The Federal Rules of Civil Procedure Are Failing to Meet the Needs of Nearly Half
of All Civil Cases – In MDLs

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 the end of September 2020, MDL cases constituted 62.7 percent of the pending federal civil caseload, continuing a five-year trend of cases in MDLs dominating the federal civil docket. An MDL case today can have hundreds or even 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 has governed 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.


“Instead of the ‘just conduct’ of civil actions,
the MDL device can promote injustice by allowing plaintiffs to amass
large numbers of claims and shielding those claims from scrutiny.”

- Christopher P. Gramling, Matthew J. Hamilton, et al.,

Washington Legal Foundation White Paper: “Early Assessment of Claims Can Help…”

—  Name, Title



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