Judge Bibas’ Recent Opinion in Design With Friends v. Target Continues the Trend of Courts Limiting Discovery into Funding Arrangements

The American civil justice system is premised on the existence of real and enforceable rights. Yet for a significant category of harm—injuries that are widespread in aggregate but modest when considered individually—this premise often fails in practice. Rights without practical remedies are rights in name only. And when the gap between entitlement and enforcement operates at scale, the consequences are not just individual—they are systemic. In a prior post , I traced the procedural evolution of mass actions from their equitable origins, through Rule 23, to the modern dominance of the MDL. That article explained how the American legal system developed tools to aggregate claims. This post asks why those tools matter. Consider a consumer injured by a defective product. If the injury is catastrophic, the economics of litigation may justify individual pursuit. But if the injury is less severe, or the causal chain complex, the calculus changes. The costs of prosecution (with lawyers billing hundreds if not thousands of dollars an hour) regularly exceed the potential recovery. In that common situation, the economically rational response is to do nothing—even when the claim is valid and the defendant culpable (e.g., 3M Combat Arms earplug litigation where claim value was as low as $5,000). This is not a doctrinal failure; it is a structural failure: Bilateral litigation assumes rough proportionality between claim value and litigation cost. When that proportionality breaks down, the system produces under-enforcement at scale. Mass tort aggregation mechanisms exist precisely to solve this problem. Contrary to the arguments of repeat defendants and their lawyers, mass torts are not procedural innovations designed to manufacture litigation where none should exist . They are a structural response to a structural deficiency—and a key way to ensure that the American civil justice system lives up to its core premise of equal access to justice. The Economics of Under-Enforcement Three categories of expense drive the access problem in complex litigation. First, discovery in product liability cases can generate millions of pages of documents requiring substantial attorney time and technology to analyze. Combined with related motion to compel and deposition practice, this is the billable-hour lifeblood of many defense firms. While extremely profitable for the well-placed defense lawyer , it is essentially unaffordable for most injured plaintiffs, pricing them out of justice. Second, expert witness expenses add another layer of cost. As background, establishing defect and causation in pharmaceutical, toxic exposure, and product defect cases demands specialists whose development, report drafting, and testimony can easily reach six or seven figures in hourly fees. In such situations, it is economically irrational for an individual plaintiff to hire an expert to opine on their injury given the anticipated ratio of cost to recovery. This reality is complicated by the fact that the class action mechanism, and its concomitant sharing of costs, is generally unavailable for personal injury mass torts . Third, time horizons exacerbate everything. It is not unusual for certain torts to run from five to ten years, with Talc being a key example . This means that attorney time (or funding) is advanced without guarantee of return with significant duration risk. These economic considerations are further aggravated by informational asymmetries between plaintiffs and defendants. Institutional defendants maintain in-house expertise, established relationships with specialized counsel, and the documents and data plaintiffs must obtain through discovery. They are repeat players who approach each case with experience accumulated over frequent litigation of the same issues. Individual plaintiffs, by contrast, are one-shot participants dependent on attorneys who often themselves face tremendous informational disadvantages. The result is a collective action problem. If pursuing a claim costs more than its expected value, rational actors will not sue—even when aggregate harm is substantial. Free-rider dynamics compound the problem: If one plaintiff invests in developing evidence, others benefit without bearing costs, reducing everyone’s incentive to act first. Defendants who cause diffuse harm face reduced liability exposure, and the incentive to invest in safety diminishes accordingly (e.g., the Opioid crisis where defendants ignored obvious safety risk). Crucially, the erosion of deterrence is not merely an individual injustice—it is a public welfare concern that compounds with every claim that goes unfiled. How Aggregation Restructures Litigation Economics The MDL process addresses these dynamics by restructuring litigation economics to make otherwise impractical individual claims economically rational. Shared discovery is perhaps the most significant efficiency. Corporate document productions occur once, not thousands of times. Depositions of key witnesses are taken for the consolidated proceeding and made available to all parties. The marginal cost of discovery for any individual plaintiff thus drops dramatically once centralized infrastructure is in place. Common motion practice produces similar efficiencies. Legal issues that recur across cases (e.g., preemption, general causation) are resolved through consolidated briefing. Coordinated expert development addresses the expense problem directly: plaintiff leadership invests in scientific evidence that benefits every plaintiff in the litigation. An individual whose claim could never justify a $500,000 expert investment can benefit when costs are shared across thousands of claimants. The cumulative effect is cost reduction. Claims that would be economically irrational to pursue individually become viable when aggregated. The collective action problem is solved, not by changing substantive law or lowering evidentiary standards, but by restructuring the economics of claim pursuit. Bellwethers and Informational Efficiency The economic efficiencies of the MDL process are mirrored by their informational efficiencies. Bellwether trials (representative cases selected for full trial proceedings) serve critical functions in this structure. They generate information that disciplines settlement negotiations. Before bellwethers, both sides operate with imperfect knowledge about litigation value. Bellwether outcomes provide hard data on how claims perform in actual adjudication, allowing both sides to update their assessments and negotiate from common informational foundations. Bellwethers also serve a quality-control function. Claims that cannot survive trial are revealed as such, and plaintiffs with similar claims must adjust expectations or withdraw. The process operates as a filter separating viable claims from those that cannot withstand adjudication. Addressing the Overreach Critique Critics contend that aggregation inflates claim values, coerces settlements regardless of merit, and manufactures litigation where none should exist. While ultimately outweighed by the benefits, these concerns deserve thoughtful engagement. The critique rests on an implicit comparison to bilateral litigation as baseline. But as the preceding analysis shows, bilateral litigation systematically under-enforces valid claims when harms are diffuse. If critics call aggregation “inflation,” we should recognize bilateral under-enforcement for what it is: deflation. If we accept that the bilateral baseline is itself distorted—producing under-enforcement rather than accurate enforcement—then aggregation’s effects look different. Enabling claims that would otherwise be impractical is not inflation; it is correction. The concern about settlement pressure similarly assumes defendants are coerced into paying for weak claims. But settlement in mass litigation is heavily mediated by information and procedural safeguards. Daubert motions screen expert reliability, summary judgment tests legal sufficiency, and bellwether losses expose plaintiff theories that cannot withstand adjudication. Defendants facing weak claims have ample opportunity to expose that weakness before settlement pressure materializes. Finally, the critique conflates access with abuse. That aggregation enables more claims does not mean it enables more frivolous claims . Centralized proceedings concentrate scrutiny on claim quality in ways bilateral litigation disperses. A transferee judge managing thousands of cases has strong incentives to identify deficient claims. MDL structure provides quality-control mechanisms bilateral litigation lacks. Conclusion Mass tort aggregation restructures litigation economics to make diffuse-harm claims practical. It does this by correcting asymmetries that would otherwise favor institutional defendants (with deep pockets and, at times, questionable judgment ). And by solving collective action problems that would otherwise produce under-enforcement. The alternative to aggregation is not a pristine bilateral system. The alternative is under-enforcement of rights and a free pass for corporate negligence . In that world, valid claims go unfiled, wrongdoing goes unaddressed, deterrence erodes, and the civil justice system serves institutional defendants more effectively than the common citizen consumer. Ignoring this dynamic—and its political ramifications—is dangerous. As Judge Learned Hand warned : “If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice.”

Law.com recently interviewed and quoted Certum Group’s William Marra in an article examining a proposal by the Pennsylvania Civil Rules Committee that would permit discovery into litigation finance agreements. In the article, Marra explained that most courts have recognized that litigation funding agreements generally are not the proper subject of discovery. Courts have often concluded that these agreements are protected by the work product doctrine and are not relevant to the merits of the underlying dispute. The debate over litigation finance disclosure continues to evolve across federal and state courts. While some jurisdictions have adopted narrow disclosure requirements designed to identify potential conflicts of interest, courts have frequently rejected broader attempts to obtain litigation funding agreements through discovery. Marra emphasized that any disclosure rules should remain narrowly tailored to address legitimate concerns without creating strategic advantages for defendants. “Cases should be decided on the merits and any rules that we have in this regard, I would recommend should ensure that the parties are going to focus litigation on the merits rather than on potential expensive sideshows about the terms of someone’s financing agreements,” Marra told Law.com. Certum has previously addressed this issue in its recently-published model brief opposing discovery into litigation funding agreements, which highlights the doctrinal and policy reasons courts have declined to compel disclosure of funding arrangements.  The Law.com article is available here .