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

Filing 79

RESPONSE to motion re 77 MOTION to compel compliance with disclosure order and for other relief filed by Odyssey Marine Exploration, Inc.. (Von Spiegelfeld, Allen)

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

Doc. 79

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA Tampa Division In Admiralty

ODYSSEY MARINE EXPLORATION, INC.

Plaintiff

CIYIL ACTION

Case No: 8:07-CY-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.

mrem
and

The Kingdom of Spain
Claimant.

PLAINTIFF , ODYSSEY MARINE EXPLORATION, INC.' S RESPONSE TO CLAIMANT KINGDOM OF SPAIN' S MOTION TO COMPEL COMPLIANCE WITH COURT'S DISCLOSURE ORDER AND FOR OTHER RELIEF
This Response is a similar but not identical filing being made in cases 8:07-CY0614- SDM- MAP , and 8:06-CY- 1685- SDM- MAP.

COMES NOW the Plaintiff, Odyssey Marine Exploration, Inc
fies this

Odyssey ) and

, its Response to Claimant Kingdom of Spain s (" Spain

) Motion to Compel

Dockets.Justia.com

.)

Compliance with Cour' s Disclosure Order and for Other Relief (Dkt. 77) and states as
follows:

The facts as stated in Spain s Motion are inaccurate and misleading.
Odyssey had complied fully with this Court' s Order (Dkt. 75) and

Protective Order Governing Disclosure Of Certain Infonnation (Dkt. 76).
In its Motion, Spain alleges that

counsel for Spain. accompanied by a

representative ofthe Embassy of St'ain. came to Tampa at Odyssey s request. " (Dkt. 77

Background"
In fact, the gentlemen came to Odyssey s offce at Odyssey
invitation

not at its request. Although Odyssey would have clearly complied with the Protective
Order by simply copying and producing documentation regarding the Defendant Site
after this Court granted Odyssey s Motion for Protective Order, Odyssey offered to

present the documentation in person to Spain at its offices. The offer was made in good
faith and served to allow Spain the opportnity to see the photomosaic which represented
images of the complete site, and for Greg Stemm to provide a detailed explanation of the

methodology utilized to create the photodocumentation of the entire site. Mr. Stemm also

provided an explanation of the various artifacts seen on the site and answered questions
about the site characteristics and make-up. Since this photomosaic represented over

000 individual images, Odyssey offered to place a grid over the photomosaic in order

to allow counsel for Spain to choose areas which he found to be of particular interest. Odyssey then offered to reproduce the source photos in the highest possible resolution so

that the images could be carefully evaluated. Counsel for Spain was able to request
specific copies of photographs, and Odyssey is in the process of converting those into

individual photos for viewing. Odyssey also produced large copies of the photomosaic

and other items in the size and fonnat specifically requested by Spain in short order so

that they could be hand cared

by Spain

s counsel. This was all done in a spirit of

cooperation , and at the time Spain s representatives expressed appreciation for the

accommodations which were made in order to facilitate the transfer of this large amount of infonnation.
In its Motion, Spain alleges that "Odyssey has failed to provide a complete

listing and description of the artifacts. " (Dkt. 77 "Background"

In fact, Odyssey did provide a complete listing of the artifacts recovered

from the site which are within Odyssey s possession. Odyssey s arifact list included a

description and estimate of the coins recovered along with a representative photograph of

silver and gold coins. Odyssey explained to Spain s counsel that at this time there is no
list or description of each one of over 500 000 coins, and that this would be impossible

until the entire collection is conserved. Neither has a list been compiled of the coins
which have reached the final stage of conservation; however, all the coins conserved to
date are available for viewing, and a report detailing the general distrbution
conditions of conserved coins was supplied to Spain at the meeting.
In fact,

of dates and

as was explained to Spain s counsel, the only artifacts which have

not been listed and described are arifacts which are not within the custody or control of
Odyssey. Ironically, Spain is asking for infonnation which is unavailable to Odyssey due
to Spain s own interference with Odyssey s rights as substitute custodian. Some artifacts

from the Defendant Site have been held in Gibraltar Customs at the offcial

request of the

governent of Spain. At the parties' meeting, counsel for Spain stated that he was

surprised to learn of this and offered to assist in retrieving those arifacts for Odyssey, yet
the Motion completely fails to mention this, and instead wrongfully implies that Odyssey

has not been fortght in identifying the artifacts it has recovered.
In its Motion, Spain alleges that "Odyssey also demanded unworkable and

umeasonable conditions on the inspection of artifacts held by Odyssey in substitute
custodianship. " (Dkt. 77 "Background"
In fact,

this could not be further from the truth. Again, as was explained to

counsel for Spain, but is misleadingly omitted in the Motion, the coins and arifacts from

the Defendant Site are stored and conserved by a private facility in a highly secure

location for obvious security and insurance reasons. It is that facility which furnished the

NDA and requested that it be signed by representatives of Spain. Odyssey was not at
liberty to modify the document, yet Odyssey agreed to discuss modification with facility
management should counsel for Spain so desire. Since counsel for Spain decided he did

not wish to visit the facility until a later time, the parties agreed to work together toward
resolution of the issue and to schedule a later visit.
10.

In fact, since Spain s representatives did not feel there was time to visit the

facility where the coins and artifacts are stored during their visit to Tampa, Odyssey, in
good faith and at its own suggestion and expense -- including having to resolve practical

issues such as security, insurance, and special packaging for delicate artifacts on short

notice -- sent a corporate offcer

(as required

by insurance) to the facility to retrieve coins

and artifacts and bring them to Odyssey s offce for viewing. At the time, both counsel
for Spain and Spain s representative expressed great appreciation for Odyssey s efforts
and did not request to view any additional artifacts.

11.

Counsel for Spain agreed to keep the location and identity of the

conservation facilty confidential.
12.

In fact, in violation of the Protective Order, and Spain s counsel'

assurances , counsel for Spain has disclosed certain infonnation regarding the facility in

its pleadings. Such disclosure was completely unnecessary and umelated to the purpose
of the pleading. Odyssey respectfully requests this Court to consider this violation going
forward in any ruling regarding confidentiality. The Court has consistently expressed
that the security of the site and arifacts is

of the utmost concern, and Spain s violation of
coins and arifacts and

this Court' s Order shows a blatant disregard for the securty ofthe

evidences a potential similar disregard for the security of the site.
13.

Odyssey has complied with this Court' s Order of January 10 , 2008.

Odyssey has provided and/or offered to Spain the factual photographic and video

evidence representing a complete image of the entire Defendant Site. Specifically, during
the time Odyssey hosted counsel for Spain and Spain s representative at its offces for
two full days, Spain was provided the following in compliance with the Court' s Order:
a. The exact

coordinates of the Defendant Site

b. A large (3ft. x 3ft.) geo-spatially accurate photomosaic depicting the

Defendant Site created by Odyssey from over 10 000 photographic
Images
c. A copy of

the same photomosaic overlaid with a grd

at Spain

request so that Spain could identify specific areas for more detailed
photographs

d. The opportnity to

label specific grd coordinates coupled with

Odyssey s offer to produce images which comprised each grid box
e. Enlargements of

six sections comprising the photomosaic

f. An

enlargement which included 12 photographs from one section of

the photomosaic
g. A

detailed arifact list including color photographs of all non-coin

arifacts recovered (except the artifacts held in Gibraltar due to Spain
interference)
h. A

detailed report of the results of the conservation of the coins from

the site that has been accomplished to date
The opportnity to view three hours of video tape footage of the wreck

site (and yet a second opportnity to view the same footage). This
footage represented a sample of the total video taken and the balance

of the footage was offered subject to determnation of the most
effcient method for viewing.

J. Technical assistance for viewing, stopping and forwarding the video
k. The opportnity to view

gold and silver coins and arifacts from the

Defendant Site (again, transported to Odyssey s offices by Odyssey

personnel for Spain s convenience)
I. The opportnity to

discuss with Greg Stemm, Odyssey s Cofounder

and CEO, Odyssey s impressions of the site and the process for

compilation and maintenance of site documentation

14.

In addition, and subsequent to the meetings at Odyssey s offces, Odyssey

agreed to the following:
a. to produce copies of approximately 1

500 photographic images for

Spain to view near its counsel' s offces in Washington, D. C. for the

convenience of Spain s counsel
b. to produce

hard copy images selected by Spain
of a Preliminary Site Assessment prepared by

c. to produce copies

Odyssey (this was shown to Spain at the meetings and was comprised mostly of material Spain had already been given)
d. to produce a copy of

the video footage shown to Spain at the meetings

e. to

confer with the conservation facilty regarding potential

modification of its standard NDA (Odyssey has asked counsel for
Spain to communicate the suggested modifications, but other than the

statements made in its pleadings, Spain has not communicated those to
date)

These items wil be provided to Spain in the coming days.
15.

In its Motion, Spain alleges that

Odyssey has not fully disclosed all that is

necessary under the Court' s Order. Spain does not state with specificity, however, what

documentation or infonnation has allegedly not been disclosed.
16.
In fact,

the only documentation requested by Spain which has not been

produced by Odyssey is "research regarding the potential identity of a vessel or

vessel." (Dkt. 75 "Category #2" )

Odyssey has explained and

shown to Spain via
any

documentar evidence,

that the Defendant Site does not include specific evidence of

,"

particular vessel or vessel. Additionally, any research which may have been conducted
by Odyssey as to any vessel which may have been the origin of the coins and artifacts
discovered would have been prepared in anticipation of litigation, and thus would be

privileged. Odyssey submits the attached Memorandum of Law regarding this sole legal
issue presented by Spain s Motion.

MEMORANDUM OF LAW
Based on the foregoing statement of facts, it is clear that Odyssey has complied
with this Court' s Order of Januar 10, 2008. As stated, Odyssey has provided Claimant
Spain , with all of the relevant factual evidence it has requested regarding the Defendant
Site.

Spain has not stated with specificity the basis for its Motion to Compel
Compliance with Court' s Disclosure Order and for Other Relief other than to allege that

despite two full days of disclosure and production , Odyssey has failed to comply with the
Court' s Order. The Motion requests this Court to direct " disclosure of all documents or

other infonnation relating to or discussing the actual or potential identity of the vessels
including research on the history, location and contents of the vessels , as well as all
studies , reports or other infonnation concerning observations of the sites and their

artifacts in relation to the actual or potential identity of the vessels.

Odyssey has produced or offered the factual evidence it has regarding the
Defendant Site in response to this Court' s Order. Pursuant to the Federal Rules of Civil
Procedure
a part must provide... a

copy of, or description by category and location of

all documents, data compilations, and tangible things that are in the possession , custody,

...

*****

or control of the party and that the disclosing pary may use to support its claim or
defenses , unless solely for impeachment."
Fed. R. Civ. Pro. R. 26(a)(1

)(B).

Odyssey has done so in good faith and without any Rule 26 disclosures being

made by Spain. Odyssey has stated and has shown that there are no extant "vessel or
vessels " at the Defendant Site. The sole legal issue which is raised by Spain s Motion is

whether any research Odyssey has prepared, in anticipation and for the purpose of

litigation, concerning a potential origin of the coins and arifacts must be produced

subject to the Order. Odyssey should not be required to produce such research for the
following reasons:

The Order is intended to cover Rule 26 disclosures by Odyssey and provide Spain with proper notice to validate its claim, if possible. The Order does not require Odyssey to produce research , speculative
conclusions or opinions.

Odyssey s research prepared in anticipation and for the purpose of litigation is privileged.

Such research mayor may not prove to be relevant as to the potential identity of a vessel which may have been the origin of the coins and
artifacts discovered at the Defendant Site.

The Order is intended to cover Rule 26 disclosures by Odyssey and

provide Spain with proper notice to validate its claim. if possible
This Court' s Order was intended to expedite Rule 26 disclosures by Odyssey.

Rule 26 states as follows:

parties may obtain discovery regarding any matter , not privileged, that is relevant to the claim or defense of any party, including the existence , description

nature, custody, condition, and location of any books, documents, or other

tangible things and the identity and location of persons having knowledge of any
discoverable matter.

Fed. R. Civ. Pro. R. 26(b)(l).

On January 10, 2008, this Court held a Preliminary Pretrial Conference at which

the Court stated that the Protective Order would help further along the Rule 26(a)
discovery process and help Spain determne if

it wil stil be interested in litigating the

matter for all three cases. (Transcript 43-44.

Rule 26 disclosures are intended to provide a pary with initial notice of evidence
to be presented at tral. In

good faith and in an effort to expedite the discovery process

Odyssey has gone beyond the requirements of Rule 26 in providing Spain with evidence

regarding the Defendant Site. Spain s request for Odyssey s privileged work product
and/or speculation relating to the site is merely a "fishing expedition" made in an effort to gain some kind of strategic advantage in this litigation or, more ominously, in subverting

Odyssey operations in regard to other sites. Odyssey has provided Spain with the factual

infonnation to which it has had access relevant to the Defendant Site. It is now
incumbent upon Spain to make its own Rule 26 disclosures and state the basis for its
claim in this action.

The Order does not require Odyssey to produce research. speculative
conclusions or opinions

The Order stated that Odyssey must provide Spain with (1) the exact location of

the vessel or vessels; (2) any infonnation material to the identification of the vessel or
vessels; (3) a listing and description of the artifacts uncovered to date; and (4) any
photographs or videotapes of the site or vessel.

Order (Dkt. 75). This does not cover

privileged, proprietary research conducted by Odyssey, or contracted by Odyssey, in
anticipation oflitigation.

Fed. R. Civ. Pro. R. 26(b)(1); Also see. Fed. R. Civ. P.

26(b )(3).

Any and all background sources used in Odyssey s research are available to the

public. Any speculation or conclusions reached as a result of that research are
discoverable only to the extent that those conclusions and the experts who developed
them are to be called to testify at tral. (See " C" below. ) As Odyssey has infonned

Spain , it has not made a determnation of experts, if any, who may be called at trial.

Expert conclusions are certainly not encompassed by Rule 26.
This Court' s

Order does not require Odyssey to produce research it has

developed for the purpose of litigation. Odyssey has thus fully complied with all
requirements of the Order.

Odyssey s research prepared in anticipation and for the purpose of
litigation is privileged.

Even if research or speculations drawn from research were contemplated by the
Order , all of the research that Odyssey has done regarding a potential origin of the coins

and artifacts has been prepared in anticipation of and for the purpose of litigation and is

therefore privileged and not subject to discovery. An exception to this , as stated, would
be if Odyssey intends to call experts to testify at trial who have relied upon that research.

Again , Odyssey has not made a detennination regarding whether it wil retain experts

present experts at tral.

Rule 26(b )(3) of the Federal Rules of Civil Procedure states the grounds that

entitle a pary to work product immunity. Fed. R. Civ. P. 26. The pertinent part of this
rule provides:
A part may

obtain discovery of documents and tangible things otherwise

discoverable. .. and prepared in anticipation of litigation or for tral by or for
another party or by or for that other party s representative (including the other

party s attorney, consultant, surety, indemnitor, insurer, or agent) only upon a
showing that the party seeking discovery has substantial need of the materials in
the preparation of the part's

case and that the party is unable without undue

hardship to obtain the substantial equivalent of the materials by other means. In
ordering discovery of such materials when the required showing has been made
the court shall protect against disclosure of the mental impressions , conclusions
opinions , or legal theories of an attorney or other representative of a pary
concerning the litigation. Fed. R. Civ. P.

26(b)(3).

It is well established that, absent a required showing of need and undue hardship

to obtain the substantial equivalent of another party s work product by other means, a

party s work product wil

remain

immune from discovery. Also well established is the

principle that the unsworn analysis of a pary s attorney and/or a bare assertion of need
and undue hardship to obtain the substantial equivalent are insufficient to satisfy this

showing. Id. It also has been indicated that the showing of need encompasses a showing
of diligence by the party seeking discovery of another pary s work product.
Kramer Lead Mktg. Group, AARP

2005 U. S.

Dist. LEXIS 36970 (D. Fla. 2005); Also see

Hodges, Grant

Kaufiann

v.

United States Government, Dep

t of Treasury,

IRS, 768

2d 719, 721 (5th Cir. 1985).

Federal Courts in Florida and Florida State Courts interpreting similar discovery

rules have held that to show need, a pary must present testimony or evidence
demonstrating the material requested is critical to the theory of the requestor s case, or to
some significant aspect of the case. Procter

Gamble Co. 462 So. 2d 1188. Once the

trial court knows the requestor s theory as to why the items are needed and how the
material could potentially help the requesting party s case, the trial cour should then
conduct an in camera review. Id.

During this review, the trial court can evaluate whether

the contested materials provide the requisite evidentiary value alleged by the requesting

party, and determne whether the requested materials are substantially similar to materials
already available. Id. In most situations ,

mere inconsistency alone does not establish the

requisite need. Id. A tral court would usually order a protective order on outside

research , as opposed to research done in-counsel , to minimize the hann to the producing
part, and a

protective order is sufficient to satisfy the "protective measures

requirement. An in camera proceeding is necessar before a court orders that a trade
secret be revealed or described with reasonable particularity.

Del Monte Fresh Produce
1323 , 1323-24 (D. Fla. 2001)

Co.

v.

Dole Food Co. 148 F. Supp. 2d 1322,

Clearly, there has been no showing on the part of Spain , or even a statement that
Spain would suffer undue hardship by having to do its own research. In fact , Spain

representatives have stated publicly that based on their own research they have already

concluded the most likely candidate for this site. The factual infonnation regarding this
site which has been provided or is otherwise available to Spain is no more or less than the

infonnation that has been available to Odyssey in its efforts to determne the identity of
the site, and Spain should be able to draw its own conclusions based on these facts and

the research which it undertakes.

Odyssey has provided Spain with more than enough infonnation and
documentation to fonn an opinion as to whether there could be a valid basis for its claim.

Research mayor may not prove to be relevant as to the potential identity
of a vessel which may have been the origin of the coins and artifacts
discovered at the Defendant Site.

Finally, just because Odyssey may have researched potential targets for its search
proj ect or potential vessels which may have been the origin of the artifacts discovered

that research is not necessarily related in any way to the actual Defendant Site. Even
the research requested were not privileged , Odyssey s research would not necessarily fall
under the description of documents to be produced as enumerated in the Court' s Order.

Certainly, if Odyssey were to uncover evidence which confinned a particular vessel as
being related to the Defendant Site, Odyssey would produce such evidence. In this case
no such evidence exists. Spain may be disappointed that Odyssey s disclosures did not

reveal some supposed "smoking gun" of irrefutable evidence in favor of a Spanish claim
in ths case. But Spain

s disappointment - or its desire to seek some strategic advantage
are not good and

in this case, umelated to the requirements of Rule 26 disclosure -

suffcient reason to require Odyssey to produce that which does not exist.

Odyssey has fully complied with the Court' s Order of January 10

2008 and

respectfully requests this Court to deny Spain s Motion to Compel Compliance.

Respectfully submitted

Dated:

February 8. 2008

s/ Allen von Spiegelfeld Allen von Spiegelfeld - FBN 256803 avonsp(gfowlerwhite. com Eric C. Thiel - FBN 016267 ethiel(gfowlerwhite. 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]
E-mail: mmacconnel(gshipwreck.net

Attorneys for Plaintiff

CERTIFICATE OF SERVICE
8 , 2008 , I electronically fied the CM/CF system which wil send a Burling LLP, 1201 notice of electronic filing to James A. Goold, Covington
foregoing with the Clerk of the Court by using the

HEREBY CERTIFY that on February

Pennsylvania Ave. , NW, Washington, DC 20004; and David C. Baner, Bush Ross P.

220 S. Franin Street, P. O. Box 3913 , Tampa,
Kingdom of Spain.

FL 33601

Attorneys for Claimant

s/ Allen von Spiegelfeld Allen von Spiegelfeld - FBN 256803 avonsp(gfowlerwhite. com Eric C. Thiel- FBN 016267 ethiel(gfowlerwhite. 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(gshipwrecknet
Attorneys for Plaintiff