and memorializing it in a court approved discovery plan at the Rule 16 conference will 

allow discovery to move forward promptly and efficiently with minimal need for piece-meal 

judicial intervention on privilege related matters. 

SPECIFIC CIVIL RIGHTS CONSIDERATIONS MILITATE AGAINST 

PROPORTIONALITY AND TIERED OR CATEGORICAL LOGS. 

 The Committee should reject invitations to insert cross-references to “proportionality,” and 

should likewise reject references to “categorical” or “tiered” logs. Civil rights cases offer unique 

examples of why such invitations should be rejected. For example, in civil rights cases involving 

“Monell claims” that seek to affix liability on a municipal actor for a municipal policy or custom 

that becomes the “moving force” behind a constitutional violation1

, such references could facilitate 

obstructionist discovery tactics. Municipal actors will often use claims of proportionality as an 

attempt to shield off discovery of information that might tend to reveal systemic deficiencies in 

training and discipline, or otherwise tend to prove “tacit authorization” in the form of municipal 

inaction in the face of a known unconstitutional pattern or practice.2

 

In these cases, permitting privilege logs that factor in “proportionality”, “tiered” logging 

or “categorical” descriptions pose very legitimate dangers to the administration of justice. Some 

municipal and/or corporate actors will attempt to hide probative documents using unilateral 

“proportionality” concerns as a mechanism to avoid even reviewing certain categories of 

potentially responsive material, resulting in significant delays in discovery and disruptions of the 

trial schedule. Similarly, municipal actors often work closely together, increasing the potential 

that vague categorical work-product, joint-defense, security-related or internal review objections 

could be used to hide the existence of critical information. There is simply no meaningful value 

in the vast majority of these cases for tiered and/or categorical logging. In limited cases where 

there might be value in this approach, it should be left to the parties to make that decision based 

on the needs of particular cases. 

1

 See generally Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1977) (rejecting 

the concept of vicarious liability against municipalities in § 1983 cases absent a showing that an 

official policy or custom was the “moving force” behind the constitutional violation.) 

2

 See e.g. Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994) (discussing that “tacit authorization” might 

result from inaction in the face of a pattern of constitutional violations.) 
Ͷ 

 Consequently, it is appropriate that proportionality objections and tiered, categorical 

logging are not present in the express language of the proposed amendments or notes. To maintain 

broad, meaningful application, the Committee should avoid cross-references or notes that might 

serve as anchor points for these concepts to germinate outside of arms-length negotiation amongst 

the parties in individual cases. 

 Sincerely, 

 

 Seth R. Carroll 
TAB 3




TAB 4
2938379.1

Lieff Cabraser Heimann & Bernstein, LLP

275 Battery Street, 29th Floor

San Francisco, CA 94111-3339

t 415.956.1000

f 415.956.1008

Lexi J. Hazam

Partner

lhazam@lchb.com

San Francisco New York Nashville Munich www.lieffcabraser.com

February 5, 2024

VIA EMAIL 

Committee on Rules of Practice and Procedure 

Administrative Office of the United States Courts 

One Columbus Circle, NE 

Washington, DC 20544 

RulesCommittee_Secretary@ao.uscourts.gov

Re: Proposed Rule 16.1—Multidistrict Litigation

Dear Committee Members:

I appreciate the opportunity to provide this testimony to the Committee

regarding proposed Rule 16.1 for Multidistrict Litigation. 

I chair Lieff Cabraser Heimann & Bernstein’s mass torts practice, and my career has 

centered on MDLs since its inception over twenty years ago. I have served at all levels of MDL 

leadership, often with a focus on issues relating to science and experts. I currently serve as Co-Lead 

Counsel in In Re: Social Media Adolescent Addiction/Personal Injury Products Liability 

Litigation, MDL No. 3047. Other partners at my law firm regularly serve in leadership of major 

MDLs in all practice areas. I submit this testimony to address two provisions of proposed Rule 

16.1

Proposed Rule 16.1(b)—Designation of Coordinating Counsel

While early organization of MDLs has benefits, based on my experience I am 

concerned that designating Coordinating Counsel prior to the initial case management 

conference will deprive courts of the chance to conduct more fulsome vetting of potential 

leadership, while also shortening the time for qualified candidates to come forward. It also may

short-circuit attempts by counsel to informally organize in ways that may prove helpful. The 

upshot may be courts designating counsel with whom they are already familiar, and the loss of 

an opportunity to select from a wider and more varied leadership pool. These effects may be 

exacerbated by the fact that the designation of Coordinating Counsel is likely to carry significant 

weight for the selection of leadership appointed later.

Such an early designation also risks considerable inefficiencies by requiring a 

transition from one form of leadership to another in the early period of the case, with lines of 

communication between plaintiffs and the court, between plaintiffs and defendants, and 

between plaintiffs potentially needing to be redrawn, and initial procedures or strategies revised

to suit the needs of a more representative leadership. Avoiding this potential duplication and 

disruption is especially important given that there are no defined criteria or process for selecting 
February 5, 2024

Page 2

2938379.1

Coordinating Counsel, and yet such Counsel would be charged with developing the initial case 

management report, which under proposed 16.1(c) addresses such important and consequential 

matters as appointment of permanent leadership, identification of the principal factual and legal 

issues, a discovery plan, and measures to facilitate settlement. 

The risks above can be avoided by setting a process for appointing permanent 

leadership (for example, calling for individual applications) prior to the initial management 

conference and then addressing leadership at it, with a report akin to that called for in Rule 

16.1(c) submitted prior to the next hearing. This is in fact what many MDL courts currently do, 

including the court overseeing the Social Media MDL, without incurring any delay. Given the

availability of such an efficient procedure and its comportment with goals of fairness and 

diversity in leadership appointments, any potential benefit of proposed 16.1(b) appears 

significantly offset by the drawbacks noted above.

Proposed Rule 16.1(c)(4)—Exchange of Information about Factual Bases for 

Claims and Defenses

Proposed Rule 16.1(c)(4), which calls for the initial case management conference 

report to address “how and when the parties will exchange information about the factual bases 

for their claims and defenses” raises a separate set of concerns. Given that the exchange of such 

information already occurs through discovery pursuant to various Federal Rules, and that 

16.1(c) already calls for a proposed discovery plan, this provision seems both vague and 

unnecessary. As the comment notes, mass tort MDLs typically utilize plaintiff fact sheets for 

streamlined discovery relating to individual plaintiffs, but the provision itself and the reference 

in the comment to the called-for exchanges being “early” seems to contemplate some 

unspecified form of early attacks on claims outside of motion practice and discovery under the 

Federal Rules. The impact of this provision may be to facilitate the erection of new barriers 

unmoored to discovery rules, rather than to allow courts and parties to design procedures that 

are fair and efficient for each case. In particular, it may place an undue burden on plaintiffs in 

cases where defendants may have far more information regarding key components of plaintiffspecific evidence, such as in the Social Media MDL, where defendants possess reams of data 

about their young users’ accounts and activity which the users themselves cannot access.

While neither provision above is mandatory, their presence in a new Federal Rule 

is likely to encourage the standardization of such practices in MDLs. For the reasons above, I 

believe this would be more detrimental than beneficial to MDL practice, and recommend against 

adoption of these provisions.

 

Respectfully,

Lexi J. Hazam
TAB 5
 

 

www.motleyrice.com

“I will stand for my client’s rights. 

I am a trial lawyer.” 

–Ron Motley (1944–2013) 

MT. PLEASANT, SC | PROVIDENCE, RI | HARTFORD, CT | NEW YORK, NY 

MORGANTOWN, WV | WASHINGTON, DC | NEW ORLEANS, LA 

40 Westminster St., 5th Floor 

Providence, RI 02903

o. 401.457.7700 f. 401.457.7708 

Jonathan D. Orent

Licensed in MA, RI, WI

direct: 401.457.7723

jorent@motleyrice.com

January 23, 2024 

BY EMAIL

Committee on Rules of Practice and Procedure 

Administrative Office of the United States Courts 

One Columbus Circle, NE 

Washington, DC 20544 

RulesCommittee_Secretary@ao.uscourts.gov 

Re: Proposed Rule 16.1—Multidistrict Litigation

Dear Committee Members, 

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

multidistrict litigation. 

My name is Jonathan Orent. I am a member attorney of Motley Rice LLC and submit 

this testimony on behalf of my firm. Motley Rice attorneys currently are serving as appointed 

Plaintiffs’ Co-Lead Counsel in, among other mass litigations, In re Social Media Adolescent 

Addiction/Personal Injury Products Liability Litigation, MDL No. 3047 (N.D. Cal.), and In re 

National Prescription Opiate Litigation, MDL No. 2804 (N.D. Ohio). I currently am serving as 

appointed Plaintiffs’ Lead Counsel of hernia mesh litigation in In re Atrium Medical Corp. CQUR Mesh Products Liability Litigation, MDL No. 2754 (D.N.H.), and have served as Plaintiffs’ 

Co-Lead and Co-Liaison Counsel in various state court mass litigations. I submit this testimony 

to address two specific provisions of proposed Rule 16.1. 

A. Designation of Coordinating Counsel—Proposed Rule 16.1(b) 

Respectfully, proposed Rule 16.1(b), providing for designation of coordinating counsel 

before the initial MDL management conference, should be eliminated. Although styled as a 

permissive rather than mandatory procedure, setting this forth in a formal rule creates a 

likelihood that it would become standard practice. And the likely risks of the practice 

significantly outweigh its potential benefits. 

First, by providing for designation of coordinating counsel before the initial MDL 

management conference and without any criteria for making the designation, the proposed rule 

makes it likely that courts will base these designations on experience with particular lawyers. 
This would adversely affect present and future MDLs by placing familiarity over both 

qualification and diversity of experience and background in selection of what undoubtedly is a 

leadership position in the litigation. 

Second, the proposed rule also likely will run counter to the objectives of 28 U.S.C. § 

1407(a) to provide for the “just and efficient conduct” of MDL proceedings. Courts correctly 

recognizing that designated coordinating counsel is a leadership position and applying 

appropriate procedures and criteria for this designation would risk frontloading and/or 

duplicating the procedures for appointment of formal litigation leadership, which are the subject 

of proposed Rule 16.1(c)(1) and are to be addressed after the proposed appointment of 

coordinating counsel. In my firm’s and my vast MDL and other mass litigation experience, there 

is no need for this layering or duplication of process. Courts have consistently proven able to 

receive and process submissions for litigation leadership without the aid of pre-designated 

coordinating counsel. 

In light of our experience, we believe that proposed Rule 16.1(b) is an unwieldy solution 

to a non-existent problem. Motley Rice respectfully suggests that this proposed provision be 

discarded. 

B. Exchange of Information About Factual Bases for Claims and Defenses—

Proposed Rule 16.1(c)(4) 

With respect, proposed Rule 16.1(c)(4), providing for the pre-initial management 

conference report to address how and when the parties exchange information about the factual 

bases for their claims and defenses, also should be eliminated. Although again styled as a 

permissive rather than mandatory subject for the parties’ pre-initial management conference 

report, setting forth this subject in a formal rule creates a strong likelihood that it would become 

standard practice for MDL defendants to try to use this as an opportunity to extinguish plaintiffs’ 

claims before they can gain access to essential information through discovery. 

The Rules of Civil Procedure, Rules 26 to 36, provide the standards and procedures by 

which plaintiffs plead and prove their claims. Rule 16 provides for the parties and the court to 

address these procedures in an initial case scheduling order. See, e.g., Rule 16(b)(3)(B)(i)-(iii) 

(“The scheduling order may (i) modify the timing of disclosures under Rules 26(a) and 26(e)(1); 

(ii) modify the extent of discovery; (iii) provide for disclosure, discovery, or preservation of 

electronically stored information;”). Proposed Rule 16.1(c)(4), by contrast, is not tied to existing 

discovery rules. Rather, it encourages defendants to press the court at the initial MDL 

management conference to force plaintiffs to produce “information about the factual bases for 

their claims” without the benefit of any discovery. This, too, would be contrary to the objective 

of 28 U.S.C. § 1407(a) to provide for the “just” conduct of MDL proceedings. 
This also is an unfair solution to a rare and readily addressable issue. Existing practices 

involving use of plaintiffs’ fact sheets or plaintiff census procedures at the appropriate time in 

the particular mass litigation have proven more than sufficient to dispel or else effectively 

address concerns as to unfounded claims. In my experience in leadership in hernia mesh mass 

litigation, leadership’s active role in vetting and maintaining strict criteria for cases ensured that 

unfounded claims did not take hold, which leadership was able to verify through our use of 

negotiated plaintiff fact sheets and plaintiff profile forms. 

Thank you again for the opportunity to address the Committee on this proposed rule. 

 Respectfully submitted, 

 Jonathan Orent 

 
TAB 6


TAB 7
January 23, 2024 

Committee on Rules of Practice and Procedure 

Administrative Office of the United States Courts 

One Columbus Circle, NE 

Washington, DC 20544 

Rules Committee Secretary@ao.uscourts.gov 

Re: Proposed Rule 16.1 Regarding Multidistrict Litigation 

Dear Committee Members, 

Thank you for the opportunity to testify regarding Proposed Rule 16.1 

regarding multidistrict litigation. 

My name is Mark Lanier, and my experience should provide you with practicebased perspective about the proposed rule. Beginning in 1985, I practiced law at 

Fulbright & Jaworski, now Norton Rose Fulbright, in both trial and appellate work 

before I founded my own firm in 1990. Since that time, I have represented countless 

plaintiffs who have been injured by defective products and devices, although I do still 

represent corporations from time to time. 

I have been honored to hold leadership positions in and to try some of the most 

impactful multidistrict litigations (“MDLs”) in recent history. I tried the first talc case 

in which Johnson & Johnson’s baby powder was found to have cancer-causing 

asbestos and after which the product was removed from the U.S. market. I tried the 

first opioid case in which big chain pharmacies were all found liable in public nuisance 

for causing the opioid epidemic. As part of the leadership team in the DePuy metal on 

metal hip implant litigation, I tried four of those cases successfully as well. 

Furthermore, I am part of leadership suing the manufacturer of EpiPens for illegally 

inflating prices of the life-saving product. And the list goes on. 

Suffice it here to say that, in total, I and members of my firm have participated 

in leadership in more than 30 MDLs. My commentary on Proposed Rule 16.1 is 

informed by all of that experience. 

I. PROPOSED RULE 16.1 NEEDS ADJUSTMENT

The foundational question with respect to Proposed Rule 16.1 is: What

problem are we trying to solve? In proposing the rule, the Advisory Committee stated 

that 1) “MDLs account for a large portion of the federal docket” and 2) some transferee 

judges perceive “they lack clear, explicit authority necessary to manage an MDL.”1

1

 Agenda, 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.
2 

Thus, Rule 16.1’s purpose would seem simply to be: Provide guidance to judges with a big 

job. The proposed rule was not prompted because something is broken, and nothing needs to be 

fixed. Yet, the proposed rule goes further than mere guidance to judges. 

As drafted, Rule 16.1 adds complexity and reduces both efficiency and justice, the twin 

goals of the MDL statute and the heart of Rule 1 of the Federal Rules of Civil Procedure. To 

achieve its ends, Rule 16.1 needs to be reworked. 

a. Coordinating Counsel Would Reduce Efficiency and Justice; Instead, Leadership 

Should be Appointed and First Thing. 

Respectfully, neither judges nor defendants have the ability to appreciate the incredible 

effort that goes into making plaintiffs’ leadership structures work and work well. Only plaintiffs’ 

counsel has that experience-based insight. Here, the testimony from most plaintiffs’ counsel before 

this committee has been that the appointment of an MDL “coordinating counsel” will raise many 

issues and solve none. 

I agree, and I propose that paragraph (b) regarding coordinating counsel should be stricken 

in its entirety. Further, paragraph (a) should be amended to state that the goal of the initial 

conference is to appoint leadership; the addressing of items (c)(2)-(12) should be made very clearly 

discretionary and should be addressed at a second conference, after leadership is appointed. 

 Entire law review articles could be written about why the appointment of coordinating 

counsel would reduce both efficiency and justice. Here, suffice it to summarize a few clear reasons 

why coordinating counsel creates inefficiency and injustice. 

First, the appointment of coordinating counsel adds an unnecessary layer of complexity to 

a process that the committee is striving to simplify. Under the proposed rule, a court must, with or 

without guidance, make an additional decision about who to appoint as coordinating counsel and 

before even hearing from attorneys about what is sure to be a complex case. Then, coordinating 

counsel must take substantive positions on behalf of plaintiffs, for example, what the factual and 

legal issues in the case will be. Even the notes to the proposed rule acknowledge that there is often 

“tension between the approach[es]” that plaintiffs’ counsel will take in the MDL, and that is an 

understatement. How is a court to know whether coordinating counsel is at odds – either on a point 

of law, strategy, or politics – with the attorneys who will ultimately comprise leadership in the 

MDL? How is a court to know whether coordinating counsel will disrupt the process of leadership 

formation? How is a court to know whether coordinating counsel is accurately representing all 

plaintiffs’ positions? How can a court be sure that positions taken by coordinating counsel will not 

have to be rescinded once leadership is appointed? How can a court be sure that coordinating 

counsel’s positions will not prejudice plaintiffs? And does this all raise due process concerns? 

Second, thankfully, the appointment of plaintiffs’ leadership, which almost inevitably must 

happen in an MDL, sidesteps all those concerns (and more). 

Third, without leadership in place, requiring coordinating counsel to take substantive 

positions in court – as items (c)(2)-(12) do – risks prejudicing plaintiffs. My firm has already had 

a negative experience with a protocol similar to that contained in Proposed Rule 16.1, requiring 

the submission of a joint report before leadership is appointed. In that MDL, there were competing 
3 

leadership slates, and each had a different view of the relevant issues and case strategy. 

Importantly, exposing those differences to defendants risked prejudicing plaintiffs’ cases. The 

differences complicated the meet and confers with defendants and the drafting of the joint report, 

which is an arduous task even once leadership is appointed. The lack of one clear plaintiffs’ voice 

caused unnecessary frustration, loss of time, and expense for the parties. It left the court, whether 

it realized it or not, with either vague or questionable answers from plaintiffs’ counsel. Although 

plaintiffs’ counsel in the MDL narrowly escaped prejudicing their clients, other counsel might not 

be so lucky, and a more useful joint report could have been provided to the court with less 

expenditure of resources if leadership had been in place. 

For these reasons, appointment of leadership first, and not the appointment of coordinating 

counsel, best serves efficiency and justice. Items (c)(2)-(12) should be addressed, flexibly, at a 

second conference. 

II. CERTAIN RECOMMENDED ADDITIONS TO PROPOSED RULE 16.1 ARE 

“SOLUTIONS” IN SEARCH OF A PROBLEM. 

Counsel representing defendants and corporate interests speciously recommended as a way 

to manage “overwhelming” MDLs the addition to Proposed Rule 16.1 of mandatory, early proof 

of claims and mandatory sanctions. But both the data and experience prove that their 

unsubstantiated premise as to why MDLs are “clogging the courts” is inaccurate, making their 

recommend solutions unhelpful at best. At worst, their recommendations seek to toss perfectly 

operational Federal Rules by the wayside. 

a. Data Shows that the Increasing Number of Individual MDL Cases on the Federal 

Dockets Is Caused by Defendants’ Actions, Not Unsubstantiated Claims. 

In testimony before this committee, Deirdre Kole, assistant general counsel at Johnson and 

Johnson, stated that “the chief problem that [defendants] face in MDLs are the number of claims. 

. . .”2

 Without any supporting data, she testified that the number of claims filed is due to so-called 

bogus claims being filed by plaintiffs’ lawyers. Specifically, she stated that “unprecedented 

numbers of unsubstantiated claims . . . are clogging the courts and overwhelming the MDLs.”3

 

She is wrong, and there is data to support that. Bloomberg Law conducts a yearly MDL 

Litigation Statistics Series (“Bloomberg MDL Statistics”), which is a data-driven analysis of 

claims filed in the federal courts.4

 The Bloomberg MDL Statistics, combined with our experience, 

reveal a few key points: 

1. First, the number of pending MDLs has steadily declined in the past decade,5 and “only 1 

in 10 pending MDL cases involve more than 1,000 actions.”6

                                                            

2

 Kole Oral Testimony, Hearing of the Committee on Rules of Practice and Procedure at 251:24-252:1 (Oct. 16, 2023), 

available at www.uscourts.gov/file/76799/download. 3 Id. at 237:1-2. 4

 Exhibit A, Bloomberg MDL Statistics. 

5 Id. at 11. 6 Id. at 7. 
4 

2. Second, although the number of pending individual cases within MDLs has increased in 

recent years, “the numbers overall likely reflect the length of time that complex MDL 

actions pend, rather than a swell in MDL filings.”7

 This is unsurprising since defendants 

are finding new and creative ways to prolong litigation and avoid settlement. 

3. Third, the reason that individual MDL cases currently comprise more than 50% of the 

federal case-load is because of a single case – 3M. In this litigation, repeated plaintiff 

verdicts were rendered in favor of veterans who were injured during their service by a 

product that a company knew to be defective.8 The 3M case comprises hundreds of 

thousands of individual cases and nearly 40% of the federal docket.9 

4. Finally, the vast majority of 3M claims are valid and are being settled. Plaintiffs’ 

leadership, of which I was a part, has already testified that over 300,000 claims were 

identified in a census and over 270,000 of those claims have been qualified for settlement 

(by identifying use of the product and injury).10 Of claims that did fall out of the census, it 

is entirely normal for claims to fall out of a census, as unfiled claims are still being 

investigated by the plaintiffs’ firms. Moreover, many who fell out of the settlement were 

clients who hired more than one lawyer.11

In sum, the solution to reduce the federal MDL caseload is not for plaintiffs’ counsel to 

help fewer injured people; it is for corporations to injure fewer people, and to stop the procedural 

gamesmanship of the MDL system that keeps MDLs running longer. 

b. The Suggestions of Mandatory Early Verification and Mandatory Sanctions Ignore 

the Federal Rules Already in Place. 

Knowing full well that defendants may be the ones with proof of product use, the corporate 

bar has suggested that plaintiffs should have to produce proof of use within 30 days of filing a 

complaint – which can be impossible.12 For example, in the NEC MDL, premature babies 

developed necrotizing enterocolitis when they were fed at the hospital with contaminated baby 

formula manufactured by Mead Johnson. Evidence that Mead’s contaminated formula was used 

by a particular baby at the hospital was often not found in the baby’s medical records. But Mead 

had exclusive contracts with some hospitals during certain timeframes, and so Mead was the 

gatekeeper of proof of use. The NEC case does not stand alone. For example, other lawyers have 

already testified to this committee that the Hair Relaxer MDL and the Paraquat MDL faced similar 

issues.13

                                                            

7 Id. at 5 (emphasis added). 8 Id.at 6, 18. 9 Id.

10 Hoekstra Testimony Outline & Comment, Hearing of the Committee on Rules of Practice and Procedure at 103-04 

of 198 (Jan. 16, 2024), available at www.uscourts.gov/file/77279/download. 11 Hoekstra Oral Testimony, Hearing of the Committee on Rules of Practice and Procedure (Jan. 16, 2024), transcript 

in production. 

12 Exhibit B, NEC Order. 

13 Debrosse Testimony Outline & Comment, Hearing of the Committee on Rules of Practice and Procedure at 53 of 

198 (Jan. 16, 2024), available at www.uscourts.gov/file/77279/download. 
5 

Cases like these are the very reason why the Federal Rules of Civil Procedure do not require 

a plaintiff to prove their case upon filing a complaint. Discovery is for finding proof; complaints 

need only give fair notice of a plausible claim based on information and belief. Obviously, in cases 

like NEC, mandatory sanctions for failure to provide proof of use would be unwarranted and unjust 

since Rule 11 already provides a mechanism for sanctions in appropriate cases. It is the defense 

bar, not the plaintiffs’ bar that wants to ignore the Federal Rules. 

Finally, even if defendants were correct about the filing of bogus claims – and we have 

shown that they are not – what problem would these measures allegedly solve? What do defendants 

actually have to do to “defend” against a so-called bogus claim that they are not already doing for 

the MDL? Not much. Their proposal is a solution in search of a problem. 

III. CONCLUSION 

 Again, thank you to the committee for taking the time to review my testimony. With the 

above changes to Proposed Rule 16.1, it can become a useful tool for the courts, the parties, and 

their counsel, promoting both efficiency and justice. 

Sincerely, 

W. Mark Lanier 

Encl 

WML/st 

Cc: Dara Hegar 

Sadie Turner 
EXHIBIT A
Multidistrict 

Litigation 

2023 Litigation 

Statistics Series:
2023 Litigation Statistics Series: Multidistrict Litigation 

Introduction

This Litigation Statistics Series report provides data-driven analysis of claims filed in 

federal district courts that are considered for consolidation into multidistrict litigation 

(MDL), and of the MDL process itself. 

Section 1 provides an overview of multidistrict litigation and the case management 

procedures, which are crucial for practitioners to understand as they navigate the MDL 

process. Data in this section include judicial analytics for the members of the panel 

overseeing the process.

Section 2 explores MDLs’ place in the courts—that is, the prominence and impact of 

multidistrict litigation on federal dockets. Data in this section address not only the 

largest MDL cases, but the smaller ones that actually comprise the majority of MDLs’ 

judicial footprint.

Section 3 dives into trends in consolidation motions with charts on the Judicial Panel 

on Multidistrict Litigation’s (JPML’s) record in granting and denying filers’ motions for 

consolidation of cases into MDLs. Results are broken down by who files the motions: 

plaintiffs or defendants.

Section 4 turns to the courts to illustrate trends in pending dockets with several charts 

depicting how many cases are currently in the system, which districts are seeing the 

most transfers, and which types of cases are dominating the MDL landscape.

Section 5 spotlights MDLs’ biggest cases, from those commanding the most attention 

due to their sheer size to one with the potential to result in an even bigger settlement.

Finally, Section 6 shifts the focus from currently pending cases to potential changes and 

next steps for MDL in the future—in particular, a new judicial rule in the works that could 

alter the way practitioners approach the MDL process.
2023 Litigation Statistics Series: Multidistrict Litigation 

Methodology

The information in this report comes from multiple public and Bloomberg Law resources. 

These include search results from Bloomberg Law Dockets, as of Aug. 15, 2023, and 

Bloomberg Law’s Litigation Analytics tool, as of Aug. 31, 2023. 

The report primarily draws on publicly available statistical and case management data from the 

US federal court system. Many graphics reflect data on pending multidistrict litigation cases 

that are regularly maintained and published by the Judicial Panel on Multidistrict Litigation, 

updated as of Aug. 15, 2023, and on annual statistical data from the JPML. 

The report also relies on case management and judicial load statistics maintained and 

published by the Administrative Office of the United States Courts.

Bloomberg Law’s Dockets obtains data from PACER. As court dockets may be updated after 

the data collection for the report, some filings may not be fully represented in the analysis, 

including case dismissals and transfers. PACER includes duplicate entries in certain cases, 

such as intra-district transfers or changes in judge assignment. We have sought to eliminate 

duplicates from the tabulations.

Bloomberg Law’s Litigation Analytics tool provides data-driven analytical information about 

federal district courts, federal district court judges, companies, law firms, and lawyers. Appeal 

outcomes for judges are drawn from Bloomberg Law’s opinions database to derive the 

analytics, not the entire universe of motions or appeals that may have been filed. Thus, the 

analytics are a good indicator of how often a judge is affirmed in relation to other judges, but 

they may not include the entire universe of the judge’s decisions or appeals.
1

2023 Litigation Statistics Series: Multidistrict Litigation 

Section 1

Overview of Multidistrict Litigation

Multidistrict litigation currently constitutes about a third of all pending cases in the federal 

system, and fully half of all pending civil cases.

But the great bulk of these actions are wrapped up into a few large products liability multidistrict 

cases, or MDLs. And the big-headline numbers involved with these cases conceal a general 

downward trend in parties seeking consolidation and in new MDLs being consolidated. 

Most MDLs (74%) contain fewer than 100 actions, and almost 30% of MDL dockets contain 10 

actions or fewer. In contrast, 97% of the consolidated actions currently pending can be found 

in only the largest 10% of MDL dockets.

In short, the MDL ecosystem contains a couple of whales and a lot of minnows. But the reach 

and importance of these actions—both the large ones and the small—are substantial. 

For a huge number of litigants, this specialized pretrial procedure will be their only experience 

with the American judicial system and will determine to a large degree whether they are 

compensated for their alleged loss. 

For many defendants, of course, MDL 

will manage the critical pre-trial phase of 

litigation against them, and likely will be 

where viability and settlement value of 

claims are determined.

Indeed, JPML statistics indicate that only 

about 1.5% of MDL actions get remanded 

for trial.

That makes the management of MDL 

proceedings the most important feature 

of products liability litigation in federal 

court, and critical to understanding the 

litigation outcomes in several other types 

of litigation subject to consolidation.

Procedural Framework

Multidistrict litigation consolidates 

or coordinates lawsuits that have been 

filed in disparate federal courts, and 

share a factual basis, before a single 

court. Pursuant to 28 U.S.C. § 1407, 

that court—the “transferee court”—

handles pretrial proceedings in all of 

the consolidated actions, and will remand 

each case back to the federal court where 

it originated for trial.

Panel Profile: Karen K. Caldwell, Chair 

Judge Caldwell serves in the US District 

Court for the Eastern District of Kentucky. 

She was nominated by President George W. 

Bush on Sept. 4, 2001 to fill a seat vacated 

by Henry Wilhoit Jr. Caldwell was confirmed 

by the US Senate on Oct. 23, 2001, and 

received her commission the following day. 

She served as chief judge of the district 

from 2012 to 2019. 

Judge Caldwell was born in 1957 in Stanford, 

KY. She received a bachelor’s degree from 

Transylvania University in 1977, and a JD 

from the University of Kentucky College 

of Law in 1980. She spent the bulk of her 

career in private practice before assuming 

the bench, but served as US attorney for the 

Eastern District of Kentucky, 1991-1993.

She was appointed to the JPML in October 

2018, and has served as the chair since 2019.

She announced on June 22, 2022, that she 

will take senior status at an unspecified time. 
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2023 Litigation Statistics Series: Multidistrict Litigation 

Consolidation is decided and transfer initiated by the US Judicial Panel on Multidistrict Litigation. 

The JPML may consolidate actions on its own initiative or on the motion of any party to an action. 

Upon a determination that actions filed in different federal districts share common facts, the 

JPML determines whether consolidation would promote convenience and efficiency. When the 

panel considers consolidation, it gives notice to all parties in the affected actions and provides 

the time and date for a hearing that will consider whether consolidation is appropriate.

The panel meets six times per year to hear motions to consolidate, and produces statistics

regarding pending actions on a rolling basis during the year. It also produces annual statistical 

summaries of its decisions.

Since the panel was created in 1968, it has consolidated more than 1.1 million separate actions into 

MDLs, according to US Courts data. That cumulative total has more than doubled in just the past 

10 years—mostly due to the presence of the “whales” dominating multidistrict litigation. 

The total number of actions terminated by transferee courts has more than doubled during that 

time as well, from just under 350,000 to more than 707,000 terminations. 

The number of actions remanded for trial, on the other hand, has increased only slightly, from 

13,065 in 2012 to 17,374 in 2022.

Once the JPML makes a decision, there is limited ability to appeal from that order under 28 U.S.C. 

1407(e). If the panel declines to consolidate, there is no appeal from that decision. Appeal from 

a consolidation order is only by means of extraordinary writ pursuant to 28 U.S.C. 1651. 

Panel Members

The JPML is composed of seven sitting federal judges, who are appointed to serve on the panel 

by the Chief Justice of the United States. The multidistrict litigation statute provides that no two 

panel members may be from the same federal judicial circuit.

The current panel members have all been appointed by Chief Justice John Roberts between 

October 2018 and October 2021.
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2023 Litigation Statistics Series: Multidistrict Litigation 

Further details about the panel’s members are featured in boxes throughout this report.

MDLs and Class Actions

An MDL is not the same as a class action, although it may contain class actions if the presiding 

judge certifies a class among the MDL plaintiffs. Still, the two procedures serve different 

purposes and adhere to different rules.

To be certified as a class action pursuant to Federal Rule of Civil Procedure 23, a class’ claims and 

injuries must be very similar, and issues common among the class members must predominate 

over individual ones. MDL plaintiffs, on the other hand, need not have the same claims, and may 

be suing for various injuries under different laws. 

Federal courts have tightened restrictions on class actions during the past 20 years, leading 

(according to some scholars) to an increased use of MDLs for mass torts. It’s a trend worth 

watching in federal litigation.

Idiosyncratic Management

Despite their prominence in the federal court system, MDLs aren’t currently governed by the 

same rules and procedures that govern other federal civil suits.

Once consolidated by the JPML, actions are subject to management that transferee court 

judges often improvise to fit the circumstances of the case. Features that distinguish MDL 

management include:
4

2023 Litigation Statistics Series: Multidistrict Litigation 

• Cases may or may not involve a consolidated complaint by groups of plaintiffs with similar claims.

• Cases may or may not have assigned lead or liaison counsel coordinating among groups of 

plaintiffs and/or defendants.

• Cases may or may not be designated for trial as “bellwether” cases of specific types to 

provide both sides with a better idea of the settlement potential and value of claims.

• Cases may or may not involve filing of master complaints.

• Discovery may be uniform among various plaintiffs (e.g., utilizing form discovery or fact sheets).

• Cases may be bifurcated into dual management streams for discovery/motions practice 

and bellwether trials on the one hand, and settlement discussions (possibly under distinct 

leadership) on the other.

Judges in transferee courts have great latitude in establishing procedures to fit what they 

consider to be the needs of each case.
5

2023 Litigation Statistics Series: Multidistrict Litigation 

Section 2

MDLs’ Place in The Courts

As of Aug 15, 2023, there were 413,174 actions pending in 174 open multidistrict litigation matters 

in the US federal district court system, according to JPML data. (For comparison, Bloomberg Law 

dockets show that there were 16,443 open class actions in federal court on that date.)

Because reporting periods from different organizations don’t line up, it’s difficult to compare 

those numbers to those reported by federal courts overall. But the US Courts reports that 

686,797 cases of all types were pending in 

federal court as of March 31, 2023. So, it’s safe to 

estimate that roughly 60% of all pending cases 

in federal courts are wrapped up in MDLs.

But the numbers overall likely reflect the length 

of time that complex MDL actions pend, rather 

than a swell in MDL filings. 

A total of 265,615 civil cases were filed in 

US district courts during 2022. In that same 

year, the JPML granted just 22 motions for 

consolidation, which resulted in a total of 2,917 

actions being consolidated during the year. 

(Meanwhile, 8,254 federal class actions were 

filed in 2022.)

That means that only about 1% of all civil actions 

that were filed in federal court during 2022 

were consolidated into MDLs. So how can MDLs 

be accounting for the majority of all pending 

actions at the same time?

The answer can be found in a single case.

Panel Profile: Nathaniel M. Gorton 

Judge Gorton serves in the US 

District Court for the District of 

Massachusetts. George H.W. Bush 

nominated Gorton on April 28, 1992, 

to a new seat. The Senate confirmed 

him on Sept. 23, 1992, and he received 

his commission the following day.

Judge Gorton was born in 1938 in 

Evanston, Ill. He earned an A.B. from 

Dartmouth College in 1960, and his 

LL.B. from Columbia Law School in 

1966. Judge Gorton spent more than 

25 years in private practice in Boston 

before assuming the bench.

Judge Gorton has served on the JPML 

since October 2018.
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2023 Litigation Statistics Series: Multidistrict Litigation 

The Impact of 3M 

Like a big meal moving slowly through the digestive tract of a snake, the biggest MDL ever 

consolidated is working its way through the US court system: a 2019 case alleging that combat ear 

plugs manufactured by a corporate subsidiary of 3M Co. failed to protect service members’ hearing. 

The 3M combat ear plugs case is 10 times larger than the next-biggest MDL, comprising 

hundreds of thousands of actions—many involving multiple plaintiffs. Its size skews statistics 

and makes it more difficult to get an accurate picture of what’s happening in MDLs more broadly. 

As the 3M case ballooned, for example, MDLs made up around 70% of all pending federal 

civil cases at the end of fiscal year 2021. But at the end of 2022, as the number of actions in 

3M dwindled, MDLs accounted for only around half of all cases. 

Even in 2023, if the 3M ear plugs case totals were removed from the docket counts, then the total 

number of MDL actions pending as of Aug. 15 would amount to only about 36% of all pending 

federal cases, based on the official US Courts totals as of March 31.

Further details about the 3M ear plugs case, and its August 2023 settlement with plaintiffs, 

can be found in a case spotlight later in this report.

Smaller MDLs Are the Rule, Not the Exception 

As the 3M case winds down, the actions that make up MDLs should comprise a markedly smaller 

share of overall federal litigation.

That’s because, looking past the dominant presence of the 3M case, the general picture of 
7

2023 Litigation Statistics Series: Multidistrict Litigation 

MDL activity appears to be a conservative one. Beyond the massive products liability cases that 

dominate the public’s attention (and will be discussed later in this report), the fact is that just over 

50% of the 174 consolidated MDL cases that are pending as of Aug. 15 are quite small, containing 

fewer than 20 actions. 

At the other end of the spectrum, only 1 in 10 pending MDL cases involve more than 1,000 

actions. (The remaining 39% of cases have between 21 and 1,000 actions pending.) 

This array of case sizes suggests that MDLs are not entirely about “mass” litigation. The general 

public’s idea of MDLs may be a picture of the giant products liability cases at the top of the size 

spectrum, but the vast majority of MDLs are smaller dockets.
8

2023 Litigation Statistics Series: Multidistrict Litigation 

Section 3

Trends in Consolidation Motions

The JPML granted 22 of the 45 consolidation motions it considered in 2022. This annual total 

is low compared to consolidations each year during the past decade, and is part of a general 

downward trend lower over the past 15 years.

In fact, the JPML handled fewer than half as many motions for certification of an MDL in 2022 (45) 

as it did 10 years earlier (94 in 2012).

So far in 2023, 23 motions to consolidate have been considered by the JPML, and the panel 

has granted 16 of those motions and denied seven of them.

There are two more JPML hearings scheduled for 2023 (September and December). Based on 

the number of MDLs consolidated to date, as well as pending motions, the JPML in 2023 is on 

pace to once again consolidate a small number of cases, regardless of whether it finishes this 

year with the same or a slightly lower number of granted motions as compared to 2022. 

Success Rates of JPML Filers 

The 22 motions granted in 2022 constituted almost half of the 45 motions filed with the JPML 

that year. 

Over most of the past 15 years, the percentage of motions to consolidate filed with the JPML that 

are ultimately granted has hovered around 50%. Indeed, the annual mean over the entire 15-year 

period is 50.66%. 
9

2023 Litigation Statistics Series: Multidistrict Litigation 

But there was considerable variation over that period. The lowest percentage success rate for 

motions to consolidate occurred in 2017, when only 19 of 60 motions (32%) were granted. The 

highest percentage granted occurred in 2008, when the panel granted a whopping 89% of 

motions to consolidate (85 of 96 filed).

So far, 2023 is shaping up to be the most successful year for filers in more than a decade. 

The JPML has granted 16 of the 23 motions it has adjudicated this year, as of Aug. 15. 

That’s a 69.5% success rate for motions so far in 2023, but performance of motions heard 

in the remaining two JPML hearing dates of the year could alter that outcome. 

Still, if the current pace holds up, this will be the first year since 2014 that the panel would 

have granted more motions than it denied.

Plaintiff Motions vs. Defendant Motions

Which party filed a motion to consolidate—the plaintiff or the defendant—appears to play a role 

in its outcome. 

Among the JPML dockets in Bloomberg Law, spanning 2002 to the present, plaintiffs asked 

to consolidate cases at nearly twice the rate that defendants did (579 times to defendants’ 302 

times). Plaintiffs’ motions to consolidate were granted 53% of the time, while defendants’ motions 

were granted about 46% of the time. 
10

2023 Litigation Statistics Series: Multidistrict Litigation 

In other words, the plaintiffs have 

been, on balance, successful in their 

consolidation motions before the JPML, 

while defendants have a losing record. 

But the numerical difference in their 

outcomes is only 7 percentage points.

Overall, regardless of who asked for 

consolidation, the JPML has been 

remarkably even-handed in its decisionmaking. Since the beginning of 2002, 

446 (50.6%) of the 881 motions 

for consolidation have been granted, 

while 435 have been denied. 

Looking only at 2023 so far (as of Aug. 

15), plaintiffs have had 12 of 17 motions 

granted, and defendants have had four 

of six motions granted. So the success 

rate for each side in 2023 (70% for 

plaintiffs, and 66% for defendants) 

is running better than it generally has 

over the past 20 years.

Panel Profile: Matthew F. Kennelly 

Judge Kennelly serves in the US District Court 

for the Northern District of Illinois. William 

J. Clinton nominated Kennelly on Jan. 26, 

1999, to a seat vacated by Paul E. Plunkett. The 

Senate confirmed him on April 15, 1999, and 

he received his commission on April 22, 1999 

Judge Kennelly assumed senior status on Oct. 

7, 2021.

Born 1956 in Marion, Ind., Kennelly received a 

B.A. from the University of Notre Dame in 1978, 

and earned his J.D. from Harvard Law School 

in 1981. He clerked for Judge Prentice Marshall 

in the N.D. Ill. for two years, and otherwise 

spent his professional life, before assuming 

the bench, in private practice in Chicago.

Judge Kennelly joined the JPML in 2019.
11

2023 Litigation Statistics Series: Multidistrict Litigation 

Section 4

Trends in Pending Dockets 

Overall, the number of consolidated MDL cases that are pending in federal courts has steadily 

declined in the past decade, from 287 MDLs pending at the end of 2013 to 171 pending at the 

end of 2022. (As of Aug. 15, 2023, there are 174 MDLs pending.) 

2022 marks the eighth straight 

year that the federal court 

system has seen a decline 

in pending MDL cases.

As for 2023, there have 

been only 14 MDL dockets 

terminated as of Aug. 15, 

according to JPML records. 

The longest-pending of these 

cases was consolidated and 

transferred in 2009, while 

only one case on the list was 

transferred as recently as 2022.

Panel Profile: David C. Norton 

Judge Norton serves in the US District Court for the 

District of South Carolina. George H.W. Bush nominated 

Norton on April 18, 1990, to a seat vacated by Solomon 

Blatt, Jr. The Senate confirmed him on June 28, 1990, 

and he received his commission on July 12, 1990. He 

served as chief judge of the district between 2007-2012.

Judge Norton was born in 1946 in Washington, D.C. He 

earned a B.A. from the University of the South in 1968, 

and a J.D. from the University of South Carolina School 

of Law in 1975. He served as assistant deputy solicitor 

for the Ninth Judicial Circuit of South Carolina from 1977 

to 1980, and as a city attorney for Isle of Palms, South 

Carolina, in 1980-1985. The remainder of his professional 

career was spent in private practice in Charleston.

Judge Norton joined the JPML in October 2019.
12

2023 Litigation Statistics Series: Multidistrict Litigation 

With 16 cases consolidated into MDLs by the JPML so far this year, and only 14 MDL cases fully 

resolved by transferee courts, 2023 could end as the first year since 2014 to register an uptick 

in the number of cases pending.

Where Cases Landed

The 174 consolidated cases that are currently pending in the federal court system are spread 

between 46 transferee districts and 145 judges (including chief judges of districts, district judges, 

and senior judges).
13

2023 Litigation Statistics Series: Multidistrict Litigation 

Two federal district courts are currently handling the largest number of cases: There are 17 

pending MDLs in the US District Court for the Northern District of Illinois, and the same 

number pending in the US District Court for the Northern District of California.

However, Northern California may have the heavier workload: The 17 cases pending in that district 

comprise a total of 10,686 pending actions, while the number of pending actions in Northern 

Illinois is a relatively more manageable 1,383.

Other big targets for transferee cases are the Southern District of New York (13 cases, containing 

1,330 pending actions), and the District of New Jersey (12 cases and 55,011 pending actions). The 

Southern District of Florida and the Eastern District of Pennsylvania each have nine pending 

MDLs, with Southern Florida having the heavier caseload (15,053 total actions, compared to 

Eastern Pennsylvania’s 1,417).

(Strictly in terms of total actions in MDL cases, the district with the most to manage is the 

Northern District of Florida, whose only case transferred by the JPML is the mammoth 3M 

docket and its 239,388 pending actions.)
14

2023 Litigation Statistics Series: Multidistrict Litigation 

A closer look at the six districts with the most pending MDLs reveals several similarities 

between them.

In a nutshell, the districts that receive the most MDLs appear to be those that are well-equipped 

to handle them. All six of the most popular transferee districts have the largest benches in their 

circuits, in terms of judgeships—except for New Jersey (which is second to fellow list-topper 

Southern New York) and Northern California (which is second to Central California, also a top10 MDL transferee court). It makes sense for the JPML to send cases where there are judicial 

resources available to manage them.

In fact, these top six transferee districts include three of the four district courts with the highest 

judgeship totals in the country. And all six of them have benches much larger than the nationwide 

average of seven per district.

On the other hand, all six top MDL courts have experienced serious staffing issues in the past 

year, with bench vacancy rates much higher than the nationwide average of 8.1 months of total 

judge vacancies in the 12 months ending June 30, 2023. Most districts in the country, in fact, 

have had no months of vacancies in the past 12 months.

Five of the 10 districts in the federal court system with the highest vacancy rates are also among 

the top six transferee courts for MDL cases. (The sixth, Southern New York, is still in the top 20.) 

If these staffing problems persist, they might begin to impact the JPML’s decisions on transfer.

Another common factor among the top transferee districts is speed. Among all federal court 

districts, the average number of months they take to get from filing to disposition of a civil case 

was 14.7 in the year ending June 30, 2023. But all of the top MDL courts have track records better 
15

2023 Litigation Statistics Series: Multidistrict Litigation 

than that (not including an average of zero months for civil cases at Southern Florida, according 

to US Courts records).

Finally, note that the top transferee districts do not have low per-judge caseloads in common. 

In fact, there is more variation among the top transferee districts’ per-judge caseload than in 

the other metrics. 

The number of pending cases (civil and criminal) per judgeship among the top six ranges from 

about 300 in Southern Florida to more than 3,000 in New Jersey. The nationwide average for 

this time period was 594 cases per judgeship. Again, if judicial staffing problems persist, 

caseloads may begin to factor more explicitly into transfer decisions.

One final note of interest about which cases are being sent where: They are not being sent 

to Texas. The four districts in Texas comprise a total of 52 judgeships—two of which have no 

vacancies at all—with case resolution speeds well below the nationwide average. And yet between 

all four districts, there are only three MDL dockets pending, totaling just 32 total actions. 

Case Types of Pending MDLs

Products liability cases have consistently constituted the biggest single group of MDLs pending 

during the past decade. And that’s not even taking into account the large number of actions that 

these types of cases typically involve. Looking only at pending dockets—not total actions—the 

number of pending products liability MDLs has still been remarkably stable during a decade 

that has seen most other types of MDLs fall off in popularity.
16

2023 Litigation Statistics Series: Multidistrict Litigation 

The total number of pending products liability MDLs has stayed between 60 and 71 each year since 

2013 (it’s currently at 66 cases this year), and the distance between the number of products liability 

MDLs and the next most common case type—antitrust—has never been higher than it is in 2023. 

Speaking of antitrust cases, MDLs of this type are also not as plentiful as they used to be. The 

annual number of pending antitrust MDLs has fallen from 63 in 2013 to only 41 in 2022. (There 

are currently 42 pending antitrust MDLs in 2023.)

The fact is that every single case type has experienced a dropoff in the past decade, from a slight 

dip in pending products liability MDLs to steep plummets in sales practices and securities cases. 

In the case of sales practices cases, many of them incorporate products liability claims and are 

therefore classified by the JPML as products liability cases. 

But parties in securities disputes appear to have largely stopped seeking consolidation during 

the past decade. There are currently one-eighth as many securities MDLs pending as there 

were in 2013. In 2017, the number of pending securities MDLs dropped by half, and has been 

consistently in single digits since. In 2013, there were 34 securities MDLs pending; today there 

are four. One case, IN RE: FTX Cryptocurrency Exchange Collapse Litigation (MDL 3076), was 

consolidated in 2023; the second-newest securities MDL, IN RE: SunEdison Inc. Securities 

Litigation (MDL 2742), was consolidated in 2016.

There are about 40% as many IP MDLs pending as there were in 2013, but the current number 

of pending IP MDLs—eight—doesn’t constitute the dramatic decrease over the past decade that 

other types have seen. 

Sales practices MDLs have seen a steady decline during the past decade, from 32 pending 

actions in 2013 to 11 pending as of August 2023. 

Percentage-wise, with so many types of MDLs in decline over the years, products liability cases 

have assumed a larger and larger share of the MDL docket and, due primarily to 3M’s combat 

ear plugs case, of the federal docket overall. 
17

2023 Litigation Statistics Series: Multidistrict Litigation 

Since 2017, products liability has been the only case type with more than 30% of MDLs pending. 

(Between 2013 and 2016, roughly 25% of pending MDLs were classified as products liability actions.)

Products liability actions aren’t unique in that regard: Despite drawing fewer cases, antitrust, 

miscellaneous, and disaster-related cases have maintained a relatively stable percentage of 

overall pending MDLs during the decade between 2013 and 2023.

Even so, there is clearly an imbalance between products liability litigation and all other types 

of consolidated cases.

Products liability’s 66 pending cases make up more than one-third of the 174 consolidated cases 

still open in the courts (38%) as of Aug. 15, 2023. Antitrust is second, with almost one-quarter of 

all pending cases (24%), while cases categorized as “miscellaneous” account for one-fifth (20%). 

The remaining 18% of the dockets are shared by every other case type.

When all actions that are part of MDL cases are considered, the typically large size of products 

liability consolidations turns an imbalance into a colossal mismatch.

Pending actions in products liability cases currently account for more than 90% of all actions 

pending across the MDL landscape. And that is without counting the 259,000-plus actions that 

are wrapped up in the 3M ear plugs MDL, which, had they been added to this statistical analysis, 

would have rendered the graphic almost completely purple.
18

2023 Litigation Statistics Series: Multidistrict Litigation 

Section 5

Multidistrict Litigation’s Biggest Cases

Product liability cases account for all 13 of the largest pending MDLs, and 20 of the largest 21. 

(The only outlier is IN RE: National Prescription Opiate Litigation, at No. 14, which is categorized 

as “miscellaneous.”)

Below are details about the two largest pending product liability actions, as well as the largest 

pending actions in the miscellaneous, antitrust, and sales practices categories.

Largest MDL: 3M Combat Earplugs Litigation

IN RE: 3M Combat Arms Earplug Products Liability Litigation (19-md-2885), pending in the US 

District Court for the Northern District of Florida (Judge M. Casey Rodgers presiding), is the 

largest mass tort action in US history. 

It has included up to 339,510 claimants historically and includes more than 259,000 actions 

as of Aug. 15, 2023. The cases comprising the 3M Combat Earplugs MDL constitute close to 

40 percent of all pending cases in the federal court system in 2023.

Needless to say, 3M dwarfs all other MDLs.

Case History: Hundreds of thousands of former military personnel who were exposed to 

dangerous noise levels in combat or military training between 2003 and 2015 allege that 3M

earplugs failed to protect them and left them with hearing loss or tinnitus. The JPML consolidated 

the lawsuits in April 2019 before Judge Rodgers in Pensacola, Fla.

Judge Rodgers has appointed “bellwether” cases to help the parties establish a realistic idea 

of the value of claims and the success of defenses. She ordered mediation in June 2022, after 

16 bellwether trials and 19 verdicts, and again in September 2022. Mediation was unsuccessful.

The bellwether cases resulted in 10 wins for the plaintiffs and six for the defendants, with total 

damages against 3M (after post-trial reductions) of $260.2 million. Individual plaintiff awards 

in the bellwether cases in which plaintiffs prevailed ranged from $1 million to $15 million in 

compensatory damages. The highest punitive damages award was $72 million.

in July 2022, Aearo Technologies (the 3M subsidiary responsible for manufacturing the ear plugs 

at issue) voluntarily initiated chapter 11 proceedings under the US Bankruptcy Code seeking court 

supervision to establish a trust, funded by 3M, to satisfy all product claims. In July 2023, the 

Bankruptcy Court dismissed Aearo’s bankruptcy case, holding that the fully funded trust means 

Aearo does not face an imminent threat of failure. 3M has appealed that decision 

to the US Court of Appeals for the Seventh Circuit. 

3M also has appeals of plaintiffs’ verdicts in the bellwether cases pending in the US Court of 

Appeals for the Eleventh Circuit. In May 2023, Rodgers identified 31 cases that will serve as the 

first actions remanded from the MDL to their original filing courts for trial. 

Settlement: On Aug. 29, 2023, 3M announced that it has reached a universal settlement of the 

litigation. 3M will contribute a total amount of $6.01 billion between 2023 and 2029, which is 

structured under the settlement to include $5.01 billion in cash consideration and $1 billion in 3M 

common stock.
19

2023 Litigation Statistics Series: Multidistrict Litigation 

There are really three agreements: 

• a master combat arms settlement agreement, 

• a settlement agreement with the verdict plaintiffs (those who went to trial against 3M 

and obtained a favorable verdict—14 are listed in the agreement), and 

• a settlement agreement with the “wave plaintiffs,” which are cases that the court previously 

identified for pretrial discovery during the litigation. (While the “wave cases” are listed in the 

agreement, the list has been redacted in public filings.)

It’s important to note that the actual amount, payment terms, and dates of payment are subject 

to satisfaction of participation thresholds claimants must meet, including that at least 98% of 

individuals with actual or potential litigation claims must have enrolled in the settlement and 

released all claims involving the subject combat earplugs. 3M can also walk away if the equity 

portion of the settlement runs into regulatory 

roadblocks, or if the stock fails to sell. 

Based on deadlines set in the settlement 

agreement, the settlement would either 

succeed or fail at about the end of the first 

quarter or early second quarter of 2024. 

A 98% participation rate is a fairly high 

threshold, particularly considering the 

numbers of individual plaintiffs involved 

in this “opt in” agreement. 

It’s difficult to gauge how that settlement, 

if completed, will rank among past MDL 

settlements because many are confidential, 

or comprised of contributions from many 

defendants that went to disparate plaintiffs 

groups. But compared to recent settlements 

in the IN RE: National Prescription Opiate 

Litigation MDL (around $26 billion total) 

and the IN RE: Roundup Products Liability 

Litigation MDL (roughly $10 billion to date, 

with an additional $1.5 billion set aside by 

Bayer for the litigation), the 3M settlement 

is not historically large. 

Before the 3M case, the previous largest MDL 

in US history was IN RE: Asbestos Products 

Litigation (MDL 875), which included more 

than 3,000 actions when consolidated in the 

US District Court 

for the District of Pennsylvania in 1991. At its 

height, the case contained 192,100 actions.

Panel Profile: Roger Benitez 

Judge Benitez serves on the US District 

Court for the Southern District of 

California. George W. Bush nominated

Benitez to a new seat on May 1, 2003. 

Confirmed by the Senate on June 17, 

2004, he received his commission on 

June 21, 2004. 

Judge Benitez was born in 1950 in 

Havana, Cuba. He received his A.A. 

degree from Imperial Valley College in 

1971, and his B.A. from San Diego State 

University in 1974. He earned a J.D. from 

Western State University College of Law 

(now the Thomas Jefferson School of 

Law) in 1978.

After almost 20 years in private practice 

in Imperial County, Cal., Judge Benitez 

served as a judge in the Superior Court 

of California in Imperial County from 1997 

to 2001. He served as a magistrate judge 

in the US District Court for the Southern 

District of California in 2001-2004 before 

his appointment to the Article III bench.

He assumed senior status on Dec. 31, 

2017, and has served on the JPML since 

October 2020.
20

2023 Litigation Statistics Series: Multidistrict Litigation 

Second-Largest Products Liability MDL: Johnson & Johnson Talcum 

Powder Litigation

IN RE: Johnson & Johnson Talcum Powder Products Marketing, Sales Practices and Products 

Liability Litigation (16-md-2738) was consolidated in October 2016 in the US District Court for 

the District of New Jersey (Judge Michael A. Shipp presiding). From a height of 38,644 actions 

in the consolidated case, the MDL is down to 37,770 actions pending as of Aug. 15, 2023. The 

case includes about 60,000 claimants, but J&J has estimated that it may face as many as 100,000 

claims in total.

The cases allege that Johnson & Johnson knew that its talc products—particularly its baby 

powder—were contaminated with asbestos, and did nothing to warn consumers. The plaintiffs 

allege that the presence of asbestos in those products caused cancer.

In March 2023, the US Court of Appeals for the Third Circuit rejected J&J’s attempts to 

pass its liability for the talc suits on to a subsidiary, LTL Management LLC, and then declare 

the subsidiary bankrupt. 

As part of that process, J&J floated a settlement offer of $8.9 billion to settle all outstanding 

cases, which split plaintiffs. 

The appeals court concluded that J&J did not access bankruptcy proceedings in good faith. 

LTL refiled, and the US Bankruptcy Court for the District of New Jersey dismissed the petition

in keeping with the Third Circuit’s decision.

With the company’s bankruptcy strategy to end the litigation rejected by the court, the settlement 

is presumably off the table.

Largest Antitrust MDL: Generic Pharmaceuticals

IN RE: Generic Pharmaceuticals Pricing Antitrust Litigation (16-md-2724) was consolidated on 

Aug. 15, 2016, in US District Court for the Eastern District of Pennsylvania (Judge Cynthia M. Rufe

presiding). The MDL currently contains only 131 cases pending, down from a high of 201, but the 

plaintiffs include attorneys general from 47 states, Puerto Rico, and the District of Columbia, 

along with classes of private plaintiffs suing 20 generic drug companies for allegedly agreeing 

to fix the prices of more than 300 drugs.

Rufe has trimmed the case since consolidation, dismissing claims against drug distributors and 

dismissing the states’ claims for disgorgement under federal antitrust law. But she has so far 

resisted attempts to restrict damages theories, including “overarching conspiracy” claims that 

assert an industry-wide conspiracy.

Direct purchasers have settled with Sun Pharmaceutical Industries Inc. (and subsidiaries Caraco 

Pharmaceutical Laboratories Ltd., Mutual Pharmaceutical Company Inc., and URL Pharma Inc.) 

and Taro Pharmaceuticals USA Inc. for $85 million (subject to provisions that could change the 

amount based on claims filed).

Largest Miscellaneous MDL: National Prescription Opiate Litigation

IN RE: National Prescription Opiate Litigation (17-md-2804) was consolidated on Dec. 12, 2017, 

in the US District Court for the Northern District of Ohio (Judge Dan A. Polster presiding). 

The plaintiffs in 46 actions moved to consolidate. 
21

2023 Litigation Statistics Series: Multidistrict Litigation 

These cases allege improper marketing and distribution of opiate medications, leading to 

widespread addiction to these medications, and causing injury and death. Plaintiffs allege that 

the makers and marketers of opioids systematically overstated the benefits and downplayed 

the risks of their product, and ignored distribution patterns indicative of end-user abuse.

After five years of active MDL litigation, cases are progressing. Judge Polster tracked cases to 

advance as bellwethers. Extensive settlement talks have taken place, which included the US 

as a friend of the court in some instances. Some districts and groups have settled with some 

defendants. For example, Allergan Inc. reached a settlement with Ohio’s Cuyahoga and Summit 

counties in August 2019.

There are currently 3,378 actions pending in the opiate MDL, down from a high of 3,523.

Largest Sales Practices MDL: SoClean Inc. Marketing Sales Practices

IN RE: SoClean, Inc., Marketing, Sales Practices and Products Liability Litigation (22-mc-00152) 

was consolidated on Feb. 2, 2022, before the US District Court for the Western District of 

Pennsylvania (Judge Joy Flowers Conti presiding). Plaintiffs moved to consolidate. The lawsuits 

arise from a 2020 FDA safety warning stating that devices marketed to clean Continuous Positive 

Airway Pressure (CPAP) machines and similar devices with ozone may expose users to excessive 

levels of ozone. On that basis, the plaintiffs allege that ozone sanitizing devices by SoClean Inc. 

pose potential health hazards to users and damage components of CPAP machines.

As of Aug. 15, 2023, IN RE: SoClean includes 41 pending actions, down from a high of 62. The 

parties have agreed to stay discovery pending 

mediation in an attempt to reach settlement.

Largest Potential Settlement Value: 

Aqueous Film-Forming Foams 

Products Liability Litigation 

This MDL is just one subset of cases concerning 

ubiquitous contamination with per- and 

polyfluoroalkyl substances, or PFAS for short—

cases that together have the potential to be 

the costliest mass tort litigation in history.

The MDL case, 18-mn-2873, was consolidated 

Dec. 7., 2018, before the US District Court 

for the District of South Carolina (Judge 

Richard M. Gergel presiding). Defendants 

moved to consolidate. 

These cases concern exposure to perfluorooctanesulfonate (PFOS) and/or perfluorooctanoicacid (PFOA), either through direct 

contact with aqueous film-forming foam (AFFF) 

in various industrial, military, or fire-fighting 

applications, or by exposure to contaminated 

water. These substances allegedly cause cancer 

and other health impacts.

Panel Profile: Dale A. Kimball

Judge Kimball serves on the US 

District Court for the District of Utah. 

William J. Clinton nominated Kimball 

on Sept. 4, 1997, to a seat vacated by 

David Keith Winder. Confirmed by the 

Senate on Oct. 21, 1997, he received 

his commission on Oct. 24, 1997.

Judge Kimball was born in 1939 in 

Provo, Utah. He earned a B.A. from 

Brigham Young University in 1964 and 

received his J.D. from the University 

of Utah College of Law (now S.J. 

Quinney College of Law) in 1967. He 

spent more than 20 years in private 

practice in Salt Lake City, and also 

taught at Brigham Young Law School 

in the 1970s.

He assumed senior status on Nov. 30, 

2009. He has been a member of the 

panel since October 2020.
22

2023 Litigation Statistics Series: Multidistrict Litigation 

Defendant 3M attempted to consolidate cases involving non-AFFF PFAS chemicals into the MDL, 

but the JPML denied its motion. A considerable number of cases involving different chemicals 

and means of exposure are pending around the country, brought by states and municipalities 

with contaminated water or by individuals allegedly suffering impacts from exposure. 

As of Aug. 15, 2023, the case was the eighth-largest pending MDL by number of actions pending 

with 5,614 actions (down from a historical high of 6,113). Yet the potential exposure is substantial: 

Estimates indicate that 600,000 service members may have been exposed to PFOS/PFOAcontaminated drinking water on US military bases alone. 

3M settled with a class of municipalities with impacted water systems in the AFFF MDL in July 

2023 for $12.5 billion. The Chemours Co., DuPont de Nemours Inc., and Corteva Inc., three more 

defendants, reached a preliminary settlement with municipal water systems for a collective $1.185 

billion in June 2023.

Because PFAS, also known as “forever chemicals,” are estimated to be present in essentially every 

person and animal in the US, observers contend that the size of the potential exposure dwarfs the 

largest mass tort settlement in US history, the 1998 Tobacco Master Settlement Agreement for 

$206 billion. 
23

2023 Litigation Statistics Series: Multidistrict Litigation 

Section 6

Potential Changes and Next Steps

MDLs have benefits in administration: less risk of inconsistent outcomes, for example, or less 

threat that a huge group of cases, spread throughout the federal system, will clog courts and 

slow down access to justice more broadly. 

But there are also shortcomings to the procedure. First and foremost, the size and scope of MDLs 

make it more difficult for parties and the court to evaluate claims, and dispense with meritless 

claims, efficiently. Because MDLs are subject to idiosyncratic management, and because of 

their size and administrative load, some contend that MDLs often contain a high percentage of 

meritless cases—meaning, for example, products liability cases brought by plaintiffs who cannot 

demonstrate that they purchased or used the product, or that they have suffered the injury 

allegedly caused by the product.

Because of their size and complexity, MDLs can also result in the slow movement of cases through 

the justice system. Cases caught up in an MDL may languish for a considerable time while 

bellwethers are tried and complex discovery coordinated among many plaintiffs, for example, 

when any individual case could have been dealt with expediently in its transferor district. 

Proposed Rules

A subcommittee of the Judicial Conference Committee on Rules of Practice and Procedure has 

been working for years on potential additions to the Federal Rules of Civil Procedure to govern 

MDLs—which are, shockingly, currently mentioned nowhere in the FRCP.

Initially, the committee considered amendments to existing rules 16 and 26, which govern pretrial 

scheduling/management and disclosures/discovery in civil litigation, to address MDLs. After 

comment and consideration, however, they decided to draft a new subrule, FRCP 16.1, unique 

to these proceedings.

In March 2023, the committee published a proposed draft rule for MDLs, which emphasizes in 

the Draft Committee Note a need to formalize “a framework for the initial management of MDL 

proceedings.” However, the rule does not require procedures that “must” be instituted to manage 

an MDL; instead, it consists of a series of suggestions that “may” be used. The proposed rule 

amounts to a suggested set of best practices, while leaving great discretion in managing MDLs 

in the hands of the transferee court. 

That’s an unusual approach for the FRCP, which generally requires specific procedures in given 

circumstances. However, it makes sense for a set of proceedings that vary as much as MDLs can. 

Some MDLs, with only a few very similar cases involving plaintiffs who are injured in the same way 

by common conduct, may not require much early intervention from the court to administer them 

efficiently. Others, involving thousands of actions and tens of thousands of plaintiffs in varying 

relationships to the defendants, will require more intervention early in the process from the court 

and more administration.
24

2023 Litigation Statistics Series: Multidistrict Litigation 

Key Provisions

The proposed rule 16.1 recommends the following:

The proposed rule’s highest level of detail centers on the report, called for in section 16.1(c). 

The committee envisions a report that addresses several key matters, including:

• Identifying the key factual and legal issues likely to be presented by the MDL;

• Suggesting how and when the parties will exchange information about the factual bases 

for claims and defenses;

• Proposing a discovery plan;

• Recommending whether leadership counsel should be appointed and, if so, how it will 

operate and be paid;

• Identifying the principal factual and legal issues likely to be presented in the MDL;

• Whether consolidated pleadings should be prepared;

• Whether the court should consider facilitating settlement, such as through ordering 

alternative dispute resolution; 

• If matters should be referred to a magistrate or master; and

• Other issues, like evaluating existing scheduling orders and other orders, proposing other 

scheduling conferences, and management of new filings.
25

2023 Litigation Statistics Series: Multidistrict Litigation 

Potential Impact 

Although the rule amounts to suggested 

practices, it could have an important impact 

on how MDLs are conducted. First, ordering 

the early exchange of factual information (for 

example, through “fact sheets” that outline 

basic information about each claimant and 

list or attach key documents like product 

receipts or diagnoses) would force more 

early due diligence on claimants and 

potentially efficiently sort out unfounded 

claims early in the MDL process. 

That is important because defendants 

frequently complain that big MDLs contain 

a high percentage of claimants who have no 

actual evidence to support their entitlement 

to recover. Because of the structure and 

pace of big MDLs, those claims not only gum 

up the works and hamper processing and 

adjudication of meritorious claims, but also 

cloud a realistic understanding of settlement 

potential and litigation risk.

More information will also likely improve 

choosing bellwether cases and sorting 

claimants into functional groups for 

improved administration. MDLs, unlike class 

actions, don’t require that common issues of 

fact or law “predominate” among the plaintiffs. Accordingly, an MDL may include subgroups 

that have very different claims and damages with some nexus. Identifying those patterns early 

has many potential benefits.

The proposed rule may also have greater impact among rookie MDL transferees. While some 

courts have adjudicated multiple MDLs and have developed administrative procedures that 

work for them, new jurists may benefit from a basic toolbox of proposed first steps.

The public comment period is open until February 16, 2024. Following the comment period, 

the subcommittee will consider the public’s responses and potentially redraft the rule. The final 

proposed rule must be adopted by the Judicial Conference’s Committee on Rules of Practice 

and Procedure, then the Judicial Conference itself, and finally the Supreme Court. As a result, 

the final rule may feature important differences from the current proposal and, depending on 

any changes, may not enter into force for years.

Panel Profile: Madeline Cox Arleo 

Judge Arleo, the newest member of the 

JPML, serves on the US District Court for 

the District of New Jersey. 

Barack Obama nominated Arleo on June 

26, 2014, to a seat vacated by Dennis M. 

Cavanaugh. The Senate confirmed her 

on Nov. 20, 2014, and she received her 

commission on the following day.

Judge Arleo was born in 1963 in Jersey 

City, New Jersey. She received a B.A. at 

Rutgers College in 1985 and an M.A. in 

1986. She earned her J.D. from Seton Hall 

University School of Law in 1989. 

Judge Arleo clerked for New Jersey 

Supreme Court Justice Marie L. Garibaldi 

in 1989–90. Following 10 years in private 

practice in Newark, N.J., Judge Arleo 

served 14 years as a magistrate judge in 

the US District Court for the District of 

New Jersey from 2000 to 2014. 

She joined the panel in October 2021.
26

2023 Litigation Statistics Series: Multidistrict Litigation 

About The Authors

Eleanor Tyler is a Principal Legal Analyst at Bloomberg Industry Group, with a focus on antitrust 

and general litigation. Before joining Bloomberg Law, Eleanor practiced law for six years, 

primarily as a litigation associate at Locke Lord LLP. She clerked for the Hon. Simeon Lake in the 

US District Court for the Southern District of Texas. She holds a JD from Georgetown University 

Law Center, an MA in international affairs from Johns Hopkins SAIS, and a BA from Texas 

Christian University.

Robert Combs is the manager of Bloomberg Law’s Analysis Channel. In more than 20 years at 

Bloomberg Law, Robert has provided legal analysis on labor and employment issues, headed 

the company’s knowledge services and customized research teams, and edited employment and 

payroll publications. Robert has an M.S. in journalism from Scripps School of Journalism at Ohio 

University and graduated with a B.A. in English from Denison University.
© 2023 Bloomberg Industry Group, Inc. 0923rc

About Bloomberg Law

Bloomberg Law combines the latest in legal 

technology with workflow tools, comprehensive 

primary and secondary sources, trusted news, 

expert analysis, and business intelligence. Our 

deep expertise and commitment to innovation 

provide a competitive edge to help improve 

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For more information, visit pro.bloomberglaw.com
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TAB 9
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ELLEN RELKIN ≈ ££ ɣ

MICHAEL P. ROBERTS

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AMBRE J. BRANDIS

VENUS BURNS 

PATTI BURSHTYN ††

NANCY M. CHRISTENSEN ††¶

BENJAMIN T. CLINTON

January 25, 2023

Mr. H. Thomas Byron, III, Secretary Advisory Committee on Civil Rules Administrative Office of 

the United States Courts 

One Columbus Circle

NE Washington, DC 20544 

Re: Proposed 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 Weitz & Luxenberg PC where I have practiced for twenty-seven years

following my decade long practice in this field at other NYC and New Jersey law firms. I have 

been handling pharmaceutical, medical device and toxic tort work before the term “mass tort” was 

coined. In addition to my MDL experience serving as co-lead counsel in numerous litigations (In 

Re: Exactech Polyethylene Orthopedic Products Liability Litigation MDL 3044; In Re: JUUL 

Labs, Marketing Sales Practices, and Products Liability Litigation, MDL 2913; In Re: Farxiga 

Products Liability Litigation MDL 2776; In Re: DePuy Orthopaedics ASR Hip Implant Products

MDL 2197), I also have served as lead counsel in numerous parallel and coordinated litigations 

called Multi-County (MCL) litigations in New Jersey.1

1 More details on my background can be seen in the attached abbreviated CV.

PERRY WEITZ

ARTHUR M. LUXENBERG

* Of Counsel

 Admitted only in CA

§§ Admitted only in IL

❖ Admitted only in LA

∆ Admitted only in MA

 Admitted only in MI

 Admitted only in OH

 Admitted only in PA

∆∆ Also admitted in CA, TX, MO

oo Also admitted in CO

‡ Also admitted in CT

§ Also admitted in DC

o Also admitted in FL

❖❖ Also admitted in MA

u Also admitted in IL

†† Also admitted in NJ

ɣ Also admitted in PA

 Also admitted in SC

 Also admitted in WI

 Admitted only in CA & UT

 Admitted only in CA, PA & WI

¶ Admitted only in NJ & PA

 Admitted only in NJ,PA & WV

 Admitted only in OR & MI

 Also admitted in DC & MD

 Also admitted in MD & NJ

† Also admitted in NJ & CT

≈ Also admitted in NJ & DC

¶¶ Also admitted in NJ & ME

▪ Also admitted in NJ & MI

•• Also admitted in NJ & PA

 Also Admitted in NJ & WV

 Also admitted in CT, FL & NJ

ɣ ɣ Also admitted in DC, IL, MO, NJ & PA

 Also admitted in DC,MD,NJ,PA & VA

££ Certified Atty. NJ Supreme Court

FF Also admitted in TX & MO

THOMAS COMERFORD †† § ERIK JACOBS JAMES A. PLASTIRAS ††

TERESA A. CURTIN ¶¶ A. NAOMI JAWAHAR ADAM C. RAFFO

BENJAMIN DARCHE JEFFREY S. KANCA ❖❖ ALLISON H. RAIJMAN

JUSTINE K. DELANEY DAVID M. KAUFMAN †† PIERRE RATZKI

ADAM S. DREKSLER SEAN K. KERLEY  BRITTANY A. RUSSELL ••

BRANDON DUPREE  CHANTAL KHALIL CHRIS ROMANELLI ††

JASON B. DUNCAN ¶ ILYA KHARKOVER ALEXANDER C. SCHWARZ ɣ

F. ALEXANDER EIDEN ¶ SUZANNE KRIEGER  JARED SCOTTO

MICHAEL FANELLI †† JOSH KRISTAL ¶ BHARATI O. SHARMA ¶

AARON S. FREEDMAN JARED LACERTOSA CALLIE M. SHARP u

LEONARD F. FELDMAN ¶ DEBBI LANDAU ALEXANDRA SHEF 

STUART R. FRIEDMAN * DANIEL C. LIPNER FALLON S. SHERIDAN

MARY GRABISH GAFFNEY ¶ ELIZABETH J. LUXENBERG EDUARDO R. SOTOMAYOR ††

ERICARAE GARCIA  JOSEPH J. MANDIA ¶ SAMANTHA E. STAHL

ANDREW J. GAYOSO  COLIN MARKEL GREGORY STAMATOPOULOS

DIANA GJONAJ  JAMIE MATTERA TYLER R. STOCK 

DANIELLE M. GOLD †† BRENDAN A. MCDONOUGH †† PETER TAMBINI ††

LAWRENCE GOLDHIRSCH * o SARA MERRILL o JAMES S. THOMPSON ††

BENJAMIN GOLDMAN  MICHELLE C. MURTHA ¶§ BENJAMIN VANSLYKE 

NICHOLAS A. GONSALVES MELINDA DAVIS NOKES  CASEY THAL VERVILLE 

ROBERT J. GORDON *†† PAUL F. NOVAK  JASON M. WEINER 

LAURA GREEN †† JOSEPH T. OSBORNE JASON P. WEINSTEIN

CODY M. GREENES ¶ JOSIAH W. PARKER  LAUREN A. WEITZ

MATTHEW A. GRUBMAN ¶ MICHAEL E. PEDERSON JUSTIN J. WEITZ

NICOLE A. HYATT BRANDON H. PERLMAN MARK WEITZ

MARIE L. IANNIELLO † o * 
It is my experience that most MDL’s have functioned well for decades, providing a costeffective vehicle for the parties and the courts to adjudicate complex multi-party and often 

geographically disparate disputes. Relatively recently, seemingly spurred by a few very large and 

anomalous litigations, often involving over-the-counter products, there has been a concerted

campaign by the defense bar to obtain legislation, and when stymied legislatively, rule changes,

to erect barriers to limit or impose challenges to product liability plaintiffs. The full Congress 

did not enact the proposed legislation HR 985, and this Committee wisely rejected the most 

aggressive proposed rule changes that sought to alter the ordinary course of discovery. The 

present Rule 16.1, in my opinion, is not necessary, although it may be slightly helpful to some new 

MDL judges in the initial handling of a new MDL assignment. That being said, there are some 

provisions I believe are both unnecessary and can be counter-productive.

First it bears repeating comments by my colleagues that MDL’s involve many different 

cases that are not necessarily product liability or toxic tort claims. This one size fits all approach

of the proposed rule change is not appropriate and could steer a new MDL judge to mechanically 

follow items on a checklist that are just not appropriate for their particular MDL case. 

Of concern is the provision suggesting the initial appointment of “coordinating counsel.” 

It is not explained how the judge would go about making an appropriate temporary appointment at 

the inception of the litigation. To have a temporary coordinating counsel who may not be 

sufficiently familiar with the cases, just because the court may happen to recognize a counsel

name on the list, or select a local lawyer with whom he or she is familiar, can result in the

submission of agenda items and discovery suggestions that are not appropriate because the 

individual selected is not as engaged in the issues as those who initiated the litigation. Certainly 

discussion of items 16.1 (c ) 3-4 should not be addressed by a temporarily appointed attorney who 

may not be the right person to discuss at that early juncture the key factual and legal issues to be 

presented, and the timing and method of information exchange.

Instead, in every litigation in which I have been involved, there has been an organic

process whereby those lawyers who are most engaged are presumed or accepted by consensus to 

be the spokesperson. That person or persons consulted with experts, drafted detailed complaints

and filed the earliest cases, and or filed the JPML petition and presented at the JPML hearing and 

are the likely person to speak at the initial hearing. To create this new “coordinating counsel”

position is a distraction from the more important task of a process and schedule for prompt 

appointment of permanent leadership counsel and this appointment could supplant the person(s) 

for whom there is already a consensus as the appropriate speaker at the initial conference just by 

virtue of selection as coordinating counsel. This extra coordinating counsel step can be 

counterproductive.

 In the rare case where there is an immediate need for counsel to address an urgent matter, 

such as in the In Re: CPAP MDL when the Court appointed several interim counsel to deal 

exclusively with preservation of device issues following the defendant writing to the court of their 

plan to repair and recycle recalled devices, that appointment can be done without the need for a 

rule. The way leadership formation is done in many MDLs usually works. Invariably when there is 

a JPML hearing, the various lawyers who have cases at that juncture and are engaged enough to 

attend the hearing, meet the day before the hearing to confer, discuss the hearing and litigation 

strategy and establish an email and phone list for ongoing communications. Thus, the plaintiffs’

bar has its own mechanism to coordinate in advance of the first hearing held by the selected MDL 

court and generally reach a consensus, with some exceptions when there are contested slates of 

candidates.
It is important that new MDL judges be instructed to set the hearing as soon as practicable 

after the MDL is created so time is not lost on these preliminary matters and leadership gets

resolved expeditiously, within weeks (and not months) of the MDL formation. Thus, this proposed 

“coordinating counsel” distraction should be avoided and instead the focus should be on promptly 

setting up a method for the selection of leadership counsel.

The second matter that I think should be excised from any rule promulgation is section

16.1( c)(1)( C) regarding discussion at the initial conference of “the role of leadership counsel 

regarding any settlement activities.” Certainly, until the actual leadership is appointed, to have a 

stopgap “coordinating counsel” tackle that subject is premature. Further, along the same lines, I 

strongly believe that MDL judges should not, in leadership orders, designate specific settlement 

counsel. The co-lead counsel for the litigation needs to be leading -- which includes being in 

charge of settlement discussions or selection of the appropriate designees for that task. To have a 

court task others with that role, especially at the outset without fully understanding the personnel 

and case dynamics, can undermine the authority of the lead counsel and has the potential to do 

mischief and create dissension within the leadership team. It is the lead counsel who should either 

run any settlement discussions or delegate who on the executive committee should be involved.

I agree with some comments from the defense and plaintiffs’ bar that this initial discussion 

in open court of settlement is premature and can be counterproductive, sending the wrong message 

to novices in the field, that settlement is in progress when that could be far from reality. Some 

neophytes, marketers and internet content providers will then publish articles potentially 

exaggerating the import of this checklist discussion resulting in the filing of more cases, based 

upon a misapprehension that settlement is in the works. The Rules do not acknowledge that many 

seasoned MDL judges may make settlement inquiries in chamber conversations with lead counsel

at the appropriate juncture. Instead, the proposed rule results in broadcasting prematurely the most 

sensitive of subjects which generally would not facilitate, but instead, may impede settlement.

I look forward to the opportunity to speak with the Committee on February 6.

Respectfully submitted,

Ellen Relkin
Ellen Relkin

Practice Group Chair

Drug and Medical Device Litigation

Weitz & Luxenberg

New York Office

700 Broadway

New York, NY 10003

Ellen Relkin is a partner at Weitz & Luxenberg, P.C. in New York City. She is certified 

by the New Jersey Supreme Court as a Certified Civil Trial Attorney. She has been elected as a 

“Super Lawyer” of New Jersey and New York. She is licensed to practice in NY, NJ, PA, and 

the District of Columbia.

Ms. Relkin is an elected member of the American Law Institute where she serves as an 

Advisor to the Restatement of the Law Third, Torts: Miscellaneous Provisions. She serves on 

the Board of Governors of the New Jersey Association for Justice and is Co-Chair of its Mass 

Torts Section. She is a former chair of the Toxic, Environmental and Pharmaceutical Torts 

Section of the American Association of Justice. She is an invited member of the American Bar 

Foundation and serves as an Advisory Board Member of the RAND Kenneth R. Feinberg Center 

for Catastrophic Risk Management and Compensation. She is former President of the National

Civil Justice Institute.

Ms. Relkin was most recently appointed as co-lead counsel to the MDL In Re: Exactech 

Polyethylene Orthopedic Products Liability Litigation – MDL 3044 (E.D.N.Y.). She is co-lead 

counsel in the recently settled MDL In Re: JUUL Labs, Marketing Sales Practices, and Products 

Liability Litigation, N.D.Cal. She was appointed to the Executive Committee in the Multi-
District Litigation, In Re: National Prescription Opiate Litigation, N.D. Ohio in 2017. She 

served as co-lead counsel, in the since resolved In Re: Farxiga (Dapagliflozin) Products Liability 

Litigation (S.D.N.Y.). She was appointed as State Liaison Counsel and to the Plaintiffs’ 

Executive Committee in the In Re: Stryker LFit V 40 Femoral Head Products Liability Litigation 

in the District of Massachusetts as well as lead/liaison counsel in the New Jersey parallel MultiCounty Litigation, In Re: Stryker LFit CoCr V40 Femoral Heads Litigation, Case No. 624. She 

served on the Plaintiffs’ Executive Committee of In Re: Invokana Products Liability Litigation,

(D.N.J.) and on the PSC of In Re: Xarelto Products Liability Litigation, (E.D. La.).

 Her involvement in orthopedic litigation dates back to 2010 serving as co-lead counsel 

in MDL 2197, DePuy Orthopaedics, Inc., ASR Hip Implant Products Liability Litigation (N.D. 

Ohio) where she played a key role in negotiating a $2.5 billion settlement for 8,000 victims of 

the failed hip implant. As cobalt chrome hips continued to fail, she became court-appointed 

lead counsel in the New Jersey In Re: Stryker Rejuvenate/ABG II Modular Hip Litigation where 

she helped create the first “bellwether mediation” and was a member of the negotiating team for 

a $ billion plus settlement ultimately compensating more than 3,000 victims.

 
TAB 10
_________________________________________________________ 

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

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

January 23, 2024 

Via Email

Advisory Committee on Civil Rules

Administrative Office of the United States Court

One Columbus Circle, NE 

Washington, DC 20544 

RulesCommittee_Secretary@ao.uscourts.gov 

Re: Statement of Jennie Lee Anderson on Proposed Federal Rule of Civil Procedure 16.1 

Thank you for the opportunity to comment on the proposed amendments to Rule 16 of 

the Federal Rules of Civil Procedure presently under consideration. 

I am a founding partner of the San Francisco law firm Andrus Anderson LLP. I have 

more than 20 years of experience representing plaintiffs in complex litigation, including class 

actions and mass torts in both state and federal courts. I have held leadership positions in 

multiple state and national litigations over the years, and I am currently liaison counsel in In re 

Social Media Adolescent Addiction/ Personal Injury Product Liability Litigation, MDL 3047 

(“Social Media”), pending in the Northern District of California. 

I have testified previously before this Committee regarding proposed changes to Rules 26 

and 23, and I believe that the public comment period is a critical stage of the rulemaking process. 

Importantly, it is an opportunity for practitioners to share their views on how the proposed 

changes will impact their clients and cases, and offer feedback on whether the proposed changes 

will, indeed, advance Rule 1’s goal of securing “the just, speedy, and inexpensive determination 

of every action and proceeding” or not. 

Proposed Rule 16.1 “Multidistrict Litigation” 

As a preliminary matter, the proposed additions to Rule 16.1 and the accompanying 

Committee Note appear largely aimed at mass tort MDLs and not MDLs involving exclusively 

class actions. Rule 23, of course, governs class actions, and does so quite well. Specifically, 

Rule 23(g) already sets forth the criteria for appointment of interim class counsel. Clarifying 

where the proposed amendments are applicable to only mass tort MDLs (i.e., cases where 

individual plaintiffs’ cases have been transferred and coordinated for pretrial purposes) would 

eliminate confusion. 

Proposed Rule 16.1(b): The Creation of “Coordinating Counsel” 

 

 While the proposed rule’s goal of advancing the meet and confer process has merit, the 

creation of an additional layer coined “Coordinating Counsel” to “work with plaintiffs or with 

defendants” before the appointment of plaintiffs’ leadership would be inefficient and potentially 

damaging, particularly for plaintiffs. Under the proposed amendment, plaintiffs could find 
Page 2 of 3

January 23, 2024

themselves essentially unrepresented at a mandatory meet and confer where Coordinating 

Counsel has been authorized to negotiate with defendants prior to plaintiffs’ leadership being 

appointed.

1

 Indeed, Coordinating Counsel is not defined, and it appears one could be appointed 

and act on plaintiffs’ behalf without representing any plaintiffs in the case or having any MDL 

experience. And yet, the proposed amendment appears to hand that same counsel broad 

authority to meet and confer on far reaching topics—everything from discovery to settlement, 

and even the appointment of plaintiffs’ leadership. As a result, agreements made may need to be

revisited and perhaps renegotiated entirely upon the appointment of leadership, thereby causing 

delay rather than preventing it. Appointing leadership is not unduly time-consuming and yet 

critically important for consistency and should be the court’s first order of business.

The proposed Committee Note indicating that Coordinating Counsel may later seek a 

plaintiff leadership position is also problematic. Under such circumstances, the Coordinating 

Counsel appointment may serve as an end-run around the leadership application process and give

the Coordinating Counsel an undeserved advantage. The process of accepting and considering 

individual applications for leadership, at the same time, has become increasingly popular with 

federal judges managing MDLs and has drastically improved diversity and broadened the 

leadership pipeline in mass torts (and class actions) by putting applicants on more level playing 

field. The proposed rule provides no guidelines for selecting Coordinating Counsel, and if an 

application process is needed to ensure that Coordinating Counsel is properly qualified, then no 

time savings are achieved by the appointment to begin with.

For these reasons, I respectfully suggest eliminating proposed Rule 16.1(b) altogether.

Proposed Rule 16.1(c)(1) – Conferring on Plaintiffs’ Leadership

The issues covered in proposed Rule 16.1(c)(1) relating to the responsibilities of 

plaintiffs’ leadership are the concern of counsel for plaintiffs and the court alone and should not 

be the subject of negotiations with defense counsel. Indeed, it makes sense that the plaintiffs be 

allowed to organize themselves (under the supervision of the judge, as appropriate), and that the 

process not be interfered with or controlled by opposing counsel. For example, in Social Media, 

Judge Gonzalez Rogers appointed leadership first, and, thereafter, it was plaintiffs’ leadership

who submitted a proposed order setting forth the duties and responsibilities of counsel for the 

court to adjust as it saw fit and enter. Further, in my experience, defense counsel are generally in 

agreement and have not taken the position in my cases that they should be allowed to influence 

the plaintiffs’ leadership structure or duties. If the Rule 16.1(c)(1) factors are to be included in 

any proposed rule, they should be issues for the judge and plaintiffs’ leadership to consider only. 

1 The proposed Committee Note acknowledges that the court may designate Coordinating 

Counsel “perhaps more often on the plaintiff side that the defendant side” but considering that 

the hiring of defense counsel is not subject to court approval, it is difficult to imagine a situation 

where Coordinating Counsel would supplant defendants’ chosen counsel for any purpose. 
Page 3 of 3

January 23, 2024

Proposed Rule 16.1(c)(2)-(12) – Suggested Meet and Confer Topics

So long as plaintiffs are represented by appointed counsel, these suggested topics for 

consideration at the outset of the case do not pose a problem in my view. While some topics 

may prove to be premature, such as settlement, or inapplicable depending on the case, including 

them on a list for the parties to consider early on may be useful and beneficial. 

Respectfully submitted, 

/s/ Jennie Lee Anderson
TAB 11
January 29, 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: Proposed Rule 16.1 – Multidistrict Litigation

Members of the Advisory Committee on Civil Rules:

I am a partner at Gibbs Law Group LLP in Oakland, California, and represent 

plaintiffs in complex proceedings with a focus on class and mass actions. Before joining 

Gibbs Law Group, I was an appellate lawyer at the Center for Constitutional Litigation 

in Washington, DC.

My recent court appointments include In re: Social Media Adolescent 

Addiction/Personal Injury Products Liability Litigation, MDL No. 3047 (“Social Media”), 

where I serve on the plaintiffs’ steering committee leadership; In re: Taxotere (Docetaxel) 

Products Liability Litigation, MDL No. 2740, where I serve on the plaintiffs’ steering 

committee; and In re: 3M Combat Arms Earplug Products Liability Litigation, MDL No. 

2885 (“3M”), where I was appointed to the law-and-briefing subcommittee. 

The proposed rule gives relatively little guidance to judges about one of the more important choices that the judge will have to face very early on in the case: appointment 

of case leadership. Although a one-size-fits-all approach would be ill-tailored to the 

reality of MDL practice, it would be preferable to provide courts with more examples 

about how more experienced judges have chosen to approach initial conferences and 

leadership appointments. Rule 16.1(c)(A)’s list of considerations for appointing 

leadership counsel is a welcome addition, but the Committee Notes do not adequately inform courts about the process for appointing leadership counsel and their respective 

strengths and weaknesses. A judge who has not already established her own preferred 

process may look to the Committee Notes for guidance, and find only the following: 

Courts have selected leadership counsel through combinations of formal 

applications, interviews, and recommendations from other counsel and 

judges who have experience with MDL proceedings. 

This guidance could be more helpful and descriptive of processes that are currently 

commonly employed. 

In my experience, some courts require applications to be filed publicly on the 

docket, while others request applications be sent to chambers for in camera review. 

Some courts prefer that plaintiffs’ counsel endeavor to self-organize into committees of 

counsel, which the court can then review and/or modify, while others are reluctant or 

unwilling to consider proposed slates.
In Social Media, for example, Judge Gonzalez Rogers in the Northern District of 

California required each leadership applicant to file an individual application including information on the applicant’s experience, willingness to work cooperatively on time- consuming litigation, and contact information for judges who had appointed the 

applicant to leadership positions. See Social Media, No. 4:22-md-03047-YGR, ECF No. 2 

at 7. The court also permitted, but did not require, applicants to “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 [plaintiffs’ steering committee] 

member.” Id. The applications and attachments of endorsements were both to be filed 

on the public docket. Then, at the initial conference, which was open to all counsel, 

Judge Gonzalez Rogers further requested that leadership applicants write down up to 

three names of attorneys that they would like to work with and recommend that the 

court appoint. 

By contrast, in 3M, Judge Rodgers in the Northern District of Florida required 

counsel to email their leadership applications to chambers for confidential, in camera 

review by a court-appointed panel, which included her, Magistrate Judge Gary Jones, and two experts. In a pretrial order, the court explained the leadership structure, which 

would include lead counsel, liaison counsel, an executive committee, a steering 

committee, and several topic specific subcommittees. See 3M, No. 3:19-md-02885-MCR- GRJ, ECF No. 76. The court also designed a form application that asked each applicant 

to explain, among other things, which positions she was applying for, her experience in 

various facets anticipated to be important in the litigation, and whether there was 

anyone else the applicant felt would be “especially effective in a particular leadership role” with a request to explain such a designation. Id. Judge Rodgers chose to hold oral 

interviews by invitation rather than holding a hearing open to all applicants. 

Ultimately, Judge Rodgers invited over 50 attorneys to interview.

To be sure, no one approach would be best for every MDL. Nor are the examples described here the only sensible approaches—there is much room for judicial creativity 

in this space. That said, an essential purpose of the leadership appointment process is to 

give the court better insight into the attorneys to whom it will entrust the litigation for a 

number of years. If the Committee seeks to offer guidance to judges and practitioners 

unfamiliar with MDL proceedings, or even those looking for options to revise their 

current practices, more specific examples would be instructive and helpful. With that in 

mind, I offer four suggestions for revision to the Committee’s notes. 

First, courts gain valuable insight from plaintiffs’ attorneys when they ask which 

other applicants counsel would recommend to the court. Courts can discern many 

relevant qualifications from applications and interviews, including geographic location, 

years of experience, familiarity with MDL proceedings, number of cases in the MDL, 

and personal demographic characteristics. But less discernable from an application or 

ten-minute interview are whether a person is particularly hardworking, insightful, 

responsive, or collaborative—all key qualities in effective leadership counsel. While not 

all leadership applicants will have that type of insight about all of their peers, some will, 

and that information is important and useful to a court as it considers its leadership 

appointments. The Committee should recommend that the MDL court seek input from 

counsel when appointing leadership.

Second, such information is best submitted in camera or ex parte. Public filings of 

endorsements or recommendations can be less effective as their authors know that their 

recommendations (or omissions) will be public and accessible to anyone with a PACER 

account in perpetuity. The Committee should include in the note that courts sometimes 
seek input from counsel on the public docket or confidentially via ex parte recommendations.

Third, unless there is some case-specific reason to do so, courts should not delay the leadership appointment process—however the court prefers to conduct it—as the 

Rule currently contemplates. It makes little sense to prepare a report recommending a 

procedure for appointing leadership that would be discussed at the initial case conference because, as discussed above, many courts unilaterally decide whether and 

how they will appoint leadership in advance of the initial conference. And this process 

works well: in both cases discussed above, leadership was appointed with little delay— two days after the initial conference in Social Media, and the day after oral interviews in 

3M. The same holds true for many other administrative matters—in my experience, courts feel comfortable issuing preliminary orders governing service, direct filing 

procedures, and interim preservation orders, which may be revised or amended at a 

later time. The Committee should add a note that differentiates between the topics 

courts typically address sua sponte and those which often require counsel’s input. 

Moreover, these latter topics are more appropriate for the court to address with 

appointed leadership than with all of plaintiffs’ counsel or a designated interim 

coordinating counsel.

Finally, courts regularly use a reapplication process to adjust leadership appointments and committee assignments as the case progresses. This ensures that 

there is a predictable hierarchy and assignment of duties at any given point, while 

allowing more attorneys the opportunity to serve at some point during the litigation and assisting the court in adapting leadership appointments as the needs of case 

change. Reappointment also works as a safety valve for the court to make changes to 

leadership to ensure the case is being managed appropriately and that diverse and younger attorneys get substantive work. Additionally, when it becomes apparent that 

attorneys other than those the court appointed are in reality doing the bulk of the work, 

courts have the ability to recognize those attorneys with a formal appointment. In this 

way the court can support diversifying the MDL bar and advancing quality attorneys’ 

careers. There is presently no indication of the possibility for reappointment in the 

proposed rule or the committee notes. The Committee should include in the note that 

courts periodically reassess leadership appointments in light of the needs of the case, 

particularly as the MDL moves closer to trial.

Thank you for considering these suggestions. 

Sincerely,

Andre M. Mura
TAB 12
TO: Advisory Committee on Civil Rules

FROM: Adam E. Polk

RE: Proposed Amendments to Civil Rules 16 and 26

DATE: January 24, 2024

Members of the Advisory Committee on Civil Rules:

My name is Adam Polk. I am a partner with Girard Sharp LLP, a San Francisco-based 

law firm that represents plaintiffs in class actions and other complex cases nationwide. I have 

served as co-lead counsel in class and mass actions in a variety of practice areas, most frequently 

securities and consumer protection/privacy class actions.

Over my years of practice, I have navigated countless privilege logging protocols and 

privilege disputes. Privilege negotiations prove to be the one area of discovery that most requires 

the parties to engage early and think flexibly about how to approach logging. Each negotiation

raises different considerations, but, in line with the proposed amendments, require the parties to 

be flexible in their approach to privilege assertions.

The animating principle from my perspective is that the assertion of privilege must be 

made in such a way that “enable[s] other parties to assess the claim” consistent with Rule 

26(b)(5).

Accordingly, I support the amendments that align with best practices—(1) engage early; 

(2) produce privilege logs on a rolling basis to streamline later logs and avoid new issues being 
To: Advisory Committee on civil Rules

Re: Proposed Amendments to Civil Rules 16 and 26

January 24, 2024

Page 2

raised at the close of discovery; and (3) exercise flexibility when it comes to logging over the life 

of a case.

Below, I address several issues raised in the draft committee notes by reference to real 

world examples.

I. Timing of discussion regarding compliance with Rule 26(b)(5)(A)

Undergirding the proposed amendments to both rules is the need to frontload discussions 

regarding compliance with Rule 26(b)(5). My practice has borne out the effectiveness of 

addressing privilege issues early. Many of the cases that have been most efficiently litigated have 

involved judges with privilege logging requirements incorporated into their standing orders. 

As an example, during one long running case involving the destruction of a tank holding 

cryopreserved human eggs and embryos, the judge overseeing the case included the following 

provision in her standing order:

Privilege Logs. If a party withholds material as privileged under Federal Rule 

26(b)(5) or 45(d)(2)(A), it must produce a privilege log as quickly as possible, but no 

later than fourteen days after its disclosures or discovery responses are due, unless the 

parties stipulate to or the Court sets another date. Privilege logs must contain the 

following: (a) the subject matter or general nature of the document (without 

disclosing its contents); (b) the identity and position of its author; (c) the date it was 

communicated; (d) the identity and position of all addressees and recipients of the 

communication; (e) the document’s present location; and (f) the specific privilege and 

a brief summary of any supporting facts. Failure to furnish this information promptly 

may be deemed a waiver of the privilege or protection.1

That provision served as a starting point for discussions concerning compliance with Rule 

26(b)(5) and streamlined those discussions in the case.

1 https://www.cand.uscourts.gov/wp-content/uploads/judges/corley-jsc/JSC-Standing-Order-Feb-17-2023-docx.pdf. 
To: Advisory Committee on civil Rules

Re: Proposed Amendments to Civil Rules 16 and 26

January 24, 2024

Page 3

Conversely, cases that feature no such provision often also feature resistance to early 

privilege discussions. The failure to develop “rules of the road” early in those cases has led to 

more protracted disputes concerning privilege assertions that have drawn out and languished 

until close to the end of discovery, which at best strips both sides of the ability to use 

discoverable material over the course of the case, and often results in further protracted 

proceedings that are ultimately inconsistent with the objectives of Rule 1.

II. “Rolling production of materials and the nature of the withheld material.”

The draft committee note to proposed amended Rule 26(f)(3)(D) correctly notes that 

“[p]roduction of a privilege log near the close of the discovery period can create serious 

problems.” As a matter of timing, if the first log is produced close to the close of discovery, the 

receiving party is necessarily delayed in identifying documents that may have been improperly 

withheld, which in turn delays the parties’ ability to raise disputes for resolution. The alternatives 

in that scenario—to continue discovery to take informed depositions or conduct follow up to 

prepare for trial, or accepting the record as limited by the sequencing of privilege assertion—are 

usually both unappealing.

In my experience, well-litigated privilege disputes often require a judge to make 

determinations on what is and what is not privileged, given the relevant circumstances. Sampling 

or preliminary rulings from the court will often inform the parties’ negotiations, and streamline 

further privilege disputes. Only periodic production of privilege logs over the course of 

discovery, however, allows the parties to timely raise those disputes, often on an iterative basis 

which involves some early resolutions that will inform later disputes, potentially reducing 
To: Advisory Committee on civil Rules

Re: Proposed Amendments to Civil Rules 16 and 26

January 24, 2024

Page 4

logging burdens by providing the parties with guidance that they can factor into their decisions 

whether or not to assert privilege.

As one example, the defense in the fertility case referenced above withheld

communications between lawyers and public relations firms concerning the tank failure as 

privileged. We disagreed with the assertion of privilege, as we believed there was an overriding 

business reason for the public relations efforts—to continue to sell fertility services and retain 

existing customers. Because the presiding judge had a 14-day deadline to produce privilege logs

after any production (also referenced above), this issue was timely raised, and the court’s ruling 

directed the defense to produce what proved to be key evidence in the case. And, more 

importantly for this discussion, the court’s early ruling on a central privilege assertion gave the 

parties important information as to what was and what was not appropriately withheld as 

privilege. 

III. “Maximum flexibility in designing an appropriate method for identifying the 

grounds for withholding materials.”

Privilege logging in civil litigation is not one size fits all but, like so many things in 

litigation, must be tailored to specific cases. The proposed amendments to both Rule 

16(b)(3)(B)(iv) and Rule 26(f)(3)(D) acknowledge the need for flexibility in asserting privilege, 

and my experience is consistent with that focus.

Some mix of logging conventions, whether document-by-document or categorical, within 

a single case may also make sense under certain circumstances. The model order governing 

electronically stored information in the Northern District of California, for example, provides 

that “[c]ommunications involving trial counsel that post-date the filing of the complaint need not 
To: Advisory Committee on civil Rules

Re: Proposed Amendments to Civil Rules 16 and 26

January 24, 2024

Page 5

be placed on a privilege log.” Corporate defendants frequently seek an expansion on that 

provision to include all communications involving in-house counsel. One possible solution is to 

agree to some form of categorical logging for communications involving in-house counsel 

related to the litigation that post-date the complaint, which other categories of withheld materials 

are subject to document-by-document logging. While an approach along these lines may not be 

suitable in every case, it provides a practical example of the type of flexibility that is needed and 

should be encouraged for the parties to arrive on an appropriate logging protocol up front.

* * *

I want to thank the Advisory Committee for the opportunity to be heard, and for the 

considerable effort the Committee has devoted to the important objective of creating a 

frontloaded, flexible framework for privilege logging. 
TAB 13
Nigh Goldenberg Raso & Vaughn, PLLC T - (612)-656-8002 Washington D.C.

60 S 6th Street F - (202)-792-7927 Minnesota

Floor 2800 W - www.nighgoldenberg.com Kansas

Minneapolis, MN 55402 E - araso@nighgoldenberg.com Florida

Mr. T. Thomas Byron, III, Secretary 01/22/2024

Advisory Committee on Civil Rules

Administrative Office of the United State Courts

One Columbus Circle, NE

Washington, DC 20544

Thank you for allowing me to testify on this very important issue. My name is 

Ashleigh Raso and I am a founding partner at Nigh Goldenberg Raso & Vaughn, a sixattorney law firm with locations across the country. I am located in Minneapolis, Minnesota. 

My colleagues’ comments on the hard work this committee has done and the 

genuine interest in making MDLs more organized and efficient bears repeating. Thank you 

for taking the time to make complex litigation more organized, while educating new MDL 

judges on the best way to proceed. 

I currently serve on five leadership positions, including the Plaintiffs’ Executive 

Committee and the Plaintiffs’ Steering Committee of coordinated actions1

. I also have the 

privilege to serve as acting2 liaison counsel in three of those litigations. The liaison counsel 

position gives me a unique perspective into coordinating and organizing MDLs. Based on 

my experience as liaison counsel I will speak primarily on the issue of designating 

“coordinating counsel”.

I. Coordinating Counsel

I agree that early organization is paramount to coordinating an MDL and supports 

the intent of 28 U.S.C. § 1407. I believe the best and most efficient way to organize an MDL 

is to appoint qualified liaison counsel. 

1 In re Stryker LFIT V40 Femoral Head Prods. Liab. Lit. (17-MD-2768); In re Valsartan NNitrosodimethylamine (NDMA) Contamination Prod. Liab. Lit. (19-MD-2875); In re Zimmer 

M/L taper Hip Prosthesis or M/L Taper Hip Prosthesis with Kinectiv Tech. & Versys Femoral 

Head Prod. Liab. Lit. (18-MD-2859); In re Profemur Hip Implant Prods. Liab. Lit. (21-MD2949); Florida Exactech Coordinated Action (2022-CA-00270). 

2 “Acting” liaison counsel because in Stryker LFIT V40 the position was called 

“Administrative Counsel”. In the Zimmer M/L Taper Litigation I served as both PEC and 

Liaison Counsel. I also serve as state liaison counsel in the Florida Exactech Coordinated 

Litigation.
Nigh Goldenberg Raso & Vaughn, PLLC T - (612)-656-8002 Washington D.C.

60 S 6th Street F - (202)-792-7927 Minnesota

Floor 2800 W - www.nighgoldenberg.com Kansas

Minneapolis, MN 55402 E - araso@nighgoldenberg.com Florida

Some of the tasks I have done as liaison counsel that go beyond basic 

communication with lawyers include: working with experts to put together digestible case 

criteria to ensure meritorious cases are filed, working with defense counsel on best 

practices of serving complaints and discovery, working with the court’s clerk to create a 

“Case Filing Master Manual” to ensure that cases are filed to the judge’s specifications, 

publishing a plaintiffs’-only website where all court orders can be found and discovery may 

be served, helping pro se counsel file and communicate with the court, advising the court 

and the parties about certain data points of the plaintiffs in the litigation (age, jurisdictions 

involved, etc...), and assisting with many other issues that arise. 

It is crucial to appoint a liaison counsel who is most qualified3 and actually wants a 

position that involves high levels of organization and communication. If the transferee

judge can appoint a position before the litigation even begins, three adverse impacts will 

be felt: (1) a premature fight to be appointed coordinating counsel, which may not result in 

the most qualified candidate being appointed; (2) a rush to coordinate leadership

excluding potentially good candidates; (3) confusion regarding authority to make 

decisions on behalf of the litigation; and (4) a lack of diverse candidates being appointed. 

1. Premature Fight to be Appointed Coordinating Counsel

Should the judge choose a designated counsel, it is possible that the coordinated 

counsel will be an attorney in close proximity to the courthouse4, not the most qualified 

person. If the goal is to increase the organization of an MDL and aid first-time MDL judges, 

appointing a qualified, experienced liaison counsel after the first hearing is more important 

than appointing a coordinating counsel before the first hearing. While I am located in 

Minnesota, my appointments for acting liaison counsel have been in Massachusetts, New 

3 Qualified counsel should be highly organized and able to communicate efficiently at all 

levels. Many tasks assigned to liaison counsel are not glamorous and are often overlooked, 

but the liaison counsel position is a vital position to keep the MDL organized. Organization 

becomes even more important when there are a large number of defendants and 

claimants.

4 Historically the liaison counsel practiced in the jurisdiction of the courthouse, however, 

even before COVID-19, liaison counsels were increasingly being appointed from around the 

country based on their skill, not their location. Online tools and virtual hearings have 

increased the ability to organize from different locations and to involve qualified attorneys 

from all areas of the country.
Nigh Goldenberg Raso & Vaughn, PLLC T - (612)-656-8002 Washington D.C.

60 S 6th Street F - (202)-792-7927 Minnesota

Floor 2800 W - www.nighgoldenberg.com Kansas

Minneapolis, MN 55402 E - araso@nighgoldenberg.com Florida

York, and Florida. I’d like to believe I was appointed, and in some cases chosen by my 

colleagues, for my qualifications as liaison counsel, not for my address. 

There are times when coordinating counsel should be selected very carefully. I have 

been contacted numerous times by pro se clients. There may be litigations, like the recent 

Uber Passenger Sexual Assault Litigation, or a coordinated clergy sexual abuse litigation, 

where pro se litigants may reach out to the coordinating counsel in the early days of 

litigation. There are circumstances where special consideration should be given to traumainformed counsel. Likewise, many products impact women or women of color, like in the 

recent hair relaxer litigation or the previous transvaginal mesh litigation. Special 

consideration may be given to appointing the right person to interact with pro se litigants 

in those cases.

2. Rushing to Coordinate May Exclude Good Leadership Candidates 

In line 127 of the advisory committee notes it state, “In some MDL proceedings, 

counsel may be able to organize themselves prior to the initial MDL management 

conference such that designation of coordinating counsel may not be necessary.” 

(Advisory Committee notes Lines 127-131). While informal organization often occurs, the 

potential leadership will have no indication of when the court may appoint coordinating 

counsel. The result will be a rush to organize and coordinate amongst themselves before 

the transferee judge sua sponte appoints coordinating counsel. The rush to coordinate 

quickly may exclude excellent attorneys who may otherwise be unknown to the potential 

leadership and unknown to the court before the first hearing. 

3. Confusion on Who Has Authority to Make Decisions

Section 16.1(c) includes a variety of topics to cover in the first hearing. In order to

speak on these issues, there will need to be a discussion across the “V”. The coordinating 

counsel may not be ultimately chosen to lead the litigation or may not be on leadership at 

all. Agreeing on issues such as “how and when the parties will exchange information about 

the factual bases for their claims and defenses,” or a “proposed plan for discovery,” or 

“pretrial motions” or any number of the other items listed in 16.1.(c) will not carry any weight, 

resulting in wasted time and confusion. 

This is particularly true if coordinating counsel is at odds with the attorneys seeking 

ultimate leadership in the litigation. In fact, if the coordinating counsel is not in agreement 
Nigh Goldenberg Raso & Vaughn, PLLC T - (612)-656-8002 Washington D.C.

60 S 6th Street F - (202)-792-7927 Minnesota

Floor 2800 W - www.nighgoldenberg.com Kansas

Minneapolis, MN 55402 E - araso@nighgoldenberg.com Florida

with a group seeking leadership, defendants may refuse to have these discussions at all 

until a leadership group is appointed.

This lack of actual authority is equally true for defendants. For example, in a case like 

In Re: Valsartan N-Nitrosodimethylamine (NDMA) Contamination Prod. Liab. Lit. where 

there are over thirty defendants, coordinating counsel may be chosen for defendants as 

well, resulting in chaos between the many different law firms representing defendants who 

may have conflicting views on discovery for their clients. This will result in further confusion 

on who has the authority to speak on the issues listed in Rule 16.1(c), wasting the time of 

the court and the parties. 

4. Lack of Diverse Leadership 

In order for the judicial system to be trusted, it is important that the counsel leading 

the litigation look like the plaintiffs and represent a broad array of experiences. Under this 

current proposed rule there is only one appointment that is made before the very first 

hearing. Whether it is intended or not, there will be a fight for that one position. As a result 

of that fight, highly involved and well-known law firms may seek that position, potentially 

resulting in diverse and highly qualified candidates being passed over. 

This is further amplified if the coordinating counsel has any authority or persuasion 

over who is ultimately appointed to leadership. If the coordinating counsel has any say

over who is appointed to leadership, this will be the most highly sought-after position, 

resulting in premature fights, disorganization, and confusion. 

As those who testified before me have pointed out, although there is nothing in this 

rule that suggests that coordinating counsel will serve as leadership going forward, that will 

be the impact felt. There will be a de facto presumption that coordinating counsel will be 

in leadership. 

II. Rule 16.1(c)

Rule 16.1(c) contains many important topics to cover early in the litigation, however, 

the first status conference is too soon for many of these topics. Additionally, there is a 

logistical obstacle as there will be questions regarding who has the authority to speak and 

negotiate on these issues, as discussed above. Any attempt at organizing these items and 
Nigh Goldenberg Raso & Vaughn, PLLC T - (612)-656-8002 Washington D.C.

60 S 6th Street F - (202)-792-7927 Minnesota

Floor 2800 W - www.nighgoldenberg.com Kansas

Minneapolis, MN 55402 E - araso@nighgoldenberg.com Florida

speaking on them with authority could result in conflicting agreements and ultimately 

achieve the exact opposite of what this rule intends to do. 

Instead, if this rule is necessary, I believe it should be centered around the judge’s 

authority and preferences. For example, 

“Before the initial case management conference the transferee judge may enter an agenda 

on the subjects to be covered at the first status conference. The agenda may include the 

following topics: 

(1) Whether leadership structure is necessary, how it should be structured, and 

the duties of leadership, including whether leadership has been agreed upon 

or whether there will be conflicting leadership positions, and if so the judge's 

preference for appointing potential leadership (applications, motions, and/or

interviews); 

(2) Whether the court will stay the pending deadlines in individual actions; 

(3) The handling of the direct filing and pro hac vice status;

(4) Filing procedures in the MDL, including filing on the master dockets versus 

individual case filings;

(5) Whether certain matters will require a Magistrate judge's involvement;

(6) Practice pointers the Judge would like to discuss;

(7) Scheduling of future case management conferences; and

(8) Procedures for scheduling or contacting the court.”

This list is preliminary and may not be necessary, but will help guide the parties and 

the Court on the most pressing issues for the first case management conference. Thank 

you for taking the time to consider my thoughts and I look forward to speaking with you. 

Thank you, 

Ashleigh Raso
TAB 14
1

Testimony of Kate M. Baxter-Kauf, Partner at Lockridge Grindal Nauen P.L.L.P., 

Regarding Privilege Logs

Presented at the February 6, 2024 Civil Rules Hearing

Good morning. I appreciate the opportunity to offer my perspective regarding the proposed 

amendments to Fed. R. Civ. P. 26(f) and 16(b), and to provide any insight that I can for the benefit 

of the committee. My name is Kate Baxter-Kauf, and I am a partner at Lockridge Grindal Nauen 

P.L.L.P., based in Minneapolis, Minnesota. My practice is primarily focused on plaintiffs’-side 

data breach, privacy, and consumer class actions in state and federal courts across the country. I 

currently serve as co-lead counsel in multiple data breach and privacy cases and have worked as 

counsel in dozens of other similar cases, which often involve forensic reports and complicated 

issues related to attorney-client privilege and work product protection. I also currently serve on 

the steering committee of the Sedona Conference Working Group 11 related to Data Security and 

Privacy Liability. As part of my work with the Sedona Conference, I chair a drafting group that is 

updating the previously-published Commentary on Application of Attorney-Client Privilege and 

Work-Product Protection to Documents and Communications Generated in the Cybersecurity 

Context, in which I have worked diligently with attorneys from multiple perspectives to attempt to 

achieve consensus on tough issues related to privilege waiver, when work product is completed in 

anticipation of litigation, and privilege in the case of dual purpose documents and communications.

Practice Context for My Comments

The primary context in which I deal with issues related to attorney-client privilege, workproduct protection, or other privileges (the bank examination privilege, for example) in my practice 

is in large data beach, privacy, or cybersecurity litigation in which a breached entity (and defendant 

in the lawsuit) has completed forensic investigations, either internally or externally, as part of 

incident response or amelioration of the breach, that that entity then seeks to withhold from 

production, along with related communications or topics. These cases are almost entirely brought 

in federal court based on diversity jurisdiction, meaning that the substantive privilege claim is 

evaluated under state law, while work product follows federal common law, and the case 

procedurally operates under the Federal Rules. In my experience, when there are disputes between 

the parties regarding whether particular documents or communications are privileged or otherwise 

subject to protection from disclosure, they usually involve multiple layers, including: (1) whether 

forensic or diagnostic reports related to how the breach occurred or the previous security practices 

of the breached entity are privileged or work product because a lawyer was involved in overseeing 

incident response or report drafting; (2) whether communications with internal non-attorney 

employees (for incident response, remediation, regulatory responses, public communications, or 

compliance, for example) serve a legal or business purpose, and what the predominant purpose is, 

if the answer is “both;” (3) whether an entity waives the privilege or protection when a forensic 

report is completed by a third party or the information is provided to law enforcement or another 

government agency; and (4) the extent to which the information being sought is factual and cannot 
2

be reproduced or otherwise be made available (when withheld on work-product grounds) because 

incident response and computer systems are often ephemeral and otherwise protected documents 

may be the only way for plaintiffs to get necessary evidence to support their factual claims about 

the breach underlying the litigation. The answers to these questions are often highly factually 

intensive and complicated for courts to decide; they also may range from 1-2 privilege log entries 

(for the forensic report itself) to tens or hundreds of thousands of documents withheld (for 

communications related to the public relations decisions surrounding a data breach). Evaluating 

and litigating a privilege log dispute in this arena is often a multistage process that is time intensive, 

expensive, and laborious for the parties and especially courts, and courts are often highly and 

rightfully invested in requiring the parties to narrow disputes as much as possible, given the amount 

of work needed to evaluate a thousands of document privilege dispute on a document-by-document 

basis in camera. 

Amending the Text of Rules 26(f) and 16(b)

The proposed amendments to the language of Rules 26(f) and 16(b) are helpful and likely 

to aid the parties in discussing privilege log completion and in frontloading any disputes about the 

format or timing of logs to be produced. Especially in the types of cases I litigate, the contours of 

what types of forensic documents are permitted to be withheld can be fundamental to the parties’ 

understanding of the scope of discovery in the case, so discussing and resolving issues early 

contributes to judicial efficiency and can lower costs and time for all parties. For example, if a 

defendant who contracted with an outside vendor to complete a forensic report determines that it 

believes that the report may be withheld on the basis of attorney-client privilege or work-product 

protection, the parties and the court are best served by teeing up that dispute early, as its resolution 

may inform the resolution of whether downstream documents (such as communications with 

vendors or non-attorney employees, for example) may also be properly withheld. I do have some 

concerns with the proposed Committee Note for Rule 26(f), which I discuss below. But separate 

from the value of planning for e-discovery early, which benefits all parties and streamlines and 

may eliminate disputes, early discussions of logging documents and communications to be 

withheld on the basis of privilege or another protection is exceptionally helpful as a way to 

encourage discussion of types of documents, such as the forensic reports and communications 

discussed above, for which a dispute may be already ripe and meet and confers to narrow any 

dispute should commence immediately. 

The Proposed Committee Note

While I support the amendments to Rules 26(f) and 16(b), the proposed Committee Note 

to Rule 26(f) is concerning. I outline my concern and suggest some revisions to the text of the 

Committee Note below. 

As an initial matter, the Committee Note for Rule 16(b) accurately captures and highlights 

the value of process and early discussion of issues related to privilege logs and how they fit into 

an overall case management and e-discovery strategy, as discussed in my previous comments. 

Describing “rolling” log production is exceptionally helpful to the parties; I have seen comments 

suggesting the Committee adopt a “tiered” approach that would be much less helpful. The idea 

behind “tiered” logging appears to be that the parties should assess the “importance” of the 

documents being withheld or produced and then log the most important ones first. This sounds 
3

potentially appealing in theory but would not work in practice. As further explained below, the 

party seeking the documents has no way of assessing which documents are the “most important,” 

because they cannot see the documents and do not know which ones are being withheld until after 

a log is produced. This means that the producing party is left to assess “importance” alone, or 

which sources are the “most material,” which is inappropriate, given that the requesting party may 

have a different assessment of what issues are most material in the case and is entitled to prioritize 

discovery based on their own strategy and not that of the producing party. This has the potential 

both to lengthen disputes about privilege and logging as the parties also dispute which documents 

and requests for production are most material to the litigation and then discuss both format and 

content of privilege logs. In addition, “tiered” logging seems to contemplate that almost all 

documents will be reviewed by the producing party before either documents or a privilege log is 

produced, which is likely to exacerbate delay and push disputes later in the litigation, rather than 

achieving the goals outlined by the Committee.

In terms of the draft Committee Note for Rule 26(f), I believe that the Note as drafted may 

unintentionally overemphasize the burdens of completing a compliant privilege log while failing 

to adequately mention the need for the party evaluating a privilege claim to be able to fully 

understand why a document or communication is being withheld. The reason why document-bydocument privilege logs exist and are the default mechanism for compliance with Rule 

26(b)(5)(A), at least in the complex litigation in which I am involved, is because the entry must 

“describe the nature of the documents, communications, or tangible things not produced or 

disclosed . . . in a manner that . . . will enable other parties to assess the claim.” The party seeking 

documents to be produced does not have the benefit of looking at the face of the document to 

assess a privilege or protection claim. In order to assess whether to dispute the withholding of a 

particularly communication, complete information at the outset – without multiple back and forth 

conversations about facial rule or content compliance – is critical to avoiding disputes and 

decreasing the cost, duration, and need for court intervention in privilege disputes.

In my experience, categorical logs merely increase the burden and cost of evaluating 

privilege disputes for the parties, and lengthen and overly complicate privilege disputes for the 

parties, making it harder for the parties to narrow or eliminate disputes and requiring court 

intervention in more instances. When the parties first have to litigate whether the log itself is 

facially compliant with Rule 26(b)(5)(A) so that the party assessing the claim can even determine 

whether a document is privileged or protected and then determine whether the documents being 

withheld are actually subject to a substantive privilege or protection claim, the process for dispute 

resolution is lengthy, tremendously expensive, and incentivizes gaming the system. They also 

have the same concerns as highlighted for tiered logs – namely, that the parties will need to identify 

what the categories of documents being withheld are before determining the format of any log, 

which the responding party cannot do effectively since it cannot review the documents being 

withheld, and which incentivizes pushing logging until much later in discovery when the 

categories of documents to be produced are complete or nearly complete and also may involve 

redoing logs if the parties determine the categories are incomplete or incorrect.

Two cases I worked on highlight my concern in this area. The first, In re Premera Blue 

Cross Customer Data Security Breach Litigation, Case No. 3:15-md-2633-SI (D. Or.), involved 

two separate court decisions a year and a half apart evaluating privilege and work-product claims 

related to forensic reports and related communications stemming from a data breach and incident 
4

response. See 2019 WL 464963, at *7 (D. Or. Feb. 6, 2019); 296 F. Supp. 3d 1230 (D. Or. 2017). 

The parties spent at least a year prior to the first decision meeting and conferring, discussing 

facially compliant logs, and then discussing the proper categories of documents that may be 

withheld for a valid privilege or work-product claim. After each round of meet and confers, 

documents were removed from the log and produced, And after each court decision, thousands of 

documents were de-designated and produced, pushing discovery in the case out farther and 

reducing judicial efficiency while increasing burdens and costs to the parties. This process would 

have only been made worse and more lengthy and expensive by categorical logging, since the 

plaintiffs (the requesting party in this instance) would have had even less information to evaluate 

the defendant’s privilege claim, and the parties would have added an additional layer to a dispute 

process that spanned multiple years. 

Second, the parties litigated multiple disputes arising from logs in In re: Capital One 

Customer Data Security Breach Litigation, Case No. 1:19-md-02915-AJT (E.D. Va.). There are 

numerous useful lessons arising from that litigation, but one that dovetails with the Committee 

Note is as follows: in addition to withholding information otherwise discoverable by claiming that 

the information is privileged or subject to protection as trial-preparation material, Capital One also 

maintained that the information was subject to being withheld on the basis of other privileges, one 

of which was the bank examination privilege. When additional bases for withholding documents 

are claimed, complete and document-by-document logs are crucial to assessing the propriety of 

the clam, and of providing a check against overdesignation. Categorical or tiered logging would 

have made the already-complicated privilege discussions worse by making it even harder for 

plaintiffs to assess the rationale for withholding documents, and would have delayed discovery or 

made compliance with discovery deadlines impossible. 

Finally, the examples identified as issues that the parties ought to discuss related to a 

categorical approach—date ranges for beginning logging or whether communications with 

particular counsel may be excluded—are, in my mind, separate from whether a categorical log that 

fails to provide a listing of each individual document withheld is the default. The Committee is 

correct that these issues may be useful ones for discussion in the context of case management, but 

these issues are best addressed in conjunction with a document-by-document log for those 

documents being withheld for other reasons.

As a result, I would suggest editing the Draft Committee Note for Rule 26(f) as follows:

DRAFT COMMITTEE NOTE

Rule 26(f)(3)(D) is amended to address concerns about application of the requirement in 

Rule 26(b)(5)(A) that producing parties describe materials withheld on grounds of privilege or as 

trial-preparation materials. Compliance with Rule 26(b)(5)(A) can involve very large costs, often 

includesing a document-by-document “privilege log.”

Rule 26(b)(5)(A) was adopted in 1993, and from the outset was intended to recognize the 

need for flexibility. Nevertheless, the rule has not been consistently applied in a flexible manner, 

sometimes imposing undue burdens and sometimes failing to allow parties to properly assess why 

a particular document or communication has been withheld and the propriety of its withholding.
5

This amendment directs the parties to address the question how they will comply with Rule 

26(b)(5)(A) in their discovery plan, and report to the court about this topic. A companion 

amendment to Rule 16(b)(3)(B)(iv) seeks to prompt the court to include provisions about 

complying with Rule 26(b)(5)(A) in scheduling or case management orders.

This amendment also seeks to grant the parties maximum flexibility in designing an 

appropriate method for identifying the grounds for withholding materials. Depending on the nature 

of the litigation, the nature of the materials sought through discovery, and the nature of the privilege 

or protection involved, what is needed in one case may not be necessary in another. No one-sizefits-all approach would actually be suitable in all cases. The parties should discuss mechanisms 

for streamlining logs, such as whether communications between a party and outside litigation 

counsel could be excluded from the listing, or whether, in some cases, a date range might be a 

suitable method of excluding some materials from the listing requirement. All parties should 

endavor to reduce the burden and increase the effectiveness of all parties in complying with Rule 

26(b)(5)(A).

In many some cases, it may be suitable to have the producing party deliver a document-bydocument listing with explanations of the grounds for withholding the listed materials.

In some cases some sort of categorical approach might be effective to relieve the producing 

party of the need to list many withheld documents. For example, it may be that communications 

between a party and outside litigation counsel could be excluded from the listing, and in some 

cases a date range might be a suitable method of excluding some materials from the listing 

requirement. These or other methods may enable counsel to reduce the burden and increase the 

effectiveness of complying with Rule 26(b)(5)(A). But the use of categories calls for careful 

drafting and application keyed to the specifics of the action.

Requiring that discussion of this topic begin at the outset of the litigation and that the court 

be advised of the parties’ plans or disagreements in this regard is a key purpose of this amendment. 

Production of a privilege log near the close of the discovery period can create serious problems. 

Often it will be valuable to provide for “rolling” production of materials and an appropriate 

description of the nature of the withheld material. In that way, areas of potential dispute may be 

identified and, if the parties cannot resolve them, presented to the court for resolution.

Early design of methods to comply with Rule 26(b)(5)(A) may also reduce the frequency 

of claims that producing parties have over-designated responsive materials. Such concerns may 

arise, in part, due to failure of the parties to communicate meaningfully about the nature of the 

privileges and materials involved in the given case. It can be difficult to determine whether certain 

materials are subject to privilege protection, and candid early communication about the difficulties 

to be encountered in making and evaluating such determinations can avoid later disputes.

* * * * * * * * * *

I believe that the edits proposed would capture the sentiment expressed by the Committee 

and also ensure attention to the burdens on a requesting party in assessing privilege and protection 
6

claims. Thank you for the opportunity to provide this testimony to the Committee. I am happy to 

answer any questions the committee might have.

Sincerely, 

Kate M. Baxter-Kauf
TAB 15
No testimony outline or comment was submitted 

by January 23, 2024. 
TAB 16




TAB 17
No testimony outline or comment was submitted 

by January 23, 2024. 
TAB 18
No testimony outline or comment was submitted 

by January 23, 2024. 
TAB 19
1

January 23, 2024

VIA EMAIL TO:

RulesCommittee_Secretary@ao.uscourts.gov

Statement of Roger L. Mandel

Partner, Jeeves Mandel Law Group, P.C.

Before the Committee on Rules of Practice and Procedure

February 6, 2024

Thank you for providing me this opportunity to testify before the Committee 

regarding the proposed Rule 16.1 addressing Multidistrict Litigation. My name is 

Roger Mandel, and I am partner at Jeeves Mandel Law Group, P.C., a four-lawyer 

firm with offices in Tampa-St. Petersburg, Florida, and Fort Worth, Texas. I have 

practiced complex litigation for my entire almost 37-year career, with an emphasis 

on Plaintiffs’ class action work for over 30 years. My testimony is informed by my 

class action experience, including acting as lead and participating counsel in class 

action only MDLs and participating in hybrid class actions involving both class action 

and individual cases. My testimony is also informed by my recent experience at the 

beginning of the ongoing In re Phillips CPAP MDL.

The Committee and the MDL Subcommittee have engaged in a long and 

careful process of preparing multiple drafts of and soliciting extensive commentary 

from stakeholders regarding proposed Rule 16.1. This reflects a commendable intent 

to adopt an MDL rule that implements the purpose of aiding judges in better handling 

the complexities of MDL proceedings while accommodating as much as possible 

stakeholder concerns. 

After participating in extensive discussions with other plaintiff-side 

practitioners and multiple meetings with Subcommittee members and reporters and 

reviewing both plaintiff and defense-side comments and testimony, I believe that a 

revised version of the currently proposed Rule 16.1 and Committee Note can achieve 

the purposes of the proposed rule while ameliorating most stakeholder concerns. I 

thus offer a draft of a revised version which is attached hereto as Exhibit A.

On the plaintiff's side, the concerns overwhelmingly focus on three aspects of 

the current version of the Rule and Committee Note. First, plaintiff’s’ counsel believe 

that most of the topics the Rule suggests should be addressed in an initial 

management conference before the appointment of leadership counsel should await 

discussion until after leadership counsel have been appointed and can offer their 
2

input on those issues.1 Second, Plaintiff’s counsel believe that the appointment of 

coordinating counsel with undefined powers and responsibilities who have not been 

demonstrated through any deliberative process to have the expertise to well 

represent plaintiffs may lead to increased costs and premature and/or ill-advised

orders by courts.2 Third, Plaintiffs’ counsel believe that the currently proposed Rule 

and Committee Note focuses overwhelmingly on product liability MDLs with huge 

numbers of individual plaintiffs, such that it does not sufficiently address the many 

permutations of MDLs, particularly those involving class actions which are

necessarily subject to Fed. R. Civ. P. 23.3

As some Plaintiffs’ side testimony has indicated, these objections could largely 

be resolved by a two-tiered approach to early management conferences. Both

administrative and urgent issues, along with the procedures for appointment of 

leadership counsel, can be addressed in a preliminary conference. However, most 

issues that a transferee court will address in a comprehensive management order can

wait until after the appointment of leadership counsel and a comprehensive

management conference in which leadership counsel take the lead for the parties they 

represent.

To that end, the attached proposed revised rule and committee note provides 

for a preliminary management conference and a subsequent comprehensive 

management conference. At the preliminary management conference, the parties and 

the court will address only objective information about the size, scope, and nature of 

the claims and defenses involved in the MDL and any issues that cannot await 

consideration by the court at the subsequent comprehensive management conference. 

At the comprehensive management conference, the parties (by and through any 

appointed leadership counsel) will address all the issues necessary for issuance of a 

comprehensive management order.

Notably, I have not read anything in the draft Committee Note or heard any 

comments by any members or reporters of the Committee or Subcommittee or read 

any witness testimony explaining why a transferee court cannot wait to enter a 

comprehensive management order until after the appointment of leadership counsel. 

If the transferee court moves expeditiously to appoint leadership counsel, it can 

conduct the comprehensive management conference within a few months after the 

preliminary management conference. In an MDL that will almost undoubtedly last 

multiple years, waiting a few months for entry of a well thought out, comprehensive 

MDL management order is entirely reasonable.

1 See, e.g., Testimony of P. Leigh O’Dell (October 6, 2023); Testimony of A.J. de Bartolomeo (January 

2, 2024); Testimony of Jennifer Scullion (January 2, 2024).

2 See, e.g., Testimony of Jennifer Hoekstra (January 2, 2024); Testimony of Tobi L. Millrod (January 

14, 2024).

3 See, e.g., Testimony of Tobi L. Millrod (January 14, 2024); Testimony of Dena C. Sharp (January 2, 

2024); Testimony of Norman E. Siegel (January 2, 2024).
3

The proposed revised rule changes the name of the counsel who may be 

appointed to aid in preparation for the preliminary management conference from 

“coordinating counsel” to “administrative counsel.” It also sets forth the limited 

circumstances in which they should be appointed and the very limited number of 

topics they will address. This emphasizes the very limited, almost ministerial role 

they will play in the MDL. This serves the purpose of preventing temporary counsel 

appointed on an ad hoc basis from usurping the functions of leadership counsel duly 

appointed after a thoughtful and thorough selection process and, in the case of 

interim class counsel, appointed in compliance with Rule 23(g). These changes should

address the concerns of most Plaintiffs’ counsel regarding the appointment and role 

of temporary counsel in connection with the first management conference.

The proposed revised rule also lists several topics for possible discussion at the 

preliminary management conference not included in the currently proposed version, 

including two which seem fundamental. For example, the current version does not

ask for the parties to provide the court with an objective comprehensive survey of the

cases composing the MDL proceedings or to discuss whether the transferred cases 

should be stayed, in whole or in part, pending entry by the court of a comprehensive 

management order. Further, the current version does not suggest a discussion of the 

possible need for interim evidence preservation orders or for orders regarding service 

of process, particularly regarding foreign defendants. The proposed revised rule does 

list these topics for possible discussion at the preliminary management conference.

The proposed revised committee note addresses the applicability of the 

proposed Rule to the many different types of MDLs, including to MDLs involving 

class actions. Significantly, it instructs that different counsel will likely need to lead 

the class actions from those that lead the individual actions in hybrid MDLs and that 

the selection of interim class counsel must comply with Rule 23(g).

The defense side comments I have reviewed fixate primarily on one issue: the 

supposed need for the transferee court to address early in the MDL the alleged 

problem of “unsupportable claims.”4 I am not aware of any defense comments or 

testimony arguing that a transferee court should not wait until after its appointment

of leadership counsel to enter a comprehensive management order. Nor do I believe 

defense counsel would object to inclusion of the additional topics for possible 

discussion at the preliminary management conference added in the proposed revised 

rule.

Adopting a two-tiered approach will achieve the goals of the proposed Rule 16.1 

while alleviating major stakeholder concerns. The attached proposed revised rule and 

committee note will undoubtedly require significant editing, but I believe using it as 

4 See, e.g., Comment of DRI (October 11, 2023); Comment of LCJ (September 18, 2023).
4

a new starting point will result in a Rule and Committee Note almost everyone can 

live with and even support.

Thank you for your work on the proposed Rule, and I look forward to 

addressing any questions you may have.

Sincerely,

Roger L. Mandel

Roger L. Mandel
EXHIBIT A
1

EXHIBIT A

PROPOSED REVISED RULE 16.1

The following proposed revised Rule 16.1 is not intended to be a finished product. 

Undoubtedly, careful consideration will result in editing which will improve its readability and 

clarity. However, this draft should serve to make clear the two-tiered conference structure proposed 

and the distinctions between them and provide a starting point for drafting a revised version of the 

proposed rule.

Rule 16.1. Multidistrict Litigation 

(a) Initial MDL Management Conferences. After the Judicial Panel on Multidistrict 

Litigation orders the transfer of actions, the transferee court should schedule an initialearly

management conferences to develop a management plan for orderly pretrial activity in the 

MDL proceedings. The preliminary MDL management conference should be held for the 

court to familiarize itself with the size, scope, and nature of the claims and defenses

involved in the MDL and to address any issues the consideration of which should not await 

the subsequent comprehensive MDL management conference. The comprehensive MDL

management conference should be held to develop a comprehensive management plan for 

orderly pretrial activity in the MDL proceedings.

(b) Designation Of CoordinatingAdministrative Counsel For The Preliminary MDL

Management Conference. If the number of attorneys on one or both sides make it unlikely 

the parties can confer Theproductively without such a designation, the transferee court may 

designate coordinatingadministrative counsel to:

(1) assist the court with the preliminary MDL management conference; and 

(2) work with plaintiffs or with defendants to prepare for the preliminary MDL

management conference conference and prepare any report ordered under Rule 

16.1(c).

(c) Preparing A Report For The Initial MDLPreliminary MDLManagement Conference.

The transferee court should order the parties to meet and prepare a report to be submitted 

to the court before the conference begins. The report must address any matter designated 

by the court consistent with the limited purposes of the preliminary MDL management 

conference, which may include any matter addressed in the list below or in Rule 16. The 

report may also address any other matter the parties believe cannot await entry of the

comprehensive MDL management order and thus wish to bring to the court’s attention.

(1) whether leadership counsel should be appointed, and if so:

(A) the procedure for selecting them and whether the appointment should be 

reviewed periodically during the MDL proceedings;

Commented [RM1]: The change of title from 

“Coordinating Counsel” to “Administrative Counsel’ is to 

address concerns that these temporary counsel will have 

excessive authority and an unfair advantage in obtaining 

leadership positions. It also emphasizes the limited nature of 

their duties.
2

(B) the structure of leadership counsel, including their responsibilities and 

authority in conducting pretrial activities;

(C) their role in settlement activities;

(D) proposed methods for them to communicate with and report regularly to the

court and non-leadership counsel; and

(E) any limits on activity by non-leadership counsel.; and

(F) whether, and if so when, to establish a means for compensating leadership counsel;

(2) identifying the number and the types (class or individual) of cases transferred, 

estimating the number of additional cases likely to be filed and transferred to the 

transferee court, identifying all cases in state courts with which the MDL may need 

to be coordinated, summarizing the claims made in the cases, and summarizing the 

likely defenses;

(23) identifying any previously entered scheduling or other orders and stating whether 

they should be vacated or modified;

(4) whether interim orders regarding the preservation of electronically stored 

information and other potentially relevant evidence are necessary, and if so, what 

they should provide;

(5) whether any defendants will be contesting personal jurisdiction and/or whether 

service of process on any foreign defendants would need to be made pursuant to 

the Hague Convention or similar process and whether an order should be entered

requiring defense counsel to accept service of process but providing that doing so 

will not waive any personal jurisdiction or other defenses;

(6) whether the transferred cases and subsequently transferred cases should be stayed, 

including the obligation of defendants to respond to complaints and discovery 

requests, until the entry of a comprehensive MDL management order; and

(7) Any other matters that may require action by the court before the entry of a

comprehensive MDL management order.

(3) identifying the principal factual and legal issues likely to be presented in the MDL 

proceedings;

(4) how and when the parties will exchange information about the factual bases for 

their claims and defenses;

(5) whether consolidated pleadings should be prepared to account for multiple actions 

included in the MDL proceedings; 

Commented [RM2]: This topic is eliminated because it is 

premature to address at a very early stage before the Court 

has a full understanding of the nature of the proceeding and 

before appointment of leadership counsel who have had a 

chance to confer with non-leadership counsel and potentially 

reach an agreement on this topic.

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Commented [RM3]: Note these are all objective facts 

necessary for the court to know that do not require 

Administrative Counsel to take any position on them that 

may differ from the later, controlling position of leadership 

counsel.
3

(6) a proposed plan for discovery, including methods to handle it efficiently;

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

(8) a schedule for additional management conferences with the court;

(9) whether the court should consider measures to facilitate settlement of some or all 

actions before the court, including measures identified in Rule 16(c)(2)(I);

(10) how to manage the filing of new actions in the MDL proceedings;

(11) whether related actions have been filed or are expected to be filed in other courts, 

and whether to consider possible methods for coordinating with them; and

(12) whether matters should be referred to a magistrate judge or a master. 

(d) Initial Preliminary MDLMDL Management Order. After the conference the 

preliminary MDL management conference, the transferee court should enter an initial

MDL management order preliminary MDL management order addressing the issues 

covered at the preliminary MDL management conference matters designated under Rule 

16.1(c)---and any other matters in the court’s discretion which it believes should not await 

the entry of a comprehensive MDL management order. This order controls the course of 

the MDL proceedings until entry of the comprehensive MDL management order the court 

modifies it.

(e) Preparing A Report For The Comprehensive MDL Management Conference. After its 

appointment of leadership counsel or decision not to appoint leadership counsel, the 

transferee court should order the parties (by and through any appointed leadership counsel)

to meet and prepare a report to be submitted to the court before the comprehensive MDL 

management conference begins. 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 report 

may also address any other matter the parties wish to bring to the court’s attention.

(1) identifying the principal factual and legal issues likely to be presented in the MDL 

proceedings;

(2) how and when the parties will exchange information about the factual bases for 

their claims and defenses;

(3) whether consolidated pleadings should be prepared to account for multiple actions 

included in the MDL proceedings; 

(4) a proposed plan for discovery, including methods to handle it efficiently;

Commented [RM4]: Consideration should be given to reordering these topics in a more logical order to go from more 

basic early litigation topics to more complicated later 

litigation topics.
4

(5) whether permanent orders regarding the preservation of electronically stored 

information and other potentially relevant evidence are necessary, and if so, what 

they should provide;

(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. 

(f) Comprehensive MDL Management Order. After the comprehensive MDL management

conference, the transferee court should enter a comprehensive MDL management order 

addressing the matters designated under Rule 16.1(c)---and any other matters in the court’s 

discretion. This order controls the course of the MDL proceedings until the court modifies 

it.

PROPOSED MODIFICATIONS TO THE DRAFT COMMITTEE NOTE

This is not intended to be a comprehensive draft of the Committee Note to the proposed 

revised Rule 16.1. Drafting of the note to best fit the revised rule will take considerable time and 

effort. This effort merely attempts to set forth some of the most important necessary changes.

DRAFT COMMITTEE NOTE

The Multidistrict Litigation Act, 28 U.S.C. § 1407, was adopted in 1968. It empowers the

Judicial Panel on Multidistrict Litigation to transfer one or more actions for coordinated or

consolidated pretrial proceedings, to promote the just and efficient conduct of such actions. The 

number of civil actions subject to transfer orders from the Panel has increased significantly since 

the statute was enacted. In recent years, these actions have accounted for a substantial portion of 

the federal civil docket. 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 framework for the initial 

management of MDL proceedings.

MDL proceedings can vary greatly in nature, although they can generally be divided into 

three types: proceedings consisting entirely of class actions (“Class MDLs’) (e.g., antitrust, data 

breach, federal statutory consumer causes of actions, and state deceptive trade practices), 

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5

proceedings consisting entirely of individual actions(“Individual MDLs”) (e.g., defective products 

allegedly causing personal and/or economic damages), and proceedings consisting of both class 

and individual actions (“Hybrid MDLs”). They can also vary greatly in size, ranging from less 

than ten class actions against only one defendant to scores of class actions and tens or even 

hundreds of thousands of individual claims against multiple defendants.

Consequently, Nnot all MDL proceedings present the type of management challenges this 

rule addresses. 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. In both MDL proceedings and other multiparty litigation, the 

Manual for Complex Litigation also may be a source of guidance.

Rule 16.1(a). Rule 16.1(a) recognizes that the transferee judge regularly schedules anone 

or more initial MDL management conferences soon after the Judicial Panel transfer occurs to 

develop a management plan for the MDL proceedings. Thatese initialearly MDL management 

conference ordinarily would not be the only management conference held during the MDL 

proceedings. Although holding an initialearly MDL management conferences in MDL 

proceedings is not mandatory under Rule 16.1(a), early attention to the matters identified in Rules

16.1(c) and (e) may be of great value to the transferee judge and the parties.

This rule sets forth a two-tiered approach to MDL management conferences. At the 

preliminary MDL management conference, the transferee court and the parties should address only 

provision of information to the court, a possible stay of the transferred actions, the need to address 

any scheduling orders previously entered in the transferred actions, appointment of leadership 

counsel, and any other issues that cannot await consideration until the entry of acomprehensive 

MDL management order. At the comprehensive management conference, the transferee court and 

the parties should address all issues necessary for entry of a comprehensive management order.

Rule 16.1(b). Rule 16.1(b) recognizes the court may designate coordinating administrative 

counsel – perhaps more often on the plaintiff than the defendant side – to ensure effective and 

coordinated discussion and to provide an informative report for the court to use during the 

preliminary initial MDL management conference.

While there is no requirement that the court designate coordinatingadministrative counsel, 

the court should consider whether such a designation could facilitate the organization and 

management of the action at the initial MDL management conference preliminary MDL 

management conference. The court may designate coordinatingadministrative counsel to assist the 
6

court before appointing leadership counsel. In some MDL proceedings, counsel may be able to 

organize themselves prior to the preliminary MDL management conference initial MDL 

management conference such that the designation of coordinatingadministrative counsel may not 

be necessary.

 

Rule 16.1(c). The court ordinarily should order the parties to meet to provide a report to 

the court about the matters designated in the court’s Rule 16.1(c) order prior to the initial MDL 

management conference preliminary MDL management conference. This should be a single report, 

but it may reflect the parties’ divergent views on these matters. The court may select which matters

listed in Rule 16.1(c) or Rule 16 should be included in the report submitted to the court, and may

also include any other matter, the court or the parties believe cannot await the entry of the 

comprehensive MDL management order whether or not listed in those rules. Rules 16.1(c) and 16 

provides a series of prompts for the court andwhich do not constitute a mandatory checklist for the 

transferee judge to follow. Experience has shown, however, that the matters identified in Rule 

16.1(c)(1)-(126) are often important to the very early management of MDL proceedings. In 

addition to the matters the court has directed counsel to address, the parties may choose to discuss 

and report about other matters that they believe the transferee judge should address at the

preliminary MDL management conference the initial MDL management conference.

Rule 16.1(c)(1). Appointment of leadership counsel is not universally needed in MDL

proceedings. But, to manage the MDL proceedings, the court may decide to appoint leadership

counsel. This provision calls attention to a number ofseveral topics the court might consider if

appointment of leadership counsel seems warranted.

The first is the procedure for selecting such leadership counsel, addressed in subparagraph 

(A). There is no single method that is best for all MDL proceedings. The transferee judge has a 

responsibility in the selection process to ensure that the lawyers appointed to leadership positions 

are capable and experienced and that they will responsibly and fairly represent plaintiffs, keeping 

in mind the benefits of different experiences, skill, knowledge, geographical distributions, and 

backgrounds. Courts have considered the nature of the actions and parties, the qualifications of 

each individual applicant, litigation needs, access to resources, the different skills and experience 

each lawyer will bring to the role, and how the lawyers will complement one another and work 

collectively. In selecting leadership counsel for the class actions in Class and Hybrid MDLs, the 

court must comply with Federal Rule of Civil Procedure 23(g). In Hybrid MDLs, leadership 

counsel should typically include both counsel who represent the interests of the class actions and 

counsel who represent the interests of the individual actions due to the conflicts of interest between

the members of the classes and the individual plaintiffs that may potentially arise.

Individual MDLs and the individual cases in Hybrid MDLs 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. For example, 
7

in some 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 differences into account in making leadership appointments.

Courts have selected leadership counsel through combinations of formal applications,

interviews, and recommendations from other counsel and judges who have experience with MDL 

proceedings. 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). The court should not have any presumption in 

favor of appointing administrative counsel as leadership counsel. The court will typically appoint 

as administrative counsel attorneys already known to it or recommended to it by other judges or 

who appear qualified based on online research. Leadership counsel, on the other hand, should be 

chosen taking into consideration all relevant criteria, including those discussed above, as 

demonstrated through the selection process ordered by the court. The appointed administrative 

counsel may not be the counsel most qualified for leadership positions. In the case of Class MDLs 

and Hybrid MDLs, the appointment of leadership for the class actions is controlled by Federal 

Rule of Civil Procedure 23(g), which provides for the appointment of interim class counsel to act 

on behalf of a putative class before the class certification determination and requires, in the case 

of multiple applicants, appointment by the court of the counsel best able to represent the interests 

of the class as determined by consideration of specified criteria. 

The rule also calls for a report to the court on whether appointment to leadership should be 

reviewed periodically. Periodic review can be an important method for the court to manage the 

MDL proceeding.

In some MDL proceedings it may be important that leadership counsel be organized into

committees with specific duties and responsibilities. Subparagraph (B) of the rule therefore

prompts counsel to provide the court with specifics on the leadership structure that should be

employed. 

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. 

Even in large MDL proceedings, the question whether the parties choose to settle a claim 

constitutes is just that – a decision to be made by those particular parties. Nevertheless, leadership 

counsel ordinarily play a key role in communicating with opposing counsel and the court about 

settlement and facilitating discussions about resolution. It is often important that the court be 

regularly apprised of developments regarding potential settlement of some or all actions in the 

MDL proceeding. In its supervision of leadership counsel, the court should make every effort to 

ensure that leadership counsel’s participation in any settlement process is appropriate.
8

One of the important tasks of leadership counsel is to communicate with the court and with 

non-leadership counsel as proceedings unfold. Subparagraph (D) directs the parties to report how 

leadership counsel will communicate with the court and non-leadership counsel. In some instances, 

the court or leadership counsel have created websites that permit non-leadership counsel to monitor 

the MDL proceedings, and sometimes online access to court hearings provides a method for 

monitoring the proceedings.

Another responsibility of leadership counsel is to organize the MDL proceedings in accord 

with the court’s management order under Rule 16.1(df). In some MDLs, there may be tension 

between the approach that leadership counsel takes in handling pretrial matters and the preferences 

of individual parties and non-leadership counsel. As subparagraph (E) recognizes, it may be 

necessary for the court to give priority to leadership counsel’s pretrial plans when they conflict 

with initiatives sought by non-leadership counsel. The court should, however, ensure that nonleadership counsel have suitable opportunities to express their views to the court, and take care not 

to interfere with the responsibilities non-leadership counsel owe their clients.

Finally, subparagraph (F) addresses whether and when to establish a means to compensate 

leadership counsel for their added responsibilities. Courts have entered orders pursuant to the 

common benefit doctrine establishing specific protocols for common benefit work and expenses. 

But it may be best to defer entering a specific order until well into the proceedings, when the court 

is more familiar with the proceedings.

Rule 16.1(c)(2). Effective management of a MDL proceeding requires the transferee court 

to have a detailed understanding of the nature, size, and scope of the proceedings before it and how

they are likely to change as the MDL moves forward. Obtaining a report from the parties providing 

this information at the preliminary MDL management conference will facilitate the court’s

understanding and ability to effectively manage the MDL.

Rule 16.1(c)(23). When multiple actions are transferred to a single district pursuant to 28

U.S.C. § 1407, those actions may have reached different procedural stages in the district courts

from which cases were transferred (“transferor district courts”). In some, Rule 26(f) conferences

may have occurredoccurred, and Rule 16(b) scheduling orders may have been entered. Those 

scheduling orders are likely to vary. Managing the centralized MDL proceedings in a consistent 

manner may warrant vacating or modifying scheduling orders or other orders entered in the 

transferor district courts, as well as any scheduling orders previously entered by the transferee 

judge.

Rule 16.1(c)(3). 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 discovery, and certain legal issues should be addressed through early motion 

practice.
9

Rule 16.1(c)(4). In complex litigation of the type typically involved in MDLs, the parties 

often and with good reason will have concerns that other parties will deliberately or inadvertently 

destroy, alter, or fail to preserve electronically stored information and other potentially relevant

evidence. Loss of relevant evidence can potentially have a dramatic negative effect on a party’s 

ability to prosecute or defend an action. Parties typically handle this by sending preservation letters 

to the other side, but the demands contained in those letters are not binding. Accordingly, where 

such concerns legitimately exist, binding preservation orders from the court may be necessary, 

including interim orders very early in the litigation that will govern until leadership counsel have 

been appointed and the parties have had time to research the preservation issues and formulate 

reasonable and effective preservation protocols. Experience has shown that in certain MDL 

proceedings an exchange of information about the factual bases for claims and defenses can 

facilitate efficient management. 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.

The level of detail called for by such methods should be carefully considered to meet the

purpose to be served and avoid undue burdens. Whether early exchanges should occur may depend 

on a number of factors, including the types of cases before the court.1 And the timing of these 

exchanges may depend on other factors, such as whether motions to dismiss or other early matters 

might render the effort needed to exchange information unwarranted. Other factors might include 

whether there are legal issues that should be addressed (e.g., general causation or preemption) and 

the number of plaintiffs in the MDL proceeding.

Rule 16.1(c)(5). In some MDLs questions may exist as to whether the courts from which

the cases were transferred had personal jurisdiction over one or more defendants, particularly 

foreign defendants. Service of process on foreign defendants through the Hague Convention or a

similar process may be time consuming, difficult, and expensive. The plaintiffs in many of the 

transferred cases may still be trying to obtain service on one or more of the defendants and

plaintiffs in subsequently filed cases will have to do so. Out of concern for possible waiver of 

personal jurisdiction or similar defenses, counsel for defendants may be reluctant to accept service 

on behalf of their clients without a court order providing for non-waiver. An early order in the 

MDL addressing these issues can often prevent the needless expenditure of significant time and 

resources merely to achieve service of process.For case management purposes, some courts have 

required consolidated pleadings, such as master complaints and answers in addition to short form 

complaints. Such consolidated pleadings may be useful for determining the scope of discovery and 

may also be employed in connection with pretrial motions, such as motions under Rule 12 or Rule 

56. 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. Decisions regarding whether to use master pleadings can have significant 

1

The Standing Committee removed the next sentence, “For example, it is widely agreed that discovery from 

individual class members is often inappropriate in class actions, but with regard to individual claims in MDL 

proceedings exchange of individual particulars may be warranted,” from the Committee Note. 

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10

implications in MDL proceedings, as the Supreme Court noted in Gelboim v. Bank of America 

Corp., 574 U.S. 405, 413 n.3 (2015).

Rule 16.1(c)(6). By the time cases are transferred by the JPML, the deadlines for

defendants to respond to complaints in the transferred cases may have already passed or be 

looming. Discovery may have been served in those cases and response dates may have already 

passed or be looming. After transfer, parties may wish to aggressively pursue the cases, including 

proceeding with discovery. Allowing the cases to proceed in whole or part may be appropriate in 

some instances. In other instances, it may be advisable to stay the transferred cases in whole or in 

part until the court has entered the comprehensive MDL management order. This issue will almost 

always need to be addressed as early in the MDL as possible.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.

Rule 16.1(c)(7). This catch-all provision merely makes clear that the items listed in Rule 

16.1(c)(1)-(6) are not exclusive and that the court and the parties can and should address any other 

matters the court or the parties believe may require action by the court before the entry of a 

comprehensive MDL management order. However, issues that can wait for the entry of a

comprehensive MDL management order should not be addressed at the preliminary MDL 

management conference because such issues should be addressed only by leadership counsel duly 

appointed by the court.Early attention to likely pretrial motions can be important to facilitate

progress and efficiently manage the MDL proceedings. The manner and timing in which certain

legal and factual issues are to be addressed by the court can be important in determining the most

efficient method for discovery.

Rule 16.1(c)(8). The Rule 16.1(a) conference is the initial MDL management conference. 

Although there is no requirement that there be further management conferences, courts generally 

conduct management conferences throughout the duration of the MDL proceedings to effectively

manage the litigation and promote clear, orderly, and open channels of communication between

the parties and the court on a regular basis.

Rule 16.1(c)(9). Whether or not2the court has not appointed leadership counsel, it may be 

that judicial assistance could facilitate the settlement of some or all actions before the transferee

judge. Ultimately, the question whether parties reach a settlement is just that – a decision to be

made by the parties. But as recognized in Rule 16(a)(5) and 16(c)(2)(I), the court may assist the

parties in settlement efforts. In MDL proceedings, in addition to mediation and other dispute

resolution alternatives, the court’s use of a magistrate judge or a master, focused discovery orders, 

timely adjudication of principal legal issues, selection of representative bellwether trials, and 

coordination with state courts may facilitate settlement.

2

The original phrasing of “Even if” was changed to “Whether or not” by the Standing Committee. 
11

Rule 16.1(c)(10). Actions that are filed in or removed to federal court after the Judicial

Panel has created the MDL proceedings are treated as “tagalong” actions and transferred from the 

district where they were filed to the transferee court.

When large numbers of tagalong actions are anticipated, some parties have stipulated to

“direct filing” orders entered by the court to provide a method to avoid the transferee judge

receiving numerous cases through transfer rather than direct filing. If a direct filing order is

entered, it is important to address matters that can arise later, such as properly handling any

jurisdictional or venue issues that might be presented, identifying the appropriate transferor district 

court for transfer at the end of the pretrial phase, how time limits such as statutes of limitations 

should be handled, and how choice of law issues should be addressed.

Rule 16.1(c)(11). On occasion there are actions in other courts that are related to the MDL 

proceedings. Indeed, a number of state court systems (e.g., California and New Jersey) have 

mechanisms like § 1407 to aggregate separate actions in their courts. In addition, it may sometimes 

happen that a party to an MDL proceeding may become a party to another action that presents 

issues related to or bearing on issues in the MDL proceeding. 

The existence of such actions can have important consequences for the management of the 

MDL proceedings. For example, avoiding overlapping discovery is often important. If the court is 

considering adopting a common benefit fund order, consideration of the relative importance of the 

various proceedings may be important to ensure a fair arrangement. It is important that the MDL 

transferee judge be aware of whether such proceedings in other courts have been filed or are 

anticipated.

Rule 16.1(c)(12). MDL transferee judges may refer matters to a magistrate judge or a

master to expedite the pretrial process or to play a part in settlement negotiations. It can be valuable 

for the court to know the parties’ positions about the possible appointment of a master before 

considering whether such an appointment should be made. Rule 53 prescribes procedures for 

appointment of a master.

Rule 16.1(d). Effective and efficient management of MDL proceedings may benefit from

entry of a preliminary MDL management order. This order likely will address whether the 

transferred actions are stayed, in whole or in part, pending the entry by the court of a 

comprehensive MDL management order. This order may also provide the procedures and criteria

for selection of leadership counsel as well as setting forth the relevant roles and responsibilities of 

leadership and non-leadership counsel. Because a comprehensive MDL management order must 

await the appointment and input of leadership counsel, the preliminary MDL management order 

should provide for the selection process to move as quickly as possible consistent with the selection 

process and the likely number of applicants for leadership positions. The order should also address 

any matters which the court believes need resolution before it can enter a comprehensive MDL

management order.
12

Rule 16.1(ce). The court ordinarily should order the parties to meet to provide a report to 

the court about the matters designated in the court’s Rule 16.1(ce) order prior to the

initialcomprehensive MDL management conference. This should be a single report, but it may 

reflect the parties’ divergent views on these matters. The court may select which matters listed in 

Rule 16.1(ce) or Rule 16 should be included in the report submitted to the court, and may also 

include any other matter, whether or not listed in those rules. Rules 16.1(ec) and 16 provide a series 

of prompts for the court and do not constitute a mandatory checklist for the transferee judge to 

follow. Experience has shown, however, that the matters identified in Rule 16.1(ce)(1)-(112) are 

often important to the management of MDL proceedings. In addition to the matters the court has 

directed counsel to address, the parties may choose to discuss and report about other matters that 

they believe the transferee judge should address at the initiacomprehensivel MDL management

conference.

Rule 16.1(ec)(31). 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 discovery, and certain legal issues should be addressed through early motion 

practice.

Rule 16.1(ec)(42). Experience has shown that in certain MDL proceedings an exchange of 

information about the factual bases for claims and defenses can facilitate efficient management. 

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.

The level of detail called for by such methods should be carefully considered to meet the

purpose to be served and avoid undue burdens. Whether early exchanges should occur may depend 

on a number of factors, including the types of cases before the court. And the timing of these 

exchanges may depend on other factors, such as whether motions to dismiss or other early matters 

might render the effort needed to exchange information unwarranted. Other factors might include 

whether there are legal issues that should be addressed (e.g., general causation or preemption) and 

the number of plaintiffs in the MDL proceeding.

Rule 16.1(ec)(53). For case management purposes, some courts have required consolidated

pleadings, such as master complaints and answers in addition to short form complaints. Such

consolidated pleadings may be useful for determining the scope of discovery and may also be

employed in connection with pretrial motions, such as motions under Rule 12 or Rule 56. 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. 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).
13

Rule 16.1(ec)(64). 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.

Rule 16.1(e)(5). For the same reasons explained in connection with, Rule 16.1(c)(4) 

regarding interim orders regarding preservation of electronically stored information and other 

potentially relevant evidence, the transferee court may need to consider entry of permanent 

preservation orders.

Rule 16.1(ce)(67). Early attention to likely pretrial motions can be important to facilitate

progress and efficiently manage the MDL proceedings. The manner and timing in which certain

legal and factual issues are to be addressed by the court can be important in determining the most

efficient method for discovery.

Rule 16.1(ce)(78). The Rule 16.1(a) conferences isare the initial MDL management 

conferences. Although there is no requirement that there be further management conferences, 

courts generally conduct management conferences throughout the duration of the MDL 

proceedings to effectively manage the litigation and promote clear, orderly, and open channels of 

communication between the parties and the court on a regular basis.

Rule 16.1e(c)8(9). Whether or not the court has not appointed leadership counsel, it may 

be that judicial assistance could facilitate the settlement of some or all actions before the transferee

judge. Ultimately, the question whether the parties reach a settlement is just that – constitutes a 

decision to be made by the parties. But as recognized in Rule 16(a)(5) and 16(c)(2)(I), the court 

may assist the parties in settlement efforts. In MDL proceedings, in addition to mediation and other 

dispute resolution alternatives, the court’s use of a magistrate judge or a master, focused discovery

orders, timely adjudication of principal legal issues, selection of representative bellwether trials,

and coordination with state courts may facilitate settlement.

Rule 16.1(ec)(910). Actions that are filed in or removed to federal court after the Judicial

Panel has created the MDL proceedings are treated as “tagalong” actions and transferred from the 

district where they were filed to the transferee court.

When large numbers of tagalong actions are anticipated, some parties have stipulated to

“direct filing” orders entered by the court to provide a method to avoid the transferee judge

receiving numerous cases through transfer rather than direct filing. If a direct filing order is

entered, it is important to address matters that can arise later, such as properly handling any

jurisdictional or venue issues that might be presented, identifying the appropriate transferor district 

court for transfer at the end of the pretrial phase, how time limits such as statutes of limitations 

should be handled, and how choice of law issues should be addressed.

Rule 16.1(ce)(101). On occasion there are actions in other courts that are related to the

MDL proceedings. Indeed, a number ofseveral state court systems (e.g., California, and New 
14

Jersey and Texas) have mechanisms like § 1407 to aggregate separate actions in their courts. In 

addition, it may sometimes happen that a party to an MDL proceeding may become a party to 

another action that presents issues related to or bearing on issues in the MDL proceeding. 

The existence of such actions can have important consequences for the management of the 

MDL proceedings. For example, avoiding overlapping discovery is often important. If the court is 

considering adopting a common benefit fund order, consideration of the relative importance of the 

various proceedings may be important to ensure a fair arrangement. It is important that the MDL 

transferee judge be aware of whether such proceedings in other courts have been filed or are 

anticipated.

Rule 16.1(ce)(121). MDL transferee judges may refer matters to a magistrate judge or a

master to expedite the pretrial process or to play a part in settlement negotiations. It can be valuable 

for the court to know the parties’ positions about the possible appointment of a master before 

considering whether such an appointment should be made. Rule 53 prescribes procedures for 

appointment of a master.

Rule 16.1(df). Effective and efficient management of MDL proceedings benefits from a

comprehensive management order. A comprehensive management order need not address all 

matters designated under Rule 16.1(ce) if the court determines the matters are not significant to 

the MDL proceedings or would better be addressed at a subsequent conference. There is no 

requirement under Rule 16.1 that the court set specific time limits or other scheduling provisions 

as in ordinary litigation under Rule 16(b)(3)(A). Because active judicial management of MDL 

proceedings must be flexible, the court should be open to modifying its initial comprehensive MDL

management order in light ofconsidering subsequent developments in the MDL proceedings. Such 

modification may be particularly appropriate if leadership counsel were appointed after the initial 

management conference under Rule 16.1(a).
TAB 20
Lauren G. Barnes lauren@hbsslaw.com ATTORNEYS AT LAW

HAGENS BERMAN SOBOL SHAPIRO LLP

1 FANEUIL HALL SQUARE, 5TH FLOOR

BOSTON, MA 02109

hbsslaw.com

(617) 475-1957 phone (617) 482-3003 fax

SEATTLE BERKELEY BOSTON CHICAGO LOS ANGELES NEW YORK PHOENIX SAN DIEGO LONDON

February 6, 2024

SUBMITTED ELECTRONICALLY

RulesCommittee_Secretary@ao.uscourts.gov

Rules Committee Secretary

Administrative Office of the United States Courts

Thurgood Marshall Federal Judiciary Building

One Columbus Circle, NE, Room 7-240

Washington, DC 20544

Re: Proposed New Federal Rule of Civil Procedure 16.1 – Multidistrict Litigation

Dear Committee Secretary and Members,

My name is Lauren Barnes and I am a Partner in the Boston office of Hagens Berman Sobol 

Shapiro LLP. I thank the Committee for allowing me to address the proposed creation of FRCP 

16.1.

1 I appreciate the hard work that has gone into examining the issues this Rule seeks to 

address and into preparing the Rule. I write primarily to encourage revisions to address the 

presence of class cases in MDLs.

My practice for the last nearly twenty years has focused on pharmaceutical marketing and 

antitrust litigation, alleging unlawful and/or anticompetitive conduct by pharmaceutical 

manufacturers and seeking recovery on behalf of private and public purchasers in complex

litigation. Members of my office and I have served as lead or co-lead counsel in multiple such 

cases, and they are almost exclusively class actions. Sometimes, these cases are coordinated in 

an MDL with personal injury and other actions, as in MDL 1596: In re Zyprexa Products 

Liability Litigation; more often, though, these cases, to the extent that they are formally 

coordinated as an MDL, are brought together with other class cases and opt-outs from the class 

cases, as in MDL 2966: In re Xyrem (Sodium Oxybate) Antitrust Litigation. (And sometimes, 

these cases are coordinated in a single district without the creation of an MDL, such as in In re 

HIV Antitrust Litigation before Judge Edward Chen in the Northern District of California.)

Most of our cases, even when formally coordinated in MDL proceedings, raise only or primarily 

class, rather than mass tort, issues. MDL statistics suggest that more than half of MDLs are like 

this: of the currently pending MDLs, approximately 60% of them have never included more than 

100 actions (and approximately 50% have included 50 or fewer total actions).

2

1 The views expressed here are my own and not necessarily those of my partners or my firm.

2 MDL Statistics Report – Distribution of Pending MDL Dockets by Actions Pending, dated Feb. 1, 2024, available 

at chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.jpml.uscourts.gov/sites/jpml/files/

Pending_MDL_Dockets_By_Actions_Pending-February-1-2024.pdf. 
February 6, 2024

Page 2

Class cases have unique procedural and substantive characteristics. For example, Rule 23 

requires the appointment of class counsel to “represent the best interests of the class.” Fed. R. 

Civ. P. 23(g) advisory committee’s note to 2003 amendments. This “means the primary 

obligation of counsel is to the class rather than to any individual members of it,” which “may be 

different from the customary obligations of counsel to individual clients.” Id.

3 Given these 

heightened duties, Rule 23 provides a specific framework for the selection of class counsel,

identifying what a court must consider and what it may consider. There are no such rules 

governing the selection and duty of leadership in non-class cases, where lawyers continue to owe 

duties to individual clients.

Newly proposed Rule 16.1 appears aimed at MDLs on the other end of the spectrum from these 

primarily class cases: those mass tort cases comprising hundreds or thousands of individual, nonclass actions. Under the current drafting of proposed Rule 16.1, though, all MDLs would be 

treated the same. While the new Rule is framed as permissive, we know it is human nature to 

search for nails when equipped with a hammer. 

I encourage the Committee to consider revising the proposed Rule and Note to state that it does 

not apply to MDL proceedings made up primarily or exclusively of class actions. Alternatively, I 

propose the following changes to the current text of Rule 16.1 and its Note to turn this hammer 

into a scalpel.

4

• Explicitly cross-reference Rule 23(g) in Rule 16.1(b) and (c)(1)(B) and the Note as a 

means of ensuring courts consider the impact of class actions within an MDL and the 

different rules and standards that may apply to them.

Rule 16.1(b):

The transferee court may designate coordinating counsel to: (1) assist the 

court with the conference; and (2) work with plaintiffs or with defendants 

to prepare for the conference and prepare any report ordered under Rule 

16.1(c). Coordinating counsel is not a substitute for class counsel and the 

requirements of Rule 23.

Note to Rule 16.1(b):

While there is no requirement that the court designate coordinating 

counsel, the court should consider whether such a designation could

facilitate the organization and management of the action at the initial 

MDL management conference. The court may designate coordinating 

3 The Note likewise acknowledges that because of class counsel’s duty to the class as a whole, rather than to 

individual clients, “class representatives do not have an unfettered right to ‘fire’ class counsel” nor can they “command class counsel to accept or reject a settlement proposal.” Id.

4 Some of these suggestions mirror those proposed by Dena Sharp in her January 2, 2024, submission to this 

Committee.
February 6, 2024

Page 3

counsel to assist the court before appointing leadership counsel, though 

coordinating counsel is not a substitute for class counsel and the 

requirements of Rule 23, to the extent that Rule 23 applies to one or more 

cases within the MDL, and thus it may not be appropriate to designate 

coordinating counsel in MDLs containing multiple and/or primarily class 

cases. In some MDL proceedings, counsel may be able to organize 

themselves prior to the initial MDL management conference such that the 

designation of coordinating counsel may not be necessary.

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 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.

• Specify that as to class cases, the role of coordinating counsel is limited to purely 

ministerial duties pending appointment of class counsel (interim or final) under Rule 

23(g). As such, a report prepared by coordinating counsel should not address the topics 

identified in Rule 16.1(c)(1), (4)-(9), and (12) as to class cases.

• Clarify the differences between a consolidated class complaint and master MDL 

pleadings.

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 supersedes individual class action complaints falling with 

the class or classes defined in the consolidated complaint. Decisions 
February 6, 2024

Page 4

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 for considering these suggestions.

Sincerely,

Lauren Barnes

LB
TAB 21
No testimony outline or comment was submitted 

by January 23, 2024. 
TAB 22
KELLIE LERNER

212 980 7406 TEL 

KLERNER@ROBINSKAPLAN.COM

212 980 7400 TEL

212 980 7499 FAX

ROBINSKAPLAN.COM

1325 AVENUE OF THE AMERICAS

SUITE 2601

NEW YORK, NY 10019

January 24, 2024

VIA EMAIL

RulesCommittee_Secretary@ao.uscourts.gov

Advisory Committee on Civil Rules 

Administrative Office of the United States Courts 

One Colombus Circle, NE 

Washington, DC 20544

Dear Members of the Advisory Committee, 

Thank you for the opportunity to comment on proposed Rule 16.1. I would like to also 

thank Alexandra S. Epstein, who assisted me with the preparation of this testimony. I am a 

Partner and Co-Chair of the Antitrust and Trade Regulation Practice Group at Robins Kaplan 

LLP. Over the last two decades, I have represented clients in numerous antitrust class actions, 

including in multidistrict litigation (“MDL”). I currently hold leadership positions in various

class actions, including BCBSM, Inc. v. Vyera Pharmaceuticals, LLC et al., No. 21-cv-01884

(S.D.N.Y.), In re Merck Mumps Vaccine Antitrust Litigation, No. 12-cv-03555 (E.D. Penn.), and 

Sterk, et al. v. The Bank of Nova Scotia, et al., No. 20-cv-11059 (D.N.J.). Most recently, I was

appointed Interim Co-Lead Counsel in both In Re Axon VieVu Antitrust Litigation, No. 23-cv07182 (D.N.J.) and In re Fragrance End-User Plaintiffs Antitrust Litigation, No. 23-cv-16127

(D.N.J.). I also currently serve as President of the Committee to Support the Antitrust Laws 

(COSAL), which promotes and supports the enactment, preservation, and enforcement of a 

strong body of antitrust laws in the United States. My testimony today is on behalf of myself, as 

a member of the private antitrust bar, as well as in my capacity as COSAL’s President.

MDLs provide a forum for the adjudication of a wide variety of claims, which range from 

products liability to mass torts to price-fixing. Importantly, MDL proceedings encompass actions 

brought by many individuals based on the same alleged conduct but with different claims (i.e., 

mass torts involving personal injury claims) on the one hand, and consolidated class actions on 

the other (along with other types of non-mass-tort actions). Although mass torts may represent 

hundreds of thousands of individual actions consolidated into a few dozen MDLs, most MDLs 
Advisory Committee on Civil Rules

January 24, 2024

Page 2

are not mass torts.1 Thus, any new rule that addresses MDL practice must also consider the 

diverse range of cases subject to transfer under 28 U.S.C. Section 1407 and whether a new rule 

animated by just one type of MDL should apply to other types of MDLs that do not implicate the 

same issues. 

Proposed Rule 16.1 attempts to provide guidance on issues that are unique to mass tort 

MDLs, but applies it to every type of MDL, even those that are relatively straight forward 

following consolidation, such as class action MDLs. These problems were identified in the 

January 2, 2024 written comments submitted by COSAL member Jeannine Kenney, which 

COSAL adopts. COSAL shares the serious concern that Rule 16.1, if applied to class action 

MDLs, could create serious confusion, conflict, and delay. We ask the Committee to consider, at 

a minimum, limiting the applicability of the Rule to mass-tort type MDLs to the extent the 

committee proceeds with the proposed rule.2

While, as noted, a number of the provisions of proposed Rule 16.1 are concerning when 

applied to class action MDLs and should be revisited, my comments focus on one issue that may 

merit additional discussion. Specifically, the proposal to create a “coordinating counsel” for 

MDLs threatens to derail the well-established practices that already exist to promote the efficient 

prosecution of class actions. 

Proposed Rule 16.1 Would Create Multiple Layers of Leadership That Would Delay The 

Prosecution of Class Action MDLs

First, Rule 16.1’s proposed appointment of coordinating counsel would likely cause 

unnecessary delay in class action litigation. Under existing Rules and practice, the MDL 

transferee court selects interim class counsel using a clear set of criteria set forth in Rule 23(g) of 

the Federal Rules of Civil Procedure. 

In antitrust class action MDLs, courts efficiently work within this framework to select 

interim lead counsel without delay. To be sure, there is often little time between consolidation 

following an MDL order, motions for appointment of leadership (and subsequent hearings, if 

necessary), and the appointment of lead counsel. In one recent antitrust MDL, In re HarleyDavidson Aftermarket Parts Marketing, Sales Practices and Antitrust Litigation, MDL No. 3064

(E.D. Wis.), only 35 days passed between the transfer of the JPML and the appointment of 

interim class counsel. Furthermore, when looking at data from the last ten antitrust MDL cases, 

the average amount of time between when a JPML was transferred and when leadership was 

appointed was approximately three months, with a median of 87.5 days. These statistics do not 

1 See, e.g., Alan Rothman, And Now a Word From the Panel: A One State MDL? (Sept. 27, 2023), Law360 

(finding product liability MDLs account for 37% of the total MDL proceedings, or 65 of 172 MDLs as of 

Sept. 27, 2023). 

2 COSAL does not take a position on the appropriateness of the proposed Rule for mass-tort MDLs. 
Advisory Committee on Civil Rules

January 24, 2024

Page 3

account for other antitrust MDLs where interim class counsel was appointed before the MDL 

was created. 

Thus, given the relatively brief time frame between MDL transfer and the appointment of 

interim lead counsel, adding an additional layer of leadership that requires the appointment of 

coordinating counsel would only serve to frustrate a process that is already working quite well. 

Proposed Rule 16.1 Does Not Provide Specific Criteria and Responsibilities for

Coordinating Counsel, Which Will Lead To Confusion in Class Action MDLs

Proposed Rule 16.1 is unclear about how coordinating counsel is selected or appointed. 

Proposed Rule 16.1 similarly does not define the term “coordinating counsel,” which may also

cause unnecessary confusion if implemented. 

First, it is not clear who appoints coordinating counsel. Do the various class counsel 

designate this role through private ordering or is the role filled by the court prior to appointment 

of interim class counsel? Similarly, the responsibilities of the role are undefined, leaving 

unanswered whether the role is meant to synthesize the many views of plaintiffs’ counsel and 

present them to the court and opposing counsel (i.e., administrative in nature), or whether it 

involves decision-making authority (substantive in nature). The proposed Rule does not identify 

if, and if so, when, that role terminates. Does coordinating counsel have any role after the 

appointment of interim class counsel? And given that only interim class counsel (or the court) 

can bind the class, what value is their role both prior to and after appointment of interim class 

counsel? 

The difference between an administrative function or a substantive function is a 

distinction with meaning, Currently, all applicants for interim class counsel in a class action must 

satisfy the criteria set forth in Rule 23(g). These factors include: (1) the work counsel has done in 

identifying or investigating potential claims; (2) counsel’s experience in handling class actions, 

other complex litigation, and claims of the type asserted in the action; (3) counsel’s knowledge 

of the applicable law; and (4) the resources counsel will commit to representing the classes. Fed. 

R. Civ. P. 23(g)(1)(A)(i-iv). These criteria ensure courts appoint the most qualified lawyers to act 

as interim lead counsel for the best interests of the class. 

Under the current proposal, it is not clear whether coordinating counsel will have to 

satisfy similar criteria, or altogether different criteria. Moreover, coordinating counsel could 

undermine the experienced decision-making of interim lead counsel, particularly if coordinating 

counsel is empowered to make substantive decisions on behalf of the class, before or after class 

counsel is appointed, as detailed below.

Proposed Rule 16.1 Is Unnecessary in a Class Action MDL and Could Lead To Serious 

Duplication of Effor

Proposed Rule 16.1’s initial case management conference is unnecessary in class action MDLs 

and could result in significant duplication of effort. In class action MDLs (or class actions 
Advisory Committee on Civil Rules

January 24, 2024

Page 4

consolidated under Rule 42), a consolidated complaint is filed only after interim class counsel is 

appointed by the court. Interim class counsel then selects the factual allegations, causes of action, 

and class representatives, that are included in the consolidated amended complaint, which 

becomes the single operative pleading for the MDL and subsequent Rule 16 conference. Only 

interim class counsel is empowered to make decisions for the class and litigate the action. The 

consolidated complaint supplants all prior actions brought on behalf of the same class. One or 

more, but generally not all, of the plaintiffs that initially filed class action complaints on behalf 

of the same class are identified as named representatives in that consolidated class action 

complaint. Those who are not selected by interim class counsel for a class representative role are 

no longer putative class representatives and their individual complaints are no longer operative. 

And counsel who are not appointed as interim class counsel no longer litigate any action at all3

unless directed by class counsel to assist in the litigation. If enacted, Proposed Rule 16.1 would 

create inefficiencies by adding additional layers to this tried-and-true process. 

For example, if the court convenes an initial conference of all parties prior to the 

appointment of interim lead counsel, it will convene parties and counsel who may not be 

involved in the litigation at all after appointment of class counsel. This would not only lead to 

unnecessary case costs, at the expense of the class, without any ability of interim class counsel to 

implement cost-control measures, but it would also cause unnecessary delay. That is because 

once interim class counsel is appointed, the Court must convene another Rule 16 case 

management conference. 

Moreover, there is little reason to incur the costs for coordinating counsel and to delegate 

decision-making to all attorneys of record on issues that must (and can only be) made by interim 

class counsel. This redundancy is expressly addressed by the Manual on Complex Litigation, that 

notes “after section 1407 centralization, the appointment of lead counsel may reduce the need for 

large numbers of lawyers to travel to the transferee district.” Manual for Complex Litigation, 

Fourth, §22.343. And this inefficient process would repeat itself as plaintiffs’ counsel wrestle to 

arrive at a cohesive set of views on the issues that arise in the report and conference 

contemplated by Rule 16.1, causing additional delay and expense to the class. 

This also will impose unnecessary costs on opposing counsel. Many defendants in a class 

action (MDL or otherwise) prefer to discuss and negotiate case schedules and discovery issues 

only with interim class counsel who have the authority to make decisions and bind the class. In 

many cases, defendants will not engage in these discussions prior to appointment of interim class 

counsel. New Rule 16.1 will impose on defendants and their counsel the obligation to meet and 

confer with potentially dozens of counsel and their clients who may ultimately have no authority 

in the case. 

3 Unless, of course, they opt out of the class. 
Advisory Committee on Civil Rules

January 24, 2024

Page 5

In short, in addition to other concerns, COSAL has considerable concerns about the 

inefficiencies and confusion that will be created by Proposed Rule 16.1(a)’s designation of 

coordinating counsel and an initial case conference prior to the appointment of class counsel.

Class action MDLs already benefit from interim class counsel who are solely authorized 

to prosecute the action vigorously and efficiently as a fiduciary to the class through trial. The 

addition of a new duplicative and unnecessary coordinating role and initial pre-appointment 

conference may confuse and frustrate interim class counsel’s efforts at best, and undermine them 

at worst. For this reason, I recommend the role of coordinating counsel be removed from 

Proposed Rule 16.1. COSAL also asks that the Committee reconsider the applicability of 

Proposed Rule 16.1 to class action MDLs given the relatively straight-forward case management 

process that has long been a feature of class actions, MDL or otherwise. 

Thank you again for your time and the opportunity to comment on this important topic. 

Sincerely, 

Kellie Lerner 
TAB 23
Robert L. Levy

Executive Counsel

Legal Policy & Administration

Exxon Mobil Corporation

22777 Springwoods Village Parkway

Nature 1, 4A

Spring, Texas 77389

(346) 467-9674 

Outline of Proposed Testimony Talking Points to the Federal Civil Rules Advisory Committee

February 6, 2024 Public Hearing on Draft Amendments to Rules 16/26 regarding Privilege Logs

• Introduction – My name is Robert Levy. I am an executive counsel at Exxon Mobil Corporation 

where I focus on legal policy issues and advise on eDiscovery, Information Governance and Data 

Privacy.

• Thank you for the opportunity to testify today.

• I am giving a perspective of a party that often spends considerable sums in preparing privilege 

logs in federal court litigation – and much of the burden and expense is wasteful because it is 

unnecessary.

• In our cases, the costs of privilege withholding and privilege logging is one of the most time 

consuming and expensive segments of the pretrial process.

• The rules proposal requires early engagement on privilege log issues – although this 

engagement is potentially helpful, the rule change does not address the underlying issue which 

is the presumption applied by many courts that document-by-document logging is required in all 

cases.

o It also should be noted that early engagement, while potentially helpful, is generally too 

early to really tackle the problems associated with privilege withholding. This issue only 

arises after the discovery process is well underway.

• Privilege logs involve significant costs and due to the large increase in documents and records 

means that the costs continue to rise even with the advent of technology. 

• The rule should say that logs should not be required absent a showing of need for these 

categories of communications:

o all communications with outside counsel

o Communications post suit being filed

• It is important to have the amendment incorporated in Rule 26(b)(5) versus in Rules 16 or 26(f) 

because this is the rule that governs privilege withholding.

• Rule 45 also should be amended to address the fundamental fairness of burden on third parties 

to litigation – third parties should not be required to expend costs associated with logging unless 

specifically required.

• The proposed Committee note should be altered to remove the reference to rolling logs – using

the term tiered logs is preferred. Rolling logs do not always work well because document 

productions are methodical and proceed by custodian.
TAB 24
Comment to Proposed Amendment of Civil Rule 26 and Proposed Committee Note

Committee to Support the Antitrust Laws (COSAL)

1

January 23, 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 Rule 26 

Dear Members of the Advisory Committee:

On behalf of the Committee to Support Antitrust Laws (“COSAL” or “the Committee”), 

the undersigned authors submit this comment regarding the Proposed Amendment to Civil Rule 

26 (the “Proposed Amendment”). We appreciate the opportunity to submit this comment, which 

we provide based upon our many years of practice in federal courts across the nation. This 

comment (1) describes the authors’ relevant background; (2) commends the Proposed Amendment 

to Rule 26, and identifies what we perceive to be serious concerns with the Proposed Committee 

Note; (3) shares real litigation examples from the authors’ practice evidencing the risks of the 

Proposed Committee Note; and (4) concludes that the Proposed Amendment to the Rule should be 

accepted but that certain important edits should be made to the Proposed Committee Note.

Relevant Background. The Committee to Support the Antitrust Laws was established in 

1986 to promote and support the enactment, preservation, and enforcement of a strong body of 

antitrust laws in the United States. The Committee, including the undersigned members, practice 

regularly in federal courts across the nation. The undersigned are attorneys at law firms that 

primarily represent plaintiffs in federal-court litigation. Our focus as practitioners is on large, 

complex antitrust cases. We also have experience—both as current practitioners and as former 

law clerks and fellows to federal judges—applying Rule 26 in cases of many types and sizes.
Comment to Proposed Amendment of Civil Rule 26 and Proposed Committee Note

Committee to Support the Antitrust Laws (COSAL)

2

Many of our cases are pharmaceutical antitrust matters concerning litigation which 

occurred between brand and generic pharmaceutical companies. Because of the nature of these 

cases—in which where prior litigation is at the core of the antitrust allegations—they necessarily 

involve a large number of communications in which lawyers were involved. Privilege disputes in 

these cases thus go to the core of Rule 26(b)(5) and its practical effect in litigation, and have 

allowed us to develop an intimate understanding of Rule 26 and its practical effects in litigation. 

In addition to privilege-intensive cases, the undersigned authors, and members of COSAL 

generally, also litigate cases whose subject matter is not itself litigation, i.e. which are less 

privilege-intensive. We thus bring to bear an understanding of the implications of the Proposed 

Amendment across a wide spectrum of cases.

The Proposed Amendment to Rule 26(f)(3)(D) is Well-Balanced and Appropriate

The Proposed Amendment to Rule 26(f)(3)(D) will require parties to, in their Discovery 

Plan, include their views and proposals for complying with Rule 26(b)(5)(A). This Amendment 

is modest, balanced, and likely to have salutary effects. One standard step in federal court litigation 

is that parties discuss and hopefully reach agreement as to the format and process by which they 

will exchange document-by-document privilege logs. These discussions serve the important 

purpose of setting expectations about how claims of privilege will be asserted in the first instance. 

That is an important thing to have mutual understanding on, as Rule 26 requires a withholding 

party to describe the withheld material “in a manner that . . . will enable other parties to assess the 

[privilege] claim.” 

In our experience, parties often engage in discussions about the format and process of their 

document-by-document privilege logs early in a case. For example, in our cases parties have 

discussed issues such as: the extent to which each individual e-mail in an e-mail thread requires 
Comment to Proposed Amendment of Civil Rule 26 and Proposed Committee Note

Committee to Support the Antitrust Laws (COSAL)

3

its own log entry; the format in which attorney names will be demarcated on the privilege log; the 

extent to which metadata may be used in generating the privilege log; and the appropriate level of 

detail in the withholding party’s statement describing the purportedly privileged material being 

withheld from disclosure. In addition to format, the privilege-log process is often subject to 

discussion as well. For example, parties discuss the timing of when a producing party must 

produce a privilege log for any documents it proposes to withhold; what the procedures will be for 

challenging any claim of privilege; and how these procedures will evolve through different stages 

of the litigation—both during and after the fact discovery period.

These issues are of great significance. The stakes are high when ensuring an appropriate 

privilege log format and process—an insufficient log can lead to crucial facts being inappropriately 

withheld from disclosure. These discussions about the format and process of privilege logs thus 

enable the parties to air their views on what information will be required to “enable [them] to 

assess the claim” of privilege. Fed. R. Civ. P. 26(b)(5)(A)(ii). 

The Amendment to 26(f)(3)(D) will appropriately require parties to engage in these 

discussions at a set point in the case—when developing their Discovery Plan. Because these types 

of discussions frequently occur by parties’ own choice, the Amendment will not work any 

convulsive change to litigation process. Rather, the Amendment will affirm the importance of 

parties engaging in such discussions which have already been occurring informally, and make clear 

that questions of privilege withholding are of prime importance, as are questions of how parties 

that would seek to withhold relevant information from disclosure on the basis of claimed privilege 

intend to provide the information that will “enable other parties to assess the claim.”
Comment to Proposed Amendment of Civil Rule 26 and Proposed Committee Note

Committee to Support the Antitrust Laws (COSAL)

4

Problems with the Proposed Committee Note.

While the Proposed Amendment itself strikes an appropriately modest balance that will 

benefit litigants and courts, the Proposed Committee Note takes what in our view are several 

needlessly strong substantive positions that run counter to the balanced and flexible approach 

embraced by the Rule Amendment. For example:

- The only “burden” discussed by the Proposed Committee Note is that of the party 

preparing a privilege log—both in the first paragraph’s reference to “very large costs,” 

and the Note’s discussion of “relieve the producing party.” As discussed further below, 

this overlooks the substantial burdens imposed upon requesting parties and courts in 

appropriately scrutinizing asserted claims of privilege. It also does not account for the 

law’s traditional recognition that “the party invoking a privilege bears the burden of 

establishing its applicability to the case at hand.” In re Grand Jury Subpoenas, 318 

F.3d 379, 384 (2d Cir. 2003). Consideration should be given primarily to requesting 

parties and courts—not parties that seek to withhold relevant evidence from disclosure.

- The first paragraph of the Proposed Committee Note would state that traditional, 

document-by-document logs are “often” associated with “very large costs.” This 

paragraph is likely to be interpreted by courts as expressing a preference against 

traditional, document-by-document privilege logs. We respectfully submit that this 

paragraph should be removed from the Proposed Committee Note. By taking such a 

strong substantive position, the Proposed Committee Note would compromise the 

appropriately balanced nature of the Proposed Amendment to the Rule itself. 

Additionally, the notion that traditional, document-by-document logs are “often” 

associated with “very large costs” is not consistent with our practice. In most cases—
Comment to Proposed Amendment of Civil Rule 26 and Proposed Committee Note

Committee to Support the Antitrust Laws (COSAL)

5

particularly for cases that are not complex, which make up most of the federal docket—

creating a document-by-document log entails minimal burden. Moreover, typically, 

and especially in large cases involving a substantial number of withholdings, the vast 

majority of the log is created by using automatically generated metadata that is later 

cleaned up and supplemented to fill gaps; generally only a description needs to be 

created manually. As discussed below, even in large and complex cases, traditional 

document-by-document logs minimize the burden on all parties and the Court, because 

they enable the streamlined assessment of privilege claims and the reasoned 

presentation of narrow disputes to the Court.

The Proposed Committee Note would in effect discourage the use of traditional, documentby-document logs and likely lead to an increased use alternative log forms (such as so-called 

“categorical logs”—i.e., privilege logs where withheld documents are lumped into “categories”

rather than being individually identified on the log), without an assessment of their utility in 

permitting courts and parties to assess the claim of the withheld documents. As discussed herein, 

our experience with so-called alternative logs reveals that such logs suffer from a number of 

shortcomings, a problem the Committee Note leaves unaddressed, leaving courts with little 

guidance.

Federal Rule of Civil Procedure 26 starts from the recognition that claims of privilege must 

be closely scrutinized, based on information that “will enable other parties to assess the claim.” 

Accordingly, parties have traditionally been required to substantiate their privilege withholdings 

with an explanation for each withheld document. That approach is sensible, given the high stakes 

in litigation and the corresponding and appropriate burden that is imposed on a party that seeks to 

withhold otherwise relevant information from disclosure. Several pernicious consequences follow 
Comment to Proposed Amendment of Civil Rule 26 and Proposed Committee Note

Committee to Support the Antitrust Laws (COSAL)

6

from the use of alternative logs such as categorical logs. These consequences will multiply if the 

Proposed Committee Note is not rejected or substantially revised. 

Categorical Logs Burden Courts and Litigants. First, categorical logs increase burden by

cloaking the nature of the documents being withheld and the basis for each withholding. Against 

the default backdrop of transparency in federal discovery—and the narrow interpretation of the 

attorney-client and work-product privileges, see In re Local TV Advertising Antitrust Litig., 2024 

WL 165207, at *4 (N.D. Ill. Jan. 16, 2024)—an opaque categorical log inevitably spawns disputes 

between the parties. These disputes substantially increase judicial workload, and can be avoided 

by favoring traditional, document-by-document logs. 

A threshold dispute which arises is the sufficiency of the categorical log format chosen by 

the withholding party. Unlike document-by-document logs, there is no historical baseline 

expectation of what constitutes an appropriate “categorical log.” Categorical logs by their nature 

require determining an appropriate level of abstraction for the categories; an appropriate quantity 

of documents per category; and the appropriate types and granularity of information to be disclosed 

for each category. Given the stakes of the task—a categorical log that is not carefully constructed 

with narrow categories and descriptions can lead to crucial facts being inappropriately withheld 

from disclosure—parties dispute even these basic structural components of “categorical logs.” 

Resolution of those disputes burdens the Court. 

The use of categorical logs also increases the number of disputes between the parties as to 

the appropriateness of the privilege assertions themselves. Rule 26 requires a description of the 

withheld information that “will enable other parties to assess the claim.” In practice, however, 

parties frequently force dozens or even hundreds or documents into a single “category.” The 

problem is that any description such a large quantity of documents is necessarily formulated at 
Comment to Proposed Amendment of Civil Rule 26 and Proposed Committee Note

Committee to Support the Antitrust Laws (COSAL)

7

such a level of abstraction as to be of little use in “enabl[ing] other parties to assess the claim.” 

Fed. R. Civ. P. 26.(b)(5)(A)(ii). Such logs thus devolve into disputes over whether the withholding 

party has appropriately withheld documents, and those burdens then fall to the Court for resolution. 

This is an inherent problem with categorical logs. But the Proposed Committee Note would 

encourage expansion their use without discussing how to resolve their shortcomings, such as the 

limited ability to test the claim of privilege for each document withheld in the category.

The time burdens imposed by these disputes are not trivial. Raising and resolving the 

foregoing disputes can consume dozens or even hundreds of attorney hours in large cases. 

Attorneys must write letters raising and debating the disputes, hold meet-and-confer sessions to 

discuss them, brief the disputes for the Court’s consideration, and devote time to preparing for and 

presenting oral argument to the Court. Those tasks translate to tens or even hundreds of thousands 

of dollars in costs for litigants in individual cases.

Categorical Logs Prevent Cases from Being Resolved on the Merits. The second problem 

with categorical logs is that they meaningfully increase the likelihood that cases will not be 

resolved on their merits because litigants will withhold as privileged material which should 

rightfully be produced to their adversaries. Categorical logs lead to improper withholdings in 

several ways.

From the producing party’s perspective, it is much easier to withhold a document 

improperly if one is not required to specifically disclose what about the document is protected. 

That a producing party would improperly withhold a document does not require suggesting that a 

lawyer would consciously claim privilege over a non-privileged document—although the risk of 

such misfeasance is real. In practice, document review decisions are often delegated to teams of 

junior attorneys or contract attorneys. Where these attorneys may be unsure of whether to withhold 
Comment to Proposed Amendment of Civil Rule 26 and Proposed Committee Note

Committee to Support the Antitrust Laws (COSAL)

8

a document, they are likely to err on the side of withholding documents—even where the claim of 

privilege may be questionable at best. Over-withholding is far easier with a categorical log, where 

the withholding attorney is not forced to affirmatively justify the withholding of each document, 

and may thus neglect to conduct the document-by-document review necessary under the traditional

regime.

From the adversary’s perspective, the categorical log frustrates its ability to assess and 

challenge questionable withholdings. Document-by-document information can be crucial to 

assessing and challenging privilege claims: for example, the presence on an e-mail thread of a third 

party or the absence of attorney involvement can be clues to a document’s lack of privilege; or the 

reason given for the assertion of privilege may not withstand scrutiny in light of the timing of the 

document’s creation or the number of non-attorneys on a particular communication. But 

categorical logs deprive the adversary of this essential information. Categorical logs thus have the 

effect of shifting the burden to the receiving party. Normally, “the party invoking a privilege bears 

the burden of establishing its applicability to the case at hand.” In re Grand Jury Subpoenas, 318 

F.3d 379, 384 (2d Cir. 2003). With a categorical log, the receiving party is left trying to divine 

what is being withheld and why, often without sufficient information to make that determination.

As discussed above, this opacity engenders burdensome disputes, which must ultimately 

be resolved by courts. But a court’s oversight is not a panacea. When parties present privilege 

disputes under a categorical log, what frequently occurs is the court will be forced to review, in 

camera, a random selection of documents from particular categories of the log. While that is better 

than no oversight, the court in that scenario is deprived of the benefit of substantive briefing from 

the challenging party as to the particular documents at issue—despite the adversary being bestpositioned to provide this clarity in its briefing. Traditional, document-by-document logs best 
Comment to Proposed Amendment of Civil Rule 26 and Proposed Committee Note

Committee to Support the Antitrust Laws (COSAL)

9

enable the parties to brief these issues for the court; and the adversarial process is the most effective 

way of ensuring that documents not be improperly withheld. 

Traditional, Document-by-Document Logs are Superior. If anything, the Committee Note 

to Rule 26 should move towards—not away from—the primacy of traditional, document-bydocument logs. Such logs entail the least overall burden: they avoid the need for the case-specific 

log format disputes described above; they allow the parties to resolve privilege disputes among 

themselves; and when a dispute still must be presented to the Court, it can be presented in a narrow 

way, clarified with the benefit of document-specific briefing rather than wholesale delegation of 

privilege review to the Court. If the Committee is interested in preserving “maximum flexibility,” 

as the current draft of the Proposed Committee Note states, it would be better not to take a 

substantive position on any particular form of log—as the current draft does, in claiming that 

traditional, document-by-document logs “often” are associated with “very large costs”; limiting 

the usage of traditional, document-by-document logs to “some cases”; and claiming that 

categorical logs are “effective to relieve the producing party of the need to list many withheld 

documents.”

Proponents of categorical logs tend to focus exclusively on a single burden: that of the 

party logging its documents. Indeed, this is the only burden explicitly addressed by the Proposed 

Committee Note, in paragraphs 1 and 7. But any consideration of an appropriate rule must account 

for the overall burdens on not only producing parties, but also receiving parties and the Court. Due 

consideration must also be given to where the burden should fall. The law does not require that 

all burdens be equally shouldered in every instance. In the case of privilege withholding, the 

Federal Rules and case-law have always recognized that the burden of substantiating a withholding 
Comment to Proposed Amendment of Civil Rule 26 and Proposed Committee Note

Committee to Support the Antitrust Laws (COSAL)

10

must fall on the party seeking to withhold the relevant information—not the party which requested 

it, and not the Court. See In re Grand Jury Subpoenas, 318 F.3d 379, 384 (2d Cir. 2003).

Proponents of categorical logs also argue that the traditional approach must yield to the 

fact that modern discovery involves greater volumes of documents than it historically did. But the 

claim that modern discovery makes traditional logs unduly burdensome fails on its own terms: if 

anything, the transition to electronic discovery has enabled litigants to automate almost the entirety 

of document-by-document log production, as software can auto-populate nearly all fields (e.g., 

author, custodian, date) with the click of a button. Whereas each field would historically require 

manual entry using pen and paper, lawyers today in the mine run of cases will need manually type 

only a single field: the brief statement explaining the basis for the privilege assertion. The 

resistance to traditional logs thus amounts largely to a resistance to explaining why responsive 

documents are being withheld from production—and that concern is one which must be considered 

with a strong dose of skepticism.

Experience Counsels Rejecting the Proposed Committee Note.

The problems we have identified with the Proposed Committee Note—and the increased 

usage of categorical logs that could result from its adoption—are not only theoretical, but borne 

out of experience. To take one example, the undersigned authors currently represent the plaintiffs 

in an antitrust class action pending in the Southern District of New York, In re Actos Antitrust 

Litigation, No. 13-cv-9244-RA-SDA (S.D.N.Y.). In April 2022, the parties submitted competing 

proposals for privilege logs. The plaintiffs advocated for a document-by-document log, to be 

populated easily through the use of metadata. (ECF 376.) The defendants proposed a categorical 

log. (ECF 375.) The Court approved the categorical approach—but had to enumerate the specific 

fields that would be required. (ECF 377.) The defendants then produced a categorical log with 
Comment to Proposed Amendment of Civil Rule 26 and Proposed Committee Note

Committee to Support the Antitrust Laws (COSAL)

11

categories that individually “included hundreds or even thousands of documents, with date ranges 

spanning 10 years or more.” (ECF 395 at 1.)

Plaintiffs disputed many of the defendants’ privilege withholdings. Because of the opaque 

nature of the categorical log, these discussions demanded substantial attorney time which could 

have been avoided with a document-by-document log. When plaintiffs filed a motion challenging 

the assertion of privilege in August 2022, they had to do so on a categorical basis—and thus put 

several-thousand documents at issue before the Court. (ECF 395.) The defendants then sought 

permission to and did file formal briefing in response—15 pages total, plus exhibits—rather than 

the standard abbreviated discovery brief. (ECF 398, 403.) The categorical approach thus burdened

on the parties and the Court, even before argument on the motion was heard. The Court ordered 

the defendants to produce certain improperly withheld documents to the plaintiffs. (ECF 412.)

In April 2023, the plaintiffs filed another motion to compel production of improperly 

withheld documents. (ECF 481.) The Court ordered that approximately 100 documents be 

produced for in camera review in advance of the hearing on the motion. (ECF 502.) Remarkably, 

just before the hearing, the defendants disclosed that 27 of the documents—roughly a quarter of 

the entirety—had been improperly withheld in whole or in part. (ECF 506.) The Court accordingly 

ordered the parties to submit proposals for a protocol by which the defendants would re-review 

their withheld documents and produce any that had been improperly withheld. (ECF 507, 511.) 

The Court then entered a re-review protocol and a revised case schedule which delayed the case 

by several months. (ECF 513.) Notably, the defendants were now required to “produce a metadata 

privilege log for all documents withheld or redacted.” (Id. at 4.) 

The Court’s initial decision to allow a categorical log was understandable in that case, as 

it was expressly permitted by a local district rule. But the consequences of that categorical 
Comment to Proposed Amendment of Civil Rule 26 and Proposed Committee Note

Committee to Support the Antitrust Laws (COSAL)

12

approach, rather than the traditional document-by-document log proposal initially offered by the 

plaintiffs, led to expensive consequences: multiple motions and in camera reviews for the Court 

to undertake, dozens if not hundreds of hours of attorney time, improperly withheld documents 

(which, even if inadvertent, are still a problem), and the case being delayed for months while the 

defendants conducted a wholesale privilege re-review. The great majority of that additional 

expense and time could have been saved by sticking to a traditional, document-by-document log.

This one example teaches the dangers of reliance on categorical logs. There are many 

others. For example, in the Disposable Contact Lens Antitrust Litigation, No. 15-md-262 (M.D. 

Fla.), the producing party sought to withhold some 16,000 documents in a categorical log in which 

categories included “thousands” of documents and “dozens and dozens of recipients”; that party 

ultimately had to produce a substantial percentage of those documents, after the requesting party 

challenged the categories, and the court ordered an explanation as to whether each document in 

the categories had in fact been reviewed for privilege. (ECF Nos. 498 at 2-3; 992.) And in Maxus 

Energy Corp. v. YPF, S.A., No, 18-cv-50489, 2021 WL 3619900 (Bankr. D. Del. Aug. 16, 2021), 

a party attempted to lump over 5,600 documents into just three categories; when the court deemed 

the categories not privileged, the withholding party argued that it “should be permitted to perform 

a document-by-document analysis”—a review it apparently had not conducted prior to claiming 

privilege over those documents.

As the experience in these cases shows, the Committee Note should make clear that 

whatever the form of privilege log is ultimately used, flexibility does not alleviate the producing 

party’s burden to make a document-by-document assessment of the applicability of the privilege. 

The Committee Note should also be clear that using a “categorical” or a “metadata” log does not 

permit a party to forgo document-by-document review to ensure all withholdings are legitimate, 
Comment to Proposed Amendment of Civil Rule 26 and Proposed Committee Note

Committee to Support the Antitrust Laws (COSAL)

13

nor do those alternative log formats obviate a withholding party’s obligation to provide the 

requesting party with sufficient information to test the assertion of privilege.

Our experience in cases using traditional document-by-document logs is also illuminating. 

We are currently litigating similar cases in other districts using document-by-document logs. 

Those logs have enabled the parties to focus their discussions to resolve issues amongst 

themselves, and present far fewer disputes to the Court—and the disputes are narrower when they 

do need to be presented. For example, in one recent case, we (representing the plaintiffs) received 

a document-by-document log, and through the course of productive discussions with the 

defendants, facilitated by the information included in the log, were able to persuade them to 

produce several hundred of the documents they had initially withheld. With a categorical log, that 

substantial dispute would have fallen to the court.

Conclusion.

We appreciate the effort of the drafters in seeking to make balanced amendments to the 

Civil Rules. The Proposed Amendment to the Rule itself is appropriately balanced. However, the 

gains made through that beneficial Rule amendment are likely to be substantially lost if the 

Proposed Committee Note is not edited to remove the language which puts its thumb on the scales 

in favor of parties that would seek to withhold relevant information from disclosure, considering 

only their burdens while overlooking the burdens on parties who must assess those claims of 

privilege, and the courts which must resolve the privilege disputes.

We appreciate the opportunity to submit this Comment and are available to answer any 

questions that the Committee may have.

Respectfully submitted,

Aaron J. Marks, Cohen Milstein Sellers & Toll PLLC
Comment to Proposed Amendment of Civil Rule 26 and Proposed Committee Note

Committee to Support the Antitrust Laws (COSAL)

14

Sharon K. Robertson, Cohen Milstein Sellers & Toll PLLC

Rishi P. Raithatha, Radice Law Firm
TAB 25
1 | Page

Pearl A. Robertson

probertson@irpinolaw.com

January 29, 2024 

Committee on rules of Practice and Procedure

Judicial Conference of the United States

Washington, D.C. 20544 

 Re: Proposed Amendment to Civil Rule 26 Replated to Privilege Logs 

Dear Members of the Committee: 

I write in response to the proposed amendments to Federal Rules of Civil Procedure 26(f) including 

the related Committee Notes. Thank you for your thorough consideration of privilege log issues, 

including today’s testimony.

I am a partner at Irpino Avin & Hawkins, a plaintiff firm based in New Orleans, Louisiana, with 

an office in Chicago, where I am located. My specific practice focuses on mass tort and/or class 

action litigation, predominated by multi-district litigation cases. Most of my time is spent in the 

discovery phase of litigation including electronic discovery, confidentiality, and privilege. 

Experiences relevant to this discussion include co-leading the privilege committee in MDL 2804 

In re National Prescription Opiate Litigation, which included work on both the producing and the 

receiving side; and leading the privilege committee in MDL 3014 Philips Recalled CPAP, BILEVEL PAP, and Mechanical Ventilator Products Litigation. In addition to practice, I have spoken 

on privilege matters at conferences and within organizations over the past several years. 

After reviewing the proposed amendments and draft committee notes, as well as a handful of 

submissions on the proposed changes to Rule 26, I submit the following response to the proposed 

changes. 

1. I agree that the proposed additional language to Rule 26(f)(3)(D) encourages early

cooperation and compliance with Rule 26(b), but caution that future adjustments to 

early agreed-to protocols may be necessary.

2. Reference to the second sentence of the Draft Committee Note should be omitted.

3. The draft committee note suggestions to categorical logging as an alternative to

traditional logging may result in more harm than good. 

4. The draft committee note suggestions regarding “rolling” productions is astute 

guidance that should be adopted. 
2 | Page

Early Privilege Protocol Discussions are Necessary, but Litigation also Informs Over the 

Privilege.

Early coordination and agreement over privilege protocols is necessary, but the parties cannot be 

handcuffed by early agreements that prove unhelpful. Prior to document production, it behooves 

the parties in mass actions to negotiate a specific privilege protocol, but discovery also informs 

over the scope of responsive documents in correlation to the privilege asserted. That said, just like 

there is not a one-size-fits-all approach to privilege logging, there is also not a one-size-fits-all 

approach to challenging documents during the course of a given litigation. For example, in MDL 

2804, the parties realized one-year after the initially negotiated CMOs that there was a need to 

negotiate a specific privilege protocol that outlined log format, timing and challenge process; but 

more importantly, incorporated privilege rulings from the Special Master as additional guidance 

to the parties.1 The proposed amendment to Rule 26 is consistent with what litigants should 

already be doing. 

Cost Considerations are not the Purpose of Rule 26(b)(5)(A)

The Draft Committee Notes should not include the second sentence: “Compliance with Rule 

26(b)(5)(A) can involve very large costs, often including a documents-by-document ‘privilege 

log.’” In this era of modern tech and growing artificial intelligence, there are many useful tools 

that the producing party can use to cull the overall initial number of potentially privileged 

documents. For example, technology can now detect/predict potentially privileged documents to 

identify and collect inherently privileged documents. (e.g., searches [including use of repeated 

content analytics on routine disclaimers], domain parsing, and name normalization). Moreover, 

the exercise of logging documents is largely, if not solely, the product of a metadata2 export from 

the document collection program to an excel spreadsheet. The practice of producing privilege logs 

is becoming more efficient and cost effective, not less. Regardless, the cost of compliance with 

Rule 26(b)(5)(A) is not the appropriate test for balancing the receiving party’s right to the 

disclosure of discoverable information. 

Categorical logging shifts the initial burden to the receiving (non-asserting) party

The Committee should omit reference to, or suggestion that, categorical logs ease any burden or 

are an acceptable alternative to traditional logging. A categorical log does not provide the amount 

of information Rule 26(b)(5) requires and only results in the need to meet and confer and dispute 

the “categories” and [lack] of descriptions. Further, categorical logging often results in the over 

application or over designation of privilege that the draft committee note expresses concern over. 

Litigants may already negotiate alternative methods for privilege logging than the “traditional” 

privilege log. Thus, there is no need for the advisory committee notes to include reference to, or 

suggestion of, categorical logging. If the Committee is inclined to suggest a “non-traditional” 

1 Attached as Ex. A. to this statement.

2 Metadata is present in all electronic documents and easily exported to excel spreadsheet, the usual fields 

include: author, sender, recipient(s), document title, email subject line, attachment name(s), date (sent, 

received, saved, created), file path, et al.
3 | Page

logging method for certain subsets or types of communications or documents, the better option is

a metadata log. 

Rolling privilege logs avoid needless disputes and build-in efficiencies

As included in the draft committee note, rolling privilege logs may inform the parties over 

discovery or production issues, such that related disputes are timely and efficiently resolved. Also, 

rolling logs are no more burdensome than ‘final’ or end-of-production logs. Indeed, it may be that 

the production and review of rolling logs creates less burden on both parties. For example, 

production of rolling privilege logs may avoid the necessity to re-open depositions on the basis 

that documents were improperly withheld and therefore unavailable for use with certain witnesses. 

Rolling logs also partially cure the potential problem of over-designation of privilege, as a 

receiving party is informed as to the quantity of privilege claims at various times during the 

document production phase of discovery, thus allowing a litigant to raise the issue if it presents 

itself.

* * * 

The proposed additional language to Rule 26(f)(3)(d) appropriately reflects the reality that parties 

need to work together to comply with Rule 26(b)(5), and that the circumstances of each case may 

dictate differing methods for compliance to achieve optimum efficiency. That said, the Draft 

Committee Note refences to cost of compliance and categorical logs run the risk of unwinding 

best-practice principles of privilege logging. 

 Sincerely, 

 Pearl Robertson
 Exhibit A
UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

IN RE: NATIONAL PRESCRIPTION 

OPIATE LITIGATION 

This document applies to All Cases 

CASE NO. 1:17-MD-2804 

SPECIAL MASTER COHEN 

AGREED ORDER GOVERNING 

PRIVILEGE 

This Order Governing Privilege (“Order”) shall govern the treatment of all privileged or 

work product materials in MDL 2804 going forward. This Order applies equally to all parties, 

who for the purposes of below shall be designated in their various roles as either the 

“Designating Party,” “Receiving Party,” or “Challenging Party.” This Order is intended to be 

consistent with CMO Nos. 1 & 2, as well as the analysis set out in In re National Prescription 

Opiate Litig., 927 F.3d 919 (6th Cir. 20190, and seeks to provide a listing of more specific 

requirements for the assertion of privilege claims, the production of privilege logs, and the 

challenges to privilege claims, in MDL 2804. All deadlines and timeframes in this order which 

reference “days” are referring to calendar days and not business days. 

Grounds for Asserting Privilege

The parties agree that federal common law governing privilege applies to privilege claims 

made in this MDL. Additionally, there are generally accepted legal principles and standards 

within the Sixth Circuit, and certain rulings have been made in this litigation related to claims of 

privilege. These rulings made include Discovery Ruling No. 14, Parts 1 through 9. See docket 

nos. 1321, 1353, 1359, 1380, 1387, 1395, 1498, 1593, 1610, & 1666. These rulings and related 

principles/standards outlined therein shall be taken into consideration when deciding whether to 

claim privilege over a document or communication. 

A. Specific Privilege Log Protocols

1. Privilege Logs shall be produced in Excel format that allows for text searching,

sorting, and organization of data, and shall be produced either: (a) in a cumulative manner, so 

that each subsequent privilege log includes all privilege claims from prior logs; or (b) in 

installments using a consistent format so that the installments can be merged into a cumulative 

Excel spreadsheet by the receiving parties. 

2. The Designating Party shall produce a privilege log within forty-five (45) days of

a production that substantially completes production for a particular custodian or non-custodial 

source. Stated another way, privilege logs shall be produced on a rolling basis so as not to delay 

Case: 1:17-md-02804-DAP Doc #: 2882 Filed: 10/29/19 1 of 5. PageID #: 429002
production of privilege logs. The privilege log shall identify the documents or information 

redacted or withheld and the basis for any claim of privilege in a manner that, without revealing 

information itself privileged or protected, will enable the Receiving Parties to assess the 

applicability of the privilege or protection. When the deposition of a custodian is scheduled for a 

date following the substantial completion of production of their custodial file, the parties shall 

make good faith efforts to provide privilege logs involving documents from the deponent’s 

custodial file no fewer than ten (10) days prior to the deposition, unless otherwise negotiated and 

agreed to between counsel. 

3. The Designating Party shall make a good faith effort to identify (in its privilege 

log cover letter) the primary production volume(s) and/or custodian(s) to which the privilege log 

relates. 

4. With the exception of communications that fall within paragraph 5 below, each 

log entry should comply with FRCP 26(b)(5), and include: 

a. a unique identifying number (separate from any Bates numbering), along with a 

separate column identifying the Bates number(s) of a document claimed to be 

privileged if produced in a redacted form; 

b. a description of the nature of the document, communication, or tangible thing (over 

which a privilege is asserted) in a manner that, without revealing information itself 

privileged or protected, will enable Receiving Parties to assess the claim; 

c. the date of the document or communication to the extent it is reasonably ascertainable; 

d. the authors and recipients of the document or communication, based on the From (or 

Author), To, CC, and BCC fields from electronically-generated metadata associated 

with the document, to the extent applicable and reasonably available. For email 

chains, the parties will provide information gathered from the metadata for the most 

recent email in the chain. For email chains where only the most recent email is listed 

on the privilege log, the log entry will identify the email as an email chain, and 

whether an email in the chain contains an attachment. Further, if the attorney(s) 

giving rise to the privilege claim is/are not within the metadata of the most recent 

email, the Designating Party will include the name(s) of any such attorney(s) within 

the description; 

e. the subject of the document, based on the Subject field (or other similar category) 

from electronically-generated metadata associated with the document, to the extent 

applicable and reasonably available, understanding that the Designating Party may 

eliminate some or all of this information to the extent that it has a good faith belief that 

it would reveal information which is itself privileged; 

f. indication (e.g., with an asterisk) of which individual(s) (authors and recipients) are 

attorneys (or paralegals or other legal staff carrying out a legal function for an 

attorney); and 

Case: 1:17-md-02804-DAP Doc #: 2882 Filed: 10/29/19 2 of 5. PageID #: 429003
g. the name of or other identifying information as to the produced source file in which 

the document subject to a privilege claim was found, (and listing of the primary 

custodian constitutes sufficient identifying information). 

5. An exception to certain requirements of Paragraph 4 is that for electronic 

communications (occurring on or after December 5, 2017) between a Designating Party and its 

outside counsel advising the Designating Party with regard to litigation, investigation(s) relating 

to litigation or potential litigation, or other proceedings relating to opioids, said communications 

are not required to be logged with the information required by Paragraphs 4b and 4e. 

Additionally: (i) the Designating Party will not be required to disclose the names of outside 

counsel to be included in the search, except to the extent any of the names appear in the log for 

those documents captured by the search, (ii) the documents being logged pursuant to this 

paragraph can be logged separately from other privilege claims, and (iii) the documents being 

logged pursuant to this paragraph do not need to be reviewed before being logged and withheld 

from production, or at any time thereafter, unless a Receiving Party asserts a challenge to the 

designation of such documents. 

6. The Designating Party shall provide—either in the log entries or as a list in a 

separate Excel spreadsheet appendix to the log—the names that appear on the log along with 

corresponding email addresses or employer information to the extent such information is 

reasonably available and electronically generated from the metadata. To the extent that Listserv 

or group email addresses are provided (as a From (or Author), To, CC, or BCC), the Designating 

Party shall work in good faith to identify, upon request, individuals and/or groups of individuals 

which make up such Listservs or group emails. 

7. As suspicious order monitoring (“SOM”) is at the heart of this litigation, a 

Designating Party claiming attorney-client privilege, work product protection, or any other 

privilege over a SOM-related document, shall include a separate column on the privilege log 

which indicates (with a positive or negative marking) that the document being withheld or 

redacted is SOM-related. Alternative methods for the Designating Party to identify SOM-related 

privilege claims will be acceptable if said alternative method provides true insight into which 

privilege claims are SOM-related. 

Equally at the heart of this litigation is Plaintiffs’ ability to prove their damages and 

abatement costs. Thus, a Designating Party claiming attorney-client privilege, work product 

protection, or any other privilege over a document that may shed light on Plaintiffs’ damages or 

abatement costs shall include a separate column on the privilege log which indicates (with a 

positive or negative marking) that the document being withheld or redacted may impact 

Plaintiffs’ damages or abatement costs. Alternative methods for the Designating Party to 

identify such privilege claims will be acceptable if said alternative method provides true insight 

into which privilege claims cover documents that may have an impact on damages or abatement 

costs. 

8. To the extent that a party redacts any document it produces on the basis of 

attorney-client privilege, work product protection, or any other privilege, it shall be listed on the 

party’s privilege log and produced within forty-five (45) days of production of said document as 

set forth in paragraphs A.1 through A.6 above). To the extent that a party redacts any document 

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for any non-privilege related reason (e.g. non-responsiveness, personal identifying information), 

that party shall either specify the basis of the redaction on the production image itself or produce 

a separate log of any such redactions within forty-five (45) days of production of said document. 

If the redacted document is placed on a log, the log shall follow the same format and include the 

same type of metadata and information as outlined in Paragraph A.4 above. Any redactions 

(whether based upon any privilege or for any non-privilege related reason) applied to a document 

shall be made so that they are easily identified by the Receiving Party (e.g., in black blocks, not 

white blocks). 

9. Although the parties shall make good faith efforts to meet the deadlines outlined 

in paragraph A.2, this paragraph addresses the procedure to implement when certain privilege 

claims were not made 10 days prior to depositions. Within seven (7) days after a deposition 

notice is served, the party defending the deposition will notify the requesting party if there are 

any privileged or redacted documents from the witness’s custodial file that have not yet been 

placed on a privilege or redaction log (which has been served). In addition to the written notice, 

within ten (10) days after a deposition notice is served, the parties shall meet and confer 

regarding the timing of providing a complete privilege log for the documents from the witness’s 

custodial file, and shall promptly present any disputes regarding the privilege log (e.g., contents 

of or timing of production of the log) to the Special Master. 

B. Privilege Challenge Protocols 

1. The parties shall meet and confer in good faith, and endeavor to resolve any 

disputes (regarding privilege-related claims or challenges) before submitting such disputes to the 

Court or Special Master for determination. The following procedure shall constitute satisfaction 

of the good faith meet-and-confer requirement prior to submitting privilege-related disputes to 

the Court or Special Master: 

a. A party challenging a Designating Party’s claims of privilege, privilege redaction, 

other redaction, or work production protection, shall provide written notification of 

those challenges, including the bases for the challenges and/or requests for additional 

clarifying information, to the Designating Party, and offer to meet and confer with the 

Designating Party regarding same. The offer to meet and confer shall, except in 

emergent circumstances or as agreed to by the Challenging and Designating Parties or 

as ordered by the Special Master or the Court, provide the Designating Party with 

multiple alternatives (dates and times) to meet and confer during the seven (7) day 

period following the date of the written challenge notification. 

b. Failure of the Challenging Party to provide written notification of its challenges or 

failure of the Challenging Party to offer to meet and confer as outlined above, shall 

prevent the Challenging Party from submitting its privilege-related challenge to the 

Court or Special Master. 

c. If the Challenging Party provides written notification and an opportunity to meet and 

confer as outlined in Paragraph B.1.a., the Designating Party shall meet and confer 

with the Challenging Party within the seven (7) day period following the date of the 

written challenge notification, and shall provide the Challenging Party with a written 

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response (providing further information supporting its claims and/or indicating which 

privilege claims, redactions, etc., the Designating Party maintains and which it 

withdraws, downgrades or modifies) within ten (10) days following the date of the 

written challenge notification. These time periods may be modified in emergent 

circumstances, as agreed to by the Challenging and Designating Parties, or as ordered 

by the Special Master or the Court. 

d. Failure or refusal of the Designating Party to meet and confer with the Challenging 

Party (as outlined in Paragraph B.1.c above) shall allow the Challenging Party to 

submit its privilege-related challenge to the Court or Special Master. Failure or 

refusal of the Designating Party to provide a written response (as outlined in 

Paragraph B.1.c above) shall allow the Challenging Party to submit its privilegerelated challenge to the Court or Special Master. 

2. The procedure outlined in Paragraph B.1 may result in the withdrawing or 

narrowing of privilege claims, privilege redactions, other redactions, or work product claims. To 

the extent that any such claims or redactions are downgraded, modified, or withdrawn by the 

Designating Party, as a result of the meet-and-confer process outlined in Paragraph B.1 or on its 

own accord, the Designating Party shall, within fifteen (15) days, or within a time frame as 

agreed to by the Challenging and Designating Parties, or as ordered by the Special Master or the 

Court, apply any such downgrades, modifications, or withdraws to any other similar or 

emblematic claims or redactions, and provide written notice to the Challenging Party regarding 

which other privilege claims, privilege redactions, other redactions, or work product claims have 

been downgraded, modified, or withdrawn by the Designating Party. 

3. For any challenges remaining following the above procedure outlined in 

Paragraphs B.1 and B.2, the Challenging Party can submit its remaining challenges to the Court 

or Special Master according to the guidelines established above for submission of discovery 

disputes, or as otherwise agreed to by the Challenging Party and Designating Party. 

RESPECTFULLY SUBMITTED,

 /s/ David R. Cohen 

 David R. Cohen 

 Special Master 

 

Dated: October 29, 2019 

Case: 1:17-md-02804-DAP Doc #: 2882 Filed: 10/29/19 5 of 5. PageID #: 429006
TAB 26
Product Liability Advisory Council, Inc. | 1850 Centennial Park Dr, Ste 510 | Reston, VA 20191 | www. plac.com

STATEMENT OF DAVID COONER

(S.V.P., Chief Counsel – Litigation of Becton Dickinson 

and Company)

ON BEHALF OF THE PRODUCT LIABILITY 

ADVISORY COUNCIL
1

Product Liability Advisory Council, Inc. | 1850 Centennial Park Dr, Ste 510 | Reston, VA 20191 | www. plac.com

Good Morning.

I am David Cooner, and I am Senior Vice President and Chief Litigation 

Counsel for Becton Dickinson and Company. Becton Dickinson, or BD as it is 

called, is one of the largest global medical technology companies in the world. BD 

and its 75,000 employees are committed to enhancing the safety, and efficiency of 

clinicians’ care delivery process, to enabling laboratory scientists to accurately 

detect disease and to advancing researchers’ capabilities to develop the next 

generation of diagnostics and therapeutics.

BD is a member of the Product Liability Advisory Council, known as 

PLAC. PLAC is a non-profit professional association of corporate members 

representing a broad cross-section of American and international product 

manufacturers. These companies seek to contribute to the improvement and the 

reform of the law in the United States and elsewhere, with an emphasis on the law

covering the liability of product manufacturers and related companies. PLAC and 

its members have a keen interest in the present work of the committee in 

evaluating a rule amendment to improve the MDL process. A number of PLAC’s 

corporate members -- including my company BD -- are currently the targeted 

defendants in mass tort MDLs, including some of the largest MDLs pending on the 

federal docket. Taken together, the MDL cases filed against those manufacturers 
2

Product Liability Advisory Council, Inc. | 1850 Centennial Park Dr, Ste 510 | Reston, VA 20191 | www. plac.com

number in the thousands, and in all likelihood, comprise more than half of the 

MDL cases currently active.

PLAC and its members believe that the MDL process -- albeit well-intended

-- is “broken” in a number of respects. Today, however, I am here to address what 

is probably the most serious problem plaguing MDL practice. That is the 

proliferation of non-meritorious claims in MDL centralized procedures. As the 

MDL subcommittee has previously acknowledged, there appears to be “fairly

widespread agreement” among experienced practitioners and judges that this

problem exists in many MDLs. Those meritless claims involve plaintiffs who did 

not use the product at issue; plaintiffs who have not sustained a legally cognizable

injury; and/or claims barred by the statute of limitations.

In my practice, I see lawyers boast of claim inventories, larding the MDL 

with cases that have little to no vetting. I have seen countless cases that would 

never have been filed were it not for the ease of aggregation and, worse, protection 

within the MDL system. Frankly, many of the rules of civil procedure intended to 

establish a case’s bona fides are either shelved or given lip service in an MDL, 

leading lawyers to invest in finding new cases, as opposed to establishing the 

merits of their cases, knowing that volume is the coin of the realm. And volume 

escalates one’s profile in an inevitable settlement program and burnishes one’s 

reputation, positioning one for assume a leadership role in the next MDL.
3

Product Liability Advisory Council, Inc. | 1850 Centennial Park Dr, Ste 510 | Reston, VA 20191 | www. plac.com

PLAC and its corporate members believe that a procedural mechanism is 

sorely needed to screen claims at an early stage in an MDL. As presently drafted, 

however, the proposed Rule 16.1 does not adequately address the problem. 

Subsection (c) (4) of the draft rule is more aspirational than compulsory. It merely 

invites MDL courts and parties to consider “how and when the parties will 

exchange information about the factual bases for their claims and defenses.” The 

provision does not prescribe what information should be disclosed. Nor does it 

prescribe at what point in the proceedings the bases of the claims should be 

disclosed. For that matter, the draft provision does not actually require anything; it 

merely suggests an MDL court can consider mandating an exchange of 

information. Respectfully, it has no teeth and because of that, it will not change 

the flaws that lard our courts with meritless cases, siphon costs, and delay justice 

for meritorious claimants. 

Many PLAC members and my own company BD have seen firsthand the 

prejudice that can result in an MDL when a more robust early screening process is 

not required. Without such information early in the proceedings, defendants have 

no means to accurately assess the magnitude of the risk, making it difficult to 

effectively manage that risk and conduct business operations. Absent an early and 

robust screening mechanism, corporations lack the information necessary to 

accurately meet their financial reporting obligations. Moreover, the sheer
4

Product Liability Advisory Council, Inc. | 1850 Centennial Park Dr, Ste 510 | Reston, VA 20191 | www. plac.com

administrative burden of processing multiple meritless claims greatly increases the 

cost and burden to both the courts and the parties. And, the proliferation of 

dubious claims stands as an impediment to settlement in a myriad of ways.

In past comments submitted to the Advisory Committee (including 

comments dated March 8, 2022 and September 18, 2023), Lawyers for Civil 

Justice (“LCJ”) proposed a more detailed rule requiring plaintiffs (in personal 

injury actions) to provide documentation of product use or exposure and an alleged 

injury at an early point in the MDL proceeding. As set forth in its comments to 

the Advisory Committee, PLAC agrees with the approach advocated by LCJ, and 

fully endorses that organization’s proposal. Only with the routine required 

disclosure of such information can the courts and the parties meaningfully screen 

MDL inventories for marginal claims.

Under our judicial system, a plaintiff filing an individual action is required 

to demonstrate a factual basis for the claim early in the life of the case. This is a 

cornerstone of the Federal Rules of Civil Procedure. No less should be expected 

from each plaintiff filing a claim in an MDL. PLAC encourages the Committee to 

revise Rule 16.1 to include a compulsory provision ensuring that occurs in future 

MDLs.
TAB 27
OFFICE: 316 S. BAYLEN STREET · SUITE 600 · PENSACOLA, FL 32502 

CORRESPONDENCE: P.O. BOX 12308 · PENSACOLA, FL 32591 CONTACT: (850) 435-7000 · (850) 435-7020 FAX · 

WWW.LEVINLAW.COM 

January 23, 2024 

William F. Cash III 

Direct: 1⁄2oμ-1 ̧o-1⁄4μo3⁄4

bcash@levinlaw.com 

Advisory Committee on Civil Rules 

Administrative Office 

One Columbus Circle NE 

Washington, D.C. 20544 

Re: Proposed new Rule 16.1

Dear Members of the Committee: 

I am a fifteen-year veteran of MDL practice, in both mass torts MDLs and MDLs 

composed of class actions. My firm, Levin Papantonio Rafferty, is a leading firm in 

both areas of the law, with a particular emphasis on plaintiffs’-side products liability 

cases—primarily drug and device MDLs. I have served as leadership counsel or as a 

steering committee member in several MDLs. I have also appeared at the Judicial 

Panel several times, and I have relevant experience with state-court MDL analogues. 

I am grateful for the opportunity to address the Committee on proposed new 

Rule 16.1. I am here to express a mixture of support for and concern over the 

proposed Rule. 

1. The Committee should do all it can to retain judges’ flexibility to adapt to 

disparate circumstances. 

I would like to say this: while there are some potentially positive aspects to the 

Rule, MDL judges must retain their traditional flexibility to handle the actual 

work in front of them. Every MDL judge I have ever encountered has been attuned 

to the unique management problems that handling an MDL creates. I have never seen 

an MDL judge who did not approach MDL procedure as the unique animal that it can 

be. All MDL judges care about getting to an efficient and just result before remand 

and the termination of the MDL phase of a case. 
January 23, 2024 

Page 2 

As I understand the proponents of proposed new Rule 16.1, there is too much 

variation from judge to judge in how MDLs are structured and it is not easy to predict 

what path a new MDL might take. I do not understand this to be a problem worth 

solving. Whatever the Committee ultimately recommends, I hope it will take into 

account the reality that MDL judges do things differently often because that is what 

the situation demands. A new Rule should provide guidance, but should not dictate—

should not take from judges the range of discretion they currently enjoy. 

With that in mind, there are some aspects to the Rule that unduly hamstring 

judges. For example, proposed Rule 16.1(c) grants flexibility to judges by saying that 

the initial report to the court “must address any matter designated by the court, 

which may include” any of the topics in proposed Rule 16.1(c)(1)–(3). That is good. 

But then proposed Rule 16.1(d) takes that flexibility back by saying that the court 

“should” enter an order “addressing the matters designated under Rule 16.1(c) – and 

any other matters in the court’s discretion.” The inference here is that every one of 

the factors set out in Rule 16.1(c) must be the focus of the court’s order, even if those 

factors are not particularly relevant to that MDL. 

Further, the way the proposed Rule is structured, courts generally should not or 

will not deviate from the set order of operations: they will first (somehow) select the 

coordinating counsel in Rule 16.1(b), then have them draft the report, then hold the 

conference, then enter the MDL management order, then (perhaps) appoint 

leadership counsel. But it may make sense for a court to proceed differently, holding a 

“beauty contest”-type hearing first to select the coordinating counsel; or to enter an 

order soliciting written submissions from counsel about the MDL’s future 

management before convening the conference. Courts deserve to retain this flexibility. 

Finally: while I appreciate that the proposed Rule and its Note do pay great heed 

to the possibility that some topics may not be appropriate for all MDLs, I also know 

that “suggestions” in Rules sometimes have a way of calcining by practice into 

mandatory, inflexible “musts” later. This is all the worse given that no two MDLs are 

alike (my point on the last page of this testimony). 

In sum, the Rule and its Note should be modified to make clear that MDL judges 

retain flexibility to customize their procedures to fit the needs of the matter at hand. 

That would be consistent with the liberal and flexible spirit of the Rules overall. 

2. The coordinating counsel position is confusing and needs better elaboration, if 

not outright elimination. 

There are a number of practical problems with the notion of the “coordinating 

counsel” the Rule contemplates. I will list some of them here: 
January 23, 2024 

Page 3 

 There is no mechanism to determine how coordinating counsel should be 

appointed. This is dangerous, because every plaintiff’s lawyer who applies 

for a leadership position will cite his or her presence on the coordinating 

counsel team as reason why “you should pick me for leadership—because 

you already picked me as coordinating counsel.” So while proposed Rule 

16.1 supposedly makes the selection of leadership more transparent—

because one of the suggested topics, Rule 16.1(c)(1), is “how might the 

court appoint leadership?”—in reality, it just raises creates a new question: 

“how might the court appoint the coordinating counsel?” Rule 16.1(a) 

provides no answer. 

 Are the coordinating counsel even drawn from the ranks of the lawyers 

representing the parties? It is not clear, because there is a mismatch 

between Rule 16.1(b) and (c). Rule 16.1(b) would say that coordinating 

counsel “may” be designated to “assist the court” and to “work with 

plaintiffs or with defendants” to prepare the report. That implies that 

coordinating counsel might come from neither side. Rule 16.1(c) then says 

“the parties” are to meet and prepare that report. 

 In “bread and butter” MDLs of 5,000 plaintiffs vs. 1 defendant, the 

defendant will naturally have its choice of lawyers to present its views. But 

in MDLs where plaintiffs are not yet organized, no one person or team is 

best positioned to speak for all. 

This may actually put defendants in the role of choosing their 

opponents—choosing which plaintiffs’ lawyers they’d most like to deal 

with in preparing the report. That is not workable. 

Or, reports with fractured plaintiff groupings may actually draw 

“dissents” or competing arguments from different groups. How would 

that work? How would the MDL judge be able to use a report that is 

fractured in this manner to make any decisions? 

 The organization and selection of plaintiff leadership is not a question on 

which defendants should have much input, if any. Plaintiffs have no right 

to tell defendants which law firms to hire or how they should be 

structured or compensated. Therefore, it is hard to see why a joint report 

of the parties, prior to the selection of plaintiffs’ leadership, should be 

discussing this topic. 
January 23, 2024 

Page 4 

 Many of the other subjects the parties are encouraged to deal with, such 

as discovery, factual and legal bases for claims, and settlement, are of 

enormous importance. They demand input from the lawyers who will 

actually lead the case. That cries out for appointing leadership first. 

I can anticipate my defense colleagues’ response here. They may say, 

“Well, the court will know that plaintiffs’ views here were just 

preliminary.” If that is true, what is the point of seeking plaintiffs’ 

preliminary views? Plaintiffs should be allowed to get organized before 

charting out their course, or having to tip their hands. 

Defendants always start out with an advantage: they know more than 

plaintiffs about subjects like: how their clients are organized; where the 

documents and witnesses are; where the key decisions were made. To 

some extent, this is unavoidable. But the “coordinating counsel” role puts 

the cart before the horse. 

The tradition of appointing plaintiffs’ leadership first, before substantive 

decisions are made or schedules are drawn up, is a sound one. While I appreciate 

again that Rule 16.1(b) says that coordinating counsel is optional, in practice, MDL 

judges will likely make that appointment. (Goes double for judges who are new to 

MDL and don’t have the experience or confidence to deviate from the default rule.) 

The coordinating counsel role just shifts problems around without solving them. 

It creates a new layer of paperwork that may well waste time and energy, rather than 

making MDLs more efficient. 

3. No two MDLs are alike, but the Rule suggests a one-size-fits-all approach 

anyway. 

As a class action practitioner, I can state that proposed Rule 16.1 appears to be 

drawn to fit the needs of the “classic” MDL: 5,000 plaintiffs represented by 50 

plaintiff firms suing 1 drugmaker. But it ignores the reality that many MDLs are sets 

of class actions, often with just a single plaintiff group in charge. (Another reason that 

the “coordinating counsel and then leadership counsel” concept is just duplicative.) It 

does not necessarily make any sense to discuss topics such as the leadership or 

compensation of class action attorneys. The way proposed Rule 16.1 would likely be 

implemented, though, this will slow down and divert the parties and courts into 

irrelevant or premature areas. 
January 23, 2024 

Page 5 

There are also MDLs that really just have 1 plaintiff and 1 real defendant. E.g., In 

re Prepared Foods Photos, Inc. Copyright Litig., MDL 3075, 2023 WL 3829245 ( J.P.M.L. 

June 5, 2023). The plaintiff in that MDL owns the copyright to photos of pizza. The 

real defendant in the MDL is a company that runs the back end of web sites for “mom 

‘n’ pop” pizza shops. The plaintiff sued the defendant 40 times in different actions 

around the country, throwing the pizza shops in as defendants, essentially as collateral 

damage and jurisdictional anchors to create extra venues and pain for the defendant. 

In reality, this MDL is just one party suing one other party. The defendant 

complained to the Panel that it was being harassed through the multiplicity of 

litigation and sought MDL treatment—and the Panel apparently agreed. Now that the 

case, and the just two lawyers who represent all of the main parties, are in front of one 

judge, there is no need for any of the complexity of Rule 16.1 in that MDL. 

The Committee should add language to Rule 16.1, and its Note, making clearer 

that it may not apply to every MDL. It should also state that while the goals of 

efficiency embodied in the Rule are good in a vacuum, in practice observing all parts 

of the Rule might actually destroy efficiency, so judges should weigh the value of Rule 

16.1’s procedures against the goals of other Rules, such as Rule 1. The Committee 

should emphasize judges’ traditional discretion to manage their workloads. 

* * * 

I look forward to appearing at the hearing and answering any of your questions 

the best I can. 

Sincerely, 

/s/ William F. Cash III 

WILLIAM F. CASH III 
TAB 28
Judicial Conference of the United States

Advisory Committees on Appellate, Bankruptcy, and Civil Rules

Public Hearing

February 6, 2024

Comments of Max Heerman, Director-Litigation at Medtronic

I am Max Heerman, Director-Litigation at Medtronic. Medtronic is a leading publicly-traded medical 

device company, whose devices and therapies alleviate pain, restore health, and extend life, for more 

than 75 million patients every year. Medtronic invented the battery-operated pacemaker in 1957, 

responding to a power-outage that created a crisis for pediatric heart patients at the University of 

Minnesota Hospital, and has been an important contributor to the U.S. health care system ever since. 

I often attend conferences that include other in-house lawyers for companies in the Life Sciences 

industry – which includes pharmaceutical, biotech, and medical device companies. At those 

conferences, I am sometimes told that Medtronic is fortunate, in that it (and its various subsidiaries) has 

only occasionally been a defendant in federal multidistrict litigation. This always makes me shake my 

head in disbelief. I know the enormity of the resources required to defend the MDL cases involving 

Medtronic over the past dozen years, so I can only imagine the time, money, and attention that other 

Life Sciences companies – not to mention companies in other industries – are committing to MDL 

litigation. This is extremely regrettable. Every dollar that Medtronic and other Life Sciences companies 

unnecessarily spends on MDL litigation could be used far more productively, to provide more jobs, 

return money to shareholders, and – most importantly -- improve healthcare for patients.

I want to thank the MDL Subcommittee for its work considering ways to amend the federal rules of civil 

procedure to improve the way MDL’s operate. In my view, MDL reform is vital. It may be the most 

important topic for the various rules committees and subcommittees to address, as MDL cases now 

make up half – or more – of the federal docket.

I would like to focus my comments to the proposed Rule 16.1(c)(4), which states that a transferee court 

should order the parties to meet and prepare a report at the outset of a new MDL, and that the report 

may include “how and when the parties will exchange information about the factual bases for their 

claims and defenses.” 

This proposal seems designed to address one of the most serious problems that MDL’s present -- the 

proliferation of non-cognizable claims, i.e. the proliferation of claims that lack legitimate “factual bases.” 

Plaintiffs’ lawyers collect “claims” through advertising or other means, and then park them in an MDL, 

often with little to any effort to ascertain whether the claim is valid. Unfortunately, in my view, the 

proposed Rule 16.1(c)(4) would do little, if anything, to mitigate the problem, for two main reasons. 

• First, the rule is discretionary. It requires nothing; it merely identifies an option that the court 

and the parties can pursue. 

• Second, it treats the problem of non-cognizable claims as if it were caused by the lack of 

adequate discovery, or perhaps the lack of effective management of discovery. In my view, that 

is not the source of the problem. 
The source of the problem is that counsel for plaintiffs believe high claim volume is the key to success in 

MDLs. Borrowing two common idioms, plaintiffs’ counsel believe (1) as a practical matter, the MDL 

system accepts the logic that “where there’s smoke there must be fire,” and (2) an MDL can become 

“too big to fail.” Guided by these beliefs, plaintiffs’ counsel create a lot of “smoke” by bringing as many 

claims as possible into MDL‘s regardless of whether those claims are cognizable, and then they, and 

their partners, the litigation funders, proceed to drive up the costs of MDL litigation for defendants. 

They feel assured that the litigation’s sheer size, and the massive procedural problems that follow from 

its size, will force defendants to pay big settlements, and they will achieve a handsome return on their 

investment.

In my view, this distorts the constitutional and statutory role of the federal court system, which is to 

resolve cases and controversies. To serve this role effectively, the court system should quickly identify 

matters that are not genuine cases and controversies and discard them. Discarding non-cases and 

controversies generally happens in the non-MDL context, due to Rule 12(b)(6) and other provisions of 

the federal rules. As a practical matter, it does not occur in MDLs. 

It is not enough for the proposed rule to merely nod toward improving the voluntary “exchange of 

information” about claims and defenses. Claims that cannot be substantiated must be dismissed earlyon in the life of an MDL. Accordingly, I agree with LCJ’s suggestion that there should be a new rule

calling for each plaintiff to provide information to establish standing, state a claim, show that the 

plaintiff used or was exposed to the product involved (in a litigation involving use or exposure to a 

product), and substantiate the nature and timing of the plaintiff’s alleged injury. 

In short, my view is that Rule 16.1(c)(4) should be a standing, exposure, and injury rule, not an exchange 

of information suggestion.
TAB 29
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Washington, D.C. 20507

Office of

General Counsel

1

January 23, 2024

Via Email Only: RulesCommittee_Secretary@ao.uscourts.gov

Advisory Committee on Civil Rules

Committee on Rules of Practice and Procedure 

Judicial Conference of the United States 

One Columbus Circle, NE

Washington, D.C. 20544

Re: Proposed Amendments to Civil Rules of Procedure 26(f) and 16(b)

Dear Members of the Committee:

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

Federal Rules of Civil Procedure 26(f) and 16(b) regarding privilege logs. 

As the General Counsel for the Equal Employment Opportunity Commission (EEOC), I 

am responsible for directing, coordinating, and supervising the EEOC’s litigation program. The 

EEOC enforces six federal employment discrimination statutes: Title VII of the Civil Rights 

Act of 1964, Title I of the Americans with Disabilities Act of 1990, the Age Discrimination in 

Employment Act of 1967, the Equal Pay Act of 1963, Title II of the Genetic Information 

Nondiscrimination Act of 2008, and the Pregnant Workers Fairness Act of 2022. Since 1972, 

EEOC has been a frequent litigant in federal courts across the country. As of January 19, 2024, 

the EEOC has 205 suits pending in 68 federal district courts throughout the United States. Of 

these 205, 90 are either systemic1or class cases, often requiring the exchange of substantial 

electronically stored information. Regardless of the size of the case, privilege logs remain an 

essential tool for EEOC trial attorneys to assess defendants’ claims of privilege for withheld or 

redacted documents.

The EEOC supports the Committee’s proposed amendments to require parties to discuss 

the timing, means and format of privilege logs during the Rule 26(f) conference and to state 

their views on such in the Rule 16(b) report. Unfortunately, privilege logs are often an 

afterthought and only supplied upon prompting or threatening of a motion to compel. In some 

cases, producing parties do not produce privilege logs until after a deposition, thereby 

preventing the requesting party from deposing individuals about documents that were 

improperly withheld. We have seen these situations particularly often in our larger class cases in 

which the parties have agreed upon rolling productions. Making matters worse, even when the 1 The EEOC defines systemic cases as “pattern or practice, policy and/or class cases where the 

discrimination has a broad impact on an industry, profession, company or geographic location.”

Systemic Task Force Report to the Chair of the Equal Employment Opportunity Commission,
2

privilege logs are timely produced, they may not comply with Rule 26(b)(5) in that they do not 

sufficiently describe the documents in a way that will enable the party to assess the privilege

claimed. And in some cases, particularly cases involving a large volume of documents, parties 

have over designated documents as privileged, leading to unnecessary discovery disputes. 

The Committee’s proposed amendments appropriately recognize the importance of early 

discussion and agreement on privilege logs, which will minimize later discovery disputes and 

ensure the timely and complete production of privilege logs. Coming to early agreement on the 

timing and form of the privilege log will also allow the parties to ensure that they will timely 

receive the information needed to assess the withholding party’s privilege. In addition, adding 

the requirement for discussion at the Rule 26(f) stage is particularly appropriate. At that stage, 

the parties are poised for such a discussion because document review has not yet commenced, 

and they are often discussing ESI protocols, protective orders, and Federal Rule of Evidence 

502(d) Orders. Consistent with provisions made in ESI protocols, the parties could also provide 

an “escape valve” provision which would allow the parties to revisit the agreed-upon privilege 

log should the circumstances warrant. 

The amendments also provide flexibility to the parties and the Courts regarding the form 

of a Rule 26(b)(5)(A) privilege log. For example, the parties may find it reasonable to exclude 

from logging certain categories of documents, certain temporal periods, or certain 

communications between parties and litigation counsel. The parties may alternatively prefer a 

metadata log which can be created quickly by exporting the metadata of withheld documents 

from a discovery review platform. Even within the metadata log, the parties could negotiate the 

metadata fields to be ultimately produced. The parties could also agree upon the grouping of 

documents with similar privilege bases in a categorical privilege log. Finally, parties may 

choose to use a hybrid approach, such as requiring a document-by-document log for a person 

who has a dual-purpose role but opting for a categorical log for other individuals. The 

amendments also recognize that the Courts still have the flexibility to insist upon a documentby-document privilege log given their experience with discovery disputes in their jurisdictions.

The EEOC also supports the Committee Notes, which similarly emphasize the 

importance of early discussion and agreement as well as the need for flexibility. The EEOC, 

however, notes that there may be an unintended focus on burden on the producing party as the 

sole basis for the amendments, even though the Comments also acknowledge the issue of overdesignation by producing parties. As a result, the EEOC proposes that the following 

modification be made to the introduction of the Committee Notes: 

Rule 26(f)(3)(D) is amended to address concerns about application of the 

requirement in Rule 26(b)(5)(A) that producing parties describe materials 

withheld on grounds of privilege or as trial-preparation materials. 

Compliance with Rule 26(b)(5)(A) can involve very large costs, often 

including a document-by-document “privilege log.” Application of the Rule 

in a manner that does not allow the receiving parties to assess adequately 

the claim of privilege likewise imposes burdens on such parties and the 

courts and may prevent parties from identifying improperly withheld 

documents. 
3

Rule 26(b)(5)(A) was adopted in 1993, and from the outset was intended to 

recognize the need for flexibility. Nevertheless, the rule has not been 

consistently applied in a flexible manner, sometimes imposing undue 

burdens on both producing and receiving parties. 

We believe that this modification strikes a necessary balance for both producing and receiving 

parties who have articulated the burdens associated with privilege logs. 

We also note that while the proposed Committee Notes emphasize the need for 

flexibility, they do not emphasize that ultimately whichever privilege log is agreed upon, it must 

be sufficient to assess the claim of privilege as the Rule requires. See, e.g., In re Aenergy, S.A., 451 F. Supp. 3d 319, 325 (S.D.N.Y. 2020) (permitting categorical privilege logs does not 

obviate a party’s obligation to provide enough detail); Companion Prop. & Cas. Ins. Co. v. U.S. 

Bank Nat'l Ass'n, No. 3:15-CV-01300-JMC, 2016 WL 6539344, at *3 (D.S.C. Nov. 3, 2016) 

(holding that the court had discretion to limit a party’s burden by allowing a categorical log but 

the categories must be sufficiently articulated); Shufeldt v. Baker, Donelson, Bearman, Caldwell 

& Berkowitz, P.C., No. 3:17-CV-01078, 2020 WL 1532323, *5 (M.D. Tenn. Mar. 31, 2020)

(finding one-page privilege log with broad categorical claims of privilege inadequate because 

log must still provide information needed to evaluate claims of privilege). This point is 

significant as the burden should always remain on the party seeking to invoke the privilege and 

not the party receiving a deficient privilege log. Accordingly, we propose the following 

modification to the paragraphs addressing flexibility:

This amendment also seeks to grant the parties maximum flexibility in 

designing an appropriate method for identifying the grounds for 

withholding materials. Depending on the nature of the litigation, the nature 

of the materials sought through discovery, and the nature of the privilege or 

protection involved, what is needed in one case may not be necessary in 

another. No one-size-fits-all approach would actually be suitable in all 

cases. Whichever approach is agreed upon, the privilege log must provide 

sufficient information for the parties and the court to assess the privilege 

claim for each document withheld consistent with Rule 26(b)(5)(A). ... In some cases, some sort of categorical approach might be effective to 

relieve the producing party of the need to list many withheld documents. 

For example, it may be that communications between a party and outside 

litigation counsel could be excluded from the listing, and in some cases a 

date range might be a suitable method of excluding some materials from the 

listing requirement. These or other methods may enable counsel to reduce 

the burden and increase the effectiveness of complying with Rule 

26(b)(5)(A). But the use of categories calls for careful drafting and 

application keyed to the specifics of the action to ensure that the use of any 

categories or other approach provides sufficient information to assess the 

privilege consistent with Rule 26(b)(5)(A).

 
4

Finally, the EEOC disagrees with the comments submitted to, and rejected by, the 

Committee suggesting that the Committee adopt a presumption that non-traditional logs, such as 

metadata or categorical logs, is appropriate under Rule 26(b)(5) in all cases. As the proposed 

Committee Notes appropriately state, “[n]o one-size-fits-all approach would actually be suitable 

in all cases.” Indeed, if categories are not described sufficiently, categorical logs can cause 

discovery disputes, which may lead the Courts to order a traditional privilege log, thereby 

eliminating any presumed efficiency. As for metadata logs, they too may be insufficient if they 

contain hard-copy scanned documents that do not contain sufficient metadata to properly assess 

the claim of privilege. They also may be deficient if the producing party is using email 

threading in that the involvement of an attorney in a suppressed email would not appear in the 

metadata. These deficiencies would shift the burden under Rule 26(b)(5) to the receiving party 

rather than the producing party. Such a presumption would also interfere with the Court’s 

discretion to deem that a document-by-document log should be provided. The EEOC commends 

the Committee for rejecting such a presumption and taking a more measured approach.

Thank you for considering the EEOC’s comments on these important Rules. 

 

 Sincerely, 

 

 Karla Gilbride 

 General Counsel 

TAB 30
Testimony of Brian D. Clark, Lockridge Grindal Nauen P.L.L.P. Regarding Privilege Logs 

Presented at the February 5, 2024 Civil Rules Hearing 

Thank you for allowing me to speak about the proposed amendments to Federal Rules of 

Civil Procedure 26(f) and 16(b). My name is Brian Clark, and I am a partner at Lockridge Grindal 

Nauen P.L.L.P. in Minneapolis, Minnesota. My practice is focused on plaintiff-side antitrust class 

actions in federal courts across the country. Over the past 15 years, I have served as counsel or 

lead counsel in dozens of antitrust cases. For example, I am currently involved in many antitrust 

cases involving agricultural products like chicken, pork, turkey, beef, peanuts, and dairy products. 

I taught an e-discovery seminar at the University of Minnesota Law School for five years, and I 

am a past member of the Sedona Conference Working Group 1 Steering Committee. Nine years 

ago, I also founded the Complex Litigation E-Discovery Forum (“CLEF”), a plaintiff-side ediscovery group that serves as a key resource and strategy organization for plaintiff-side mass tort, 

complex, and class action attorneys. Problems with over-withholding of non-privileged 

documents and privilege logs are one of the most common complaints and discussion topics among 

CLEF’s hundreds of members. 

Support for the proposed amendments to Rules 26(f) and 16(b) 

I support the proposed amendments to the language of Rules 26(f) and 16(b); though, I 

have concerns with the proposed Committee Note, which will be the focus of my testimony. Early 

planning for e-discovery, in which I include privilege log logistics, content, and timing, is essential 

in all cases, but especially the large-document-volume antitrust cases. Such planning has been 

part of my practice for years, but specifically highlighting this need in the Rules will help all parties 

see the value in doing so and eliminate any resistance to having a fulsome discussion early on, 

before a party invests resources in a privilege screening process that is inadequate, untimely, or 

otherwise problematic. The District of Minnesota has long encouraged such planning (see 

https://www.mnd.uscourts.gov/file/ediscovery-guidepdf), and ensuring the parties together give 

adequate consideration to these topics before investing time in a privilege review has served 

litigants very well. 

Concern regarding the Proposed Committee Note 

While I support the amendments to Rules 26(f) and 16(b), the proposed Committee Notes 

are concerning. They focus on only a single “burden” of the “very large costs” on the producing 

party and seem to suggest that categorical or metadata logs should become the new standard for a 

“privilege log” under the Federal Rules. This is incredibly problematic to me based on my 

experience for four reasons. 
First, larger corporations involved in or expecting to be involved in litigation have been 

advised by inside and outside counsel to preemptively label any sensitive internal communication 

as “Attorney-Client Privileged,” even when no such colorable claim exists and, at most, inside 

counsel are being copied to give the appearance of a privileged communication. A categorical log 

would obscure this practice and hinder the ability to obtain such communications. For example, 

given the nature of the price-fixing conspiracies we allege, we often seek to uncover facts against 

recidivist industries that have repeatedly been accused of price-fixing by government enforcers 

and private litigants. Given this recidivist status, many of these companies have adopted practices 

of labeling by default any “gray area” email as attorney-client privileged, even when no such 

privilege could possibly apply. For example, it is now widely known after the Epic v. Google trial 

in the Northern District of California that employees at Google were trained by attorneys to add 

an “attorney-client privileged” disclaimer and copy inside counsel on a large volume of internal 

emails that had no colorable claim of privilege, but were instead on sensitive topics relating to 

competition and antitrust issues. A categorical log that treats all emails copying in-house counsel 

would have the effect of permitting such tactics to significantly hinder the ability of litigants to 

understand the truth and facts of a case. 

Second, there is a wide range of views on what a “metadata log” means. Many attorneys 

view their obligations for producing a “metadata log” to merely be automatically populating an 

excel spreadsheet with whatever metadata happens to exist for a document. In practice, this means 

receiving thousands of rows of privilege log “entries” that list the author as “User 1”, “Laptop 

513”, etc. with little or no other information such as the basis of the privilege, the date, the name 

of the attorney involved in the communication, or other critical information. This delays actual 

analysis of the basis for withholding such documents for months, as the challenging party 

negotiates and potentially seeks court intervention to ensure the withholding party provides the 

basic elements of a privilege log (i.e., who/what/when/why). 

Third, privilege is simply an area where the incentives to withhold information that is 

relevant and not privileged are high. Even with the current regime in courts across the country that 

I practice in, the use of a line-by-line privilege log still leads to the vast over-designation of 

documents as privileged. Two examples from cases I have litigated are: 

x Kleen Prods. LLC v. Int’l Paper., No. 10-C-5711, 2014 WL 6475558 (N.D. Ill. Nov. 

12, 2014): Dual-role of in-house counsel as attorney and businessperson led to 

large over-designation of documents as privileged in this case I litigated and for 

which I argued the motion. As stated by the Court, “the number of documents 

included in the in camera sampling that do not appear to be privileged is troubling. 

The Court recognizes that drawing a distinction between business and legal advice 

is not always easy, particularly in the antitrust context, but it really is difficult to 

see how there could be any plausible claim of privilege with regard to many of the 

documents that have been submitted.” 

x In re Cattle & Beef Antitrust Litig., MDL No. 3031 (D. Minn.): In this price-fixing 

case against the nation’s four largest beef companies, privilege has become an issue 

and delayed the start of depositions. As stated at a recent hearing in the matter, 

after challenges regarding row-by-row privilege designations, between 35% and 
63% of privilege assertions were withdrawn by the defendants. A categorical log 

would have made any such challenges to specific documents difficult or impossible. 

Fourth, the focus on burden of only the producing party for a privilege log overlooks an 

inherent choice that is available to any party considering how to invest its resources in litigation. 

Federal Rule of Evidence 502(d) protects a party from having to perform a complete privilege 

review of every single document in litigation. This provision allows a producing party to narrowly 

assert privilege over only the most critical documents, without investing substantial resources in a 

document-by-document review, while continuing to protect against any waiver of privilege for 

documents that slip through the cracks. The alternative that defense counsel seems to prefer—a 

categorical log that provides no detail or ability for a challenging party to seek non-privileged 

documents swept up in such categories—is no solution at all, for the many reasons discussed 

above. 

As a result of these concerns, I would strike the Draft Committee Note’s second sentence 

that reads as follows: “Compliance with Rule 26(b)(5)(A) can involve very large costs, often 

including a document-by-document ‘privilege log.’” However, if the Committee decides to keep 

the sentence regarding “very large costs” in the Committee Note, then the concerns like the ones I 

have noted above are equally important to include in the Committee Notes, as the impression left 

is one that is dismissive of the requirement of a document-by-document privilege log, which in 

my experience is the standard across the country. 

Thank you for the opportunity to provide this testimony to the Committee. 

Sincerely, 

Brian D. Clark 
TAB 31 
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1

January 26, 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 Committee Members,

Thank you for this opportunity to briefly comment on proposed Rule 16.1 regarding 

multidistrict litigation.

My name is Jessica Glitz, and I am senior counsel at Johnson Law Group, and 

submit this testimony on behalf of my firm. I have had the privilege of working in the 

world of complex litigation for over a decade, where I have had the honor of representing 

parties on both sides of the aisle. I have been court-appointed to plaintiffs’ steering 

committee positions in state court litigations and have played an integral role in shaping 

the litigation in several federal court multidistrict litigations (“MDL”), particularly in 

medical device cases. Below is my perspective, to the Advisory Committee, on proposed 

rule 16.1.

I. Multi-District Litigation Landscape

The value of the MDL process for individuals claiming personal injuries against a 

major company or companies is insurmountable. Most men and women who file claims 

would not have a voice or the means to seek justice for wrongs caused by the negligence 

and/or blatant disregard due to products, either pharmaceutical or commercial, of 

multimillion dollar companies with endless resources. Those advocating for the proposed 

rule tout, it will bring efficiency and a more streamlined process for MDLs going forward, 

however as Ms. Hoekstra has already quoted Judge Rodgers, “there is no magic formula or 

recipe for handling an MDL.”1 Additionally, while most discussions over the past three 

hearings have focused on MDLs with over 1,000 plaintiffs’ cases filed, this is not the 

makeup of the average MDL. As of January 2, 2024, there are 167 active MDLs, 59.8% 

have had 100 or less cases filed in them. (see chart below)2

1 Jennifer Hoekstra proposed January 16, 2024, testimony pg. 102 of 198 2 https://www.jpml.uscourts.gov/sites/jpml/files/Pending_MDL_Dockets_By_District-January-2-2024.pdf
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2

This distinction is important as we look at the proposed rule and its effect it could have on 

the MDL landscape in the future. As discussed in more detail below, the makeup of MDLs, 

over decades, have utilized the FRCP, therefore there is no urgent need in today’s average 

size MDL for any additional rule. 

Additionally, some of these proposed guidelines may hinder instead of help the 

MDL process. While I agree with many of my colleagues that rule 16.1(c) subsections 1 

(appropriateness and scope of leadership appointments), 8 (schedule for additional 

management conferences), 10 (management of new actions), and 11 (management of 

related actions) can be easily addressed in most initial case management conferences 

despite the pending potential appointment of leadership, many others should only be 

addressed after leadership is appointed (if necessary) or in the case of 16.1(b) is obsolete in 

a predominant amount of MDLs.

II. Designation of Coordinating Counsel For the Conference

Since most MDLs are made up of less than 100 plaintiffs, the designation of 

coordinating counsel for the initial conference seems obsolete. The size of an MDL of 100 

plaintiffs or less also equates far less attorneys in the room for plaintiffs. There is no 

distinct role the counsel would play when such a presumably small group of attorneys can 

and in most cases have organized themselves prior to the initial MDL management 

conference.

In my experience, this is also true for MDLs with over 1,000 claims filed. Plaintiffs 

over the past decade have not been naive to the growth of MDLs. Plaintiffs have become 

organized, utilized and created platforms and databases to share information when a new 

tort is on the horizon. Therefore, the designation of a separate counsel to help coordinate 

the initial conference would only lead to complications down the road when leadership is 

appointed. 

16.1(b) also leaves more questions than answers: How long is the coordinating 

counsel appointed? Is their role only for the initial case management conference? Can they 

be considered for leadership? Can a coordinating counsel be appointed in the future after 

the initial conference? Must the counsel be involved directly in the litigation before the 

initial case management conference? Can a party request a coordinating counsel for an 
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opposing party before the initial case management conference? If a court does appoint a 

coordinating counsel for one party can that party request the court likewise appoint 

coordinating counsel for the opposing party? For example in the hair relaxer litigation, set 

in the Northern District of Illinois, there are over 21 defendants named, represented by a 

myriad of different counsels. If the court had appointed a coordinating counsel for 

plaintiffs, could plaintiffs have requested the court to appoint a coordinating counsel for 

defendants? In its essence, the rule creates more inefficiency than its intent.

Instead, the solution should be to set strict timelines and guidelines as to how and 

when leadership counsel will be appointed. Respectfully, Subsection B is ambiguous, in 

most MDLs unnecessary, and an MDL court instead could use its time and resources 

establishing a streamlined process to define the makeup of leadership counsel for the 

litigation.

III. Propose Rule 16(c) Report for Initial MDL Management Conference

1. As stated above subsection 1 is vital for the early success of an MDL, 

regardless of its size. Both parties can quickly discuss the merits and needs of 

leadership counsel and propose a plan. In my experience, the more involved 

the court is in the leadership structure and in choosing leadership, the fairer 

and more diverse the process is for plaintiffs’ counsel3. Regardless of the 

parameters a court sets in defining how leadership will be appointed, the 

court must define the attorneys who have decision making authority before 

many of the subsections in rule 16.1(c) can be addressed.

2. Subsections 2 through 7 can only be efficiently addressed after subsection 1 is 

complete and leadership is appointed or defined as obsolete. To address these 

subsections completely the parties, need to define the counsels’ roles with the 

authority to make decisions on behalf of the MDL plaintiffs as a whole. While

leadership counsel is not necessary in every MDL, it is important to ensure 

there is no conflict of the trajectory of the litigation by members of the same 

party. Counsel for the defense and the plaintiffs may differ with their 

colleagues on the scope of previously entered scheduling orders, factual or 

legal issues, the exchange of information between parties, the role of 

consolidated pleadings, the scope of discovery, and pretrial motions. All of 

these issues are important and should be addressed early on in the litigation, 

but counsel needs time for many, if not most of these issues, to define a 

succinct and agreed upon plan, which may not be possible before the initial or 

even the first few initial case management conferences and cannot be 

complete until respective roles are determined.

3 The court’s involvement can look very different for each case. For example, the court can pick between 

opposing slates, review applications, have an interview process, have set time limits for appointments and 

request new applications, allow the parties to designate one slate, or do a combination of any of these 

proposed structures in appointing leadership counsel.
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4

3. Subsections 9 and 12 on the other hand are premature for an initial case 

management conference. It is precipitous to know the parameters for 

settlement or the role of a magistrate judge or master in an MDL until 

discovery is underway. Again, it is important to first define who can negotiate 

for both parties regarding these two issues and there is usually not enough 

information to provide the court with an educated and productive report in 

advance of the conference to move the litigation along in an efficient manner 

regarding these two issues. Therefore, these two subsections should be 

removed from the suggested list of topics deemed important to discuss in the 

initial case management conference.

4. Accordingly, I humbly suggest the rule instead be revised as follows:

a. Preparation For Initial MDL Management Conference.

“The transferee court should order the parties to meet and be prepared to 

address, in particular, the appointment of leadership under subsection (1) 

and its scope. Additionally, the parties should be ready to address any matter 

designated by the Court, which may include any matter addressed in Rule 16. 

The report may also address any other matter the parties wish to bring to the 

court’s attention.”

This proposed change highlights the importance of determining the scope of 

leadership counsel and provides the court with the authority to define the scope and 

perimeters of how it best sees the litigation moving forward efficiently.

IV. Unsupportable Claims Scope

Many have presented to this committee the need for this proposed rule because an

alleged number of unsupportable claims are being filed in MDLs across the nation. While 

many of my colleagues have already addressed this issue, I want to make a few quick 

points.

First, as already noted above, most MDLs are made up of 100 plaintiffs or less. 

Regardless of what has been presented, most MDLs are made up of Plaintiffs whose cases 

have been thoroughly reviewed and researched by the Plaintiffs’ counsel before filing.

Second, many times plaintiffs’ counsel must file a case to protect a plaintiff’s claim 

from being time-barred based on the plaintiffs’ representations before specific discovery 

can be done by the Plaintiffs’ counsel before the case can be filed. Oftentimes it is difficult 

to gather all the facts necessary before the case can be filed regarding exact injury or other 

possible causes of a plaintiff’s injury. Furthermore, whether a case is time-barred is 

something which most times must be litigated. The court must first determine what law 

applies to a certain case. Additionally, the court must weigh the specific facts of each case, 

including but not limited to whether there was an express warranty of use of a product, if 

the product was recalled, plaintiffs’ discovery of the injury, or the causal link of the injury, 
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5

and/or whether the defendant(s) fraudulently concealed any information which deterred 

the plaintiff from discovering the link between his injuries and the defendant(s)’ product. 

All this cannot be determined before a predominant amount of cases are filed and general 

discovery and specific discovery are well underway. Therefore, it is presumptuous of any 

party to determine at the outset that a case time barred before proper discovery is 

substantially complete.

Third, Rule 11 already provides the court with a substantial amount of power to 

address and deter inappropriate behavior and the filing of frivolous suits. Courts have the 

authority to sanction counsel who increases the cost of litigation and file pleadings without 

proper authority and time. An additional rule does not deter the filing of alleged 

unsupported claims, instead a court need only enforce the rules already set in place.

Therefore, the data presented does not support the claim that a myriad of 

unsupported claims are filed over the majority of MDLs, in fact the opposite is true. 

Additionally, courts already have the tools they need to deter filing frivolous claims.

V. Conclusion

I share the sentiments and suggestions of others, who suggest in more detail, the 

Committee should remove the suggestion of a Coordinating Counsel and limit the scope of 

rule 16.1(c). I appreciate the opportunity to address the Committee on February 6, 2024,

in more detail and look forward to answering any questions the Committee has in store.

Kindest regards,

Jessica Glitz

Senior Counsel
TAB 32
January 26, 2024

VIA EMAIL

Advisory Committee on Civil Rules 

Committee on Rules of Practice and Procedure 

Judicial Conference of the United States 

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 Committee: 

Thank you for the opportunity to testify concerning the proposed Rule 16.1 on multidistrict 

litigation. 

I am a partner at Schubert Jonckheer & Kolbe LLP, a small, boutique firm based in San Francisc

that has represented plaintiffs in class actions for over forty years. I am Chair of the firm’

Consumer and Data Privacy Practice Group, which specializes in class actions involving false 

advertising, consumer privacy, and data breaches. Over the years, I have participated in numerous 

large class-action MDLs and am familiar with the many ways they are coordinated and organized. 

I very much appreciate the considerable work this Committee has undertaken to draft a new rule 

specifically for multidistrict litigation. I agree with much of the proposed rule and believe, on th

whole, it will benefit transferee judges who are assigned MDLs

My testimony today is limited to Rule 16.1(b) designating “coordinating counsel.” I believe this 

section may create unintended consequences and suggest it be stricken from the rule. 

Proposed Rule 16.1(b) would encourage transferee judges to designate coordinating counsel prior 

to an initial MDL management conference. Under the proposed rule, coordinating counsel would 

be responsible for assisting the court with that conference and working with the parties to prepare 

a pre-conference report addressing the topics specified in Rule 16.1(c), including whethe

leadership counsel should be appointed. 

2001 Union St Ste 200 · San Francisco, CA 94123 · (415) 788-4220 · Facsimile: (415) 788-0161 

www.sjk.law
Proposed New FRCP 16.1 

January 26, 2024 ▪ Page 2

While I have no doubt that the inclusion of Rule 16.1(b) was well-intentioned to streamline 

proceedings, in practice it would create new problems and exacerbate old ones. For the following 

reasons, I suggest the Committee remove in its entirety from the proposed rule.

1. Rule 16.1(b) is ambiguous, inefficient, and unnecessary. 

The proposed rule creates an entirely new position called “coordinating counsel,” which is not a 

term commonly used in MDLs or other complex litigation. Coordinating counsel is not defined

and it may not be well-understood by practicing attorneys or transferee judges. 

Coordinating counsel is not necessarily the same as “leadership counsel,” which the rule 

separately references in 16.1(c)(1). As the proposed comment to Rule 16.1(b) explains, the court 

“may designate coordinating counsel to assist the court before appointing leadership counsel.” 

Yet, it is unclear whether coordinating counsel would be a plaintiffs’ attorney who has filed a cas

in the MDL, a neutral plaintiffs’ attorney who is otherwise not involved in the MDL, or even a 

special master. Far from streamlining the process, the rule creates new ambiguities. 

In the context of class actions, in which I practice, the new rule would present even further 

problems because the separate position of “interim counsel” already exists. As Rule 23(g)(3) 

states, courts may “designate interim counsel to act on behalf of a putative class before 

determining whether to certify the action as a class action.” Fed. R. Civ. P. 23(g)(3). Is 

“coordinating counsel” the same as “interim counsel”? Or is “interim counsel” what the rule 

contemplates by “leadership counsel”? The proposed rule offers no answers. 

Moreover, to the extent the proposed rule suggests that courts should first appoint coordinatin

counsel prior to the initial conference, followed by leadership counsel after the conference, that 

two-step process would only create inefficiencies and sow confusion. Rule 16.1(b) is silent on the 

criteria or process courts should use to select coordinating counsel. That could, in turn, create a 

race to the courthouse, where attorneys seeking appointment as coordinating counsel rush to fil

applications before the court has issued its first order. Or the court may simply select an attorne

with no competitive process at all, furthering the repeat-player problems discussed below. 

The appointment of coordinating counsel is also unnecessary. As the comment to Rule 16.1(b) 

itself acknowledges, “counsel may be able to organize themselves prior to the initial MDL 

management conference such that the designation of coordinating counsel may not be necessary.” 

But by front-loading the designation of coordinating counsel prior to the initial conference, the 

actual rule would short-circuit any such self-ordering. 

In my experience, self-ordering among plaintiffs’ counsel prior to an initial case management 

conference is the rule in class actions, not the exception. Even in complex class actions that 

involve many actions, plaintiffs’ attorneys commonly work cooperatively to relate and consolidate 

the cases before the same judge, negotiate a schedule for initial proceedings, and collaborate on a 

case management statement. For example, in the MOVEit data-breach MDL, which involves over 

100 plaintiffs’ attorneys and 250 separate actions, plaintiffs’ attorneys informally created their 

own initial organization and worked together to draft a joint initial report—even without the court 
Proposed New FRCP 16.1 

January 26, 2024 ▪ Page 3

appointing “coordinating counsel.” If, however, a transferee court selects coordinating counsel at 1

the very outset, it may actually frustrate the self-ordering process.

2. Rule 16.1(b) would exacerbate the repeat-player problem in MDL leadership. 

The problem of repeat players is pervasive in MDL leadership. Historically, judges have fille

MDL leadership positions with attorneys who have previously been appointed in other MDLs 

and with whom they were familiar. These same lawyers then collect more experience, making 2

their appointment in subsequent cases even more likely. It is a revolving door. 3

Studies have found that “application methods for appointment reduce the seniority bottleneck 

and repeat-player entrenchment by giving talented newer members of the profession a real chance 

to obtain leadership positions.” By contrast, other selection methods can lead to “tit-for-tat 4

reciprocity” among repeat players and perpetuate entrenched roles of a small group of lawyers.5

The proposed Rule 16.1(b) would exacerbate these problems. By selecting coordinating counsel 

prior to selecting leadership counsel (or even a framework or criteria for those appointments), the 

proposed rule would encourage transferee judges to appoint attorneys without an adequate 

process. Indeed, it provides judges no guidance at all as to how to select coordinating counsel. 

By contrast, the proposed committee note to Rule 16.1(c)(1) on leadership counsel explains that a 

transferee judge “has a responsibility in the selection process to ensure that the lawyers appointed 

to leadership positions are capable and experienced and that they will responsibly and fairly 

represent plaintiffs, keeping in mind the benefits of ffifferent experiences, skill, knowledge

geographical distributions, and backgrounds.” Yet, neither Rule 16.1(b) or the accompanying 

committee note provides any similar instruction for the selection of coordinating counsel. 

In my experience, without adequate guidance, transferee judges often select attorneys for these 

roles who they have previously appointed in prior cases and are most familiar with. For example, 

in the Kia Hyundai false advertising MDL, the court appointed three attorneys as plaintiffs’ initial 

conference counsel with no application process at all. One of those attorneys had served as co- 6

lead counsel in an earlier MDL against Toyota before the same judge. Following a competitive 7

application process for leadership in which twenty other lawyers applied, the court appointed the 

same three attorneys as leadership counsel. And those attorneys then selected (and the court 

appointed) the same attorney in the prior Toyota MDL as lead counsel. 

See In re: MOVEit Customer Data Sec. Breach Litig., No. 1:23-md-03083-ADB (D. Mass.). 1

See James F. Humphreys Complex Litig. Ctr., George Wash. Law Sch., Inclusivity & Excellence: Guidelines & Best 2

Pracs. for Judges Appointing Lawyers to Leadership Positions in MDL & Class-Action Litigation, at 9 (Mar. 15, 2021).

See Elizabeth Chamblee Burch & Margaret S. Williams, Repeat Players In Multidistrict Litigation: The Social Network, 3

102 Cornell Law Review 1445 (2017).

 James F. Humphreys Complex Litig. Ctr., supra note 2, at 15. 4

Id. at 16; see also Elizabeth Chamblee Burch, Judging Multidistrict Litigation, 90 N.Y.U. L. REV. 71, 93 (2015). 5

See In re: Kia Hyundai Vehicle Theft Mktg., Sales Pracs., and Prods. Liab. Litig. No. 8:22-ML-3052-JVS (C.D. Cal.). 6

See In re Toyota Motor Corp. Unintended Acceleration Mktg., Sales Pracs., & Prods. Liab. Litig., No. 8:10-ml-02151-JVS. 7
Proposed New FRCP 16.1 

January 26, 2024 ▪ Page 4

Similarly, in the Anthem data breach MDL, the court designated two attorneys with whom it was 

familiar to coordinate plaintiffs’ counsel for the initial conference. Yet, despite noting that these 8

designations were not a precursor of future appointments (and despite numerous other qualifie

applicants), the court nevertheless appointed those same two attorneys as co-lead counsel. 

By encouraging courts to appoint coordinating counsel before soliciting applications for 

leadership counsel, the proposed Rule 16.1(b) may implicitly favor the attorneys appointed as 

coordinating counsel for subsequent reappointment as leadership counsel. By short-circuiting a 

fair, merit-based application process, the rule would only exacerbate this repeat-player problem. 

3. Rule 16.1(b) would hinder diversity and encourage implicit bias in MDL leadership. 

The lack of diversity in MDL leadership remains a difficult and intractable problem. Appointing 

diverse counsel to leadership who bring “a broad range of experiences, backgrounds, and 

perspectives” helps ensure that the diverse interests of victims will be “fairly, adequately, and 

justly represented.” Diversity enhances the quality of the decision-making process and the 9

perceived legitimacy of the results. Those benefits often include “better and more creative 

decision-making, enriched by new and varied perspectives and experiences” and “a better 

understanding of the diverse interests the MDL parties and absent class members may have.”11

That is why the Duke Guidelines instruct that transferee judges “should take into account whether 

the leadership team adequately reflects the diversity of legal talent available and the requirement

of the case.” That includes gender, race, national origin, geography, years of practice, age, and 12

other relevant factors.13

According to an ABA survey, however, 71% of class actions had no women as lead counsel, and in 

MDLs, men were three times more likely than women to be appointed lead counsel. In fact, the 14

Bureau of National Affairs reported in 2017 that women made up just 16.5% of all plaintiffs’ 

leadership appointments in MDL cases. And “[p]eople of color, disabled individuals, and 15

LGBTQ lawyers are equally, if not more, underrepresented in these leadership positions.”16

The proposed Rule 16.1(b) would hinder efforts to make MDL leadership more diverse. As 

explained earlier, the proposed rule would exacerbate the problems with repeat players being 

appointed to leadership. These repeat players are “mostly experienced white, male attorneys” 

See In re Anthem, Inc. Data Breach Litig., No. 15-MD-02617-LHK (N.D. Cal.). 8

 James F. Humphreys Complex Litig. Ctr., supra note 2, at 6. 9

Id. 10

Id. at 8. 11

 Bolch Judicial Inst., Duke Law School, Guidelines & Best Pracs. for Large & Mass-Tort MDLs, at 45 (2nd Ed. 2018). 12

See In re Ethicon, Inc., Power Morcellator Prods. Liab. Litig., MDL 2652, (D. Kan. Oct. 16, 2015), ECF 2. 13

 James F. Humphreys Complex Litig. Ctr., supra note 2, at 3. 14

Id. 15

Id. at iii; 38 n.115. 16
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January 26, 2024 ▪ Page 5

who have been appointed to MDL leadership positions again and again. This limits 17

opportunities for women, people of color, and LGBTQ lawyers—as well as for younger attorneys 

with less experience and those who work at small firms. These lawyers frequently have fewe

personal connections and are less able to navigate an elongated, two-step leadership process that 

favors prior experience and appointments over other important factors. 

To be clear, the concern is not that judges are intentionally abusing their appointment powers by 

engaging in favoritism or bias. Rather, the concern is that the implicit practice of appointing 

repeat players will effectively reduce diversity and exclude other qualified attorneys fro

appointment. The creation of a new coordinating counsel position—without any criteria or 18

selection process for the appointment—would compound these implicit biases. 

* * * 

As an attorney from a small firm with fewer prior MDL appointments—who is also a transgende

woman and an active member of the LGBTQ community—I am acutely aware of the challenges 

in securing leadership appointments. I am concerned that the designation of coordinating counsel 

would introduce a new, unintended barrier to the MDL appointment process. Accordingly, I 

suggest that the Committee remove section 16.1(b) in its entirety from the proposed rule. 

I look forward to answering any questions that the Committee may have. 

Respectfully submitted,

Amber L. Schubert 

SCHUBERT JONCKHEER & KOLBE LLP

Id. at 9. 17

Id. at 7. 18
TAB 33
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January 23, 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 Christopher Seeger

To the Advisory Committee on Civil Rules:

Thank you for providing this opportunity to testify concerning proposed Federal Rule of Civil 

Procedure 16.1.

I am a co-founding partner of Seeger Weiss. My firm exclusively represents plaintiffs in complex 

litigation, including MDLs and class actions. I received more MDL appointments than any other lawyer 

in America between 2016 and 2019 and currently serve in leadership roles in MDLs including the 3M 

Combat Arms Earplug Litigation, National Prescription Opiate Litigation, Philips CPAP, Bi-Level PAP, 

and Mechanical Ventilator Litigation, and Social Media Adolescent Addiction/Personal Injury Litigation.

My testimony will focus on two subjects: (1) the role of coordinating counsel under the proposed 

rule and (2) responding to various submissions by members of the corporate defense bar that encourage 

this Committee to significantly revise the proposed rule to either make it harder for individual plaintiffs 

to file cases in MDLs or to limit the discretion MDL judges have to prioritize cross-cutting issues over 

plaintiff-specific issues as they manage their cases. The overall message I hope to convey is the same on 

both topics: that the Committee should be careful to ‘do no harm’ and avoid adopting language in the 

proposed rule that would disrupt orderly MDL practice. 

Initial Conference and Coordinating Counsel

I echo the concerns raised by my law partner Jennifer Scullion in her prior testimony about the 

ambiguous role of coordinating counsel in the proposed rule and the outsized emphasis the proposed rule 

places on the initial case management conference. Many of the subjects identified in the proposed rule’s 

initial report are simply not suitable for resolution until the appointment of formal leadership. If the 

proposed rule is adopted in its current form, it risks either coordinating counsel having an outsized role in 

making key strategic decisions at the outset of the case, or (as I suspect will be more common) producing 

initial conference reports that are simply not very useful to the Court. I support the set of revisions Ms. 

Scullion proposes in her testimony. 
Page 2

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I will add that I am skeptical there is a real need for a rule—let alone such a detailed one—

governing the initial conference in an MDL. I am not aware of significant problems with current practices 

regarding initial conferences. 

Defense Proposals to Revise the Proposed Rule

I also want to provide an alternative perspective on one of the primary issues my counterparts in 

the corporate defense bar have focused on: the so-called “Field of Dreams problem.”

I believe firmly that the plaintiffs’ bar has a responsibility to carefully vet cases before filing, and 

that this responsibility remains in place in MDLs just as in any other case. I believe that the plaintiffs’ bar 

can and should do better in meeting that responsibility.

But reading the submissions from the defense bar on this subject, there is a thinly veiled 

implication that the growth in the share of the federal docket mass tort MDLs command is driven 

primarily—or in substantial part—by frivolous cases. That is simply untrue. There is no doubt in my mind 

that there are many cases filed in MDLs that would not have been filed if this aggregation mechanism did 

not exist. But in my experience, that’s because the public attention MDLs get educates people with 

meritorious claims that they should go out and get a lawyer. That, in turn, means more cases are filed in 

MDLs because more injured people learn they may have a claim. None of that is undesirable or 

illegitimate. The Subcommittee’s draft was careful to avoid endorsing any language that would demean 

the legitimacy of those ordinary people’s claims. The Committee would make a serious mistake if it 

incorporated such language here. 

The Subcommittee was also right to reject the defense bar’s various proposals to either make it 

harder to file a case in an MDL (by, for example, eliminating practical MDL mechanisms like short form 

complaints) or to force judges to prioritize individual case screening over cross-cutting issues in MDLs. 

The effect of these proposals would be to limit judicial discretion to handle this problem. But careful 

exercise of judicial discretion is often the best way of screening frivolous cases—there is no one size fits 

all solution to this problem. In my oral testimony, I plan to provide examples of how I have worked 

collaboratively with other plaintiffs’ lawyers, defense counsel, and MDL courts to resolve this problem in 

specific cases. The solutions MDL courts have come up with, aided by the parties, are often driven by the 

specific facts of a given MDL. My testimony will emphasize that flexibility is the best solution to this 

problem—not the rigid limitations the defense bar would seek to impose on MDL courts. 

I look forward to addressing the above and any questions the Committee may have.

Respectfully submitted, 

/s/ Christopher Seeger

Christopher Seeger