The European Union (EU) is set to implement a new Product Liability Directive (PLD) that has the potential to significantly expand disclosure obligations in product liability litigation across Member States. For multinational companies, this development could introduce a level of pretrial disclosure that closely resembles U.S.-style discovery—departing from the traditionally limited and judge-controlled approach in Europe. At the same time, the scope of legal professional privilege (LPP) in the EU is far narrower than the U.S. attorney-client privilege, creating substantial risks for the protection of sensitive legal communications.
How disclosure works in the EU
Historically, most EU countries have had limited (if any) discovery. Parties are generally expected to present their own evidence, and “fishing expeditions” are discouraged. Disclosure, when it occurs, is rooted in the principle of proportionality. It is judge controlled, targeted, and far less adversarial than in the United States. In most civil law jurisdictions, there is no broad right to pretrial discovery; disclosure is typically ordered only in specific, limited circumstances—usually when a party can identify particular documents that are both relevant and necessary to the case. As a result, companies operating in the EU have faced far less risk of having to turn over internal documents—including legal advice—than they would in U.S. litigation.
The PLD’s new disclosure requirement
The new PLD marks a significant shift, empowering national courts to order defendants and third parties to disclose relevant evidence at the request of a claimant, provided certain conditions are met.
“Member States shall ensure that national courts are empowered, at the request of a claimant who has presented facts and evidence sufficient to support the plausibility of the claim for compensation, to order the defendant or a third party to disclose relevant evidence which lies in their control, provided that the claimant has undertaken all reasonable steps to obtain the evidence and has shown that the requested disclosure is necessary and proportionate to support the claim.”
(Art. 18(1), PLD)
This regime will apply to product liability claims involving products placed on the market after December 2026. However, it is important to recognize that internal discussions and legal advice generated now—during product development and launch planning—could be subject to disclosure in future EU proceedings.
Narrow scope of legal professional privilege in the EU
Unlike in the U.S., where attorney-client privilege protects communications involving legal advice with in-house and external counsel, the scope and application of legal professional privilege in the EU are not harmonized. Rather, privilege is governed by the national law of the Member State in which the claim is brought, and the rules vary significantly.
- Some Member States (e.g., France and Germany) limit privilege to communications with external independent lawyers. In-house counsel’s communications, even when they contain legal advice, are not protected.
- Other Member States (e.g., Netherlands, Belgium, and Portugal) may extend privilege to in-house counsel, but only if they are admitted to the national bar or are members of a professional body for in-house counsel and, in some cases, meet additional requirements.
- A small number of Member States (e.g., Ireland) treat in-house counsel the same as external counsel for the purpose of privilege.
- Non-EU lawyers: In several Member States, communications with non-EU lawyers—including U.S. attorneys—are not protected.
Because the PLD will be transposed into each Member State’s national law and adjudicated in national courts, the scope of privilege protection will depend on where a claim is filed. This lack of harmonization may influence where claimants choose to bring suit, and could result in claimants seeking discovery in one jurisdiction and filing their claim in another.
Implications for privileged communications
For U.S. lawyers and multinational companies, the risks are clear.
- Communications that would be shielded in a U.S. court—such as emails containing in-house counsel’s legal strategy, internal legal memos, and even advice from U.S. outside counsel—could be subject to disclosure in an EU product liability proceeding.
- Even if in-house lawyers are members of the local bar, their status as employees is enough to break privilege under many Member States’ laws.
- The PLD’s reach means that internal discussions and legal advice happening now could be subject to disclosure in the future.
- It could be argued that disclosure of privileged communications in EU proceedings constitutes waiver of privilege in parallel or subsequent U.S. litigation. U.S. courts typically treat disclosure to third parties as a waiver, particularly if not clearly compelled by a court. While some exceptions exist for compelled disclosure under foreign law, the case law is inconsistent. If production under the PLD is viewed as voluntary, companies may face arguments that privilege was waived across the board.
Practical guidance for companies
Given these risks, companies with operations or product sales in the EU should take proactive steps now to protect privilege communications.
- Involve external EU-qualified counsel early and often
Seek legal advice from external EU-qualified counsel at the earliest stage of any matter that could foreseeably become contentious or subject to EU proceedings. When non-EU lawyers are involved, have an external EU lawyer coordinate the advice.
- Prepare for cross-border litigation
Be aware of the risk that disclosure in EU proceedings could be used to argue waiver in U.S. litigation. Do not disclose privileged materials unless and until a formal order is issued, and object to the disclosure on privilege grounds where appropriate, even if the objection is ultimately overruled. Document the circumstances of any compelled disclosure, seek protective orders or orders of confidentiality from the EU court, and disclose only those documents that are ordered to be disclosed.
- Use clear and consistent privilege labels
Mark all communications with external counsel as “Privileged and Confidential – Lawyer Client Communication from External Counsel.” For internal notes reflecting outside legal advice, use labels such as “Privileged Summary of Advice Received from External Counsel.” While overuse of labels should be avoided, clear and consistent marking is critical, especially when privileged advice is circulated internally or summarized for business teams.
- Document the purpose and context of legal advice
When preparing documents for external counsel or summarizing legal advice, explicitly state that the document is prepared for the purpose of seeking or conveying legal advice. Where possible, include the name of the external EU-qualified lawyer and the specific legal issue being addressed.
- Train legal and business teams
Ensure that in-house lawyers and business teams are aware of the limitations of privilege in the EU and the importance of following internal protocols.
Our team can assist you with these efforts. We offer training for legal and business teams on the limitations of privilege in the EU and best practices for protecting sensitive information. We can coordinate with or engage external lawyers who are qualified in the EU, and we can advise on structuring communications and documenting the circumstances of any compelled disclosure to minimize the risk of privilege waiver in the U.S. and other jurisdictions.
Client Alert 2025-187
