Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel
Filing
26
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 Mark A. Pizzo.
,"
Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel Doc. 26
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.
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 Preliminary 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
Spain and which, if released, wil not jeopardize the security of the Defendant Site, be released to
Claimant Spain and counsel for Spain once Claimant Spain designates a particular authority within Spain to take possession and control over the information and that authority and counsel
Dockets.Justia.com
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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
sf Allen von Spiegelfeld Allen von Spiegelfeld - FBN 256803 avonsp fowlerwhite. com Eric C. Thiel- FBN 016267 ethiel fow lerwhi te. com FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa, Florida 33601 (813) 228-7411
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.
PLAINTIFF' S MEMORANDUM OF LAW IN SUPPORT OF THE MOTION FOR ENTRY OF A PROTECTIVE ORDER ASSESSMENT
REGARDING PRELIMINARY SITE
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 ("PSA"
BACKGROUND
The Paries
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 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
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 Defendant
Site.
History
On April 9 , 2007, Odyssey filed the initial Verified Complaint In Admiralty In
Rem (Dkt. I) against the Defendant in this case. Odyssey also turned over to the U. S. Marshal a
small bronze block recovered from the Defendant Site for the symbolic arrest 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 Warrant
of Arrest (Dkt. 5).
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On April 13 ,
2007, the Clerk issued the Warant 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-disturbance 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 array 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 Preliminary Site Assessment ("PSA"
Subsequent to the arrest and the Court appointing Odyssey as Substitute
Custodian , Odyssey recovered and safely transported several artifacts to the Middle District of
Florida from the Defendant Site which are undergoing conservation according to strict
archaeological protocols. Odyssey has prepared a Preliminary 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 arifacts 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 Court 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 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 Appallng Behavior
The factual basis for Odyssey s request for a Protective Order include the
sensitive and valuable nature ofthe 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
artifacts 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
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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 party 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 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 artifacts have been recovered anywhere near Spanish territorial 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 arrest, 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 Three First Instance and Preliminary Investigating Court of La Linea de la Concepcion
Case 8:07-cv-00614-SCB-MAP
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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 , Marie 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 currently pending decision by the Judge as to the legitimacy of
the seizure of the laptop.
Once in Algeciras, Odyssey s crew and attorneys were forced by the Spanish
offcials 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 restricted 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
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.
I1.
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
291 ,
Atlantic Mutual Insurance Company, et. al. 203 F. 3d
of the location important,
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.
Provenance Data" is defined as "valuable historical and archeological information concerning the exact location v. Unidentifed, Wrecked depth and proximity of each item found with respect to other items. Cobb Coin Co., Inc. and Abandoned Sailing Vessel 549 F. Supp. 540 , 558 (S.D. Fla. 1982). The Court further noted that "the provenance data is important not only to historians, archeologists and anthropologists, but it documents the authenticity and thus enhances the resale value of otherwise precious artifacts. . at 559.
1"
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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 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 (11th Cir. 1989);
Farnsworth
v.
Procter
Gamble, Co.,
1547 (11th Cir.1985);
Chicago Tribune Co.
v.
Bridgestone/Firestone, Inc. 263 F. 3d 1304 (11
Cir. 2001).
This Court has already recognized the unique nature of this maritime 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. Stemm, 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 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 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
Minister of Culture,
over the
unidentified wreck. The Spanish
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
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
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~fow lerwhite. com FOWLER WHITE BOGGS BANKER P . O. Box 1438 Tampa , Florida 33601 (813) 228-7411
Facsimile: (813) 229- 8313
Attorneys for Plaintiff
Case 8:07-cv-00614-SCB-MAP
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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~fowlerwhite. com Eric C. Thiel- FBN 016267 ethiel~fow lerwhite. 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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