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

Filing 73

MEMORANDUM in support re 72 Motion for protective order filed by Odyssey Marine Exploration, Inc.. (Von Spiegelfeld, Allen)

/:

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

Doc. 73

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- SDM- MAP

THE UNDERWATER SITE AND RELATED UNIDENTIFIED SHIPWRECK, 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
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.

BACKGROUND

The Parties

Dockets.Justia.com

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 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,

approximately 100 miles west of the

Straits of Gibraltar. The center point coordinates of the area in which the site is located have
been provided to the Court under seal. Evidence at the site 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 31 , 2007, (Dkt.

13) 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.

History
On November 26,

2007,

this

Court held a Preliminary Pretrial Conference which

directed the parties to discuss the matter of a Protective Order and try to resolve this issue

themselves. (Transcript page 37) This Court also suggested the use of sample form 40.27
Confidentiality Order from the Guide to Complex Litigation in structuring
Order.
a Protective

The General Location of Defendant Site

The factual basis for Odyssey s request for a Protective Order is a concern that any

information relative to the location of the Defendant Site could be used to locate , plunder

and/or destroy the Defendant Site. The security of the wreck sites was even said to be the

primary concern by this Court at the November Pretrial Conference. (Transcript page 61)
These concerns are also elaborated
Executive Offcer
in the Affidavit of Gregory P. Stemm , the Chief

(CEO) and Cofounder of Odyssey (filed herewith under seal).

This

Affdavit is being filed under seal because of the confidential nature of the information
regarding Odyssey s proprietary research methods contained therein.
Proprietary Research

The proprietary research of Odyssey reflects the labors of dozens of its employees
and consultants as well as substantial research and investigation into the Defendant Site and

the artifacts from the Defendant Site. This research also contains very sensitive

and

proprietary information (handled as trade secrets by 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, recovering, and conserving any wreck or wreck site greatly adds to the value of
items ultimately recovered.

Artifacts from the Defendant Site

The factual basis for Odyssey s request for a Protective Order is a concern that any
information about the artifact recovered or viewed at the Defendant Site could be used to

locate , plunder, and/or destroy the Defendant Site. The release of artifact information would

give rise to looters and plunderers who would side-step the applications of the law and rob
the Defendant

Site of the possibility of archaeological and historical preservation by

destroying significant items and privately selling salvaged artifacts.

II.

LEGAL ANALYSIS

The Courts have long understood that,
sunken wrecks,

in salvage cases ,

especially those involving
Treasure Salvors, Inc.

secrecy is often of the
Abandoned Sailng,

utmost importance. See

Unidentifed Wrecked and

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

Columbus
291 ,

America Discovery

Group v.

Atlantic Mutual Insurance Company, et. al. 203 F. 3d

303

(4th Cir. 2000). This

Court should

exercise its discretion and grant a protective

order

guaranteeing the security of the Defendant Site. This Court has

already recognized the
protective

unique nature of this maritime salvage action and granted Plaintiffs motion for

order in sealing the exact location of the current unidentified shipwreck (Dkt. 2 , 4).

To determine whether the moving party has shown good cause , this Court is required
to balance the

interests of those requesting
Chicago Tribune Co.

the order with other

competing rights to the

disclosure ofthe material. See

v.

Bridgestone/Firestone, Inc. 263 F.

1304 (11

Cir. 2001). In addition to the good cause shown for sealing the coordinates of the

wreck , good cause also exists to protect any information relative to the general location of the

Defendant Site due to the relatively short time it would take to locate , plunder, and/or destroy
the Defendant Site. As

detailed above and in the Affdavit of

Gregory P.

Stemm (filed

herewith under seal), given even a general location of the Defendant Site, with the proper
resources , an experienced party could find and destroy the site with relative ease.

The Defendant Site is an active historical site and the protection

of the wreck'

location for both archaeological and salvage purposes is essential

to all parties involved.

Other Courts have acknowledged the risks that could come from public disclosure
Defendant shipwreck'

of a

location.

See

Great Lakes Exploration Group LLC

v.

The

Unidentifed Wrecked and Abandoned Sailng

Vessel,

2006 U. S. Dist. LEXIS 84093 (W.
v.

Mich. , Nov. 20, 2006);

Great Lakes Exploration Group LLC

The Unidentifed Wrecked

and Abandoned Sailing Vessel,

2006 U. S. Dist. LEXIS 58616 (W.D. Mich. , Aug. 21 , 2006).
and also

A protective order eliminates the risks that could come from public disclosure
protects the interests of all parties involved.

Id. at 19.

This matter is no different. The

Court should exercise its discretion and grant a protective order.
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
Odyssey s interests and the interests of all parties involved in keeping the general location of
Defendant Site,
the extensive proprietary research conducted

by Odyssey, and details

regarding artifacts recovered therefrom, outweigh any competing interest in the release of

this information about the Defendant
should be granted.

Site. Thus,

Odyssey s Motion for Protective Order

Dated:

January 8. 2008

Respectfully submitted

s/ Allen von Sviegelfeld Allen von Spiegelfeld - FBN 256803 avonspcmfowlerwhite. com Eric C. Thiel- FBN 016267 ethiel fow lerwhite. com FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa , Florida 33601 [phone]

Facsimile: (813) 229- 8313

s/ Melinda J. MacConnel Melinda 1. MacConnel- FBN 871151 Odyssey Marine Exploration, Inc. 5215 West Laurel Street Tampa , FL 33607 (813) 876- 1776 , ext. 2240
Fax: [phone]

mmacconnel~shipwreck.net Attorneys for Plaintiff
E-mail:

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on January 9, 2008,
electronic fiing to James A. Goold,
I electronically filed the

foregoing

with the Clerk of the Court by using the CM/ECF system which wil send a notice of
Covington & Burling LLP, 1201 Pennsylvania Ave. , Washington, DC 20004; and David C. Banker, Bush Ross P. , 220 S. Franklin Street P. O. Box 3913 , Tampa, FL 33601 Attorneysfor 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 [phone]
Facsimile: (813) 229- 8313

s/ Melinda J. MacConnel Melinda J. MacConnel- FBN 871151 Odyssey Marine Exploration, Inc. 5215 West Laurel Street Tampa, FL 33607 (813) 876- 1776 , ext. 2240
Fax: [phone]
E-mail:

mmacconnel~shipwreck.net Attorneys for Plaintiff