Judge: Tesla can view records lobbyist wanted kept secret

A lobbyist for the Auto Dealers of Michigan must turn over internal records related to passage of a state law that prohibits electric car maker Tesla from selling directly to the public, a federal judge in Grand Rapids ruled Wednesday.

Although Kurt Berryman, the group’s director of legislative affairs, is an attorney, that does not make the dealer group’s records subject to attorney-client privilege, U.S. Magistrate Judge Ellen Carmody said in an 11-page opinion.

The records sought by Tesla “do not involve any ‘legal advice’ whatsoever,” wrote Carmody, who privately reviewed 24 documents that Berryman's attorneys argued should be withheld.

“Rather they concern strategy regarding the legislation which is the subject of this litigation," Carmody wrote.

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Wednesday’s ruling, rejecting Berryman’s efforts to quash a subpoena, is a legal victory for Tesla, which uses a direct-sales model. The company argues it was singled out by the 2014 ban as a way of protecting Michigan-based auto manufacturers and dealers, in violation of the commerce clause of the U.S. Constitution.

Carmody ordered Berryman, who is not a party to the 2016 lawsuit, to turn over the records to Tesla within 14 days, or, if her order is appealed, within 14 days of the appeal being resolved in Tesla's favor.

Tesla is to treat the records as "for attorneys' eyes only," subject to a protective order issued earlier in the case, Carmody said.

More: Federal judge in Tesla case: Lawmakers must turn over records to electric automaker

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Last year, Carmody ordered specific auto dealers and the Michigan Auto Dealers Association to turn over records related to communications they had about the legislation. Her rulings were upheld after appeals to the U.S. district judge hearing the case and the U.S. 6th Circuit Court of Appeals.

Carmody also mostly rejected earlier bids by state Sen. Joe Hune, R-Gregory, and Rep. Jason Sheppard, R-Lambertville, to quash subpoenas served on them by Tesla, related to their communications with lobbyists about the legislation.

Berryman had argued that making the records public would chill frank communications and deter membership in the Auto Dealers of Michigan, the Michigan Auto Dealers Association, and the Detroit Auto Dealers Association —all groups that he advises and lobbies for.

He also cited hateful mail sent to him during the case and posted on his personal Facebook page.

Carmody says "the court abhors the lack of civility that has occurred particularly in Internet communications in recent years," but said she is "not persuaded that ordering the production of nonprivileged documents pursuant to an attorneys' eyes only protective order will either aggravate or ameliorate those vitriolic individuals."

Contact Paul Egan: 517-372-8660 or pegan@freepress.com. Follow him on Twitter @paulegan4.