Public Comment Period Opens on MDL, Privilege Log Rule Proposals

The public comment process is now open for two important proposals for FRCP amendments: a new Rule 16.1 for multidistrict litigation, and changes to Rules 16 and 26(f) concerning privilege logs. These comment periods are a critical phase in the development of these rule proposals and present an important opportunity for companies, law firms and individual attorneys to provide their insights and experiences to the Advisory Committee on Civil Rules.

The Rule Proposals

The Advisory Committee on Civil Rules is asking for input about its proposed MDL rule and privilege log rule amendments. This is an important step in the rulemaking process because it provides you a meaningful opportunity to weigh in on these proposals—which will affect litigation for years to come—by sharing your experience, insight, and suggestions for improving the drafts before they become rules. The proposed amendments are available in the LCJ website document directory under “Rule Proposals” and are also available here.

The MDL rule proposal reflects, in part, LCJ’s advocacy since 2017 for FRCP amendments that improve the balance and predictability in the management of MDL proceedings. Problems can occur due to ad hoc practices in MDLs, which now constitute approximately 70% of federal civil cases. The proposed rule amendments on privilege logs – also related to LCJ’s advocacy – are an important improvement in addressing the costly and inefficient “document-by-document” logging practices that have become the de facto standard in district courts around the country. The proposals allow courts and parties to determine more efficient means of addressing logging responsibilities via two rules: Rule 16, on pretrial conferences and scheduling orders, and Rule 26, on discovery planning conferences.

LCJ plans to submit written comments on both proposals.

Opportunities to Engage

There are two ways for you to engage: (1) write a comment letter and (2) participate in one of the three scheduled public hearings. Written comment letters may be submitted anytime between now and February 16, 2024, at this link. The public hearings will take place on the following dates:

  • October 16, 2023 (in Washington, DC)

  • January 16, 2024 (video conference)

  • February 6, 2024 (video conference)

Opportunities to testify can be secured by contacting the Secretary of the Committee on Rules of Practice and Procedure by email at RulesCommittee_Secretary@ao.uscourts.gov, at least 30 days before the hearing. Members and allies are urged to share with LCJ their plans for participation.

LCJ Resources

LCJ is hosting briefings to assist members and allies in preparing effective testimony for the hearings, including online sessions:

  • September 12 (New MDL rule)

  • September 13 (Privilege log rule amendments)

If you are interested in participating in one or both of these sessions, please contact Executive Director Dan Steen at DSteen@lfcj.com. Additional briefings will be scheduled prior to each hearing.

LCJ will post its written comments and other relevant comments on the LCJ website.

Engaging Others

In addition to your own engagement, if you know of other lawyers, law firms, or companies who could add useful insight on these topics, please let LCJ know. For additional information about the proposed rule amendments, the public comment period, written comment letters, or public hearings, please contact LCJ General Counsel Alex Dahl at alex@strategicpolicycounsel.com or Dan Steen at DSteen@lfcj.com.