A practitioner analysis published on Lexology is flagging the disclosure provisions in the recast EU Product Liability Directive as an underappreciated threat to legal professional privilege in product-defect litigation.

The piece, headlined "EU Product Liability Directive: the privilege risk hiding in new disclosure rules," argues that the directive's expanded evidence-disclosure obligations could compel defendants to produce documents ordinarily shielded by attorney-client privilege.

What is the disclosure scope?

The Lexology author targets the disclosure rules for product manufacturers, warning that the framework lacks sufficient safeguards to protect privileged material. Without such safeguards, internal counsel memoranda, pre-litigation risk assessments, and litigation-strategy files could fall within the disclosure scope.

Why is this a privilege problem?

Legal professional privilege protects confidential communications between a client and its lawyer from disclosure. National rules across the EU's member states preserve the doctrine in varying forms.

The analysis identifies a tension at the heart of the directive: while privilege remains a recognised protection under EU law, the disclosure mechanism introduced alongside the directive may sweep up material that domestic courts would normally shield. The author warns that the disclosure language does not contain explicit carve-outs for legally privileged communications.

What does the analysis recommend?

The article targets two audiences: in-house counsel at manufacturing companies, who control document flows during product-safety investigations, and external advisers coordinating cross-border product-liability defence.

The analysis recommends that practitioners:

• Audit document-marking and retention protocols before claims arise
• Review internal investigations for privilege exposure
• Coordinate privilege strategy across operating jurisdictions
• Engage with national transposition consultations

What are the wider stakes?

The disclosure debate fits a broader shift in EU procedural law toward evidence-sharing models familiar in common-law systems. The Lexology piece argues that product manufacturers must now treat legal-advice material as potentially producible, weakening the confidentiality traditionally attached to pre-litigation work.

The analysis does not cite a specific case or ruling. Its central message is procedural: disclosure planning under the directive must begin immediately, before member-state implementing regimes lock in defaults that do not accommodate privilege.

For multinational manufacturers, the warning carries cross-border weight. National legislatures retain discretion over procedural implementation as they transpose the directive. The Lexology author argues this window offers the last meaningful opportunity to embed privilege-friendly language in national implementing regimes.

What is the practitioner takeaway?

Without such action, companies face the prospect of producing material they would ordinarily consider protected, weakening their ability to mount confidential strategic defences in product-liability claims.

Disclosure preparation, in-house training, and privilege protocols require urgent review. Practitioners who wait until transposition closes risk a defensive posture in which their clients' pre-litigation work is producible on order.