Today’s guest post is from Jamie Lanphear and Daniel Kadar, both of Reed Smith, who follow product liability events in Europe closely. They are discussing the implications of recent changes on the availability of attorney/client and work product privileges—called “legal professional privilege” in Europe—not only in Europe itself, but how European restrictions might find their way back across the pond to parallel litigation in the United States. As always our guest posters are 100% deserving of all praise (and any blame) from their posts.

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If you’ve ever found yourself grumbling about the breadth of U.S. discovery, you’re not alone. For U.S. lawyers, turning over reams of company documents is a familiar—if unwelcome—part of litigation. For most of our European colleagues outside of the UK, however, the idea of broad, adversarial discovery has generally not been a concern. That’s likely about to change. The EU’s new Product Liability Directive (PLD), which the blog has previously covered here, here, here, and here will expand disclosure obligations in product liability matters across the EU, and the implications for legal privilege—especially for in-house and U.S. counsel—are significant.

Historically, disclosure (the term used in the EU to refer to the closest thing they have to what we call “discovery” here in the U.S.) in most EU Member States has been tightly controlled under the principle of proportionality. Unlike in the U.S., where parties can demand expansive discovery, European courts have generally limited disclosure to specific, judge-ordered circumstances. “Fishing expeditions” are discouraged, and parties are expected to present their own evidence. In many civil law jurisdictions, there’s simply no broad right to pre-trial disclosure; it is ordered only when a party can identify particular documents that are both relevant and necessary to the case. In some jurisdictions, such as France, such discovery can lead to ex parte civil search orders implemented by bailiffs at the defendant’s premises.

As a result, companies have faced far less risk of having to turn over internal documents—including legal advice—in the EU than they would in U.S. litigation. But the new PLD is about to mark a significant shift. While it does not go so far as to import full-scale U.S.-style discovery, it does introduce more expansive disclosure for product liability cases than previously existed.

Under the new PLD, national courts will be empowered to order defendants (and third parties) to disclose relevant evidence in their control, 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

Although disclosure requests still must be targeted and proportionate, the PLD reflects a clear departure from Europe’s historically restrained approach to pre-trial evidence gathering.

With this expansion comes a parallel concern: how legal privilege will apply when internal documents include communications with counsel. The short answer is: it depends. Unlike the U.S., where attorney-client privilege is relatively broad and uniform, legal professional privilege (LPP) in the EU is more limited and far from harmonized. While the concept of protecting confidential communications between lawyers and their clients is widely recognized, the scope and application of that protection differ significantly among Member States.

In most jurisdictions, LPP protects only communications between a client and independent, external lawyers who are admitted to the bar in an EU or EEA Member State. A key limitation is that LPP often does not extend to in-house counsel. The rationale, rooted in European case law and national traditions, is that in-house lawyers—by virtue of their employment relationship—are not considered sufficiently independent to warrant privilege protection. Another important limitation is that most Member States do not extend LPP to non-EU-qualified lawyers, including U.S. attorneys. This means that legal advice provided by in-house counsel or by U.S. outside counsel may not be protected from disclosure. 

Because product liability claims brought under the PLD will be litigated in national courts applying national law, it is the Member State’s LPP rules that will govern. While the overarching principles may be similar, the scope of protection varies in meaningful ways depending on jurisdiction. For example:

• France does not extend privilege to in-house counsel; LPP applies only to communications with external lawyers.
• Netherlands, Belgium, and Portugal extend LPP to in-house counsel, but usually only if they are admitted to the national bar and meet specific criteria.
• Ireland treats in-house and external lawyers the same for privilege purposes.

This fragmented landscape creates real uncertainty. The same legal advice may be protected in one Member State and subject to disclosure in another. This disparity may shape litigation strategy, influencing where claimants choose to file suit. It may also lead to claimants requesting the disclosure of evidence in one jurisdiction, and filing suit in another.

For global companies, the practical risk is obvious: the PLD’s expanded disclosure powers increase the likelihood that internal legal communications—and communications with external U.S. counsel—could be exposed in product liability proceedings brought in the EU. For example, in-house counsel currently advising R&D or regulatory teams about legal risks or compliance issues for a product in development may see their legal advice disclosed in future litigation involving that product. The same goes for U.S. outside counsel. Communications between U.S. trial counsel and the company during domestic litigation, for example, could be subject to disclosure in parallel EU litigation.

Adding to the risk is the possibility that once attorney-client communications are disclosed in the EU, privilege could be deemed waived in parallel or subsequent U.S. litigation, especially if the disclosure is not clearly compelled by a court order. See, e.g., In re Vitamins Antitrust Litig., MDL 1285, 2002 U.S. Dist. LEXIS 26490 (D.D.C. Jan. 23, 2002).

As the PLD ushers in broader disclosure obligations, companies should be proactive, and adapt their legal and compliance protocols to minimize the potential risk of privileged communications being exposed in Europe, to their detriment in both European and American litigation. The following steps can help organizations protect the confidentiality of their legal communications and reduce the risk of inadvertent waiver or disclosure:

1. Involve External EU-Qualified Counsel Early and Often

To maximize protection, companies should 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.

2. Prepare for Cross-Border Litigation and Disclosure Risks

Do not provide 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. This can help establish that the disclosure was not voluntary and thus refute later waiver arguments. Where compelled disclosure is unavoidable, document the circumstances, including all correspondence, orders, and other documents related to the compelled disclosure to support this position if challenged in U.S. litigation. Seek a protective order or order of confidentiality from the EU court, disclose only those documents that are strictly required by the EU court, and avoid any voluntary or overbroad production.

3. 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 summarizing external 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.

4. 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 reflecting legal advice. Whenever possible, include the name of the external EU-qualified lawyer and the specific legal issue being addressed.

The bottom line is that the new PLD raises concerns about the protection of attorney-client communications. With expanded disclosure and inconsistent application of privilege across Member States, companies—especially those with U.S. operations or counsel—face heightened exposure of sensitive legal communications. In this new era, the protection of privileged information cannot be taken for granted; it must be intentionally structured and actively preserved.