Right here’s a brief one earlier than the vacation (the one now we have off, anyway).  Most of our readers most likely already know concerning the pending proposal for an MDL-specific rule of civil process, enumerated as Fed. R. Civ. P. 16.1.  We’ve adverted to proposed Rule 16.1 a couple of instances, however by no means completed a deep dive.  There’s a cause for that.  As we noticed a few months in the past, “MDLs require much more rigorous early vetting than is at the moment being proposed within the little-better-than-nothing draft Fed. R. Civ. P. 16.1.”

Bexis has now expanded on these prior complaints.  Final week he filed his personal public remark regarding proposed Rule 16.1, laying out how MDLs have turn into basically a rules-free jungle of judicial discretion run amok that now encompasses some 80% of the federal system’s civil caseload.  Regardless of the MDL statute’s specifying solely procedures “not inconsistent with … the Federal Guidelines of Civil Process,” 28 U.S.C. §1407(f), “MDL courts have merely deserted case-specific utility of current guidelines in favor of improvisational and advert hoc procedural practices to handle large MDL proceedings.”  Remark at 2 (footnote omitted).

Bexis’ remark offers examples − with quite a few footnotes, which is why we’re not republishing it right here in full – of MDL rulings allotting with Federal Guidelines of Civil Process 3, 7, 8, 12, 16, 26, and 56.  The remark concludes:

Given the ubiquity of the issue – that the FRCP successfully not apply in MDLs until particular person judges, of their discretion, so select – it’s questionable whether or not proposed Rule 16.1, phrased solely when it comes to an inventory of solutions, is well worth the effort.  The present draft imposes no obligatory necessities and does nothing to revive the remainder of the FRCP to their supposed, obligatory utility as supplied by the Guidelines Enabling Act.

Remark at 11.  Whereas a “helpful impact” of the proposed rule is it “set[ing] a precedent recognizing the necessity for MDL-specific guidelines of civil process,” however, that profit is counterbalanced by it doubtless “becom[ing] an excuse for additional delay in ever restoring the primacy of the FRCP in multidistrict litigation.”  Id.

There may be nonetheless time for our readers to file their very own feedback.  The public remark interval is open till February 16, 2024.