Most plaintiff-side lawyers I talk to are reluctant to call the judge during a deposition. The reluctance is understandable — nobody wants to look like a complainer in front of the bench, and most of us were trained to “preserve it for the record” and fight it out later on a motion to compel.
That training is wrong. Or at least, it’s incomplete.
When defense counsel obstructs a deposition — improperly instructs a witness not to answer, makes coaching speaking objections, blocks legitimate inquiry — calling the assigned judge mid-deposition is often the single most effective move you can make. It resolves the dispute in minutes instead of weeks. It avoids the cost of motion practice. And, critically, it sets the tone for the rest of the day.
Over the course of my employment practice in federal court, I’ve called judges from depositions on three separate occasions. Every single time, the call worked. Three for three.
This post is the playbook. The next three posts in this series walk through each of those cases in detail.
Why the conventional wisdom is wrong
The standard advice — “make your record and move on” — assumes that the cost of judicial intervention is high and the cost of obstruction is low. In a federal employment case, both assumptions are usually backwards.
The cost of obstruction is enormous. If defense counsel improperly instructs a witness not to answer a question about comparators, and you let it go and file a motion to compel three weeks later, you have to:
- Schedule the witness for a second deposition session
- Get back on the witness’s (and counsel’s) calendar
- Pay the court reporter again
- Brief and argue the motion
- Probably get the same ruling you’d have gotten in five minutes on a judge call
Meanwhile, the deposition you’re sitting in right now loses its forward momentum. Witnesses regroup. Counsel coaches. Whatever rhythm you had is gone.
The cost of a judge call, by contrast, is usually small. Federal judges in employment cases routinely make themselves available for discovery disputes during depositions. Most chambers have a procedure. Many scheduling orders explicitly invite mid-deposition calls. The judge picks up, hears a short colloquy from both sides, rules, and you’re back on the record within 15 to 20 minutes.
The three triggers that justify the call
Not every objection warrants a judge call. The threshold matters — call too often and you burn judicial goodwill. Call at the right moment and you change the trajectory of the case.
Here are the three patterns I’ve called the judge for, each of which I treat in its own post in this series:
1. Defense improperly instructs a witness not to answer relevant questions. Under the Federal Rules, an instruction not to answer is only proper to preserve a privilege, to enforce a court-ordered limitation, or to present a Rule 30(d)(3) motion. Relevance objections do not justify an instruction not to answer. Neither do confidentiality concerns. When defense counsel crosses that line — and they do, often — calling the judge in real time is the fastest way to fix it. Read the case study
2. Defense instructs a witness not to answer based on “privacy” or “confidentiality.” This is a variation of the first trigger, but it deserves its own treatment because it shows up so often in employment cases — particularly when you’re asking about comparators. Defense counsel will invoke privacy as if it were a privilege. It is not. Read the case study
3. Defense uses speaking objections to coach a 30(b)(6) witness. This one is its own beast. A 30(b)(6) deposition has special rules: you are allowed to ask what the witness reviewed, what informed their preparation, what the source of their information was. None of that is privileged. When defense counsel makes coaching speaking objections to block that inquiry — particularly in the first thirty minutes of the deposition, when they’re trying to establish dominance — calling the judge early sets the rules for the entire day. Read the case study
The mechanics: what to actually do
When you decide to call the judge, the sequence matters:
1. Make a clean record before you reach for the phone. Get defense counsel’s objection on the record clearly. Ask the question. Get the instruction not to answer. Ask defense counsel to identify the basis. If they cite something other than privilege, you have what you need.
2. State your intention on the record. “I’m going to ask one more time. If you continue to instruct the witness not to answer, I’m going to call the court.” This both makes your record and gives defense counsel a chance to back down. Sometimes they do.
3. Go off the record and call chambers. Most judges have a procedure — a deputy clerk, a chambers number, an email. If you don’t know it, the scheduling order usually says. If the scheduling order doesn’t say, check the judge’s standing procedures on the court website. Always have this looked up before the deposition starts.
4. Be ready to summarize the dispute in 60 seconds. When the judge gets on the line, they will want a brief, neutral statement of the issue. Practice this. “Your Honor, defense counsel has instructed the witness not to answer a question about comparators based on confidentiality. We believe the instruction is improper because the basis is not privilege.” That’s it. Save the argument for if the judge asks.
5. Let defense counsel speak. The judge will give them a chance. Do not interrupt.
6. Accept the ruling and move on. Even if you get a partial loss, take it cleanly. The judge has saved you weeks of motion practice. Thank the court, get back on the record, and adapt your line of questioning.
What the rulings look like in practice
In every one of the three cases I’ll discuss in this series, the judge ruled from the bench based on a 10- to 15-minute off-the-record colloquy. The rulings were clean, specific, and immediately enforceable. In one case, the judge’s caution to defense counsel about coaching the witness changed the tenor of the entire rest of the deposition. In another, the judge ordered defendant to produce an anonymized list of comparators within a specific time window — a remedy I almost certainly would not have gotten as cleanly through a motion to compel.
The judges, in my experience, want these disputes resolved on the spot. They are not going to be annoyed that you called. They are going to be annoyed if you didn’t.
The bigger point
Calling the judge from a deposition is a tool that is underused by plaintiff-side lawyers. It is fast, it is cheap, and the judges in this jurisdiction are generally willing to use it. If you are deposing in a federal employment case and defense counsel is obstructing — improperly instructing the witness, making coaching objections, blocking legitimate 30(b)(6) inquiry — pick up the phone.
The cost of asking is low. The cost of not asking is the rest of your case.
The next three posts in this series walk through three real federal employment cases where calling the judge mid-deposition produced an immediate ruling that materially advanced the case. Names, page citations, and identifying details have been stripped.
- Part 2: “Instructions Not to Answer” Require Privilege — Not Inconvenience
- Part 3: How a Five-Minute Judge Call Got Us Comparator Discovery Without a Motion to Compel
- Part 4: Shutting Down Speaking Objections in a 30(b)(6) Deposition
If you’re an employee in Pennsylvania or New Jersey who believes they’ve been discriminated against, harassed, or wrongfully terminated, contact The Lacy Employment Law Firm LLC for a consultation.
