Odyssey Marine Exploration, Inc. v. The Unidentified, Shipwrecked Vessel or Vessels
Filing
38
MOTION for protective order Regarding Preliminary Site Assessment by Odyssey Marine Exploration, Inc.. (Attachments: # 1 Text of Proposed Order)(Von Spiegelfeld, Allen) Motions referred to Magistrate Judge Thomas B. McCoun, III.
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Doc. 38
Odyssey Marine Exploration, Inc. v. The Unidentified, Shipwrecked Vessel or Vessels
Case 8:06-cv-01685-SDM-TBM
Document 38
Filed 08/07/2007
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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.
PLAINTIFF' S MOTION FOR PROTECTIVE ORDER REGARDING PRELIMINARY SITE ASSESSMENT
Plaintiff, Odyssey Marine Exploration, Inc. (" Odyssey ), by its undersigned
counsel , hereby moves for entry of a Protective Order granting Odyssey s request that (1) the
Court 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 of Claimant Spain and which , if released, wil not jeopardize the security of the
Unidentified Shipwrecked Vessel , be released to Claimant Spain and counsel for Spain once
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Claimant 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 Court.
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
s/ Allen von Spiegelfeld Allen von Spiegelfeld - FBN 256803
avonsp(0fow lerwhite. com
Eric C. Thiel - FBN 016267 ethiel(0fowlerwhite. com FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa , Florida 33601 (813) 228-7411
Facsimile: (813) 229- 8313
Attorneys for Plaintiff
Case 8:06-cv-01685-SDM-TBM
Document 38
Filed 08/07/2007
Page 3 of 13
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.
PLAINTIFF' S MEMORANDUM OF LAW IN SUPPORT OF THE MOTION FOR ENTRY OF A PROTECTIVE ORDER REGARDING PRELIMINARY SITE ASSESSMENT
Plaintiff, Odyssey Marine Exploration , Inc. (" Odyssey ), by its undersigned
counsel , respectfully submits this memorandum of law in support of its Motion for Entry of a
Protective Order Regarding Preliminary Site Assessment.
BACKGROUND
The Parties
Odyssey is a Nevada corporation with its principal place of business at 5215 West
Case 8:06-cv-01685-SDM-TBM
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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 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 sunk while in the service of the Kingdom of Spain
and in cargo or other property of the Kingdom of Spain on or in sunken vessels. "
Claimant
Spain s Verified Claim does not assert a basis for any claim specific to this Unidentified
Shipwrecked Vessel.
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 from the Unidentified Shipwrecked Vessel for
the symbolic arrest of the Unidentified Shipwrecked Vessel.
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 from the Unidentified
Shipwrecked Vessel.
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On September 15 ,
2006 this Court issued an Order Directing the Issuance of a
Warrant of Arest (Dkt. 6).
On October 30 2006 , this Court granted Odyssey s Motion for Preliminary
Injunction (Dkt. 19) enjoining all other persons or entities from interfering with the Plaintiffs
exclusive finder s rights or from 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 filed 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
waters or contiguous zone of any sovereign nation. The Unidentified Shipwrecked Vessel'
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 of2006
using sophisticated sonar and photographic equipment. Odyssey has recovered artifacts from 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 artifacts from the Unidentified
Shipwrecked Vessel.
When Odyssey first filed the initial Complaint , it had surveyed the wreck site and
had begun an archaeological pre-disturbance survey taking video and photographs of the
Unidentified Shipwrecked Vessel. At the time , Odyssey believed it to be that of a
century
merchant vessel. Since the arrest, Odyssey has found no evidence which would contradict that
theory.
The Preliminary Site Assessment (" PSA"
Subsequent to the arrest and this Court' s order appointing Odyssey as Substitute
Custodian , Odyssey recovered artifacts from the Unidentified Shipwrecked Vessel which are
undergoing conservation according to strict 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
artifacts in an archaeologically sound manner.
Prior to filing the PSA, however, Odyssey hereby requests from 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, wil not jeopardize the security of the Unidentified
Shipwrecked Vessel, be released to Spain and to Spain s counsel only after Spain designates a
particular authority within the country 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 Claimant, Spain against Odyssey in its effort to force Odyssey to reveal the location of
arifacts it has recovered. Odyssey is prepared to release certain information from the PSA as
directed by the Court to Claimant, Spain, however, Odyssey submits that given the information
garnered from the items recovered thus far, there is nothing which would require that the
Kingdom of Spain or any other third party be given any more specific information other than
what is contained in this Amended Complaint and the Exhibits which are part ofthe public
record. These concerns are elaborated in the attached Affidavit of Gregory P. Stemm, Odyssey
Cofounder.
Odyssey s recovery of arifacts from this and other sites has been the subject of
intense international media attention, especially in Spain. Many Spanish media reports have
been filled with inaccuracies including false claims that artifacts were recovered ilegally from
Spanish 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 depart 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 of the 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 Three First Instance and Preliminary Investigating Court of La Linea de la Concepcion
and district - a different judge from the one who signed the original " secret order ), that
Odyssey s vessels would not be boarded without the consent of the Master or forcibly taken to a
Spanish port, on July 12, 2007, while Odyssey was moving its vessel the
Ocean Alert
from
Gibraltar , and while the vessel was in international waters , Spain boarded the vessel under
protest from the Master and ilegally
seized the vessel forcing
it into the Spanish 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 court. A formal complaint and request for the return 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 seizure ofthe 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
returned). The Odyssey Explorer
remains blockaded in Gibraltar by virtue 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
countries. Clearly, Odyssey has an interest in assuring the confidentiality of any information
from the PSA which wil be released into his possession and control. Therefore, Odyssey
requests that the Court not release any of the information from 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 Spanish 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.
Unidentifed Wrecked and
America Discovery Group v. Abandoned Sailng, See Treasure Salvors, Inc.
546 F. Supp. 919 (S.D. Fla. 1981);
Columbus
Atlantic Mutual Insurance Company, et. at.,
of the location important
203 F. 3d 291 303 (4th
Cir. 2000). Not only is secrecy
, but secrecy as to the amount of
This matter is no
property obtained and the wreck' s
provenance data
l is also important.
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
party, the Court may protect the disclosure
or public
availability of "a
information. "
trade
secret or other confidential
research, development, or commercial
Fed. R. Civ. P.
26(c)(7). To determine whether the moving party 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.
v.
See
McCarthy
v.
Barnett Bank of Polk
758 F.2d 1545
876 F. 2d 89 , 91 (11th Cir. 1989);
Chicago Tribune Co.
Farnsworth
Procter
Gamble, Co.
1547 (11th Cir.1985);
v.
Bridgestone/Firestone, Inc. 263 F.3d 1304 (11th
Cir. 2001).
This Court has already recognized the unique nature of this maritime salvage
action and granted Plaintiff s motion for protective
order in sealing the exact location of the
current unidentified shipwreck (Dkt. 2 , 4). In addition to the good cause shown for sealing the
Provenance Data" is defined as "valuable historical and archeological information concerning the exact location depth and proximity of each item found with respect to other items. Cobb Coin Co.. Inc. v. Unidentified. Wrecked and Abandoned Sailing Vessel 549 F. Supp. 540 , 558 (S. D. Fla. 1982). The Court furter noted that "the provenance data is important not only to historians , archeologists and anthropologists , but it documents the . at 559. authenticity and thus enhances the resale value of otherwise precious arifacts.
1"
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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 Affdavit 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
of the 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 wiling to provide certain information from 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 jurisdiction and control
Minister of Culture,
over the
unidentified wreck. The Spanish
the autonomous State of Andalucia, and
to protect the
Spain may all have competing claims for the shipwreck. Accordingly, in order
security of the Unidentified Shipwrecked Vessel while providing information to the Claimant in
this matter, this Court should require that any information from 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 party.
For the foregoing reasons ,
Plaintiff submits that it has demonstrated that good
cause exists to grant Odyssey s Motion for Protective Order. Furthermore , 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(0fowlerwhi te. com Eric C. Thiel- FBN 016267 ethiel(0fowlerwhite. com FOWLER WHITE BOGGS BANKER P . O. Box 1438 Tampa , Florida 33601 (813) 228-7411
Facsimile: (813) 229- 8313
Attorneys for Plaintiff
Case 8:06-cv-01685-SDM-TBM
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Filed 08/07/2007
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 6, 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 Spiegelfeld Allen von Spiegelfeld - FBN 256803 avonsp(0fowlerwhite. com Eric C. Thiel- FBN 016267 ethiel(0fowlerwhite. com FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa , Florida 33601 (813) 228-7411
Facsimile: (813) 229- 8313
Attorneys for Plaintiff
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