This is Part 2 of a four-part series on calling the judge during a deposition. Read Part 1 here
In a federal employment discrimination case in the Eastern District of Pennsylvania, I was deposing a defense witness. The witness had been deposed twice before in a separate matter involving a different plaintiff but the same defendant and overlapping facts. My case had a different temporal scope and different claims, but the same defendant had retaliated against another employee in a way that was directly relevant to the pattern-and-practice evidence I needed.
Roughly 90 minutes into the deposition, I began asking the witness about the prior matter — what she knew, what she had testified to, what the defendant had done to the other plaintiff.
Defense counsel objected and instructed the witness not to answer.
Their basis: the prior matter was “outside the scope” of this lawsuit, and I was, in defense counsel’s view, improperly re-deposing the witness on a different case.
I called the judge.
Why the instruction was improper
Federal Rule of Civil Procedure 30(c)(2) is clear about when an attorney may instruct a witness not to answer during a deposition. There are exactly three permissible grounds: to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
Relevance is not on that list. “Outside the scope” is not on that list. Neither is “we don’t think this is fair” or “this is duplicative.”
The proper defense objection here would have been to note the objection on the record and let the witness answer. Or, if defense counsel genuinely believed the inquiry was bad-faith harassment, to suspend the deposition and seek a protective order under Rule 30(d)(3). Instructing the witness not to answer based on a relevance argument is not authorized by the rule.
The judge call
I went off the record and called chambers. Within about 15 minutes, the assigned judge was on the line. I gave a 30-second summary of the issue. Defense counsel gave their version. The judge asked one or two clarifying questions, then ruled from the bench.
Stripped of identifying detail, the ruling went something like this:
THE COURT: I’ve had the opportunity and a colloquy off the record with counsel to determine the nature of the dispute. I have overruled the objections by defense counsel on the basis that there is no privilege and that the relevance and admissibility of the evidence is a matter for later determination for purposes of federal discovery. I think it relates to the claims before me in this case, and so I will allow the questioning to proceed.
Defense counsel has asked if there are any guardrails around the questioning. The short answer is: I’m confident plaintiff’s counsel will conduct himself as an officer of the court, not ask any vexatious or argumentative questions. But having said that, he is allowed a proper scope of inquiry, and I would not expect objections or instructions not to answer unless a matter of privilege arises.
That was the whole intervention. The dispute had been live for about 25 minutes, off the record for about 15 of those, and the judge had now resolved it definitively.
What this ruling actually established
There are four lessons I take from this case, every one of which applies more broadly than employment discrimination practice.
1. Pattern evidence from related cases is discoverable. When the same defendant has engaged in similar conduct toward a different employee, the testimony about that other matter is fair game for discovery purposes. The judge didn’t even pause on this — it was treated as obvious.
2. The discovery standard is broader than the admissibility standard. Defense counsel’s framing of the objection conflated the two. The judge separated them cleanly: relevance and admissibility for discovery purposes is a different (and broader) inquiry than admissibility at trial. A defense objection that asks the court to make trial-admissibility rulings during a deposition will lose.
3. Instructions not to answer require privilege. The court said this plainly: “I would not expect objections or instructions not to answer unless a matter of privilege arises.” Note the precision — the judge wasn’t saying that objections are improper. Objections are fine; they preserve the record. Instructions not to answer are the thing that requires privilege.
4. Courts trust counsel to self-regulate. The judge said he was confident I would conduct myself as an officer of the court and not ask vexatious or argumentative questions. That trust runs both ways. The judge expected me not to abuse the ruling, and he expected defense counsel not to obstruct legitimate inquiry. Both expectations are baked into how federal judges supervise discovery.
What happened next
The deposition resumed. I asked about the prior matter for another 40 minutes and got everything I needed. Defense counsel made no further instructions not to answer for the rest of the day. The pattern-and-practice evidence I obtained materially strengthened the case.
If I had not called the judge, I would have had three options, all bad: (1) move on and lose the inquiry permanently, (2) suspend the deposition and file a motion to compel, costing weeks and thousands of dollars, or (3) keep asking the question and let defense counsel keep instructing the witness not to answer, producing nothing but a fight.
The judge call took 15 minutes and resolved the issue completely.
The practical takeaway
When defense counsel instructs a witness not to answer in a federal employment deposition, ask them — on the record — to identify the basis. If they cite anything other than privilege, a court-ordered limitation, or a pending Rule 30(d)(3) motion, the instruction is procedurally improper.
You do not need to immediately call the judge. Sometimes restating the rule will get defense counsel to back down. But if they hold the line, the rule is on your side, and the judge will resolve it quickly.
Part 3 of this series covers the second case in this trio — where defense counsel invoked “privacy” and “confidentiality” to block questions about comparators, and the judge’s ruling produced a remedy I almost certainly could not have gotten as cleanly through a motion to compel.
If you’re an employee in Pennsylvania or New Jersey facing employment discrimination, harassment, or wrongful termination, contact The Lacy Employment Law Firm LLC for a consultation.
