DEVELOPING MASS-TORT MDL INITIAL PRETRIAL CONFERENCE BEST PRACTICES
Developing Mass-tort MDL Initial-Management Conference Guidelines and Best Practices
October 4, 2023
The Advisory Committee on Civil Rules has published for public comment a new Rule 16.1, which governs an initial-management conference in every MDL. If all goes smoothly, the rule will take effect on December 1, 2025. In the meantime, the Advisory Committee is solicting input from the bench and bar to improve the proposal.
The primary objective of the conference is to begin developing an initial case-managment plan and order, which are issued, updated, and modified as the litigation unfolds for the “just, speedy, and inexpensive determination” of the litigation. The rule reflects existing practices and provides guidance and greater uniformity regarding the initial-management conference.
Recognizing that the initial-management conference shoud be shaped by the needs of the particular litigation, proposed Rule 16.1 is couched largely in discretionary terms. It provides options and a non-exhaustive list of 17 case-management topics that the parties may address at the initial-management conference.
The Center has formed a team of well-experienced lawyers to develop guidelines and best practices that implement proposed Rule 16.1. The Center’s work-in-progress identifies and provides guidance on the more than 35 case-management topics, which transferee judges typically ask the parties to address at the conference. Those topics are contained in Federal Rule of Civil Procedure 16, sections 11.2 et. seq. and sections 22.61 et. seq. of the Manual for Complex Litigation, as well as stand-alone topics often mentioned in CMOs in mass-tort MDLs.
The Center’s draft best practices will continue to be updated during the next year to account for public comments submitted to the Advisory Committee on Civil Rules and any revisions made by them. This work-in-progress can be useful to identify additions that should be made to proposed Rule 16.1 as well as problems in implementing the rule as drafted, which may lead to remedial editing before the draft is submitted to the Standing Rules Committee next summer for their approval.
The work-in-progress of the guidelines and best practices can be downloaded here. A copy of comments and suggestions on proposed new Rule 16.1 submitted to the Advisory Committee on Civil Rules by the Center’s John Rabiej can be downloaded here.