CINCINNATI (LN) — U.S. District Judge Matthew W. McFarland on Monday ordered the Little Miami School District to engage in written discovery and up to five videoconference depositions within 30 days, ruling that the plaintiff showed "good cause" for the acceleration.
McIntyre, who filed his complaint on April 7, 2026, alleges the district violated his First Amendment rights by ordering him to remove a flag from his classroom. The district had cited Board Policy 5780.01, known as the “Parents’ Bill of Rights,” and Ohio Revised Code Section 3113.472, which defines prohibited “sexuality content” in schools.
The judge’s order addresses two competing motions: McIntyre’s push to accelerate discovery to prepare for a preliminary injunction hearing, and the district’s attempt to halt all discovery until the court resolves a Rule 12(b)(6) motion to dismiss the case.
McFarland granted the motion for expedited discovery, noting that the request was narrowly tailored to facts relevant to the injunction motion. The plaintiff sought documents regarding the school board’s decision to remove the flag, communications with outside counsel, and records concerning the drafting of the Parents’ Bill of Rights policy.
The district argued that expedited discovery was unnecessary because it had already produced key documents, including board minutes and emails, through public records requests. The district also claimed that allowing discovery before the dismissal motion was resolved would impose an undue burden and risk producing irrelevant information depending on the constitutional framework the court eventually applies.
The judge denied the stay argument, stating that the district’s motion to dismiss did not present a “threshold legal question” such as immunity or jurisdiction that would justify pausing discovery. McFarland wrote that a standard 12(b)(6) motion is “typically insufficient to justify granting a stay of discovery” unless the case “patently lacks merit,” which he did not find here.
A significant portion of the order focused on the scope of discovery regarding attorney-client privilege and the Family Educational Rights and Privacy Act (FERPA). McIntyre argued that the district waived privilege by disclosing some emails to the public. The judge acknowledged Sixth Circuit precedent rejecting "selective waiver" but stopped short of ordering the production of all privileged communications immediately. He ruled that the district must provide a privilege log for any documents withheld on the basis of attorney-client privilege or work product, allowing the court to determine if the undisclosed materials concern the same subject matter as those already released.
Regarding FERPA, the judge agreed with McIntyre that the statute does not create an absolute privilege. He ordered that the parties comply with FERPA by redacting personally identifying information from student records and notifying affected students of the impending disclosure.
The court ordered the parties to complete written discovery and up to five videoconference depositions within 30 days of the order.
McIntyre initially sought to proceed pseudonymously, but the court denied that request, prompting him to re-file his complaint with his full name.