LCJ URGES MDL REFORM
According to Rule 1, the Federal Rules of Civil Procedure (FRCP), “govern the procedure in all civil actions and proceedings in the United States district courts.” It is widely known, however, that the FRCP do not govern key elements of procedure in many MDL cases, which now constitute 42 percent of the federal docket. The reason is straightforward: the FRCP no longer provide practical presumptive procedures in MDL cases, so judges and parties are improvising.
While some ad hoc procedures have more merit than others, they all share the same lack of transparency, uniformity and predictability. Many common practices also cause an unbalanced litigation environment by failing to provide protections inherent in the FRCP.
A solution is needed and LCJ has proposed six rule amendments to fill the gap. They include: (1) mandating early vetting of claims, (2) allowing appellate review of dispositive motions, (3) establishing a consent procedure for bellwether trials, (4) treating master complaints as pleadings, (5) providing a common standard for joinder, and (6) requiring disclosure of third party litigation funding. You may view the LCJ comment explaining the proposed rule changes in detail here.
In November of 2017, the Advisory Committee on Civil Rules voted to form a subcommittee to examine the need to amend the FRCP to ensure their application in MDL cases. LCJ continues to follow this process as it moves forward and urges the Advisory Committee not to shy away from its duty to ensure the effective administration of justice in MDL cases despite pressure to maintain the status quo.
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COMMENT TO THE ADVISORY COMMITTEE ON CIVIL RULES AND ITS MDL SUBCOMMITTEE ON HOW MDL JUDGES WOULD BENEFIT FROM A NEW TOOL FOR INFORMING ORGANIZATIONAL DECISIONS AND REDUCING THE DELAY BETWEEN COORDINATION AND INITIAL DISCOVERY WHILE PRESERVING JUDICIAL DISCRETION
COMMENT TO THE SUBCOMMITTEE ON MDL ON SURVEY OF MDL CLAIMANTS SHOWING THE REAL PARTIES IN INTEREST AGREE AD HOC PROCEDURAL SHORTCUTS INTENDED TO REDUCE DISCOVERY “BURDENS” UNDERMINE FAIRNESS
COMMENT TO THE ADVISORY COMMITTEE ON CIVIL RULES AND ITS MDL SUBCOMMITTEE FIXING THE IMBALANCE: TWO PROPOSALS FOR FRCP AMENDMENTS THAT WOULD SOLVE THE EARLY VETTING GAP AND REMEDY THE APPELLATE REVIEW ROADBLOCK IN MDL PROCEEDINGS
COMMENT TO THE ADVISORY COMMITTEE ON CIVIL RULES: WHAT MDL PROBLEMS NEED TO BE SOLVED WITH AMENDMENTS TO THE FEDERAL RULES OF CIVIL PROCEDURE?
REQUEST FOR RULEMAKING to the ADVISORY COMMITTEE ON CIVIL RULES RULES. FOR “ALL CIVIL ACTIONS AND PROCEEDINGS”: A CALL TO BRING CASES CONSOLIDATED FOR PRETRIAL PROCEEDINGS BACK WITHIN THE FEDERAL RULES OF CIVIL PROCEDURE - August 10, 2017
TEN OBSERVATIONS ABOUT THE MDL/TPLF SUBCOMMITTEE’S EXAMINATION INTO THE FUNCTION OF THE FEDERAL RULES OF CIVIL PROCEDURE IN CASES CONSOLIDATED FOR PRETRIAL PROCEEDINGS - April 6, 2018
MDL PRACTICES AND THE NEED FOR FRCP AMEMDMENTS:
PROPOSALS FOR DISCUSSION WITH THE MDL/TPLF SUBCOMMITTEE OF THE ADVISORY COMMITTEE ON CIVIL RULES - September 14, 2018
For more background and information about MDLs and the need for reform, please click below.