This is Part 3 of a four-part series on calling the judge during a deposition. Read Part 1 here
Comparator evidence is one of the most powerful tools a plaintiff has in an employment discrimination case. If you can show that the defendant treated similarly situated employees outside the protected class more favorably than your client, you have circumstantial evidence of discrimination that is admissible, persuasive, and often decisive.
Defendants know this. Which is why, in my experience, defendants fight comparator discovery harder than almost any other category of discovery.
This is the story of one such fight — and how a short judge call got me a remedy I almost certainly could not have obtained as cleanly through a motion to compel.
The setup
In a federal employment discrimination case, I was deposing a senior decision-maker employed by the defendant. A central theory of the case was that the defendant had treated my client differently from other similarly situated employees who had engaged in similar or worse conduct.
To prove that, I needed to ask about comparators — specifically, about other employees who had been placed on administrative leave, suspended, or otherwise separated from the organization during a defined time window.
I asked the witness to identify an employee she had earlier referenced as being on administrative leave.
Defense counsel instructed her not to answer.
The basis defense counsel offered was not privilege. It was that the question called for “extremely personal, confidential information” about a non-party employee, and that the person in question was not similarly situated to my client anyway under the applicable Third Circuit similarly-situated test.
This is a common defense move. Privacy and confidentiality, dressed up to sound like privilege. They are not privilege. The instruction was improper.
I called the judge.
The ruling
The off-the-record colloquy was longer than my previous judge call — maybe 20 minutes — because the court wanted to understand both the scope of my inquiry and the legitimate confidentiality interests of the non-party employees I was asking about.
When we came back on the record, the court ruled. The ruling was, frankly, more creative than what a motion to compel would have produced. Paraphrased and stripped of identifying detail, the ruling went like this:
THE COURT: Globally, this type of inquiry is appropriate in this kind of case. What would be fair and equitable, and consistent with the global need of the case, would be for the defendant to provide to plaintiff’s counsel a list of individuals who were separated from duty during a defined time window — whether permanently or temporarily, by nonrenewal, involuntary separation, administrative leave, or employer-directed suspension. The defendant should list them by number rather than by name, identify the facility or unit they worked in, identify the broad nature of the separation, and provide a short prose summary of the reasons.
My suggestion is that plaintiff’s counsel examine the witness on other topics for the balance of today’s deposition, that counsel confer after the list is produced, and that plaintiff’s counsel then determine whether there is some smaller universe of individuals he is really interested in. It may be that the witness has to come back to be questioned about specific people once the list has been reviewed.
Why this ruling was better than a motion to compel
If I had stopped the deposition and filed a motion to compel, here is what would likely have happened:
- Three to six weeks of motion practice.
- Defense would have filed a 20-page brief on the similarly-situated test, arguing that none of the comparators I wanted to ask about were similarly situated.
- I would have had to identify, in advance, the specific individuals I wanted information about — but I didn’t know who they were, because that was the whole point of the inquiry.
- The court would likely have ordered some narrower set of disclosures, after litigation costs in the low five figures.
- The deposition I was sitting in would have been a wasted day.
The judge call produced something much better:
A defined-time-window, anonymized list of every separated comparator. The court ordered defendant to produce a list, numbered (not named), of every employee separated from duty during a specific period — whether by nonrenewal, suspension, involuntary leave, or termination. With unit, nature of the separation, and a prose summary of reasons.
That is a broader universe than any motion-to-compel ruling I would realistically have gotten, and I got it without writing a single brief.
The trade-off was that I didn’t get immediate identification of the specific comparator I had asked about during the deposition. The judge moved that question to a follow-up, after I had reviewed the list and identified the comparators I was actually interested in. That trade-off was correct. Once I had the list, I could make targeted requests for specific people rather than fighting over each one in isolation.
What this ruling teaches
1. “Confidentiality” is not privilege. I cannot say this often enough. Defense counsel will invoke privacy, confidentiality, sensitivity, HR protocol — none of those are privilege. None of them justify an instruction not to answer. They may justify a protective order, or a confidentiality designation under one already in place, but those are different procedural moves.
2. Judges can craft remedies that motions cannot. A motion to compel asks the court to grant or deny a specific request. A judge call lets the court, in real time, design a compromise that fits the actual problem. In my case, the court gave me a better remedy than I had asked for, because it understood the practical problem (I didn’t know who the comparators were) and the legitimate countervailing concern (non-party privacy).
3. Partial victories still advance the case. I didn’t get the identification of the specific comparator right there in the deposition. But I got something more valuable: a framework for comparative discovery that defendant could not block. The case got materially stronger that day.
4. Real-time intervention prevents witness coaching. Every time a deposition goes off the record and stays off for hours, witnesses are coached. Every time. Calling the judge in real time gets the witness back under examination quickly, with rules of engagement that the court has just laid down. That sequencing matters.
The practical takeaway
If defense counsel instructs a witness not to answer based on “privacy,” “confidentiality,” “personal information,” or “sensitivity” — none of which are privilege — you have a clean basis to call the judge. The Federal Rules require privilege, court order, or a Rule 30(d)(3) motion. Anything else is improper, and federal courts are willing to say so.
The ruling you get will often be better than the ruling a motion to compel would produce, because the judge is solving a live problem rather than adjudicating a paper record.
Part 4 of this series covers the third and most aggressive case in this trio — where defense counsel made repeated speaking objections during a 30(b)(6) deposition, attempting to block inquiry into what documents the corporate designee had reviewed in preparing for the deposition. This post also includes a full primer on Rule 30(b)(6) deposition strategy in employment cases.
If you’re an employee in Pennsylvania or New Jersey who believes you’ve been discriminated against or wrongfully terminated, contact The Lacy Employment Law Firm LLC for a consultation.
