We are now at the point where half of the cases on the federal civil docket are consolidated in multi-district litigation proceedings (MDLs). In these proceedings, a single federal district court judge conducts all pretrial proceedings—including dispositive motions. In theory, the cases return to their original courts for trial, but, in reality, very few do because, like every other type of litigation, the vast majority of cases settle before trial.
MDLs make global peace easier to obtain for defendants, but they also put a lot of power in the hands of the judges selected to oversee them. Many of the rules of civil procedure are hard to apply when there are thousands of cases consolidated in one proceeding, and judges have had to be creative. Moreover, because these are all pretrial proceedings, it is very difficult to appeal decisions by the MDL judge that might be a bit too creative.
Is it time to write rules of procedure specifically designed for MDLs? Many defendants think so. The advisory committee on the civil rules has created a subcommittee to examine whether MDL rules are needed. The subcommittee, headed by the esteemed Judge Robert Dow (N.D.Ill.), is considering many proposals (starting at page 207), including whether to allow interlocutory appeals, to require early merits screening, and to mandate disclosure of third-party financing. I suspect the subcommittee will decide at its next meeting in October whether new rules are worth pursuing or whether to terminate the project. Thus, now is the time to speak up if you have an opinion on the matter. Letters can be submitted to this address:
Chief Counsel, Rules Committee Staff
Administrative Office of the U.S. Courts
1 Columbus Circle, NE, Washington, DC 20002