[EDRM Editor’s Note: The opinions and positions are those of the author.]
“Federal Rule of Civil Procedure 26(d)(1) does not allow discovery from any source prior to a Rule 26 conference. However, the district court has discretion to order expedited discovery.” McIntyre v. Little Miami School Dist., 2026 WL 1284127 (S.D. Oh. May 11, 2026).
Mr. McIntyre sued the School District defendants seeking to enjoin them from stopping him from displaying his “Hate Has No Home Here” flag. He anticipated filing for a preliminary injunction.
When it came to discovery, the McIntyre parties were at polar extremes. Mr. McIntyre moved to expedite discovery in anticipation of a hearing on a motion for preliminary injunction. The School District moved to stay discovery pending resolution of its Rule 12(b)(6) motion to dismiss.
THE RULES
Rule 26(d)(1) states: “A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.”
Under Rule 26(f): “Except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B) or when the court orders otherwise, the parties must confer as soon as practicable–and in any event at least 21 days before a scheduling conference is to be held or a scheduling order is due under Rule 16(b).” Rule 37(d) permits “delivery” of an early Rule 34 request. Fed.R.Civ.P. 37(d)(2).
THE PLAINTIFF’S MOTION TO EXPEDITE DISCOVERY
The McIntyre court enunciated the standard governing a request to expedite discovery:
Expedited discovery may be granted upon a showing of good cause…. The party seeking expedited discovery bears the burden of showing good cause, which may be found where the need for expedited discovery, in consideration of the administration of justice, outweighs the prejudice to the responding party…. Furthermore, courts also consider whether the evidence may be lost or destroyed with time and whether the scope of the proposed discovery is narrowly tailored.
Id. at * 1 (cleaned up).
Plaintiff asserted that “courts have found good cause for expedited discovery when limited and narrowly tailored to a plaintiff’s requested injunctive relief,” and also acknowledged issues such as student privacy were implicated in his discovery requests. He asserted that redaction could address those issues. There were also other issues, such as privilege waiver.
The McIntyre court wrote: “Defendants, meanwhile, argue that expedited discovery is unnecessary because the responsive record is already before the Court.” They pointed to policies in the court record and asserted that “they have already produced everything Plaintiff needs.” Id. at *3.
“But, Plaintiff argues that this is not so, and points to several requested materials related to, but not identical to, the exhibits Defendants produced.” Id.
Plaintiff prevailed:
The Court finds Plaintiff’s arguments persuasive. First, Defendants have not produced every document that Plaintiff requests, so discovery is not redundant. And, Defendants have not shown why depositions or document requests would prejudice them. Nor have they shown why this case is different from the numerous cases in this district where courts have permitted expedited discovery for factual matters relevant to pending motions for preliminary injunction.… Indeed, in these situations, courts examine the discovery request, weighing the reasonableness of the request, along with the scope of the requested discovery.… The Court finds here that Plaintiff seeks expedited discovery specifically related to facts relevant to his Motion for Preliminary Injunction; further, he narrowly defines the discovery he seeks so that the request is not overly broad…. Defendants have failed to show that the request is unreasonable and have not pointed to any undue prejudice or hardship for them that outweighs Plaintiff’s need for the discovery.
Id. (cleaned up).
THE DEFENDANT’S MOTION TO STAY DISCOVERY
The McIntyre court then turned to the motion to stay discovery pending resolution of the motion to dismiss the Complaint. The School District pointed to the court’s discretion to stay discovery pending resolution of potentially dispositive preliminary issues. Id. at *4. Defendants asserted that their Rule 12(b)(6) motion met that threshold standard.
The court wrote:
Meanwhile, courts in this district have followed two guiding principles when examining discovery stays: (1) as a general rule, courts have not been inclined to grant such motions; and (2) courts have imposed a “high bar” where a stay of discovery may be appropriate “only in special circumstances,” where the motion to dismiss is based on qualified or absolute immunity, or lack of jurisdiction.
Id. (citation omitted).
Mr. McIntyre responded that the School District’s motion was not based on “special circumstances,” such as immunity, jurisdiction, or limitations.
In reply, Defendants “argue that their 12(b)(6) motion does, in fact, present such threshold legal questions to warrant a stay of discovery.” Id. at *4. They pointed to a dispute over which constitutional framework governs and asserted that the resolution will impact discovery.
The court was unpersuaded.
Defendants’ Motion does not ask the Court to clarify the constitutional framework, but instead asks that the Court find one framework applies as a matter of law and dismiss the case. Thus, assuming that the Court denies the 12(b)(6) motion, that denial merely finds that Plaintiff has stated a claim for relief plausible on its face. Meanwhile, granting the motion would simply moot the discovery issue altogether. Accordingly, Defendants’ 12(b)(6) motion does not create the same sort of “threshold legal question” such as jurisdiction or immunity. Nor do Defendants show why this motion otherwise involves a special circumstance such that the motion to dismiss must be addressed before discovery proceeds.
The court also rejected a prematurity argument and addressed the requests under the State public records statute. It concluded:
Thus, the Court agrees with Plaintiff. As courts in this district have routinely found, a stay of discovery is not warranted where nothing about the pending motion appears to distinguish it from the garden-variety Rule 12(b)(6) motion which is typically insufficient to justify granting a stay of discovery…. Indeed, it is not enough that Defendants raise viable arguments for dismissal; rather, absent a threshold legal question, a stay is appropriate where it is patent that the case lacks merit…. While Defendants assert that their motion presents such threshold legal issues that warrant a stay…, they do not point to, nor can the Court find, any argument in the Motion to Dismiss that distinguishes it from a typical 12(b)(6) motion…. Nor does the Court find that the Complaint patently lacks merit…. And, lastly, Defendants have not shown that the burden of discovery prior to the resolution of the 12(b)(6) motion outweighs the burden to Plaintiff in litigating his Motion for Preliminary Injunction without discovery.
Id. at *5 (cleaned up).
[A]bsent a threshold legal question, a stay is appropriate where it is patent that the case lacks merit…
McIntyre v. Little Miami School Dist., 2026 WL 1284127, at *5 (S.D. Oh. May 11, 2026).
See also Motion to Dismiss Does Not Stay Discovery (Nov. 8, 2025); Should Discovery be Stayed Pending Ruling on Dispositive Motion? (Apr. 3, 2025); Discretionary Stay of Discovery Pending Decision on Dispositive Motion (Mar. 13, 2025).
CONCLUSION
The motion to expedite discovery was granted. The motion to stay discovery was denied.
In the related context of early requests to preserve ESI, see generally:
- A Request for a Preservation Order Was Denied: Preliminary Injunction Standard Was Not Applied (Apr. 3, 2026);
- Motion to Compel Preservation of RAM Denied Without Prejudice (Aug. 7, 2025);
- Failed Request for a Preservation Order (Jul. 13, 2022);
- Requests for a Preservation Order (Mar. 7, 2022).
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