Q: How to confront previous responses, with improperly claimed privileges, when privilege log was not requested before?

A: Under California law, if a party has improperly claimed privileges in previous discovery responses and the time to compel further responses has expired, there are still a few options to address the issue:

1. Meet and Confer: Initiate a meet and confer process with the opposing party to discuss the improperly claimed privileges. During this discussion, explain your concerns and request that they voluntarily withdraw the privilege claims or provide a proper privilege log. If they agree, you can proceed with the discovery process without court intervention.

2. Amended Responses: If the opposing party agrees to withdraw the improper privilege claims, you can request that they serve amended responses to the previous discovery requests, removing the invalid claims of privilege.

3. Motion to Compel: If the meet and confer process is unsuccessful, you may file a motion to compel further responses to the current discovery requests. In this motion, you can argue that the opposing party has a history of improperly claiming privileges, as evidenced by their previous responses. You can request that the court overrule the improper privilege claims in the current responses and order the production of a proper privilege log.

4. Motion for Relief from Waiver: In some cases, you may be able to file a motion seeking relief from the waiver of objections to the previous discovery responses. You would need to demonstrate good cause for why you did not move to compel further responses within the 45-day deadline. Factors such as the opposing party's pattern of improper privilege claims and the importance of the information being withheld may support your motion.

5. Sanctions: If the court finds that the opposing party has repeatedly and improperly claimed privileges, you may request that the court impose sanctions under California Code of Civil Procedure section 2023.030. Sanctions may include monetary penalties, evidence preclusion, or even terminating sanctions in extreme cases.

It is essential to consult with an experienced California civil litigation attorney to assess the specific facts of your case and determine the most appropriate course of action. They can help you navigate the legal process and develop a strategy to address the improperly claimed privileges in previous discovery responses.