1 The next such dispute which the court is required to

resolve will result in serious sanctions.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Stephanie B. Barrett

v. Civil No. 06-cv-240-SM

Ambient Pressure 

Diving, Ltd., et al.

O R D E R

Apparently it is the plaintiff’s turn to move to compel

further answers to interrogatories and for production of

documents. (Document no. 97). Once again counsel have failed to

meaningfully attempt to resolve disputes which reasonable counsel

would have resolved.1

Interrogatories

6. If you or your predecessor corporation AP Valves have

ever been a party, either plaintiff or defendant, in a lawsuit

other than the present matter that alleges any type of design

and/or manufacturing defect with any type of rebreather, please

identify the lawsuit by providing the date it was filed and the

jurisdiction it was filed in.

Case 1:06-cv-00240-SM Document 111 Filed 01/16/08 Page 1 of 10
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ANSWER

Ambient has never been a party in a lawsuit other than the

present matter that alleges any type of design and/or

manufacturing defect with any type of rebreather.

Defendant in its objection says the answer is “no.” Why it

would take a motion to get that answer is a mystery. Amend the

answer, say “no” and quit the nonsense.

Interrogatory Nos. 7 and 8

7. Please identify any customer, person or entity that has

commented on and/or criticized any aspect of the design and/or

manufacture of the Inspiration rebreather.

ANSWER

Ambient specifically objects to this interrogatory to the

extent it seeks information that is not in the possession,

custody and control of Ambient. Ambient further objects to this

interrogatory on the grounds that it is hopelessly overbroad and

harassing. The information sought would require Ambient to

search through several thousand records, some of which may be

confidential and/or privileged, dating back more than 10 years. 

Most of these records do not contain any information whatsoever

that is related to this litigation, nor are they likely to lead

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to the discovery of any relevant or admissible evidence. 

Therefore, providing the information sought to the proponent

would be unduly both burdensome and oppressive.

8. Please identify all complaints and/or criticisms

regarding the quality, design, safety, and/or manufacture of any

rebreather manufactured by you and/or the component parts of any

rebreather sold by you specifying the comment or criticism made.

ANSWER

Ambient specifically objects to this interrogatory to the

extent it seeks information that is not in the possession,

custody or control of Ambient. Ambient further objects to this

interrogatory on the grounds that it is hopelessly overbroad and

harassing. The information sought would require Ambient to

search through several thousand records, some of which may be

confidential and/or privileged, dating back more than 10 years. 

Most of these records do not contain any information whatsoever

that is related to this litigation, nor are they likely to lead

to the discovery of any relevant or admissible evidence. 

Therefore, providing the information sought to the proponent

would be unduly both burdensome and oppressive.

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Plaintiff’s expert opines as to three alleged design faults,

a failure to carry out HAZOPS and other safety studies, etc. 

Doc. 101-3, pp. 73-74.

Complaints as to enumerated alleged defects are appropriate

but the interrogatories as set forth are grossly overbroad. 

Denied as to 7 and 8.

Interrogatory Nos. 9 and 10

9. Please identify all changes or modifications in the

design of your Inspiration rebreather and the reason for the

modification and/or change.

ANSWER

Ambient specifically objects to this interrogatory on the

grounds that it is unduly burdensome, harassing, it is not

limited in time or scope, seeks the production of irrelevant

information, and it is not likely to lead to the discovery of

admissible evidence. Plaintiff is seeking the production of

information related to subsequent remedial measures, which is

inadmissible.

10. Please identify all changes or modifications in the

successor design of your Inspiration rebreather (including the

Evolution) and the reason for the modification and/or change.

Case 1:06-cv-00240-SM Document 111 Filed 01/16/08 Page 4 of 10
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ANSWER

Ambient specifically objects to this interrogatory on the

grounds that it is unduly burdensome, harassing, it is not

limited in time or scope, seeks the production of irrelevant

information, and it is not likely to lead to the discovery of

admissible evidence. Plaintiff is seeking the production of

information related to subsequent remedial measures, which is

inadmissible and/or information related to the development and

manufacture of an entirely new product that was introduced to the

market in 2005, more than three years after Robert Barrett’s

death.

Interrogatory No. 9 seeks relevant information which is

discoverable. Defendant is ordered to answer within ten (10)

business days. Plaintiff has not shown how the information

sought in No. 10 is likely to lead to the admissible evidence. 

The motion is granted as to No. 9 and denied as to No. 10.

Interrogatory No. 13

13. Please identify all individuals who have died while

using an Inspiration rebreather.

ANSWER

Ambient specifically objects to this interrogatory on the

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grounds that it is unduly burdensome, harassing, it is not

limited in time or scope, seeks the production of irrelevant

information, and it is not likely to lead to the discovery of

admissible evidence. Ambient further objects to plaintiff’s

efforts to use the discovery process in this litigation, which

concerns the death of one individual due to misuse of a product

in 2002, into a worldwide class action of unlimited scope, time

period and subject matter.

Ambient is ordered to provide all information it has about

deaths which have occurred using its “Inspiration” rebreather as

the information is likely to lead to admissible evidence.

Interrogatory No. 14

14. Please state how many Inspiration Rebreathers were sold

to customers from the time they were first manufactured to the

present time.

ANSWER

Ambient specifically objects to this interrogatory on the

grounds that it is unduly burdensome, harassing, it is not

limited in time or scope, seeks the production of irrelevant

information, and it is not likely to lead to the discovery of

admissible evidence. Ambient further objects to plaintiff’s

Case 1:06-cv-00240-SM Document 111 Filed 01/16/08 Page 6 of 10
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efforts to use the discovery process in this litigation, which

concerns the death of one individual due to misuse of a product

in 2002, to turn this case into a worldwide class action of

unlimited scope, time period and subject matter. Ambient further

objects on the grounds that this interrogatory seeks the

production of secret, competitive information that is not

relevant to the claims and defenses asserted in this lawsuit,

which deal with the sale of one Inspiration rebreather to one

customer, and there is an extreme danger of its disclosure to

Ambient’s competitors, to the substantial detriment of Ambient.

Ambient is ordered to answer the question.

Requests for Production

Request No. 5

Any and all documents regarding distribution slips/sales

personnel that Ambient authorized in North America/United States

from 1997-2004.

Denied as overbroad. Plaintiff can be more precise.

Request No. 8

Website. Ambient says it has complied.

Request Nos. 10, 11, 12

PowerPoint/video presentations. Plaintiff is entitled to a

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representation that a thorough search has been made to provide

Request No. 10 and it/they can’t be found or are produced. The

motion is denied as to No. 11 and 12.

Request Nos. 13 and 14

Ambient is to produce them.

Request Nos. 15 - 19

Plaintiff has not shown the relevance nor any likelihood

that the requests will lead to admissible evidence.

Request Nos. 24 and 26

Ambient says it has produced all responsive documents.

Request No. 25

Ambient claims it has produced them, including presumably

any as described in the motion.

Request Nos. 27-33

No. 27 is hopelessly overbroad, but No. 28 (cell warning

errors), No. 29 (oxygen cell noting logic), No. 30 (oxygen

solenoid shut off, No. 31 (uncommanded rebreather shutdown), No.

32 (battery bounce) and No. 33 (power cycle testing) are specific

and relevant. The motion is granted as to Nos. 28-33.

Request No. 34

Ambient says it has produced them.

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Request Nos. 36-39

Ambient says it has produced them.

Request Nos. 40-43, 45 and 46

These relate to “failures” of the Inspiration rebreather. 

Ambient, in its objection says, “Ambient is not aware of any

failure of an Inspiration rebreather and... (it) does not have

any documents responsive to (these) request(s).” That was not

the response given. Ambient is ordered to amend its responses.

Request No. 47

The objection is at odds with the response. Provide an

appropriate response.

Request No. 49

I have no idea why the parties are fussing about a release

exemplar when it is any release by Barrett that was requested. 

Denied.

Request No. 57

Granted.

Request No. 61

Denied as overbroad and vague.

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The motion is granted in part and denied in part. No

sanctions as both sides have been unreasonable.

SO ORDERED.

____________________________________

James R. Muirhead

United States Magistrate Judge

Date: January 16, 2008

cc: Counsel of Record

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