Odyssey Marine Exploration, Inc. v. The Unidentified, Shipwrecked Vessel or Vessels

Filing 36

MOTION for protective order Regarding Preliminary Site Assessment by Odyssey Marine Exploration, Inc.. (Attachments: # 1 Affidavit of Greg Stemm# 2 Text of Proposed Order)(Von Spiegelfeld, Allen) Motions referred to Magistrate Judge Thomas B. McCoun, III.

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Doc. 36

Odyssey Marine Exploration, Inc. v. The Unidentified, Shipwrecked Vessel or Vessels

Case 8:06-cv-01685-SDM-TBM

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Filed 08/06/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA Tampa Division In Admiralty

ODYSSEY MARINE EXPLORATION, INC.

Plaintiff

CIVIL ACTION

: Case No: 8:06-CV-01685-SDM-TBM

THE UNIDENTIFIED SHIPWRECKED VESSEL its apparel, tackle, appurtenances and cargo located within center point coordinates: 49 25' N , 6 00' W;
Radius: 5 nautical miles

Defendant; in rem
and

The Kingdom of Spain
Claimant and Defendant.

PLAINTIFF' S MOTION FOR PROTECTIVE ORDER REGARING PRELIMINARY SITE ASSESSMENT
Plaintiff, Odyssey Marne Exploration, Inc. (" Odyssey ), by its undersigned
counsel , hereby moves for entry of a Protective Order granting Odyssey s request that (1) the

Cour hold the PSA relative to the Unidentified Shipwrecked Vessel under seal; (2) information
contained within the Preliminar Site Assessment (hereinafter PSA") which is relevant to the

claim ofClaimant/efendant Spain and which, if released, wil not jeopardize the security of the
Unidentified Shipwrecked Vessel, be released to Claimant/efendant Spain and counsel for

Dockets.Justia.com

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Spain once Claimant/efendant Spain designates a particular authority within Spain to take

possession and control over the information and that authority and counsel for Spain both sign a
Confidentiality Agreement not to release the information to any other person or authority, even
authorities within the Spanish governent, without leave of Cour.

The grounds supporting this motion are set forth in the accompanying

memorandum of law, which is incorporated herein by reference.
Respectfully submitted

Dated:

August 6, 2007

sf Allen von Spiegelfeld Allen von Spiegelfeld - FBN 256803 avonsp(ifowlerwhite. com Eric C. Thiel- FBN 016267 ethiel(ifowlerwhite. com. FOWLER WHITE BOGGS BANKER P . O. Box 1438 Tampa, Florida 33601 [phone]
Facsimile: (813) 229- 8313

Attorneys for Plaintiff

Case 8:06-cv-01685-SDM-TBM

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Filed 08/06/2007

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA Tampa Division In Admiralty

ODYSSEY MARINE EXPLORATION, INC.

Plaintiff

CIVIL ACTION

: Case No: 8:06-CV-01685-SDM-TBM

THE UNIDENTIFIED SHIPWRECKED VESSEL its apparel, tackle, appurtenances and cargo located within center point coordinates: 49 25' N , 6 00' W;
Radius: 5 nautical miles

Defendant; in rem
and

The Kingdom of Spain
Claimant and Defendant.

PLAINTIFF' SUPPORT OF THE MOTION FOR ENTRY OF A PROTECTIVE ORDER REGARDING PRELIMINARY SITE ASSESSMENT
S MEMORADUM OF LAW IN

Plaintiff, Odyssey Marne Exploration, Inc. (" Odyssey ), by its undersigned
counsel , respectfully submits this memorandum of law in support of its Motion for Entry ofa

Protective Order Regarding Preliminar Site Assessment.
BACKGROUND
The Paries

Odyssey is a Nevada corporation with its principal place of business at 5215 West

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Laurel St., Tampa, Florida 33607. Odyssey is engaged in the business of deep ocean exploration

and the recovery of shipwrecks around the world. The Unidentified Shipwrecked Vessel rests at a depth of approximately 100

meters deep, in the Atlantic Ocean near the English Channel beyond the terrtorial waters or
contiguous zone of any sovereign nation. Evidence at the Unidentified Shipwrecked Vessel
indicates that efforts, if any, by any previous owner to salvage the site and/or its cargo have been

long since abandoned.

Claimant and Defendant herein, Spain, filed a Verified Claim on May 30, 2007

stating in part that "the Kingdom of Spain has not abandoned its ownership rights and other

rights in sunken vessels of the Kingdom of Spain, in vessels sun while in the service of the
Kingdom of Spain, and in cargo or other propert of the Kingdom of Spain on or in sunen
vessels. "
Claimant,

Spain s Verified Claim does not assert a basis for any claim specificto this

Unidentified Shipwrecked Vesse!.

History
On September 13

2006 , Odyssey filed the initial Verified Complaint In

Admiralty In Rem (Dkt. 1) against the Defendant in this case. Odyssey also turned over to the
S. Marshal a portion of a glass bottle recovered ITom
the Unidentified

Shipwrecked Vessel for

the symbolic arest of the Unidentified Shipwrecked Vesse!.
On September 15 , 2006,

this Court entered the Order Appointing Substitute

Custodian (Dkt. 5) and found that Odyssey was duly qualified to serve as the Substitute
Custodian of the glass bottle piece and other artifacts recovered ITom the Unidentified

Shipwrecked Vesse!.

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On September 15 ,

2006 this Court issued an Order Directing the Issuance of a

Warant of Arest (Dkt. 6).
On October 30 2006 , this Court granted Odyssey s Motion for Preliminar

Injunction (Dkt. 19) enjoining all other persons or entities ITom

interfering with the Plaintiff

exclusive finder s rights or ITom engaging in any salvage or recovery operations.

On May 30, 2007, Claimant, the Kingdom of Spain filed its Verified Claim (Dkt.
19). Spain

s claim does not assert a basis for any claim specific to this Unidentified

Shipwrecked Vessel.
Along with this Motion, Odyssey filed its Amended Complaint which referenced

this Motion and the subject PSA.

Odyssey fied a Motion for Extension on July 23 , 2007, (Dkt. 31) and this Court
entered an Endorsed Order (Dkt. 32) granting Odyssey s Motion and giving Odyssey until
August 6,

2007 to file its response.
The Wreck Site

The Unidentified Shipwrecked Vessel rests on the sea floor at a depth of
approximately 100 meters,

in the Atlantic Ocean near the English Channel beyond the terrtorial
The Unidentified Shipwrecked Vessel'

waters or contiguous zone of any sovereign nation.

position is located within a five mile radius of an area defined by the center point coordinates

referenced herein. Upon information and belief, no other salvor is currently working on this
Unidentified Shipwrecked Vessel. Odyssey is aware of no operations other than those by
Odyssey which have been conducted during the past two years of Odyssey s operations in the

general area, and to the best of Odyssey s knowledge, no salvor has sought to protect an interest
in the vessel through an arrest.

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Odyssey located the Unidentified Shipwrecked Vessel in the summer of 2006

using sophisticated sonar and photographic equipment. Odyssey has recovered arifacts ITom the
Unidentified Shipwrecked Vessel and is ready and able to conduct further operations to explore

and document the shipwreck, consistent with archaeological protocols appropriate for this

Unidentified Shipwrecked Vessel, and to recover additional arifacts ITom the Unidentified
Shipwrecked Vessel.

When Odyssey first filed the initial Complaint, it had surveyed the wreck site and had begun an archaeological pre-distubance survey taking video and photographs of the

Unidentified Shipwrecked Vessel. At the time, Odyssey believed it to be that of a 17

th century

merchant vessel. Since the arrest, Odyssey has found no evidence which would contradict that
theory.

The Preliminar Site Assessment ("PSA"
Subsequent to the arest and this Cour' s order appointing Odyssey as Substitute
Custodian , Odyssey recovered artifacts ITom the Unidentified Shipwrecked Vessel which are

undergoing conservation according to strct

archaeological protocols.

Odyssey has prepared a

Preliminary Site Assessment (hereinafter PSA" ) regarding the Unidentified Shipwrecked
Vessel and the artifacts recovered and wil present that to the Court under seal. It is Odyssey

desire that the Court has a full and complete understanding of the wreck site , the artifacts recovered to date, and the efforts and expense incurred by Odyssey to recover and conserve the

arifacts in an archaeologically sound maner.

Prior to fiing the PSA, however, Odyssey hereby requests ITom the Court a
Protective Order stating that (1) the Court wil
hold the

PSA relative to the Unidentified

Shipwrecked Vessel under seal; (2) information contained within the PSA which is relevant to

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the claim of Spain and which, if released, will not jeopardize the security of the Unidentified
Shipwrecked Vessel, be released to Spain and to Spain s counsel only after Spain designates a
paricular authority within the countr to take possession and control over the information and

that both that authority and counsel for Spain sign a Confidentiality Agreement not to release the
information to any other person or authority, even authorities within the Spanish governent

without leave of Court.
Spain s Appalling Behavior

The factual basis for Odyssey s request for a Protective Order include the

sensitive and valuable nature of the information contained within the PSA and the actions to date

of Defendant, Spain against Odyssey in its effort to force Odyssey to reveal the location of

artifacts it has recovered. Odyssey is prepared to release certain information ITom the PSA as
directed by the Court to Claimant, Spain, however, Odyssey submits that given the information.
garered ITom

the items recovered thus far, there is nothing which would require that the

Kingdom of Spain or any other third par be given any more specific information other than
what is contained in this Amended Complaint and the Exhibits which are par of the public

record. These concerns are elaborated in the attached Affdavit of Gregory P. Stemm, Odyssey
Cofounder.
Odyssey s recovery of artifacts ITom this and other sites has been the subject

intense international media attention, especially in Spain. Many Spanish media reports have

been filled with inaccuracies including false claims that arifacts were recovered illegally from

Spansh terrtorial waters. As a result of the false reports, and despite Odyssey s continued
assurance that no arifacts have been recovered anywhere near Spanish terrtorial waters
Odyssey became the subject of a criminal investigation in Spain. In fact, Odyssey became aware

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through the Spanish press that Spanish authorities would intercept and inspect Odyssey s vessels
(the Ocean Alert and the Odyssey Explorer)

if they attempted to depar Gibraltar where they

were docked. Odyssey s attorneys were denied access to the order, however, and were told that
the order was "secret." Odyssey s attempts to appear in its defense were unsuccessful. Thus
Odyssey prepared a Sworn Statement of Gregory P. Stemm, Odyssey s Cofounder, explaining
Odyssey s actions and the facts surrounding the arest, the recovery, and the subsequent claims

and baseless detention of Odyssey s ships by Spain. (A copy ofthe Sworn Statement including
all Exhibits was attached to the Amended Complaint in this case).

Despite the fact that Odyssey provided the Sworn Statement and further
information regarding its recovery to Spanish officials, and despite the assurance of the Spanish criminal judge (Judge Juan Jose Navas Blanquez sitting in substitution of the Judge for the

Number Thee First Instance and Preliminary Investigating Court of La Linea de la Concepcion
and distrct - a different

judge from the one who signed the original "secret order ), that

Odyssey s vessels would not be boarded without the consent ofthe Master or forcibly taken to a
Spansh port, on July 12, 2007, while Odyssey was moving its vessel the
Ocean Alert

ITom

Gibraltar, and while the vessel was in international waters, Spain boarded the vessel under
protest ITom the Master and ilegally
seized the vessel forcing

it into the Spansh port of

Algeciras. Having alerted the Spanish media to the boarding and seizure, Spanish authorities
paraded the Ocean Alert

along the coastline for photograph and video opportnities.

Additionally, despite her protests, officials seized the personal computer of one of Odyssey
attorneys , Mare Rogers, and ilegally copied all attorney/client privileged information regarding

Odyssey and other clients. As of the date of this Amended Complaint, the computer has been
returned without the hard drive. The original hard drive and copy are retained in the custody of

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the cour. A formal complaint and request for the retu of the hard drive and all copies taken
has been made to the court and is currently pending decision by the Judge as to the legitimacy of
the seizue of the laptop.

Once in Algeciras, Odyssey s crew and attorneys were forced by the Spanish

officials to sit in the scalding sun for approximately seven hours without food or water or use of
the restroom. Their passports

were taken (but returned later that day) as were all of their

electronic equipment (of which the hard drives have been removed and only the empty laptops
retued). The Odyssey Explorer

remains blockaded in Gibraltar by virte

of the

criminal order

and threatened seizure by Spain. Odyssey s rights granted by this Court to continue its recovery
have been restricted by Spain, and Odyssey s damages as a result of Spain s conduct are
extensive.

Given the conduct of Spain to date, Odyssey has every reason to believe that
Spain wil use any information contained in

the PSA as a clue to the location of this wreck site.

Interestingly, counsel for Spain, Jim Goold, is the Chairman ofRPM Nautical Foundation, a

potential competitor in the provision of underwater archaeological services to Spain and other
countres. Clearly, Odyssey has an interest in assurng the confidentiality of any information
ITom the PSA which wil be released into his possession and control. Therefore, Odyssey

requests that the Court not release any of the information ITom the PSA unless and until a
confidentiality agreement is in effect which designates a particular authority within Spain to take

possession and control over the information and both that authority and counsel for Spain sign a
Confidentiality Agreement not to release the information to any other person or authority, even
authorities within the Spansh governent, without leave of Court.

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II.

LEGAL ANALYSIS
The Courts have long understood that, in salvage cases, especially those involving

sunken wrecks, secrecy is often of the utmost importance.

See

Treasure Salvors,

Inc.

Unidentifed Wrecked and
America Discovery Group v.

Abandoned Sailng,

546 F. Supp. 919 (S.D. Fla. 1981);
291

Columbus
303 (4th

Atlantic Mutual Insurance Company, et. aI. 203 F.3d
of the location important,

Cir. 2000). Not only is secrecy

but secrecy as to the amount of

property obtained and the wreck' s

provenance data

l is also important.

Ths matter

is no

different. This Court should exercise its discretion and grant a protective order guaranteeing the
PSA concerning this unidentified shipwreck remain protected.
Upon motion by a part, the Court

may protect the disclosure

or public

availability of "a

trade

secret or other confidential

research, development, or commercial

information. " Fed. R. .Civ. P. 26(c)(7). To determine whether the moving pary has shown good
cause , this Court is required to balance the interests of those requesting the order with other

competing rights to the disclosure
County,

of the

material. See

McCarthy

v.

Barnett Bank of Polk
758 F.2d 1545

876 F.2d 89

91 (lIth Cir. 1989);

Farnsworth

v.

Procter

Gamble, Co.,

1547 (lIth Cir.
Cir. 2001).

1985);

Chicago Tribune Co.

v.

Bridgestone/Firestone, Inc.,

263 F.3d 1304 (lIth

This Court has already recognized the unique nature of this maritime salvage

action and granted Plaintiffs motion for protective
curent undentified shipwreck (Dkt. 2 ,

order in sealing the exact location of the

4). In addition to the good cause shown for sealing the

Provenance Data" is defmed as "valuable historical and archeological inormation concerning the exact location depth and proximity of each item found with respect to other items. Cobb Coin Co.. Inc. v. Unidentified. Wrecked
provenance data is importt not only to historians, archeologists and anthopologists, . at 559. authenticity and thus enhances the resale value of otherwise precious arifacts.

1"

and Abandoned Sailing Vessel,

549 F. Supp. 540, 558 (S.D. Fla. 1982). The Court

fuer noted that "the

but it documents the

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coordinates of the wreck, good cause also exists to seal the PSA and place limitations on any
disclosure of information contained in the PSA to Claimant Spain.

As detailed above and in the Affidavit of Gregory P. Stemm , the preparation of
the PSA in this matter required the expenditure of vast amounts oftime and expertise. (Affidavit
Paragraph 5). Indeed,

the research and expertise used to create the PSA is an essential part of the
and adds to the value of any

process of identifying and salvaging a historical shipwreck,

recovered items. (Affidavit, Paragraph 6). The present wreck location is an active historical site
and the protection of the wreck' s

location for both archeological and salvage purposes is

essential. The information contained in the PSA , if released, would greatly prejudice the security
ofthe Unidentified

Shipwrecked Vessel and allow competing salvors to gain enough information

to attempt unauthorized salvage at the wreck site (Affidavit , Paragraphs 7, 15- 17).

Plaintiff is willing to provide certain information ITom the PSA to Spain that is

relevant to its claim. Plaintiffs recent recovery has set off a media circus in Spain , leading to a
highly charged political environment with several competing internal individuals and authorities
in the Spanish

Governent apparently

competing over jursdiction and control over the

unidentified wreck. The Spanish

Minister of Culture,

the autonomous State of Andalucia, and
the

Spain may all have competing claims for the shipwreck. Accordingly, in order to protect

security of the Unidentified Shipwrecked Vessel while providing information to the Claimant in

this matter, this Cour should require that any information ITom the PSA be released to Spain
only if a confidentiality agreement is signed preventing the dissemination of the disclosed PSA
excerpts to persons other than the intended part.
For the foregoing reasons ,

Plaintiff submits that it has demonstrated that good

cause exists to grant Odyssey s Motion for Protective Order. Furtermore , Plaintiff submits that

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its interests in keeping the PSA confidential greatly outweigh any competing interest in the
unlimited disclosure of the

data.

Thus ,

Odyssey

s Motion for Protective Order should be

granted.

Respectfully submitted
Dated: August 6, 2007

s/ Allen von Spiegelfeld Allen von Spiegelfeld - FBN 256803 avonsp(ifowlerwhite. com Eric C. Thiel- FBN 016267 ethiel(ifowlerwhite. com FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa , Florida 33601 [phone]
Facsimile: (813) 229- 8313

Attorneys for Plaintiff

Case 8:06-cv-01685-SDM-TBM

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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August
, 2007,
I electronically filed the

foregoing with the Clerk of the Court by using the CM/ECF system which wil

send a

notice of

electronic filing to James A. Goold, Covington & Burling LLP, 1201 Pennsylvania Ave. , NW
Washington , DC 20004, Attorneys for Claimant, Kingdom of Spain.

s/ Allen von Spiegelfe1d Allen von Spiege1feld - FBN 256803 avonsp(ifowlerwhite. com Eric C. Thie1- FBN 016267 ethiel(ifowlerwhite. com FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa, Florida 33601 [phone]
Facsimile: (813) 229- 8313

Attorneys for Plaintiff