Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel
Filing
80
RESPONSE to motion re 78 MOTION to declare certain materials as not confidential under the protective order filed by Odyssey Marine Exploration, Inc.. (Von Spiegelfeld, Allen)
Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel
Doc. 80
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION IN ADMIRALTY
ODYSSEY MARINE EXPLORATION, INC.
Plaintiff
CNIL ACTION
: Case No: 8:07- CY- 00614- SDM- 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 RESPONSE TO KINGDOM OF SPAIN' S MOTION FOR AN ORDER DECLARING CERTAIN MATERIALS AS NOT CONFIDENTIAL
This Response is an identical filing being made in cases 8:07-CY-0614- SDMMAP , 8:07-CY-0616-SDM-MAP, and 8:06-CY- 1685- SDM- MAP.
Plaintiff, Odyssey Marine Exploration,
undersigned counsel ,
Inc. (" Odyssey
), by and through its
s (" Spain
submits this Response to Kingdom of Spain
) Motion
for an Order Declaring Certain Materials As Not Confidential (Dkt. 78), and in support
thereof states as follows:
MEMORADUM OF LAW
Particularity of Exact Materials Designated as Not Confidential
Dockets.Justia.com
,"
Spain has not met the initial burden of describing with paricularty
on
which
items it wishes the Court to determne the removal of the confidentiality designation
status.
Spain seeks to strke the confidential designations of photographs , arifact lists
arifact descriptions ,
and certain other documents provided by Odyssey" in Spain
See Motion , (Dkt.
Motion for an Order Declarng Certain Materials as Not Confidential.
85 Pg. 6). Pursuant to Paragraph 8 of the Protective Oder Governing Disclosure of
Certain Information (Dkt. 82) (the "Protective Order ), the Protective Order allows Spain
to "apply to the Court for a determnation as to whether (a confidentiality) designation is
appropriate. "
Protective Order (Dkt.
82). The determnation is particular to each and
every document and information designated as confidential "if a pary believes that a document or information designated or sought to be designated confidential by the
producing party does not warrant such designation.
See Protective Order para. 8.
In keeping with the directions ofthe Protective Order, Spain need not reveal
confidential information to state with particularity items that Spain contests as
confidential. Spain can simply
state that it wishes to contest the confidentiality of all
items in a general descriptive group, such as all photographs or all photomosaics.
Odyssey wil then demonstrate that such designation is proper by a showing of "good
cause " for the confidentiality.
Fed. R. Civ. Pro. R. 26(
c). Odyssey cannot diligently
show "good cause" as to the need of confidentiality without knowing exactly which items
Spain objects to as being confidential. In stating in its Motion that Spain seeks to strike
the confidential designations of photographs , artifact lists, artifact descriptions, and
certain other documents provided by Odyssey," Odyssey must make an assumption as to
whether Spain wishes to contest all photographs, all artifact lists, and all artifact
descriptions provided thus far.
Spain contends that Odyssey has adopted a blanet confidentiality approach to the
materials given to Spain. Ironically, in seeking to "strke such (confidentiality)
designations with respect to the photographs, artifact lists, arifact descriptions, and
certain other documents provided by Odyssey," Spain is applying a blanket approach
itself. Odyssey contends that it would be improper for the Court to grant Spain s Motion
for an Order Declaring Certain Materials as Not Confidential, because Spain has not
designated what items do not warrant the confidential status. Indeed, to uphold Spain
objection (as now formulated) would be tantamount to allowing Spain to challenge the
very propriety of the Protective Order it had voluntarily entered into earlier.
Finally, Spain asserts that "its counsel conferred with Odyssey s counsel in a good faith effort to resolve the issues raised by this motion, but counsels were unable to
reach an agreement." (See Motion, Dkt. 85.)
This assertion
is false. Had counsel for
Spain conferred with Odyssey s counsel, counsel for Odyssey would have wilingly
discussed the confidential status of each document.
II.
Reasons to Maintain the Confidentiality of Items given to Spain
Hearings
In Camera
Spain asserts that the public has a right to access civil proceedings , and that a
blanket confidential designation is generally impermssible. While this may generally be
tre, the public right to access is not absolute. "The discovery process, as a matter of
legislative grace, is a statutorily created forum not traditionally open to the public.
Giliam v. HBE Corp.,
2000 U.S. Dist. LEXIS 21914 (D. Fla. 2000). Furthermore, the
unique nature of this case and the general need for confidentiality of evidence involved to
assure the security of arifacts and of the Defendant Site would certainly suggest the
necessity of an in camera inspection by the Court before a ruling as to each piece of
discovery.
A pary may protect or limit discovery by demonstrating that the information sought is a
trade secret or confidential business information and that disclosure may be harmful.
Kaiser Aluminum Chem. Corp. v. Phosphate Eng'g Constr. Co.,
153 F.
D. 686
(M. D. Fla. 1994). A party who resists production of trade secrets in Florida usually does
so under the state s statutory trade secret privilege, Fla. Stat. Ann. ch.
& 90. 506 .
Under
Florida law, when the trade secret privilege is asserted as a basis for resisting production
the court must determne whether the information constitutes a trade secret.
Fresh Produce Co. v.
Del Monte
Dole Food Co. 148 F. Supp. 2d 1322,
1323 , 1323-24 (D. Fla.
2001). This determnation wil usually require that the trial court conduct an in camera
inspection of the materials in question to determne whether they contain trade secrets.
American Express Travel Related Servs., Inc.,
761 So. 2d 1206 (Fla. 4th DCA 2000);
Also see
Salick Health Care, Inc.,
722 So. 2d 944 (Fla. 4th DCA 1998) (finding the trial
court departed from the essential requirements of law when it compelled production of
documents alleged to be proprietary and confidential trade secret information without
first conducting an in camera
hearing and inspection and failing to make specific findings
Uniroyal Goodrich Tire Co.,
of fact concerning the trade secret objections);
673 So. 2d
131 , 132 (Fla. 4th DCA 1996). The party resisting discovery has the burden to show
good cause" for protecting discovery by showing that the information sought is a trade
secret and that disclosure may be harful.
Del Monte Fresh Produce Co.
v.
Dole Food
--
Co. c? 1323. Odyssey willngly accepts the burden to show " good cause" for protecting
confidential information
The Protective Order mandates the maintaining of confidential trade secrets in
paragraph 2 and 6.
See, Protective Order paras. 6 , 8. Additionally, certain discoverable
but confidential items produced to Spain have their own independent economic value
which is contingent upon their not being readily available to the public. An in
camera
proceeding would be necessar to adequately evaluate Odyssey s designation as
confidential.
Artifact List, Pictures, and Video Tapes
The distribution and dissemination of intellectual property including photos and
video from any Odyssey shipwreck or site is carefully controlled, as this is a key
component of Odyssey s business. No photos or videos have been released to the public
from any of the three sites that are currently under the Court' s jurisdiction. To have
photos or video leak out via the internet or other means would have severe financial
repercussions to Odyssey that could reach millions of dollars over the marketing lifecycle
of a project. These items are confidential because they embody "proprietar
research
" or
projected sales data" as those exclusions are referenced in the Protective Order. The artifact lists provided to Spain by Odyssey are confidential because -- for
Spain
s convenience
Odyssey included in the artifact lists photographs which are
confidential. Again, had counsel for Spain conferred with counsel for Odyssey, Spain
Motion may have been unnecessary, and Odyssey could have produced an artifact list
without photographs or descriptions which go to the value of the items. Material, other
than the arifact lists, provided to date has all been photographs or videotapes compiled
by Odyssey which Odyssey expects wil eventually be available for licensing. Details of
the value of these materials can be provided to the Court if necessary.
All video and photographs taken by Odyssey and their crews or employees are
under copyright by Odyssey Marine Exploration and cannot be used without permssion.
Odyssey is careful to protect its copyright to all intellectual property. By allowing Spain
to release photos and video of the sites which Odyssey Marine Exploration has spent
milion of dollars filming and photographing would cause significant financial harm to
Odyssey.
Details and Description of Items Recovered
As stated, Odyssey has provided Spain with a detailed list of artifacts recovered
from the Defendant Site that are in the company s possession. Furthermore, Odyssey has
offered Spain the opportnity
to view each and every
arifact and/or coin. The details and
descriptions of these items, however, necessarily go to their value. As such, this
information is confidential. The photographs of the artifacts and/or coins are intellectual property trade secrets, held by Odyssey, as discussed above. A trade secret is
information that derives independent economic value, actual or potential. A combination
of information can qualify as trade secrets, and does not automatically preclude
protection , even if some or all components are well-known.
Cola Co.,
Penalty Kick Mgmt.
v.
Coca
318 F. 3d 1284 1292 (lIth Cir. 2003).
Odyssey respectfully requests this Court to deny Spain s Motion for an Order
Declaring Certain Materials as Not Confidential because the materials Spain is
contending are not stated with specificity. In the alternative, Odyssey requests this Court
hold an in camera proceeding to determne the status of paricular items to which Spain
objects as being deemed confidential.
In good faith, Odyssey represents to the Court that although counsel for Spain has
not conferred with Odyssey regarding the substance of its Motion, Odyssey wil attempt to resolve the issue of confidentiality of specific discovery with counsel for Spain, prior
to bringing the issue before the Court.
Respectfully submitted
Dated:
Februarv 8, 2008
s/ Allen von Spiegelfeld Allen von Spiegelfeld - FBN 256803 avonsp(jfowlerwhite. com Eric C. Thiel- FBN 016267 ethiel(jfowlerwhite. com FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa, Florida 33601 (813) 228-7411
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: (813) 830-6609
E-mail: mmacconnel(jshipwreck.net
Attorneys for Plaintiff
CERTIFICATE OF SERVICE
HEREBY CERTIFY that on February 8 , 2008 , I electronically fied 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; and David C. Baner, Bush Ross P. 220 S. Franin Street, P. O. Box 3913 , Tampa, FL 33601 Attorneys for Claimant
Kingdom of Spain.
s/ Allen von Spiegelfeld Allen von Spiegelfeld - FBN 256803 avonsp(jfowlerwhite. com Eric C. Thiel- FBN 016267 ethiel(jfow lerwhite. com FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa , Florida 33601 (813) 228-7411
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: (813) 830- 6609
E-mail: mmacconnel(jshipwreck.net
Attorneys for Plaintiff
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?