Theodore W. Seitz
The Rules Enabling Act, 28 U.S.C. § 2071-2077, authorizes the Supreme Court to prescribe general rules of practice and procedure, and rules of evidence for the federal courts. Along with the Act, the rulemaking process is governed primarily by the Procedures for the Judicial Conference’s Committee on Rules of Practice and Procedure and its Advisory Rules Committees, which are made up of judges, law professors, and practicing lawyers. Congress, through the Act, retains the ability to review and reject any rule adopted by the Supreme Court.
Several amendments to the Federal Rules of Civil Procedure (FRCP) took effect on December 1, 2025, while a new set of proposed amendments closed their public comment period in February 2026. Also, last fall, the Advisory Committee’s agenda discussed several rules proposals, which may come to fruition soon.
It is axiomatic that federal court practitioners should be aware of the changes to the Federal Rules, along with keeping abreast of the proposed changes, so that they can most effectively represent their clients in federal court.
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I. Amendments Effective December 1, 2025
1. Rule 26(b)(5)(A) – Privilege Logs and Early Case Management
The December 2025 amendments emphasize that courts should address the method and timing of privilege log compliance at the outset of litigation. This change aims to reduce discovery disputes and streamline privilege log production—an increasingly burdensome task in large scale and class action litigation.
2. New Rule 16.1 – Multidistrict Litigation (MDL) Case Management
The most significant December 2025 development is the adoption of Rule 16.1, the first rule dedicated specifically to MDL case management. It provides a structured framework for:
• Leadership appointments
• ESI preservation and production
• Coordination of discovery
• Early identification of common vs. individual issues
Given that MDLs now comprise nearly 70% of the federal civil docket (driven largely by product liability, consumer, and personal injury lawsuits), the amended Rule 16.1 modernizes the management of complex litigation and directly affects class actions frequently consolidated into MDLs.
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II. Proposed Amendments with Public Comment Closed February 2026
The Advisory Committee’s proposed FRCP amendments, for which the comment period closed February 16, 2026, include the following:
1. FRCP 7.1 – Expanded Corporate Disclosure
The proposed amendment would require disclosure of business organizations that directly or indirectly own 10% or more of a party. This proposed amendment enhances transparency and assists courts in evaluating conflicts of interest.
2. FRCP41(a) – Clarifying Voluntary Dismissal
The amendment clarifies that only the remaining parties must sign a stipulation of dismissal and that the dismissal may apply to the entire action or specific claims.
3. FRCP 45(b) – Expanded Subpoena Service Methods
The proposed amendment would broaden permissible methods of serving subpoenas, easing service on corporate representatives and individuals in restricted access locations.
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III. Potential Future Amended Rules Proposals
• At its October 2025 meeting, the Advisory Committee discussed, among other items, potential amendments to the federal class action rule, as well as a potential rule requiring disclosure of third-party litigation funding. While no specific proposed amendments are before the committee at this stage, the committee’s agenda reflected growing interest and potential amendments to FRCP 23, which most notably align with the recent amendment to Rule 16.1 directed to MDL case management (which are often tied to class actions). Among the potential amendments discussed by the Committee:
• Superiority Requirement (Rule 23(b)(3): The potential amendment would expressly allow courts to consider non-litigation remedies, such as voluntary refunds, recalls, payments, etc., in deciding whether a class action would be superior to other methods for resolving disputes.
• Incentive Awards: The Committee is considering whether to amend Rule 23 to expressly permit incentive awards for class representatives.
• Pre-Certification Rule 23(e) Settlement Approval Procedures: The Committee is considering a proposal that would require court approval of individual settlements between named plaintiffs and the defendant(s).
As to third-party litigation funding, the proponents of a new rule have suggested that it be modeled on the portion of FRCP 26(a) which requires disclosure of insurance policies providing coverage for a judgment against defendants. In the meantime, Congress is also looking to address litigation funding, via proposed legislation.
Again, these topics remain under active study and may appear in future rule-making cycles. It will be worthwhile to monitor the progress of these proposals.
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Theodore Seitz is the co-chair of the WCBA Federal Practice Section and a member of Dykema Gossett PLLC, where he serves as the Practice Leader for the Financial Services Litigation Group. Seitz’s practice primarily focuses on trial, appellate, and class action defense, with a special focus on representing banks, financial services, and media companies, along with local governments, public officials, and associations. He regularly appears and practices in state and federal courts throughout the country, including the United States Supreme Court.
Reprinted with permission, from the WCBA Res Ipsa Loquitur newsletter.
Several amendments to the Federal Rules of Civil Procedure (FRCP) took effect on December 1, 2025, while a new set of proposed amendments closed their public comment period in February 2026. Also, last fall, the Advisory Committee’s agenda discussed several rules proposals, which may come to fruition soon.
It is axiomatic that federal court practitioners should be aware of the changes to the Federal Rules, along with keeping abreast of the proposed changes, so that they can most effectively represent their clients in federal court.
—————
I. Amendments Effective December 1, 2025
1. Rule 26(b)(5)(A) – Privilege Logs and Early Case Management
The December 2025 amendments emphasize that courts should address the method and timing of privilege log compliance at the outset of litigation. This change aims to reduce discovery disputes and streamline privilege log production—an increasingly burdensome task in large scale and class action litigation.
2. New Rule 16.1 – Multidistrict Litigation (MDL) Case Management
The most significant December 2025 development is the adoption of Rule 16.1, the first rule dedicated specifically to MDL case management. It provides a structured framework for:
• Leadership appointments
• ESI preservation and production
• Coordination of discovery
• Early identification of common vs. individual issues
Given that MDLs now comprise nearly 70% of the federal civil docket (driven largely by product liability, consumer, and personal injury lawsuits), the amended Rule 16.1 modernizes the management of complex litigation and directly affects class actions frequently consolidated into MDLs.
—————
II. Proposed Amendments with Public Comment Closed February 2026
The Advisory Committee’s proposed FRCP amendments, for which the comment period closed February 16, 2026, include the following:
1. FRCP 7.1 – Expanded Corporate Disclosure
The proposed amendment would require disclosure of business organizations that directly or indirectly own 10% or more of a party. This proposed amendment enhances transparency and assists courts in evaluating conflicts of interest.
2. FRCP41(a) – Clarifying Voluntary Dismissal
The amendment clarifies that only the remaining parties must sign a stipulation of dismissal and that the dismissal may apply to the entire action or specific claims.
3. FRCP 45(b) – Expanded Subpoena Service Methods
The proposed amendment would broaden permissible methods of serving subpoenas, easing service on corporate representatives and individuals in restricted access locations.
—————
III. Potential Future Amended Rules Proposals
• At its October 2025 meeting, the Advisory Committee discussed, among other items, potential amendments to the federal class action rule, as well as a potential rule requiring disclosure of third-party litigation funding. While no specific proposed amendments are before the committee at this stage, the committee’s agenda reflected growing interest and potential amendments to FRCP 23, which most notably align with the recent amendment to Rule 16.1 directed to MDL case management (which are often tied to class actions). Among the potential amendments discussed by the Committee:
• Superiority Requirement (Rule 23(b)(3): The potential amendment would expressly allow courts to consider non-litigation remedies, such as voluntary refunds, recalls, payments, etc., in deciding whether a class action would be superior to other methods for resolving disputes.
• Incentive Awards: The Committee is considering whether to amend Rule 23 to expressly permit incentive awards for class representatives.
• Pre-Certification Rule 23(e) Settlement Approval Procedures: The Committee is considering a proposal that would require court approval of individual settlements between named plaintiffs and the defendant(s).
As to third-party litigation funding, the proponents of a new rule have suggested that it be modeled on the portion of FRCP 26(a) which requires disclosure of insurance policies providing coverage for a judgment against defendants. In the meantime, Congress is also looking to address litigation funding, via proposed legislation.
Again, these topics remain under active study and may appear in future rule-making cycles. It will be worthwhile to monitor the progress of these proposals.
—————
Theodore Seitz is the co-chair of the WCBA Federal Practice Section and a member of Dykema Gossett PLLC, where he serves as the Practice Leader for the Financial Services Litigation Group. Seitz’s practice primarily focuses on trial, appellate, and class action defense, with a special focus on representing banks, financial services, and media companies, along with local governments, public officials, and associations. He regularly appears and practices in state and federal courts throughout the country, including the United States Supreme Court.
Reprinted with permission, from the WCBA Res Ipsa Loquitur newsletter.
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