Dissecting the EU's New Product Liability Directive: The Dawn of US-Style Discovery?

At a Glance

• The implementation deadline for the EU’s new Product Liability Directive is fast-approaching — December 9. Among other things, the new PLD imposes more stringent disclosure requirements of company documents than had typically been permitted under current laws in most EU member states.
• While full implementation has been limited to date, it is likely that additional EU members will pass new or updated legislation at the national level in the coming months, which may include new disclosure requirements and discovery obligations.
• Companies — especially those in technical fields — should prepare protocols to ensure company evidence is kept, organized, and can be presented in the accessible format, so that disclosure requirements can be met in an orderly and efficient manner if claims arise. Companies should also keep in mind that there are differences amongst jurisdictions that may impact obligations and best practices for compliance.

In April 2025, we published "Ten Things to Know about the European Union's New Product Liability Directive," outlining the numerous changes introduced by the EU's new Product Liability Directive (EU) 2024/2853 (the PLD), which makes sweeping changes to product liability laws in the EU.¹ This article takes a closer look at Article 9 of the PLD, which deserves further attention for its effect on evidence disclosure in product liability lawsuits. While Article 9 does not import US-style discovery into Europe, American lawyers will find similarities in Article 9 with staples of discovery in US federal courts, such as initial disclosure obligations and the proportionality standard under Fed. R. Civ. P. 26.

Evidence Disclosure under Article 9 of the Product Liability Directive

For many EU jurisdictions where discovery of company documents is typically limited or effectively nonexistent in current practice, Article 9 gives plaintiffs a new tool to obtain evidence from manufacturers. And the new obligations are armed with teeth — noncompliance with a disclosure order can result in a presumption of defectiveness under Article 10.

Because the PLD is a directive rather than a regulation, it does not automatically become law in each EU member state. Instead, it sets forth threshold requirements that each member must transpose into its own national law by the December 9, 2026, deadline. As a result, while the PLD applies across the EU, the mechanics of disclosure in a given case will be shaped by the implementing legislation of the EU member state where the claim is brought and subject to differences in scope and procedure at that national level. We have most recently written about the current state of implementation in "Transposing the EU's New Product Liability Directive: A Member State Progress Report  —  September 2026 Updates."

Under Article 9, defendants in a product liability action are "required to disclose relevant evidence that is at the defendant's disposal" if the claimant "has presented facts and evidence sufficient to support the plausibility of the claim." That said, there are some important limits on this disclosure obligation. Disclosure is confined to what is "necessary and proportionate" under the implementing law of the member state in question, and courts must weigh the request for disclosure against the legitimate interests of all parties, including protective measures to limit disclosure of evidence containing confidential information and trade secrets. When evidence is disclosed, courts may also require defendants to present it in an "easily accessible and easily understandable manner," as long as the presentation is proportionate in terms of cost and effort for the producing party.

For companies accustomed to litigating under broad pretrial discovery available in US courts, these requirements likely seem modest, but compared to many current EU civil law systems, the PLD represents a significant expansion of what a plaintiff can compel a defendant to disclose. And because complying with discovery costs time and money, it potentially increases the burden for companies doing business in the EU.

The stakes for getting disclosure right under the PLD's new rules are high because, under Article 10, failure to comply with a disclosure order can trigger a presumption of defectiveness and substantively affect the merits of the case. Disclosure compliance should therefore be a heightened priority for any company that may be involved in such litigation.

If a plaintiff can make a plausible allegation that a device malfunctioned, the plaintiff could seek a variety of documents from the manufacturer to test whether the manufacturer knew of the alleged defect or adequately responded to product safety concerns. While the manufacturer can argue to limit the scope and format of these disclosures, the touchstone will still be whether the request is "necessary and proportionate," along with any confidentiality and trade secret protections and other safeguards that may be recognized in the member state concerned.

Uneven Implementation by EU Member States

Implementation at the national level continues to proceed unevenly, and companies should expect the pace and detail of transposition to vary. While many countries have reported draft transposition bills, very few have completed PLD transposition into national legislation. There are already signs of material and significant divergence in how Article 9 standards will be transposed and applied from one member state to the next within the umbrella of discretion permitted under the PLD. For example, Denmark's draft law expressly permits courts to order the production of newly created documents meant to compile or organize existing information, while Finland's draft law limits production to presenting already existing documents. In a different vein, Germany's draft law excludes application of these new rules altogether to certain medicinal products regulated under a separate liability regime established in that country.

Given these diverging interpretations of the PLD's disclosure provisions, companies will have to stay vigilant about disclosure obligations — and their differences — across the EU and cannot assume a one-size-fits-all approach will be adequate.

Strategies to Prepare

Given this uncertainty, companies operating within the EU would benefit from preparation rather than waiting for a claim to arise:

• Practically, this entails tracking where key evidence lives within the organization — regardless of where it was created — and confirming it can be retrieved if needed.
• Similar to litigation hold practices for litigation in the US, companies should also establish protocols that can be deployed when a claim becomes plausible, so that relevant evidence is preserved before a disclosure request arrives.
• Additionally, since disclosure requests can cross borders, companies should review the relevant laws of each jurisdiction in which they operate to understand what information will be protected.
• Finally, companies — especially those in technical fields — should prepare protocols to ensure company evidence is kept, organized, and can be presented in the accessible format required under Article 9.

While much uncertainty remains about this still-developing disclosure regime, these strategies can materially improve a company's position when a dispute arises under the new rules that the PLD requires to be in place by the end of 2026.