Product Liability Directive (PLD)

(42) In light of the imposition on economic operators of liability irrespective of fault, and with a view to achieving a fair apportionment of risk, a person that claims compensation for damage caused by a defective product should bear the burden of proving the damage, the defectiveness of a product and the causal link between the two, in accordance with the standard of proof applicable under national law. Persons claiming compensation for damage are, however, often at a significant disadvantage compared to manufacturers in terms of access to, and understanding of, information on how a product was produced and how it operates. That asymmetry of information can undermine the fair apportionment of risk, in particular in cases involving technical or scientific complexity. It is therefore necessary to facilitate claimants’ access to evidence to be used in legal proceedings. Such evidence includes documents that have to be created ex novo by the defendant by compiling or classifying the available evidence. In assessing the request for disclosure of evidence, national courts should ensure that such access is limited to that which is necessary and proportionate, inter alia, to avoid non-specific searches for information that is not relevant to the proceedings and to protect confidential information, such as information falling within the scope of legal professional privilege and trade secrets in accordance with Union and national law, in particular Trade Secrets Directive of the European Parliament and of the Council ( 15 ) . Taking into consideration the complexity of certain types of evidence, for example evidence relating to digital products, it should be possible for national courts to require such evidence to be presented in an easily accessible and easily understandable manner, subject to certain conditions.