A lawsuit filed by innovative technology and automotive company Tesla
Motors, which challenges Michigan’s ban on direct car sales to consumers,
raises the conflict between the need for discovery into matters of intent and
First Amendment rights of association related to lobbying activity. The U.S.
Sixth Circuit Court of Appeals will soon have to resolve this conflict in Tesla Motors, Inc. v. Johnson, No.
18-1010. In that case, Tesla seeks information about the communications of a
trade association that lobbied in favor of legislation that Tesla has
challenged as unconstitutional. This new conflict follows a habitual cycle: Technology
companies push boundaries, governments seek to regulate their activities, and
the companies become more involved in lobbying regulators and legislatures. The
question of whether communications related to those efforts may be discovered
by other parties in civil litigation is therefore likely to recur, and the Sixth
Circuit’s resolution of the issue will merit close attention.