Important rule reforms for multi-district litigation (MDL) and privilege log practices are one step closer with decision of the federal Committee on Rules of Practice and Procedure, known as the Standing Committee, to publish the proposed rules for public comment.  The June 6 action of the Standing Committee follows the recommendation of the federal Advisory Committee on Civil Rules, which recommended the two draft FRCP amendments for publication and public comment.

The Advisory Committee on Civil Rules proposed at its March 28 meeting the creation of a new FRCP Rule 16.1, which would guide initial management decisions in new MDL proceedings. The Standing Committee approved the draft rule with only minor changes.  The proposal reflects LCJ’s advocacy efforts, begun in 2017, to urge FRCP amendments to prevent the problems that occur when MDLs are governed by ad hoc practices rather than clear rules that provide balance and predictability. This rule reform is particularly urgent because MDL claims now constitute approximately 70 percent of federal civil cases.

The Advisory Committee also recommended rules amendments to allow greater flexibility and efficiency in the creation of privilege logs which were approved by the Standing Committee for publication and public comment.  The Advisory Committee’s draft follows LCJ’s 2020 proposal to amend the FRCP to modernize logging procedures by replacing the default to “document-by-document” privilege logs with more cost-efficient and proportional alternatives.

With the decision of the Standing Committee to move forward with public comment the two rules proposals will be published in mid-August along with a call for written comments and a schedule for public hearings on the amendments.  LCJ expects at least two in-person hearings on the proposed rules.

The public comment process provides an important opportunity for LCJ members and others to weigh in with thoughts and suggestions to the rule writers. Please contact LCJ if you are interested in participating in the public comment process on these key reforms.