The Federal Rules of Civil Procedure Are Failing to Meet the Needs of More Than Half
of All Civil Cases –
How the FRCP Should Be Updated To Cover MDLs
Multidistrict litigation (MDL) is a special procedure where cases that share some common issues of fact are consolidated before one federal district court judge for the purpose of coordinating or consolidating discovery and other pre-trial proceedings.
As of end of fiscal year 2022, MDL cases constituted 73 percent of the pending federal civil caseload*, continuing a multi-year trend of cases in MDLs dominating the federal civil docket. An MDL proceeding today can have hundreds or even tens of thousands of individual claims, making certain aspects of the Federal Rules of Civil Procedure (FRCP) difficult or even impossible to apply. Although the FRCP are supposed to “govern the procedure in all civil actions and proceedings,” many judges handling MDL cases attempt to make up for the FRCP’s deficiencies by improvising with ad hoc practices. While some individual practices have more merit than others, they all share the same lack of clarity, uniformity and predictability that the FRCP are supposed to provide. Many common MDL practices also cause an unbalanced litigation environment by failing to furnish protections inherent in the FRCP.
In 1937, the United States Supreme Court adopted the FRCP, which govern all civil actions and proceedings in the United States district courts. The purpose and intention of the Rules is “to secure the just, speedy, and inexpensive determination of every action and proceeding.”
With so much of the pending federal civil caseload consolidated into MDL cases, the FRCP should be modernized with clear, uniform rules that apply in MDL cases, benefiting all stakeholders by providing the same fairness, clarity and certainty that the FRCP ensure for all other civil cases.
Fortunately, the federal Advisory Committee on Civil Rules is taking steps to modernize MDL rules. In October 2022, the committee released a “sketch” of a potential rule 16.1 to provide clearer guidelines to MDL judges – especially those presiding over MDL cases for the first time – for making effective early management decisions that will facilitate fair and efficient resolution. Lawyers for Civil Justice sees promise in the sketch rule and explains why in this comment letter. The proposal is expected to be considered at the next Advisory Committee on Civil Rules meeting in March of 2023. If an initial proposal is approved, it will become open to public comments.
*As calculated using the Duke methodology.
September 19, 2023
WHAT PEOPLE ARE SAYING
“More than two thirds of federal civil cases are in MDLs as of fiscal year 2021 – a 142% increase since 2012. This is a concerning trend because many large MDLs are managed with ad hoc procedures rather than the Federal Rules of Civil Procedure. It is important that the FRCP be amended to provide MDL courts and parties with consistent, fair, and predictable rules -- just as they do in all other civil cases.”
Daniel Steen, Executive Director, Lawyers for Civil Justice
— Name, Title