The year is 2004. AOL’s familiar dial-up cackle gracefully enters its twilight. Google goes public. A school near Boston has exclusive access to The Facebook. Pagers are extinct. The hottest mobile phone of the year is the Motorola “Razr.” Technology boomed in the United States, and so did the desire for federal courts to take advantage of new-fangled inventions.
It was around this time that Judge William Terrell Hodges, then-Chair of the Judicial Panel on Multidistrict Litigation (“JPML”), rejected the idea that technology would allow lawyers to “live anywhere” and work remotely on national legal matters. For Judge Hodges, the significance of “eye-to-eye communication” in litigation would “never be minimized or eliminated” by modern technology, “especially when you are talking about multidistrict litigation.”
Had Judge Hodges’s tenure on the JPML extended into 2020, he might have been surprised to have just finished an entire round of oral arguments via Zoom. Courts around the country have adapted to the reality of socially distanced litigation, allowing virtual hearings and even trials to take place over the Internet. This infrastructure will outlast COVID-19 and will minimize the burden of traveling for litigation. In the face of these changes, the JPML should accordingly limit the importance of geographic centrality when choosing a forum for multidistrict litigation.
For over fifty years, the JPML has consolidated similar cases in different districts into a single forum as part of a system known as multidistrict litigation (“MDL”). The JPML consists of seven federal judges designated by the Chief Justice of the U.S. Supreme Court. These seven judges decide the “Three W’s” of multidistrict litigation: whether, where, and who. In other words, once the JPML decides whether a matter deserves to be aggregated into an MDL, it selects where to transfer the cases, and which judge will manage the matter. The statutory threshold for creating an MDL is satisfied so long as there are “common questions of fact” between the cases. The JPML’s ultimate decision culminates in a transfer order. While the transferee court only handles pre-trial proceedings, some MDLs are incredibly complicated. Asbestos liability litigation, for example, consolidated over 59,000 cases and 3.5 million claims from across the country into one proceeding in the Eastern District of Pennsylvania. Some other particularly large and noteworthy MDLs include litigation surrounding NFL concussions, prescription opiates, and the Deepwater Horizon spill. And even though judges appoint a small team of lawyers to act as lead counsel for an MDL, the range of geographic injuries in many cases requires significant travel.
The JPML recognizes this issue by using geographic centrality as a major determining factor in selecting a forum for consolidation. In those same 2004 comments, Judge Hodges stated that courts in “metropolitan areas with busy airports” or districts in the center of the country are much more convenient than others. While “not the ultimate governing factor,” geographic accessibility is an “important consideration” for the JPML.
One empirical study illustrates the “centrality factor’s” importance to the JPML: in that sample, the JPML used this rationale in 29 percent of its transfer orders. Indeed, the Multidistrict Litigation Manual indicates the “centrality factor” can “overcome otherwise strongly favored factors.” This consideration rears its head most often where parties and prospective witnesses are geographically dispersed, and where no district “stands out” as the “focal point” of litigation. Justifying this approach is the sentiment that consolidation poses “significant travel burdens on litigants and attorneys.”
Technological responses to COVID-19 have rendered obsolete what was once a legitimate concern for travel expense and fatigue. Courts around the country are making these technological advances permanent fixtures. David Slayton, the administrative director of the Texas courts, lays out the issue succinctly: “Now that the pandemic has compelled us to bring processes online, we’re never going back to the old way of doing business.” Other commentators share Slayton’s opinion that remote litigation is here to stay.
Even assuming courts return to exclusively in-person appearances, MDLs are particularly ripe for at least some amount of virtual proceedings. Trials remain one of the more challenging components of virtual litigation. As Judge Vince Chhabria indicates, so much of trial “has to do with feel” and it “would be unfortunate if the new normal became too reliant on remote proceedings.” As mentioned above, however, transferee judges only manage MDL matters for pre-trial proceedings. In theory, transferee judges remand the cases back to their original jurisdictions after such proceedings. However, MDLs rarely experience this phenomenon as transferee judges remand a mere 2.9 percent of cases for trial. As such, concerns about the shortcomings of a virtual trial largely don’t apply to MDL proceedings.
The general scope of MDL judges’ responsibilities, notwithstanding the occasional bellwether trial, involve managing two types of pre-trial matters: common discovery amongst the cases, and ruling on pre-trial motions. The virtual revolution in courtroom technology cuts against any traditional advantage—such as travel expenses—that “centrality” brings to these responsibilities.
First, central MDL forums may have proven useful when discovery was exclusively physical, when evidence consisted of warehouses full of files, and when attorneys could only take depositions in-person. But even before the pandemic, technology was rapidly streamlining discovery. Much discovery now consists of electronic evidence, or “e-Discovery.” New e-Discovery programs make it much easier for attorneys to virtually exchange and sift through thousands of documents. Legal technology commentators speculate that COVID-19 is “turbocharging” e-Discovery’s ability to remotely collect and review this evidence. While there are some security risks to doing this remotely, taking certain precautions nullifies those concerns. This ability to remotely access, collect, and review files from anywhere in the world undercuts traditional reasons for preferring a geographically central MDL venue. For example, lawyers in California, Texas, Florida, and New York can remotely exchange batches of electronic discovery. The court overseeing these remote transfers need not exist in a central location.
Depositions, too, no longer require a central forum. Virtual depositions are now a permanent option in litigation. There is no doubt some attorneys will opt for in-person depositions once the public health crisis subsides. But practitioners have commented on the efficacy of virtual depositions and the immense cost-saving opportunities for clients. In MDLs with dozens of parties and hundreds of claims, the amount of depositions adds up, which means more money out of the client’s pocket. Virtual depositions provide an attractive alternative: screen-sharing technology mimics the presentation of exhibits, breakout rooms provide opportunities to speak with clients, and there are no travel or office rental fees. This should not offend even the most brazen MDL traditionalists given that the Manual for Complex Litigation explicitly recognizes remote depositions as a legitimate cost-saving measure.
Second, judges managing MDLs do not require in-person proceedings for motion-practice or scheduling issues. Virtual arguments are “surprisingly effective” according to Chief Judge Lee Rosenthal in the Southern District of Texas. Judge Rosenthal’s perspective should carry significant weight in the MDL context, as she quite literally wrote the textbook on complex litigation and has first-hand experience in managing MDLs. Chief Judge Kimberly Mueller in the Eastern District of California agrees, stating that video conferences for the purposes of “civil scheduling” and hearing civil motions are a “good enough equivalent to seeing someone in person.” These technological developments may not even represent drastic changes to business-as-usual for some judges. Prior to the pandemic, some judges may not have even held oral argument for dispositive motions, relying entirely on the parties’ written submissions. Some magistrate judges, such as Judge Andrew Edison in the Southern District of Texas, already held a significant number of hearings over the phone. Thus, the widespread adoption of video proceedings by the judiciary has only improved the remote litigation experience for some.
Judge Hodges’s 2004 comments have not withstood the test of time. Sixteen years of innovation and a world-shaking pandemic have provided courts with the tools to hold seamless proceedings that alleviate any travel burden placed on parties. This is not to say that MDL litigation should exclusively “go virtual.” Rather, the mere capability of courts and parties to participate in socially distanced litigation should eliminate concerns that any forum is too far or prohibitively difficult to travel to. This would prevent the JPML from sending MDL matters to certain forums solely because they are centrally located, as was the case in In re Government Auto Fleet Sales. There, the JPML sent automobile antitrust claims to the Northern District of Illinois over the objections of both the plaintiffs and defendants. The JPML cast aside other factors in that case—like the fact that discovery and grand jury investigations had already commenced in other districts—in favor of a location that was “central” and “easily accessible.”
It is time for the JPML to retire the geographic centralization argument. The JPML must recognize that it has a buffet of more useful factors to choose from when selecting transferee forums. Some surveys indicate that the JPML relies on over a dozen types of considerations in its transfer orders. For example, analyzing a prospective transferee judge’s experience in complex matters, the number of related cases already on a judge’s docket, and the general district capacity to take on complex litigation are just some of the many more meaningful factors that the JPML could consider. The JPML could also consider a new factor, such as analyzing the technological capabilities of the proposed forum, to meet the present moment.
The JPML allows attorneys, at most, only a few minutes to argue for their preferred forum. Attorneys need not spend their precious seconds before the Panel breaking out the measuring sticks to the Geographic Center of the country. If judges, attorneys, and their clients all wish to convene in person, that will always be an option. After one-too-many trips to Iowa, Kansas, or Oklahoma airports, parties may start to remember that a Zoom room is just a quick click away.
Andrew Barron: Executive Editor for the California Law Review and member of Berkeley Law Class of 2021.
Recommended Citation: Andrew Barron, Abandoning Centrality: Multidistrict Litigation After COVID-19, Calif. L. Rev. Online (Nov. 2020), https://www.californialawreview.org/multidistrict-litigation-after-covid-19.