JACINTO GOMEZ OVANDO, and MARIA DEL CARMEN PERALTA BAEZA, on behalf of themselves and all others similarly situated, Plaintiffs, v. MOUNTAIRE FARMS, INC., and MOUNTAIRE FARMS OF NORTH CAROLINA, CORP., Defendants No. 7:23-CV-4-M United States District Court, E.D. North Carolina Filed July 22, 2024 Counsel Amanda M. Whitt-Downs, Hannah B. Simmons, Matthew S. Marlowe, Gilda A. Hernandez, The Law Offices of Gilda A. Hernandez, PLLC, Cary, NC, for Plaintiffs. Jerry H. Walters, Jr., Littler Mendelson, P.C., Charlotte, NC, Joshua B. Waxman, Kimberly J. Duplechain, Littler Mendelson, PC, Washington, DC, Michael Scott McIntosh, Shaun M. Bennett, Laura Ann Saracina, Littler Mendelson, P.C., Tysons Corner, VA, for Defendants. Jones Jr., Robert B., United States Magistrate Judge ORDER *1 This matter comes before the court on Plaintiffs' motion to quash subpoenas or alternatively for a protective order. [DE-87]. Defendants filed a response in opposition, [DE-89], and the motion is fully briefed and ripe for decision. For the reasons that follow, the motion is denied. Plaintiffs Jacinto Gomez Ovando and Maria del Carmen Peralta Baeza move to quash Defendants' non-party deposition subpoenas issued to Sharon Gillespie and Alvin L. Daniels. Pls.' Mot. [DE-87] at 1. Defendants initially sought to depose Daniels but could not locate him at the address Plaintiffs provided, so they withdrew the Daniels subpoena and issued a new subpoena to Wetzer Dormeille. Defs.' Resp. [DE-89] at 5 n.l. Defendants contend that the arguments in the motion to quash apply equally to the Dormeille subpoena, and the court agrees. Accordingly, this order applies to the Gillespie and Dormeille subpoenas. The parties are nearing the end of Phase I discovery, scheduled to conclude on July 26, 2024, in this FLSA and wage and hour action. On April 12, 2024, Plaintiffs filed a motion for conditional certification supported by, as relevant here, declarations from Gillespie and Dormeille, both former employees of Mountaire Farms, regarding their work at Mountaire, including the use of Personal Protective Equipment, scheduling, pre-and post-shift donning and doffing, break policy, and wage and hour complaints to management. [DE-79-12, -79-13]. At the time the certification motion was filed, there were pending motions related to discovery and to extend case deadlines. On April 24, 2024, the court issued an order resolving the discovery motions and extending the deadlines as follows: The court has ordered additional Phase I discovery be conducted and finds good cause to extend the Phase I discovery deadline to allow the parties to comply with this order, including taking the deposition of Plaintiff Baeza. Furthermore, consistent with the ruling above, any time study may be conducted outside of Phase I. Finally, the additional discovery may impact dispositive and conditional/class certification motions, which merits extension of those deadlines as well. Accordingly, for good cause shown, the Phase I deadlines are extended as follows: 1. The parties shall complete all Phase I discovery, as ordered herein, by no later than June 12, 2024; and 2. Plaintiffs may file a new conditional and/or class certification motion by no later than July 24, 2024. and any potentially dispositive motion shall be filed no later than July 24, 2024. Responses, including to Plaintiffs' pending motion for conditional and/or class certification should they elect not to file a new motion, shall be due no later than August 23, 2024. and replies shall be due no later than September 13, 2024 [.] [DE-83] at 11. The parties subsequently sought a further extension of the Phase I discovery deadline to July 26, 2024, which was allowed. [DE-85, -86]. On July 10, 2024, Plaintiffs filed the instant motion to quash. Plaintiffs argue that the subpoenas should be quashed because (1) the court's order granting Defendants' request for an extension of Phase I discovery deadlines was limited for the purpose of Defendants taking the deposition of named Plaintiff Maria Del Carmen Peralta Baeza and Phase I briefing deadlines; (2) Gillespie and Daniels are silent, putative class members who cannot be subjected to discovery during Phase I; and (3) requiring putative plaintiffs to appear for depositions would be unduly burdensome, and, additionally, the deposition notice of Daniels was improperly issued and is unenforceable. Pls.' Mem. [DE-88] at 9–14.[1] Because the Daniels subpoena was withdrawn, the question of whether it was improperly issued is moot. Defendants counter that Plaintiffs lack standing to quash the subpoenas and have no right to move for a protective order, the court extended the Phase I discovery deadline without limitation, and the information sought is relevant and does not impose an undue burden on the declarants. Defs.' Resp. [DE-89] at 9–14. *2 The court must first address the issue of standing to challenge the subpoenas. “Generally, a party lacks standing to challenge a subpoena issued to a nonparty.” In re Camp Lejeune Water Litig., No. 7:23-CV-897, 2024 WL 2950355, at *2 (E.D.N.C. June 11, 2024) (quoting Artis v. Murphy-Brown LLC, No. 7:14-CV-237-BR, 2018 WL 3352639, at *2 (E.D.N.C. July 9, 2018)). However, “where the challenging party has moved for a protective order, the court is permitted to consider its position on the merits.” Id. (citing EEOC v. Bojangles Restaurants, Inc., No. 5:16-CV-654, 2017 WL 2889493, at *4 (E.D.N.C. July 6, 2017)); Fed. R. Civ. P. 26(c) (“A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken.”). In the case of EEOC v. Bojangles Restaurants, Inc., the EEOC brought an action based on alleged employment discrimination by Bojangles against its former employee. 2017 WL 2889493, at *1. Bojangles served subpoenas on the employee's current employer and three former employers, all non-parties, and the EEOC moved to quash the subpoena to the current employer and for a protective order on that grounds that the subpoena was procedurally defective, sought irrelevant and duplicative information, was overbroad, and imposed an undue burden. Id. at * 1-2. The court concluded that “even if plaintiff were deemed not to have standing to challenge the subpoena, plaintiff has also moved for a protective order, permitting the court order to consider its position on the merits.” Id. at *4 (citing Brown v. Mountainview Cutters, LLC, No. 7:15-cv-204, 2016 WL 3045349, at *2 (W.D. Va. 27 May 2016) (“[E]ven if the court could find that [the movant] did not have standing to quash the subpoenas under Rule 45 of the Federal Rules of Civil Procedure, she would still have standing under Rule 26 to challenge the subpoenas as irrelevant and overbroad.”); HDSherer LLC v. Natural Molecular Testing Corp., 292 F.R.D. 305, 307 (D.S.C. 2013) (“Ordinarily, a party does not have standing to challenge a subpoena issued to a nonparty unless the party claims some personal right or privilege in the information sought by the subpoena.... Notably, however, Defendant has also made a motion for a protective order under Rule 26; therefore, Defendant has standing to challenge the subpoenas under Rule 26 standards, regardless of whether [it has] standing to bring a motion to quash under Rule 45.” (internal citations and quotations omitted))). Likewise, here, even if Plaintiffs lack standing to challenge the subpoenas issued to Gillespie and Dormeille, the alternative request for a protective order provides grounds for the court to reach the merits of the dispute. Plaintiffs first argue that a protective order preventing the depositions should issue because the court's order extending the Phase I discovery deadline was for the limited purpose of Defendants taking the deposition of named Plaintiff Maria Del Carmen Peralta Baeza and Phase I briefing deadlines. Pls.' Mem. [DE-88] at 9-10. The court expressly continued the Phase I discovery deadlines “to allow the parties to comply with th[e court's] order, including taking the deposition of Plaintiff Baeza,” and the court did not contemplate at that time the parties engaging in discovery unrelated to what was addressed in the order. [DE-83] at 11. However, Plaintiffs filed the Gillespie and Dormeille declarations in support of their motion for conditional certification after Defendants filed their motion to extend the discovery deadline for the purpose of taking the Baeza deposition. See [DE-70, -78]. In the parties' subsequent June 6, 2024 motion to extend the Phase I discovery deadline, which the court allowed, they indicated that additional time was needed “[a]s a result of a series of scheduling conflicts that have prevented the Parties from scheduling and completing Phase I depositions,” [DE-85] at 1, and Defendants had notified Plaintiffs on May 3, 2024, of their intent to depose two of the declarants, Defs.' Resp. [DE-89] at 8, Ex. 2. Accordingly, the court finds that the depositions of Gillespie and Dormeille are appropriate under the court's June 7, 2024 order extending the deadline to complete Phase I discovery to July 26, 2024, [DE-86]. Next, Plaintiffs argue that Gillespie and Dormeille are silent, putative class members who cannot be subjected to discovery during Phase I. Pls.' Mem. [DE-88] at 10-12. Plaintiffs filed declarations from Gillespie and Dormeille in support of their motion for conditional certification. [DE-79-12, -79-13]. Thus, while non-parties, these individuals are not “silent,” as they have inserted themselves into this stage of the litigation by submitting the declarations, and it would be unfair to prevent Defendants from deposing them to test the information contained therein. See Redmond v. Moody's Inv. Serv., No. 92 CIV. 9161 (WK), 1995 WL 276150, at *2 (S.D.N.Y. May 10, 1995) (allowing depositions of class members who “have already submitted affidavits addressing classwide issues”). Finally, Plaintiffs argue that requiring putative plaintiffs to appear for depositions would be unduly burdensome. Pls.' Mem. [DE-88] at 12–14. In Va. Dep't of Corr. v. Jordan, the Fourth Circuit recognized that “[a] more demanding variant of the proportionality analysis [ ] applies when determining whether, under Rule 45, a subpoena issued against a nonparty ‘subjects a person to undue burden’ and must be quashed or modified.” 921 F.3d 180, 189 (4th Cir.), cert. denied, 140 S. Ct. 672 (2019) (quoting Fed. R. Civ. P. 45(d)(3)(A)(iv)). This is so because “[b]ystanders should not be drawn into the parties' dispute without some good reason, even if they have information that falls within the scope of party discovery.” Id. As explained above, while Gillespie and Dormeille are non-parties, they are not “bystanders” where they have submitted declarations in support of Plaintiffs' motion for conditional certification, and Plaintiffs have provided only generalized arguments in support of their undue burden argument. Accordingly, the court finds that requiring Gillespie and Dormeille to appear for deposition would not impose an' undue burden. *3 Accordingly, for the reasons stated here, the motion to quash or for a protective order is denied. SO ORDERED, the 22nd day of July, 2024. Footnotes [1] This order references the page numbers in the CM/ECF footer whereas here they differ from the internal pagination in the parties' briefing.