Motion to Dismiss Does Not Stay Discovery
Does a Subject-Matter Waiver “Snowball” Into a Wholesale Waiver of Privilege Under a “Newfangled Theory”?
November 7, 2025Did the 2015 Deletion of “Not Reasonably Calculated” From Rule 26(b)(1) Change the Scope of Discovery?
November 13, 2025Plaintiffs alleged that defendants improperly delayed market entry of their generic medication. Defendants filed a motion to dismiss and sought to stay all discovery until after that motion was resolved. They contended that plaintiffs waited 10 years to file suit and were barred by limitations.
The motion to stay discovery was denied:
The Federal Rules of Civil Procedure do not automatically stay discovery upon the filing of a motion to dismiss. And unlike cases brought pursuant to the Private Securities Litigation Reform Act, no statute stays discovery pending resolution of a motion to dismiss in an antitrust lawsuit. But Federal Rule of Civil Procedure 26(c) states “[t]he court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]” Fed. R. Civ. P. 26(c)(1). Defendants, as the parties seeking a stay of all discovery, bear the burden of showing good cause for such a protective order.
In Re: Dexilant (Dexlansoprazole) Antitrust Litigation, 2025 WL 2959894 (N.D. Cal. Oct. 16, 2025).
Exercising its discretion, the court denied the motion for a stay. As to the alleged 10-year delay, the court wrote that it could not decide the limitations issue in this posture and: “Instead, what is undisputed is given the passage of time it is even more important to promptly begin the discovery discussions.”
However, defendants were ordered to produce only “some of the limited documents Plaintiffs seek.” The court wrote that those “documents are indisputably relevant and central to the case.” Further:
The Court also orders Defendants to meet and confer with Plaintiffs on an ESI protocol, privilege log protocols, search terms, custodians and the like. Plaintiffs may also serve additional discovery requests to help guide the meet and confer discussions. Again, delaying these necessary discussions will needlessly delay case resolution.
For additional information, please see:
- Should Discovery be Stayed Pending Ruling on Dispositive Motion? (Apr. 3, 2025);
- Discretionary Stay of Discovery Pending Decision on Dispositive Motion (Mar. 13, 2025).
