The opinion of the court was delivered by: John E. Simko United States Magistrate Judge
Pending are Mueller's motion to compel discovery and Vermeer's motion to quash deposition notices. The well written briefs of the parties crystallized the issues. Mueller moves to compel additional responses to Mueller's Interrogatories 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 21, 24 and 26 and Requests for Production of Documents 5, 6, 8, 9, 11 and 12.*fn1 Vermeer moves for a Protective Order to prevent the depositions of Vermeer's In-House Counsel, Chris Shepperd, and Vermeer's President and Chief Executive Officer, Mary Vermeer Andringa.*fn2
After dismissal of Counts 3, 4, and 6,*fn3 Counts 1, 2, and 5 remain:*fn4 ! count 1 for breach of contract for delivering a grinder that was not suitable for its purpose;
! count 2 for breach of contract to repair and extend the warranty on the tub grinder;
! count 5 for breach of express and implied warranties of fitness for a particular purpose and merchantability.
Vermeer asserts that Count 2 is not pertinent to this discovery dispute.*fn5 Vermeer asserts design defect claims are not in the lawsuit and therefore not pertinent.*fn6 Vermeer argues the only warranty is Vermeer's express warranty for quality and workmanship:*fn7
. . . free from defects in material and workmanship, under normal use and service for one (1) full year after initial purchase/retail sale or 1000 operating hours, whichever occurs first. . . .
According to Vermeer, all other warranties are disclaimed-meaning there are no implied warranties for merchantability or fitness for a particular purpose.*fn8 Therefore, Vermeer concludes the only remaining count is 5, and only that part of count 5 which alleges breach of express warranty.
Mueller lumps Vermeer's objections into three groups:*fn9
(1) the requests for information regarding testing and accidents involving grinders with a similar duplex drum platform are not "relevant" to Mueller's breach of warranty claims;
(2) the requests made by Mueller are "overly broad" and "vague and ambiguous;" and
(3) the information sought by Mueller is confidential.
To prevail on its breach of warranty claim, Mueller must demonstrate that the tub grinder was defective at the time it left Vermeer's control. Mueller's may prove the existence of this defect through either direct or circumstantial evidence. As noted in Drier v. Perfection, Inc.:
A product is defective when it fails to perform reasonably and safely the function for which it was intended. No specific defect need be shown if the evidence, direct or circumstantial, permits the inference that the problem was caused by a defect.
Therefore according to Mueller, Vermeer's objections based on relevance should be denied because the requests for information about other tests and accidents involving similar grinders are relevant to Mueller's breach of warranty claims. Mueller argues Vermeer's objections based on burden should be denied because Vermeer carries the burden to demonstrate overly broad or burdensome requests, but Vermeer has waived the objection by its failure to carry the burden of proof.*fn11 Both parties agree a protective order can satisfactorily address Vermeer's concerns about the third category of objections- confidential information.*fn12 Mueller also argues that even if the only warranty which survives is express warranty, Mueller can still try to prove the express warranty failed of its essential purpose.*fn13
To support its motion for protective order Vermeer asserts:*fn14
Plaintiff intends to take the deposition of eight Vermeer witnesses identified in discovery responses, including Michael Byram, Mike Van Zee, Duke Reynolds, Jay Sarver, John Gardner, Chris Sievers, Ward Meldrum, and Duane Harthoom. In addition to these eight individual depositions, plaintiff has also noticed the corporate deposition of Vermeer Corporation on numerous topics. Plaintiff also seeks to take the depositions of Mary Vermeer Andringa, the President and Chief Executive Officer(CEO) of Vermeer, and Chris Shepperd, in-house Corporate Counsel to Vermeer.
Mr. Shepperd is the in-house Corporate Counsel who is managing the defense of this lawsuit and provides legal advice to Vermeer with respect to the defense of this case. Vermeer argues Mueller can get the same information from other witnesses whose depositions are already noticed, that Andringa has no personal knowledge of pertinent facts, and that Shepperd's second hand information is protected by the work product doctrine and the attorney client privilege.*fn15
Elements of Proof of Breach of Express Warranty. "Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise."*fn16
In order to recover money damages for a breach of express warranty one must prove:
(1) an affirmation of fact or promise made by the seller to the buyer ...