Right here’s a brief one earlier than the vacation (the one we now have off, anyway).  Most of our readers in all probability already know in regards to 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 occasions, however by no means achieved a deep dive.  There’s a motive 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 develop into primarily 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 software of present guidelines in favor of improvisational and advert hoc procedural practices to handle large MDL proceedings.”  Remark at 2 (footnote omitted).

Bexis’ remark provides examples − with quite a few footnotes, which is why we’re not republishing it right here in full – of MDL rulings meting out 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 now not apply in MDLs except particular person judges, of their discretion, so select – it’s questionable whether or not proposed Rule 16.1, phrased solely when it comes to a listing of recommendations, is definitely worth the effort.  The present draft imposes no necessary necessities and does nothing to revive the remainder of the FRCP to their supposed, necessary software 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,” alternatively, that profit is counterbalanced by it seemingly “becom[ing] an excuse for additional delay in ever restoring the primacy of the FRCP in multidistrict litigation.”  Id.

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