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Here’s a short one before the holiday (the one we have off, anyway).  Most of our readers probably already know about the pending proposal for an MDL-specific rule of civil procedure, enumerated as Fed. R. Civ. P. 16.1.  We’ve adverted to proposed Rule 16.1 a couple of times, but never done a deep dive.  There’s a reason for that.  As we observed a couple of months ago, “MDLs require far more rigorous early vetting than is currently being proposed in the little-better-than-nothing draft Fed. R. Civ. P. 16.1.”

Bexis has now expanded on these prior complaints.  Last week he filed his own public comment concerning proposed Rule 16.1, laying out how MDLs have become essentially a rules-free jungle of judicial discretion run amok that now encompasses some 80% of the federal system’s civil caseload.  Despite the MDL statute’s specifying only procedures “not inconsistent with … the Federal Rules of Civil Procedure,” 28 U.S.C. §1407(f), “MDL courts have simply abandoned case-specific application of existing rules in favor of improvisational and ad hoc procedural practices to manage massive MDL proceedings.”  Comment at 2 (footnote omitted).

Bexis’ comment gives examples − with numerous footnotes, which is why we’re not republishing it here in full – of MDL rulings dispensing with Federal Rules of Civil Procedure 3, 7, 8, 12, 16, 26, and 56.  The comment concludes:

Given the ubiquity of the problem – that the FRCP effectively no longer apply in MDLs unless individual judges, in their discretion, so choose – it is questionable whether proposed Rule 16.1, phrased solely in terms of a list of suggestions, is worth the effort.  The current draft imposes no mandatory requirements and does nothing to restore the rest of the FRCP to their intended, mandatory application as provided by the Rules Enabling Act.

Comment at 11.  While a “beneficial effect” of the proposed rule is it “set[ing] a precedent recognizing the need for MDL-specific rules of civil procedure,” on the other hand, that benefit is counterbalanced by it likely “becom[ing] an excuse for further delay in ever restoring the primacy of the FRCP in multidistrict litigation.”  Id.

There is still time for our readers to file their own comments.  The public comment period is open until February 16, 2024.