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

Filing 22

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 Mark A. Pizzo. Modified on 8/8/2007 (jlh, ). TERMINATED; REFILED AT DOC. 26.

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

Doc. 22

Case 8:07-cv-00614-SCB-MAP

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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: 8:07-CV-00614-SCB- MAP

THE UNIDENTIFIED , SHIPWRECKED VESSEL if any, its apparel, tackle, appurtenances and cargo located within a five mile radius of the center point coordinates provided to the Court under seal
Defendant; in rem

and

The Kingdom of Spain
Claimant and Defendant.

PLAINTIFF' S MOTION FOR PROTECTIVE ORDER ASSESSMENT
REGARDING PRELIMINARY SITE

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

Court hold the Preliminar Site Assessment (hereinafter PSA") relative to the Defendant Site
under seal; (2) information contained within the PSA which is relevant to the claim of
Claimant/Defendant Spain and which , if released, wil not jeopardize the security of the
Defendant Site, be released to Claimant/efendant Spain and counsel for Spain once

Claimant/efendant Spain designates a particular authority within Spain to take possession and

Dockets.Justia.com

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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 oflaw , which is incorporated herein by reference.
Respectfully submitted

Dated:

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

Attorneys for Plaintiff

Case 8:07-cv-00614-SCB-MAP

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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: 8:07- CV- 00614- SCB- MAP

THE UNIDENTIFIED , SHIPWRECKED VESSEL if any, its apparel , tackle, appurtenances and cargo located within a five mile radius of the center point coordinates provided to the Court under seal
Defendant; in rem
and

The Kingdom of Spain
Claimant and Defendant.

PLAINTIFF' S MEMORADUM OF LAW IN SUPPORT OF THE MOTION FOR ENTRY OF A PROTECTIV 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 Entr of

Protective Order Regarding Preliminar Site Assessment ("PSA"
BACKGROUND
The Parties

Odyssey is a Nevada corporation with its principal place of business at 5215 West
Laurel St. , Tampa, Florida 33607. Odyssey is engaged in the business of deep ocean exploration

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and the recovery of shipwrecks around the world.

The Defendant Site is at a depth of approximately 1100 meters , beyond the

terrtorial waters or contiguous zone of any sovereign nation , in the Atlantic Ocean
approximately 100 miles west of the Straits of Gibraltar. The center point coordinates of the area

in which the Defendant Site is located have been provided to the Court under seal. Evidence at
the Defendant Site indicates that efforts , if any, by any previous owner to salvage the Defendant

Site and/or its cargo have been long since abandoned.

Claimant and Defendant herein , Spain, filed a Verified Claim on May 31 , 2007 (Dkt. 13) stating in par that "the Kingdom of Spain has not abandoned its ownership rights and

other rights in sunen 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 sunken
vessels. "
Claimant,

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

Defendant Site.

Historv
On April 9, 2007, Odyssey filed the initial Verified Complaint In Admiralty In

Rem (Dkt. 1) against the Defendant in this case. Odyssey also tued over to the u. S. Marshal a
small bronze block recovered from the Defendant Site for the symbolic arest of the Defendant
Site.
On April 13 ,

2007, this Court entered the Order Appointing Substitute Custodian

(Dkt. 8) and found that Odyssey was duly qualified to serve as the Substitute Custodian of the

bronze block and other arifacts recovered from the Defendant Site.
On April 12, 2007, this Court issued an Order Directing the Issuance of a Warant
of Arest (Dkt. 5).

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On April 13 ,

2007, the Clerk issued the Warrant of Arest.

On May 31 , 2007, Claimant, the Kingdom of Spain filed its Verified Claim (Dkt.
13). Spain

s claim does not assert a basis for any claim specific to this Defendant Site.

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. 19) and this Court

entered an Endorsed Order (Dkt. 20) granting Odyssey s Motion and giving Odyssey until
August 6 ,

2007 to file its response.

The Wreck Site

The Defendant Site rests on the sea floor at a depth of approximately 1100 meters

beyond the terrtorial waters or contiguous zone of any sovereign nation , in the Atlantic Ocean
approximately 100 miles west of the Straits of Gibraltar. The Defendant Site s position is located. within a five mile radius of the center point coordinates which have been provided to the Court
under seal. Odyssey first located the Defendant Site in March 2007 , using sophisticated sonar

and magnetometer equipment. At the time of filing of the initial Complaint , Odyssey had not
discovered evidence of a ship, but based upon its research , it believed that the vessel associated

with the wreck site was a nineteenth century ship. Odyssey surveyed the Defendant Site and
began an archaeological pre- distubance survey taking video and photographs in order to create a

photomosaic image of the Defendant Site , using a surface-controlled remotely operated vehicle

ROV" ). Odyssey placed an aray of 5 acoustic beacons on towers around the Defendant Site to provide navigational information and precise positioning information. At the time of filing of
the Amended Complaint , Odyssey stil had not recovered evidence which would confirm that the

wreck is that of a particular ship.

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The Preliminar Site Assessment ("PSA"
Subsequent to the arest and the Court appointing Odyssey as Substitute
Custodian , Odyssey recovered and safely transported several arifacts to the Middle Distrct of

Florida from the Defendant Site which are undergoing conservation according to strct archaeological protocols. Odyssey has prepared a Preliminar Site Assessment (hereinafter
PSA") regarding the Defendant Site and the artifacts recovered and wil
present

that to the

Court under seal. It is Odyssey s 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 manner.
Prior to filing the PSA, however, Odyssey hereby requests from the Cour a
Protective Order stating that (1) the Court wil hold the PSA relative to the Defendant Site under

seal; (2) information contained within the PSA which is relevant to the claim of Spain and
which , if released, wil not jeopardize the security of the Defendant Site, be released to Spain and

to Spain s counsel only after Spain designates a particular authority within the countr to take

possession and control over the information and that both that authority and counsel for Spain

sign aConfidentiality Agreement not to release the information to any other person or authority,
even authorities within the Spanish governent , without leave of Court.

Svain s Appallng 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 from the PSA as

directed by the Cour to Claimant, Spain, however, Odyssey submits that given the information

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garnered from 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 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 arifacts 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
through the Spanish press that Spanish authorities would inspect Odyssey
Alert and the Odyssey Explorer) s vessels (the

Ocean

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 Exhbits
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 offcials , and despite the assurance of the Spansh
criminal judge (Judge Juan Jose Navas Blanquez sitting in substitution of the Judge for the
Number Thee First Instance and Preliminar Investigating Court of La Linea de la Concepcion

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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 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
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 curently
the seizure of the laptop.

pending decision by

the Judge as to the legitimacy of

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 virte

of the

criminal order

and threatened seizure by Spain. Odyssey s rights granted by this Court to continue its recovery

have been restrcted by Spain , and Odyssey s damages as a result of Spain s conduct are
extensive.

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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 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 Cour.
II.

LEGAL ANALYSIS
The Cours 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 Sailing,

See

Treasure Salvors, Inc.

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

Columbus

Atlantic Mutual Insurance Company, et. al. 203 F. 3d 291 303 (4th
of the location important,

Cir. 2000). Not only is secrecy

but secrecy as to the amount

of

propert obtained

and the wreck' s provenance data

l is also important.

This matter is no

different. This Court should exercise its discretion and grant a protective order guaranteeing the
PSA concernng this unidentified shipwreck remain protected.

I "Provenance Data" is defmed as "valuable historical and archeological inonnation concerning the exact location

depth and proximity of each item found with respect to other items. Cobb Coin Co., Inc. v. Unidentifed, Wrecked

and Abandoned Sailing Vessel 549 F. Supp.
provenance data is

540, 558 (S.D. Fla. 1982). The Court furter noted that "the

archeologists and anthopologists, . at 559. authenticity and thus enhances the resale value of otherwise precious arifacts.

importt not

only to historians ,

but it documents the

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Upon motion by a part, the Cour 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 par 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 (11th Cir. 1989);
Chicago Tribune Co.

Farnsworth

v.

Procter

Gamble, Co.,

1547 (11th Cir. 1985);

v.

Bridgestone/Firestone, Inc.,

263 F.3d 1304 (11

Cir. 2001).

Ths Court has already recognized the unique nature of this martime salvage
action and granted Plaintiffs 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
. 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. Stem , the preparation of

the PSA in this matter required the expenditure of vast amounts of time and expertise. (Affidavit
Paragraph 5). Indeed ,

the research and expertise used to create the PSAis

an essential part ofthe

process of identifying and salvaging a historical shipwreck ,

and adds to the value of any

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 Defendant

Site and allow competing salvors to gain enough information to attempt

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

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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

over the

unidentified wreck. The Spanish Minister of Culture , the autonomous State of Andalucia, and

Spain may all have competing claims for the shipwreck. Accordingly, in order to protect the
security of the Defendant Site while providing information to the Claimant in this matter, this

Cour 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 par.
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
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~fowlerwhite. com Eric C. Thiel- FBN 016267 ethiel~fowlerwhite. com FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa, Florida 33601 [phone]
Facsimile: (813) 229- 8313

Attorneys for Plaintiff

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on August

, 2007,

I electronically filed the

foregoing with the Clerk of the Cour 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~fowlerwhite. com Eric C. Thiel- FBN 016267 ethiel~fowlerwhite. com FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa , Florida 33601 [phone] Facsimile: (813) 229- 8313 Attorneys for Plaintiff