Q: improper claims of privilege in defendant's responses that were made In the past

A: In California, if a party objects to a discovery request based on privilege, they are generally required to provide a privilege log that identifies the documents being withheld and the basis for the privilege claim. This is outlined in California Code of Civil Procedure Section 2031.240(c)(1) for document production requests and Section 2030.240(c)(1) for interrogatories.

However, if the plaintiff did not demand a privilege log in response to the defendant's improper claims of privilege in the past, it may be more challenging to confront those past claims now. The best approach would be to propound a new set of discovery requests and specifically demand a privilege log for any documents or information withheld based on privilege.

Once the defendant provides the privilege log, the plaintiff can evaluate the claims of privilege and, if necessary, challenge any improper claims through a meet-and-confer process and, if unresolved, a motion to compel. The court can then review the disputed documents in camera to determine if the privilege claims are valid.

In summary, while it may be difficult to confront past improper claims of privilege without having previously demanded a privilege log, the plaintiff can address this issue by propounding a new set of discovery requests with a specific demand for a privilege log and then challenging any improper claims of privilege based on the information provided in the log.