Case 3:22-cv-03849-JD Document 14 Filed 08/03/22 Page 1 of 42
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`BEFORE THE UNITED STATES JUDICIAL PANEL
`ON MULTIDISTRICT LITIGATION
`
`IN RE: SOCIAL MEDIA ADOLESCENT
`ADDICTION/PERSONAL INJURY
`PRODUCT LIABILITY LITIGATION
`
`
`
`MDL DOCKET NO.: __________
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`
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`MOTION FOR TRANSFER AND COORDINATION OR
`CONSOLIDATION UNDER 28 U.S.C. § 1407
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`Pursuant to 28 U.S.C. § 1407 and Rule 6.2 of the Rules of Procedure of the Judicial Panel
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`on Multidistrict Litigation, Movant-Plaintiff Brianna Murden respectfully asks the Judicial Panel
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`on Multidistrict Litigation (“Panel”) to transfer the “Schedule of Actions,” and subsequent tag-
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`along actions, to the Northern District of Illinois or the Western District of Missouri.
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`1.
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`Defendants Meta Platforms, Inc., Facebook Holdings, LLC, Facebook Operations,
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`LLC, Facebook Payments, Inc., Facebook Technologies, LLC, Instagram LLC, and Siculus, Inc.
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`(collectively, “Defendants”) operate the world’s largest family of social networks.1
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`2.
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`The complaints in the Schedule of Actions allege similar claims of product liability,
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`negligence, misrepresentation, fraud, unjust enrichment, breach of warranty, and infliction of
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`emotional distress against Defendants resulting from the design and operation of their two largest
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`products, Facebook and Instagram. Specifically, Plaintiffs allege that Defendants’ social media
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`products are intentionally designed to be addictive and utilize sophisticated algorithms, and other
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`defectively designed and unreasonably dangerous features, to maximize user time and engagement
`
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`1 Other filed cases also name Defendants Snap, Inc., TikTok, Inc., and ByteDance, Inc. These
`Defendants operate the social media platforms “Snapchat” and “TikTok” and similarly use
`defectively designed features resulting in youth addiction and other injuries. The complaints
`naming these two Defendants allege similar facts and injuries associated with adolescent use of
`these products.
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`1
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`Case 3:22-cv-03849-JD Document 14 Filed 08/03/22 Page 2 of 42
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`to maximize profits. This design is employed regardless of a user’s age and recognized dangers
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`associated with the use of such features on social media products.
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`3.
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`From the beginning, Facebook and Instagram have exploited vulnerabilities in
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`human psychology to addict users and maximize user time and engagement. Facebook’s first
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`President, Sean Parker, summed up the devastating impact of Facebook and Instagram’s designs
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`in a 2017 interview:
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`“God only knows what it's doing to our children's brains. The thought process that
`went into building these applications, Facebook being the first of them, ... was all
`about: 'How do we consume as much of your time and conscious attention as
`possible?' And that means that we need to sort of give you a little dopamine hit
`every once in a while, because someone liked or commented on a photo or a post
`or whatever. And that's going to get you to contribute more content, and that's going
`to get you ... more likes and comments. It's a social-validation feedback loop ...
`exactly the kind of thing that a hacker like myself would come up with, because
`you're exploiting a vulnerability in human psychology. The inventors, creators —
`it's me, it's Mark [Zuckerberg], it's Kevin Systrom on Instagram, it's all of these
`people — understood this consciously. And we did it anyway.”2
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`4.
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`Plaintiffs seek to hold Defendants’ accountable for the devasting fallout from
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`
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`exploiting adolescent users during their formative years while in a state of increased fragility.
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`Adolescent females are disproportionately negatively affected by Defendants’ products, as shown
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`by the overwhelmingly female Plaintiff population to date.3
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`5.
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`Defendants have publicly downplayed their products’ negative impact on youth.
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`However,
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`leaked
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`internal company documents from former Facebook employee and
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`“whistleblower”, Francesca Haugen, reveal that Defendants are aware of the disproportionate
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`impact its products have on youth, especially adolescent females. One internal study found that
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`2 Mike Allen, Sean Parker unloads on Facebook: “God only knows what it’s doing to our
`children’s brains”, Axios (November 9, 2017), https://www.axios.com/2017/12/15/sean-parker-
`unloads-on-facebook-god-only-knows-what-its-doing-to-our-childrens-brains-1513306792.
`3 Female clients represent 14 of 17 cases filed by the undersigned counsel. Additionally, 7 of the
`10 federal cases filed by the Social Media Victims Law Center are female Plaintiffs.
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`2
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`Case 3:22-cv-03849-JD Document 14 Filed 08/03/22 Page 3 of 42
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`“Thirty-two percent of teen girls said that when they felt bad about their bodies, Instagram made
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`them feel worse.”4 The same study found that “[c]omparisons on Instagram can change how young
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`women view and describe themselves.”5 Defendants have also found that “social comparison is
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`worse on Instagram”, compared to other social media apps.6 As early as 2019, Defendants
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`recognized that they “make body image issues worse for one in three teen girls.”7
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`6.
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`Additionally, internal studies revealed that “teens blame Instagram for increases in
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`the rate of anxiety and depression.”8 Among teens who reported suicidal thoughts, 13% of British
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`users and 6% of American users traced the desire to kill themselves to Instagram, one presentation
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`showed.9 One in five teens say that Instagram makes them feel worse about themselves, and teens
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`who struggle with mental health say Instagram makes it worse.10
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`7.
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`Internal research indicates that the design of Defendants’ products is what is most
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`harmful to teens. “A pressure to look perfect and an addictive product can send teens spiraling
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`toward eating disorders, an unhealthy sense of their own bodies and depression, March 2020
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`internal research states. It warns that the Explore page, which serves users photos and videos
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`curated by an algorithm, can send users deep into content that can be harmful.”11 According to
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`Defendants’ research, “aspects of Instagram exacerbate each other to create a perfect storm.”12
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`8.
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`Plaintiffs’ common allegations against Defendants include:
`
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`4 Georgia Wells, Jeff Horwitz, and Deepa Seetharaman, Facebook Knows Instagram Is Toxic for
`Show, WSJ
`(Sept
`14,
`2021, 7:59 AM),
`Teen Girls, Company Documents
`https://www.wsj.com/articles/facebook-knows-instagram-is-toxic-for-teen-girls-company-
`documents-show-11631620739.
`5 Id.
`6 Id.
`7 Id.
`8 Id.
`9 Id.
`10 Id.
`11 Id.
`12 Id.
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`Case 3:22-cv-03849-JD Document 14 Filed 08/03/22 Page 4 of 42
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`a. Facebook and Instagram were designed by Defendants, to be unreasonably
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`dangerous and addictive to users, particularly adolescents;
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`b. Defendants failed to warn adolescent users and their parents about risks posed
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`by the addictive platforms or that there was even a risk of addiction;
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`c. Defendants failed to warn adolescent users and their parents about the risks of
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`causing body dysmorphic disorder and disordered eating posed by the
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`platforms;
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`d. Defendants failed to make accurate and truthful representations to Plaintiff and
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`the general public regarding the nature of the Facebook and Instagram products;
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`e. Defendants were unjustly enriched from consumers use of the products, at the
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`expense of users’ physical and mental well-being;
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`f. Defendants engaged in unfair and deceptive acts and trade practices in the
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`design, development, manufacture, marketing and dissemination of the
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`Facebook and Instagram products; and
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`g. Defendants failed to recall or retrofit the Facebook and Instagram products,
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`despite knowing of the serious risks the platforms pose to adolescent consumers
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`and the public.
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`9.
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`The common injuries contained within the complaints in the Schedule of Actions
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`include but are not limited to: (a) multiple periods of suicidal ideation, (b) self-harm, (c) disordered
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`eating, (d) body dysmorphic disorder, (e) severe anxiety, (f) depression, (g) a reduced inclination
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`or ability to sleep, among other harmful effects, which may cause or contribute to additional
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`disease, (h) medical expenses, and (i) other economic and non-economic damages.
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`Case 3:22-cv-03849-JD Document 14 Filed 08/03/22 Page 5 of 42
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`10.
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`There are millions of adolescents who use Instagram and Facebook and spend hours
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`on these platforms every day.13
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`11.
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`To date, twenty-seven (27) additional actions seeking similar relief in federal court
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`have been filed. (See Schedule of Actions at Exhibit “A” of Brief in Support). In total, there are
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`twenty-eight (28) actions pending in seventeen (17) different districts throughout the country.
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`Currently, counsel represents over 400 clients prepared to bring similar claims against Defendants.
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`12.
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`Because of the millions of adolescents impacted by Defendants’ conduct and the
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`growing awareness of Defendants’ conduct and resulting harms revealed by Facebook
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`“whistleblower” Francesca Haugen, the undersigned anticipates a substantial number of similar
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`cases in the coming months and years. Further, the undersigned is in communication with attorneys
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`throughout the country who are investigating similar claims, thus increasing the likelihood of
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`additional case filings.
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`13.
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`The complaints within the Schedule of Actions, and any additional tag-along
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`actions, pending against Defendants will involve similar if not identical questions of fact and will
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`involve common discovery and pretrial motion practice. Accordingly, inconsistent pretrial rulings
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`could occur if the cases are not transferred for coordinated or consolidated proceedings pursuant
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`to 28 U.S.C. § 1407.
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`14. Movant-Plaintiff seeks to create an MDL with respect to Defendants’ defective
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`design and operation of the Facebook and Instagram products as they relate to adolescent users.
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`As detailed in the accompanying Brief, centralization will help eliminate inconsistent rulings,
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`curtail duplicative discovery, and conserve judicial resources.
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`13 See Katherine Schaeffer, 7 facts about Americans and Instagram, Pew Research Center (October
`7,
`2021),
`https://www.pewresearch.org/fact-tank/2021/10/07/7-facts-about-americans-and-
`instagram/.
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`Case 3:22-cv-03849-JD Document 14 Filed 08/03/22 Page 6 of 42
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`15.
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`The convenience of the courts, parties, witnesses, and counsel will all be served by
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`transferring these cases to the Northern District of Illinois or Western District of Missouri for
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`coordinated or consolidated pretrial proceedings.
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`16.
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`In support of the motion, Movant-Plaintiff relies upon:
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`a. the Brief describing the background of the litigation and Movant-Plaintiff’s
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`factual and legal contentions;
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`b. the Schedule of Actions (attached hereto as Exhibit A) providing: (1) the
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`complete name of each action involved, listing the full name of each party
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`included; (2) the district court and division where each action is pending; (3)
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`the civil action number of each action; and (4) the name of the Judge assigned
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`to each action, if available;
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`c. a copy of all complaints (without exhibits) and docket sheets for all actions
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`listed in the Schedule of Actions (attached as Exhibits A-1 to A-28) in the
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`accompanying Brief);
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`d. the Statement Requesting Oral Argument; and
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`e. the Proof of Service.
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`
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`For the reasons set forth herein and in the accompanying Brief in Support, Plaintiff
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`respectfully requests that the Panel issue an Order transferring all of the matters in the Schedule of
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`Actions, and any tag-along actions, to the Honorable Sara L. Ellis, United States District Judge,
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`Northern District of Illinois, for coordinated or consolidated pretrial proceedings, or alternatively
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`the Western District of Missouri before Judge Stephen R. Bough.
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`Case 3:22-cv-03849-JD Document 14 Filed 08/03/22 Page 7 of 42
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`Dated: August 1, 2022
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`
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`Respectfully submitted,
`
`/s/ Joseph G. VanZandt
`Joseph G. VanZandt
`BEASLEY ALLEN CROW
`METHVIN PORTIS & MILES, LLC
`234 Commerce Street
`Montgomery, AL 36103
`Telephone: 334-269-2343
`Facsimile: 334-954-7555
`Joseph.VanZandt@BeasleyAllen.com
`
`Attorneys for Movant-Plaintiff
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`Case 3:22-cv-03849-JD Document 14 Filed 08/03/22 Page 8 of 42
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`BEFORE THE UNITED STATES JUDICIAL PANEL
`ON MULTIDISTRICT LITIGATION
`
`IN RE: SOCIAL MEDIA ADOLESCENT
`ADDICTION/PERSONAL INJURY
`PRODUCT LIABILITY LITIGATION
`
`
`
`MDL DOCKET NO.:
`
`
`
`
`
`BRIEF IN SUPPORT OF MOTION FOR TRANSFER AND COORDINATION OR
`CONSOLIDATION UNDER 28 U.S.C. § 1407
`
`Pursuant to 28 U.S.C. § 1407 and Rule 6.2 of the Rules of Procedure of the Judicial Panel
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`on Multidistrict Litigation, Movant-Plaintiff Brianna Murden respectfully submits this Brief in
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`Support of Motion for Transfer and Coordination or Consolidation.
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`BACKGROUND
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`
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`Plaintiff Brianna Murden is a twenty-one-year-old female who compulsively uses
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`Defendants’ social media products, Facebook and Instagram. Shortly after engaging with
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`Defendants’ products around the age of ten, Plaintiff began exhibiting addictive and problematic
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`use of the products. Prompted by the addictive design of Defendants’ products, and the constant
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`24-hour stream of notifications emitted from these products, Plaintiff began getting less and less
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`sleep. While addictively viewing images and videos that had been altered by the platforms’
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`appearance and beauty enhancing product features and curated to her by the platforms’ algorithms,
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`Plaintiff began to struggle psychologically with her self-image and relationship with food. As a
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`result of the dangerous design and other features of Defendants’ products, Plaintiff subsequently
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`developed injuries including social media compulsion, disordered eating, depression, body
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`1
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`Case 3:22-cv-03849-JD Document 14 Filed 08/03/22 Page 9 of 42
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`dysmorphic disorder14, multiple periods of suicidal ideation, severe anxiety, self-harm (e.g. cutting
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`and burning herself), and a reduced inclination or ability to sleep.
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`
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`The injuries suffered by Plaintiff were of no surprise to Defendants. As former Facebook
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`employee turned “whistleblower” Frances Haugen testified to Congress, internal Meta documents
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`show that Defendants were aware of the harm its products cause users, especially female children
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`and adolescents. Unfortunately, Plaintiff is not the only young female suffering from these same
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`injuries.
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`This motion for transfer involves at least twenty-eight (28) actions pending in seventeen
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`(17) different districts across the United States, asserting nearly identical factual allegations and
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`legal claims against Defendants. (See Schedule of Actions, attached as Exhibit “A”). The vast
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`majority of Plaintiffs are adolescent females who are particularly vulnerable to addiction and other
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`injuries caused by Defendants’ algorithms as this population is in the formative years of their
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`development.
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`Plaintiffs. The actions identically allege that, as designed and developed by Defendants,
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`Meta’s Facebook and Instagram products are unreasonably dangerous to users, particularly
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`adolescents. Further, Defendants failed to warn minors and their parents about risks posed by the
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`products; and the Facebook and Instagram products contained design defects as developed by
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`Defendants. Plaintiffs come from geographically diverse regions, residing in Alabama, California,
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`14 Body dysmorphic disorder is a mental disorder in which a person is preoccupied with an
`imagined physical defect or a minor defect that others often cannot see. Individuals who suffer
`from body dysmorphic disorder intensely focus on their appearance and body image, repeatedly
`checking the mirror, grooming or seeking reassurance, sometimes for many hours each day. The
`perceived flaw and the repetitive behaviors cause significant distress and impact ability to function
`in daily life. See Mayo Clinic Staff, Body dysmorphic disorder, Mayo Clinic (March 19, 2022),
`https://www.mayoclinic.org/diseases-conditions/body-dysmorphic-disorder/symptoms-
`causes/syc-20353938#:~:text=Overview,may%20avoid%20many%20social%20situations;
`Smitha Bhandari, MD, Body Dysmorphic Disorder, WebMD
`(June 30, 2020),
`https://www.webmd.com/mental-health/mental-health-body-dysmorphic-disorder.
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`Colorado, Delaware, Georgia, Florida, Illinois, Kentucky, Louisiana, Missouri, Oregon, Texas,
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`Tennessee, Virginia, and Wisconsin.
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`Defendants.15 Meta Platforms, Inc. (“Meta”), Facebook Holdings, LLC, Facebook
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`Operations, LLC, Facebook Payments, Inc., Facebook Technologies, LLC, Instagram LLC, and
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`Siculus, Inc. (collectively, “Defendants”) operate the world’s largest family of social networks,
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`primarily through the Facebook and Instagram platforms. Defendants Meta, and Siculus Inc. are
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`Delaware corporations with their principal place(s) of business in Menlo Park, California.
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`Defendant Facebook Payments, Inc. is a Florida corporation with its principal place of business in
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`Menlo Park, California. Defendants Facebook Holdings, LLC, Facebook Operations, LLC,
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`Facebook Technologies, LLC, and Instagram, LLC were incorporated in Delaware, and the sole
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`member of each of these LLCs is Defendant Meta.
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`Status of Actions. The actions are in their infancy. All but one case was filed in 2022, and
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`discovery has not begun in any case. Currently, most cases still await an initial Rule 26(f)
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`conference.
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`LEGAL STANDARD
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`Transfer and consolidation is appropriate when actions pending in different judicial
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`districts involve similar questions of fact such that consolidating pretrial proceedings would
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`“promote the just and efficient conduct of such actions.” 28 U.S.C. § 1407. In relevant part,
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`Section 1407 provides:
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`When civil actions involving one or more common questions of fact are pending
`in different districts, such actions may be transferred to any district for
`coordinated or consolidated pretrial proceedings. Such transfers shall be made by
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`15 As stated in FN 1, other filed cases also name Defendants Snap, Inc., TikTok, Inc., and
`ByteDance, Inc. These Defendants operate the social media platforms “Snapchat” and “TikTok”
`and similarly use defectively design features resulting in youth addiction and other injuries. The
`complaints naming these two Defendants allege similar facts and injuries associated with
`adolescent use of these platforms.
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`Case 3:22-cv-03849-JD Document 14 Filed 08/03/22 Page 11 of 42
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`the judicial panel on multidistrict litigation authorized by this section upon its
`determination that transfers for such proceedings will be for the convenience of
`parties and witnesses and will promote the just and efficient conduct of such
`actions.
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`28 U.S.C. § 1407(a).
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`
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`In deciding whether to transfer a case under Section 1407, the Panel typically considers
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`whether centralization would: (1) eliminate duplication in discovery; (2) avoid conflicting rules
`
`and schedules; (3) reduce litigation costs; and (4) conserve the time and effort of the parties,
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`attorneys, witnesses, and courts. See Manual for Complex Litigation (Fourth) § 20.131 (2004)
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`(citing In re Plumbing Fixtures Cases, 298 F. Supp. 484 (J.P.M.L. 1968)).
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`ARGUMENT
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`I.
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`
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`TRANSFER OF THE ACTIONS TO ONE COURT FOR CONSOLIDATION
`OR COORDINATION IS APPROPRIATE UNDER 28 U.S.C. § 1407
`
`Consolidation of pretrial proceedings in an MDL is appropriate if (1) actions pending in
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`different federal courts involve “one or more common questions of fact”; and (2) consolidation
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`“will be for the convenience of parties and witnesses and will promote the just and efficient
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`conduct of such actions.” 28 U.S.C. § 1407(a). Both factors strongly favor consolidating the
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`pretrial proceedings of these actions.
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`A.
`
`Consolidation or Coordination Is Appropriate Because
`the Related Actions Involve One or More Common
`Questions of Fact.
`
`Section 1407 requires that the cases to be consolidated raise “one or more common
`
`questions of fact.” The Panel, however, need not find that the cases are identical. See In re Ins.
`
`Brokerage Antitrust Litig., 360 F. Supp. 2d 1371, 1372 (J.P.M.L. 2005) (“[T]ransfer under Section
`
`1407 does not requires a complete identity or even majority of common factual issues as a
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`prerequisite to transfer.”). The Panel consistently finds that cases involving overlapping factual
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`issues are appropriate for consolidation or coordination. See e.g., In re: JUUL Labs, Inc. Mktg.,
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`Case 3:22-cv-03849-JD Document 14 Filed 08/03/22 Page 12 of 42
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`Sales Practices, Prods. Liab. Litig., 396 F. Supp. 3d 1366, 1368 (J.P.M.L. 2019); In re: Yasmin,
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`Yaz (Drospirenone) Mktg., Sales Practices & Prods Liab. Litig., MDL. 2100, 2009 WL 3163531,
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`at *1 (Oct. 1, 2009) (“We find that these 32 actions involve common questions of fact, and that
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`centralization under Section 1407 in the Southern District of Illinois will serve the convenience of
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`the parties and witnesses and promote the just and efficient conduct of this litigation.”); In re
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`Phenylpropanolamine (PPA) Prods. Liab. Litig., 173 F. Supp. 2d 1377, 1379 (J.P.M.L. 2001)
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`(“The Panel finds that the actions in this litigation involve common questions of fact, and that
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`centralization under Section 1407 in the Western District of Washington will serve the
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`convenience of the parties and witnesses and promote the just and efficient conduct of the
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`litigation.”).
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`The actions subject to this motion are brought by Facebook and Instagram users, or in the
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`case of users who are minors, their guardians. The actions allege, in short, that the Facebook and
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`Instagram products, as designed by Defendants, were unreasonably dangerous to users,
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`particularly adolescent users; Defendants failed to warn minor users and their parents about risks
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`posed by the products; and the Facebook and Instagram products contained manufacturing defects
`
`as developed by Defendants. The factual allegations regarding Defendants’ conduct in the
`
`complaints are substantially the same: Defendants’ social media products are intentionally
`
`designed to be addictive and utilize sophisticated algorithms to manipulate and maximize user time
`
`and engagement. The complaints allege similar injuries because of Defendants’ conduct. Further,
`
`because Section 1407 does not require a majority of common factual issues as a condition for
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`transfer, the many common questions thus presented are more than sufficient to satisfy Section
`
`1407. See In re: Ins. Brokerage Antitrust Litig., 360 F. Supp. 2d 1371, 1372 (J.P.M.L. 2005).
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`Additionally, these actions rely on comparable legal theories of recovery. The complaints
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`allege similar claims of product liability, negligence, misrepresentation, fraud, unjust enrichment,
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`breach of warranty, and infliction of emotional distress. While not every cause of action is asserted
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`in every case, the complaints all share essentially the same legal causes of action and theories of
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`Defendants’ liability. As this Panel has noted, “the presence of additional or differing legal theories
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`is not significant when the actions still arise from a common factual core[.]” In re: Oxycontin
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`Antitrust Litig., 542 F. Supp. 2d 1359, 1360 (J.P.M.L. 2008).
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`Thus, consolidation or coordination is appropriate under 28 U.S.C. § 1407(a) because the
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`actions involve significant common issues of fact.
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`B.
`
`Consolidation or Coordination for Pretrial
`Proceedings Will Further the Convenience of Parties
`and Witnesses
`
`Consolidation or coordination under Section 1407(a) will serve the convenience of both
`
`the parties and witnesses.
`
`First, early consolidation will reduce discovery costs and burdens between the parties.
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`Currently, all but one of the pending cases are in the initial stages.16 If the cases continue to proceed
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`separately amongst many districts across the country, substantial duplicative discovery will occur
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`because of the similarity between the matters. Multiple, distinct cases would involve similar rounds
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`of initial responsive pleadings, repetitive written discovery, and duplicative depositions of the
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`parties’ witnesses. The Panel has consistently stated that Section 1407 is designed to prevent this
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`repetition and duplication. See, e.g., In re: Pilot Flying J Fuel Rebate Contract Litig. (No. 11), 11
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`F. Supp. 3d 1351, 1352 (J.P.M.L. 2014) (“Centralization will avoid repetitive depositions of
`
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`16 The only matter to proceed even to the responsive pleading stage is Rodriguez, where Defendants
`filed an initial motion to dismiss. See Rodriguez v. Meta Platforms, Inc., Case No. 3:22-cv-00401-
`JD, (N.D. Cal. 2022). All other cases, however, have yet to even hold a Rule 26(f) conference.
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`Case 3:22-cv-03849-JD Document 14 Filed 08/03/22 Page 14 of 42
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`[Defendant’s] officers and employees and duplicative document discovery[.]”); In re: Starmed
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`Health Pers. FLSA Litig., 317 F. Supp. 2d 1380, 1381 (J.P.M.L. 2004) (transfer was ordered to
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`“eliminate duplicative discovery” and “conserve the resources of the parties”); In re: Zyprexa
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`Prods. Liab. Litig., 314 F. Supp. 2d 1380, 1382 (J.P.M.L. 2004) (“[T]ransfer under Section 1407
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`will offer the benefit of placing all actions in this docket before a single judge who can structure
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`pretrial proceedings to consider all parties’ legitimate discovery needs while ensuring that common
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`parties and witnesses are not subjected to discovery demands that duplicate activity[,]”). Indeed,
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`consolidation is particularly needed here given youthfulness of the plaintiff population, which
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`introduces a layer of complexity given the sensitivity of the injuries alleged and related
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`confidentiality concerns. To ensure that the plaintiffs are afforded all protections available under
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`the law, it will be beneficial if the process of obtaining and handling discoverable information is
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`conducted consistently under the watch of a single judge.
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`Second, consolidation will avoid inconsistent rulings between the various courts. That risk
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`is heightened in this litigation, where initial decisions regarding discovery of the parties’
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`electronically stored information (“ESI”) is particularly important as this case centers on plaintiffs’
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`use of Defendants’ online Facebook and Instagram products. These cases involve complex data
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`and data recovery regarding user information and interaction with Defendants’ algorithms and
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`other product features. The parties would benefit from a uniform process. But federal district courts
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`often have different model or standard ESI protocol orders. For example, the Middle District of
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`Tennessee, where one action is pending, has a differing ESI protocol than the Northern District of
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`Illinois, where multiple actions are pending.17 These differences could produce various discovery
`
`
`17 Middle District of Tennessee’s Administrative Order No. 174-1 entered September 12, 2018,
`and Northern District of Illinois Magistrate Judge Sunil R. Harjani’s [Model] Stipulated Order for
`Discovery of Electronically Stored Information for Standard Litigation, differ in the areas of
`preservation, collection, search, and form of production of ESI, as well as, how to approach
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`Case 3:22-cv-03849-JD Document 14 Filed 08/03/22 Page 15 of 42
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`motions followed by inconsistent scope, preservation, and production orders. But this risk extends
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`beyond ESI protocols and discovery preservation/production. Inconsistent rulings on other legal
`
`issues inherent in this litigation could result in the type of “pretrial chaos” that Section 1407 was
`
`designed to prevent. See, e.g., In re Plumbing Fixture Cases, 298 F. Supp. 484, 492-93 (J.P.M.L.
`
`1968).
`
`Transfer is particularly appropriate here because these actions are still in the early stages.
`
`And even though many of the plaintiffs to date are represented by three law firms,18 the Panel has
`
`recognized: “informal coordination and cooperation among the parties and courts” is not
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`“sufficient to eliminate the potential for duplicative discovery, inconsistent pretrial rulings, and
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`conflicting discovery obligations.” In re: Generic Pharm. Pricing Antitrust Litig., No. MDL 2724,
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`2017 WL 4582710, at *2 (J.P.M.L. Aug. 3, 2017).
`
`
`privilege. While both courts permit the parties to move for alternative orders to be entered, each
`of these orders would serve as a guideline and starting place for negotiation for an alternate order.
`For a complex mass tort, this presents issues that would not arise in a single-event type of litigation.
`If the JPML considers that there could be dozens of contradictory local administrative orders or
`model orders, the variations in ESI Protocol Orders could lead to dissimilar productions of ESI in
`the related litigations, not to mention inefficiencies in the Rule 26(f) meet and confer processes.
`Alternatively, the parties could end up being held to an ESI Protocol that is not best suited to this
`litigation, simply because it was the first one entered in a certain court under that court’s local
`rules.
`
`is available at
`Middle District of Tennessee’s Administrative Order No. 174-1
`https://www.tnmd.uscourts.gov/content/default-standard-discovery-electronically-stored-
`information-e-discovery.
`
`Northern District of Illinois Magistrate Judge Sunil R. Harjani’s [Model] Stipulated Order for
`Discovery of Electronically Stored Information for Standard Litigation is available at
`https://www.ilnd.uscourts.gov/_assets/_documents/_forms/_judges/Harjani/Standard%20Litigati
`on%20Proposed%20ESI%20Order.pdf.
`
`18 Upon information and belief, the number of law firms involved in related actions is expected
`to increase as new cases are initiated and interest among mass tort law firms grows.
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`Case 3:22-cv-03849-JD Document 14 Filed 08/03/22 Page 16 of 42
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`C.
`
`Consolidation or Coordination for Pretrial Proceedings
`Will Promote the Just and Efficient Conduct of the
`Actions
`
`The Panel recognizes many factors in determining whether the “just and efficient conduct”
`
`of the actions will be advanced by transfer, including those discussed above and: (1) advancing
`
`judicial economy; and (2) reducing the burden on the parties by allowing division of workload
`
`among several attorneys. See, e.g., In re: Endangered Species Act Section 4 Deadline Litig., 716
`
`F. Supp. 2d 1369 (J.P.M.L. 2010).
`
`Under the current course, a minimum of twenty-four (24) different federal judges will be
`
`required to hear and rule on the various factual and legal issues. Scarce judicial resources would
`
`be drained by having multiple federal courts oversee actions that are essentially the same.
`
`Additionally, counsel for the parties would be required to appear in almost every part of the
`
`country, stretching attorney capacity and adding exceptional cost. Consolidation or coordination
`
`of the actions will promote the just and efficient conduct of the actions. Each related action likely
`
`will involve the same pretrial issues. See, e.g., In re: Vioxx Prods. Liab. Litig., 360 F. Supp. 2d
`
`1352, 1354 (J.P.M.L. 2005) (“Transfer under Section 1407 has the salutary effect of placing all
`
`actions in this docket before a single judge who can formulate a pretrial program that: 1) allows
`
`discovery with respect to any non-common issues to proceed concurrently with discovery on
`
`common issues . . . and 2) ensures that pretrial proceedings will be conducted in a manner leading
`
`to the just and expeditious resolution of all actions to the overall benefit of the parties.”).
`
`*
`
` *
`
` *
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`Movant-Plaintiff anticipates many more cases will be filed in numerous other district courts
`
`in the coming weeks and months. As this Panel has recently stated, “Although individualized
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`factual issues may arise in each action, such issues do not—especially at this early stage of
`
`litigation—negate the efficiencies to be gained by centralization . . . The alternative of allowing
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`Case 3:22-cv-03849-JD Document 14 Filed 08/03/22 Page 17 of 42
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`the various cases to proceed independently across myriad districts raises a significant risk of
`
`inconsistent rulings and inefficient pretrial proceedings.” In re: Nat’l Prescription Opiate Litig.,
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`290 F. Supp. 3d 1375, 1379 (J.P.M.L. 2017). Consolidation or coordination in one venue is
`
`therefore the best solution for these cases and any tag-alon