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

Filing 27

AFFIDAVIT of Gregory P. Stemm re: 26 MOTION for protective order Regarding Preliminary Site Assessment by Odyssey Marine Exploration, Inc.. (Von Spiegelfeld, Allen)

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

Doc. 27

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.

AFFIDAVIT OF GREGORY P. STEMM IN RELATION TO PLAINTIFF' S MOTION FOR ENTRY OF A PROTECTIVE ORDER ASSESSMENT
REGARDING PRELIMINARY SITE

My full name is Gregory Paul Stemm. My legal address is 5719 Longboat
Blvd. , Tampa Florida 33615 , USA. I am competent to testify as to the matters covered in
this affidavit.

I have personal knowledge regarding the information contained herein and
hereby swear that the information is true and accurate to the best of my knowledge.

Dockets.Justia.com

,"

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I am the Cofounder and Co- Chairman

of Odyssey Marine Exploration

Inc. ("Odyssey ), an American company incorporated under the laws of the state of
Nevada with its principal place of business located in Tampa, Florida.

This affidavit is prepared in support of Odyssey s Motion for Protective
Order Regarding Preliminary Site Assessment ("PSA"
Odyssey" has prepared an
extensive Preliminary Site Assessment

(hereinafter

PSA" )

in relation to the Unidentified

Shipwrecked Vessel ("Defendant

Site ), and artifacts recovered therefrom, that are at issue in this case. The PSA reflects

the labors of dozens of Odyssey

employees and consultants as well as substantial

research and investigation into the Defendant Site and the arifacts from the Defendant
Site. The PSA also contains very sensitive and proprietary information (handled as trade

secrets by the Odyssey) about Odyssey s sources and methods in conducting shipwreck
exploration , archaeological excavation, as well as artifact curation and conservation.
Odyssey s research and expertise
used in the

process of identifying,
items

recovering and conserving any wreck or wreck site greatly adds to the value of
ultimately recovered.
For reasons that I wil elaborate here,

Odyssey is very reluctant to have

this PSA made available to the public. Release of the information set forth in the PSA

would fuel a great deal of speculation about the identity of the Defendant Site.

If the

Defendant Site is one ofthe potential shipwrecks identified in the PSA , research suggests
that there should be substantially more artifacts of significant value on the Defendant Site

that have not been recovered to date. This possibility would most likely ignite a frenzy of
competing activities and attempts to recover the balance of the goods at the site. Such

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activity would not only endanger Odyssey s equipment and personnel at the Defendant

Site (and at other sites), but would also threaten the legal rights Odyssey asserts
case , as well as this Court' s jurisdiction and authority to adjudicate the matter.

in this

Odyssey is a publicly traded company in the United States (NASDAQ:
ticker "OMEX"),

subject to all of the public disclosure requirements and strictures of the

u.s. Securities and Exchange Commission (" SEC") and The NASDAQ Stock Market.
SEC and NASDAQ rules dictate the prompt release to the public of all material nonpublic information concerning the company s operations that are not otherwise privileged

or proprietary. The exception is when the company has a significant strategic reason for
keeping information confidential,
and that the confidential information is subject to a

strict nondisclosure policy which serves to assure that no information

wil be leaked

under strict penalties and consequences for anyone that violates this policy.
Attached is a

nondisclosure agreement which must be signed by all

Odyssey employees and

consultants requiring them to maintain the confidentiality of

information regarding Odyssey s business operations.
10.

Odyssey signed a similar nondisclosure agreement with Volvo when it

began a project in March 2007 , in which Odyssey agreed to bury treasure for Volvo as
part of a promotional contest. Speculating as to the nature of Odyssey
s activities in this

regard , the Spanish press linked it to the recovery of one of Odyssey s own shipwreck
projects. In an attempt to explain

its activities and in an effort to be fully transparent to

both the U. S. and the Spanish governents , Odyssey received permission from Volvo to

communicate the nature of the project. Odyssey provided the information to the U.
State Department who communicated it to the Spanish Embassy with the express caveat

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that the information must be kept confidential. Nevertheless , the information was leaked

to the Spanish press the very next day. I was informed

by a Spanish

official that an

internal investigation determined that this leak originated from the Spanish Ministry of
Culture in Madrid.
11.

Clearly, Odyssey has reason to believe the confidential nature of the PSA
Furthermore, the

in this case wil be jeopardized without protection from this Court.
release of the PSA to the Claimant in this case,

without appropriate

confidentiality

safeguards , would constitute an actionable selective release of material non-public

information and would dictate Odyssey making it available to the public as well.
12.

As stated, many aspects of the PSA clearly contain proprietary data as to

Odyssey s sources and methods in conducting shipwreck exploration and archaeological

artifact recovery. This is information that Odyssey legitimately regards as trade secrets. It

would be potentially damaging to the company to have the PSA released to the public including our competitors. Odyssey s competitors in the field of shipwreck exploration
would gain a material advantage in access to business methods and data , which has taken
Odyssey years of experience , and milions of dollars in financing, to accumulate.
13.

In particular, Spain s counsel in this matter, James Goold, is the Chairman

of a Foundation called the RPM Nautical Foundation. The following are excerpts from
RPM Nautical' s own website:
About RPM Nautical Foundation
RPM Nautical Foundation was founded in 2000 by George Robb. After his association with INA during the 1990' , George realized that new technologies could further advance the discipline ofnautical
archaeology. As such he founded RPM in order to apply cutting-edge multi- beam and ROV technologies to the exploration of underwater sites. Projects provide advanced technologies to international cultural ministries of governments that do not have the resources to invest in such specifc archaeological equipment. Working in partnership with these countries, George establishes the protection of their
underwater heritage as afundamental tenet ofRPV operations. Source: http://ww. rpmnautical.org/aboutrpm. htm

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Thisfrom the Project Overview section of the RPM Nautical Foundation s survey off Spain in 2004:
through An extensive survey of the coastal waters near Cadiz, Spain was conductedfrom May 2004 in partnership with the Centro di Arquelogica Subaquatica of the Junta of Andalucia and Institute of Nautical of Archaeology. Archaeologistsfrom CAS provided extensive informationfrom previous work in the area and led diving teams to various sites located from previous reports and from remote sensing data generated during the project. RPM provided the survey vessels Hercules and Juno and associated auxilary vessels, plus diving support. The National Geographic Society provided generous financial support as well as technical assistance with ROV operations and imaging.
July

Over six weeks of operations, approximately 150 square kilometers were surveyed, despite

frequent interruptions due to adverse weather. Post-acquisition processing of the data is now (December
2004) underway.

To date more than 300 anomalies have been identifed. Sites identifed in the remote sensing data
to date include several sites with size or other characteristics consistent with the warships sunk soon after

being taken as prizes following the battle. Numerous more recent shipwreck sites have been identifed, while anomalies were also observed that possess characteristics consistent with those of ancient shipwreck
sites.
Source: http://ww. rpmnautical. org/cadiz. htm

14.

Odyssey has been

active in promoting the provlSon

of

underwater

archaeology servIces to the Spanish Governent and

the Autonomous region of

Andalucia. RPM Nautical Foundation is a direct competitor of Odyssey in these efforts.
Odyssey has capabilities and technical expertise that significantly surpass the capabilities

of RPM. Provision of technical details relating to the methodology that Odyssey uses for
its projects

would provide RPM with an advantage in competing with Odyssey in

provision of these services.
15.

RPM Nautical has ships, ROVs and search equipment that could be used
if even only

to locate and work on the subject Defendant Site,

vague locational

informational is obtained through their Chairman, Jim Goold. The Spanish Governent
has already shown through seizure and detention of the Ocean Alert

that they are wiling

to violate International Law in order to attempt to gain information that may provide
Spain with access to the subject Defendant Site. For this reason, Odyssey is concerned
that any information relative to the location of the Defendant Site which is provided to

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Goold or

Spain may be used under

the auspIces of a request from the Spanish

Governent by either the RPM Nautical Group or some other company that could be
contracted by Spain.
16.

Publicly releasing the PSA wil have a direct effect on the efficiency,
s operations at the

safety and security of Odyssey

Defendant Site ( and elsewhere).

Release of the PSA to the public wil inevitably result in the revelation of clues as to the
whereabouts of the Defendant Site, as well as information and insights into the manner

that Odyssey conducts its operations,

such that a well-informed competitor - or the

Spanish Governent or their contactor - would be in a position to be better able to track
and interfere with Odyssey s operations.
17.

This interference could occur and affect a number of Odyssey s business

and maritime activities throughout the world, all essential to Odyssey s operations. The
archival and curation information in the

PSA would allow the media,

competitors

historians or foreign governents to interfere with Odyssey

s access to archival source

data , essential for the identification and ultimate protection of the Defendant Site. The

operational data contained in the PSA would permit media ,
intermeddlers to "shadow"

competitors ,

or offcious

and

track Odyssey vessels,

equipment, personnel and

communications in attempts to reveal the location of the Defendant Site or other valuable
data.
18.

Release of the PSA might, in the most extreme case, allow a competitor or
significant investment in research, data-

rival claimant to circumvent Odyssey

collection , ocean surveys and ground-truthing, and actually locate and begin recovery
operations on the Defendant Site. If

such a rival competitor or claimant was based

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outside of the United States ,

it

would be most difficult for this Court to enforce its

injunction writ against such a party, even for activities taken in violation of the Court'

orders and in derogation of Odyssey

s rights. The very

jurisdiction of this Court to

efficiently and effectively adjudicate this matter (not only in relation to Odyssey s rights

but those of any legitimate claimant) would thus be compromised , if not entirely
arogated.
19.

The disclosure of the PSA or any part of it would cause irreparable harm

to Odyssey, to its shareholders, and to the archaeological integrty of this Defendant Site
due to the fact that, if the location of the Defendant Site became known to the public

there would be no way to protect the wreck from plunderers. Thus , in my view and that

of Odyssey, the PSA,

or any part thereof, ought not to be disclosed to any party or

claimant in this action without appropriate confidentiality safeguards to ensure that it wil
not be leaked or otherwise disclosed to the public.

:

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I CERTI THT TH ABOVE IS TRUE AN CORRCT
OF MY KNOWLEDGE

TO TH BEST

GrgorY Cofounder ari Co-Chail1an Odyssey

Mare Explomtion Ine

COUN OF HILSBOROUGH
by

STATE OF

FLORIA
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The foregoing instrent

was aelmowledged

before me th

day of August, 2007, wnbYme-

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t)DYSSEY
MARINE EXPLORATION
I CERTIFY THAT:

ATTACHMENT CERTIFICATION OF AGREEMENT

I have read and understand the following Company Statements of Policies:
INSIDER TRADING ACKNOWLEDGEMENT OF LIMITED PHOTO & VIDEO RIGHTS CONFIDENTIALITY AGREEMENT ALCOHOL & DRUG POLICY HARASSMENT POLICY

I understand that a Company representative is available to answer any questions I have regarding the Statements of Policies. This representative is:
Donna Fernandez Manager of Human Resources 813- 314- 2551 donna shipwreck.net

I wil agree to comply with the Statements of Policy by my signature below:
Signature:

Print name:

Date:

Attachment Page 1

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MARINE EXPLORATION
1.0

DYSSEY
Purpose

CONFIDENTIALITY POLICY

The purpose of this Confidentiality Agreement is to allow the Company to enter into a working relationship with the Persons Affected, as defined in paragraph 3. 0 below.

Revision Historv
I October 27 2004
12.
I Revised

Persons Affected
All Employees, Consultants, Contractors, Subcontractors, Visitors, Business Invitees Technicians , Crew, Officers and Directors are "Affected Person(s)"
Policy
4.1

Working Relationship The Company and Person Affected have entered into a working relationship involving one or more aspects of the Company s business. Hereinafter referred to as the ("Working Relationship ). In order for the Person Affected and the Company to potentially or actively engage in a Working Relationship, the Company agrees to furnished the Person Affected information, including certain confidential, nonpublic information, as well as general information about the company and/or its operations (collectively "the Information Confidentiality In consideration of the Company s disclosure of the Information, the Person Affected agrees that he/she/they wil keep the Information confidential and that the Information wil not, without the prior written consent ofthe Company, be disclosed by the Person Affected, to any third parties, in any manner whatsoever, in whole or in part , and shall not be used by the Person Affected other than in connection with the proposed Working Relationship.

Return of the Information The Person Affected agrees that, at the conclusion of his /her review of the Information, or within three business days after the Company s request, all copies ofthe Information in any form whatsoever (including, but not limited to any reports , memoranda or other materials prepared by the Person Affected or at his direction , whether on paper or magnetic, optical or other medium) wil be delivered by the Person Affected to the Company.
4.4

Material Non-Public Information The Company is a publicly traded company. The Information the Company supplies to the Person Affected may contain Material Non Public Information as defined by State and Federal securities laws.

The Person Affected further agrees that he will not execute any trades in the Company securities while he/she/they are in possession of, or has knowledge of, any confidential

Attachment Page 2

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MARINE EXPLORATION

DYSSEY

CONFIDENTIALITY POLICY

material , non-public information regarding the Company. (See also: Insider Trading Policy)

Injunctive Relief The Person Affected acknowledges and agrees that, in the event of any breach of this Agreement, the Company would be irreparably and immediately harmed and could not be made whole by monetary damages. Accordingly, it is agreed that, in addition to any other remedy to which it may be entitled at law or in equity, the Company shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to prevent breaches or threatened breaches of this Agreement and/or to compel specific performance of this Agreement. Person Affected further agrees that he/she/they wil be liable to the Company, its officers and directors for any damages caused by any unauthorized release or disclosure of the confidential material , non-public information.

Attachment Page 3