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The Federal Rules of Civil Procedure, essentially the rule book for civil cases in federal courts, are supposed to apply to all civil cases in the federal court system. The problem is that the framers of these rules did not anticipate today’s litigation landscape, where one judge in one court may preside over a litigation that has more than 1,000 cases consolidated in multidistrict litigation.

By law, the cases in these MDLs have core facts in common, but they also involve large numbers of plaintiffs who have their own individual facts, including exposures, medical histories or harms, depending on the nature of the cases. The scale of these MDLs makes many current rules—including discovery and dismissal procedures—difficult, if not impossible, to apply. Not all of the solutions to these vexing issues are obvious. What does seem obvious, however, is that it is time for these questions to be taken up formally by the organization that was formed precisely to address such issues, the Federal Civil Rules Advisory Committee.

Years ago, such large consolidated proceedings were a rarity. Today, there are a record number: 24 current MDLs have more than 1,000 cases. As of the end of fiscal year 2017, the largest MDLs accounted for 40.2 percent of the entire civil docket. Thus, having practical rules for MDLs that provide consistency and predictability for this large swath of the civil docket is both important and urgent.

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