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

Filing 88

RESPONSE to motion re 86 Supplemental MOTION to compel compliance with disclosure order relating to photographs and videotapes filed by Odyssey Marine Exploration, Inc.. (Attachments: # 1 Composite Exhibit A)(Von Spiegelfeld, Allen)

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

Doc. 88

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF FLORIDA
TAMP A DIVISION

IN ADMIRALTY
ODYSSEY MARINE EXPLORATION, INC.

Plaintiff

: CIVIL

ACTION

: Case No: 8:07-CY-00614- SDM- MAP

THE UNIDENTIFIED, SHIPWRECKED YESSEL 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.

RESPONSE TO KINGDOM OF SPAIN' S MOTION TO COMPEL COMPLIANCE WITH THIS COURT' S DISCLOSURE ORDER RELATING TO PHOTOGRAPHS AND VIDEOTAPES
This Response is an identical filing being made in cases 8:07- CY- 0614- SDM- MAP
and 8:06-CY- 1685- SDM- MAP. (With respect to case 8:07-CY-0616-SDM- MAP , it appears

that no corresponding pleading was actually filed by Spain , but the heading in the other two
cases asserts that it was.

Dockets.Justia.com

Plaintiff, Odyssey, hereby responds to Claimant Kingdom of Spain s Motion to
Compel Compliance with this Court' s Disclosure Order Relating to Photographs and

Videotapes (Dkt. 86) in Case No: 8:07-CY-00614- SDM- MAP and states as follows:
Odyssey has fully complied with the Court' s Disclosure Order. With respect to the

specific items at issue in Spain s Motion, Odyssey further states as follows:

Photographs
Odyssey has, in fact, complied with the Court' s order by producing requested

photographs to Spain.
Neither the Court' s Order nor the Rules of Discovery require Odyssey to

produce the photographs in any specific form.

Odyssey has agreed to produce any photographs requested by Spain in hard
copy form and has stated that depending upon the number of photographs

ultimately requested by Spain, Odyssey may even agree to pay for certain

production costs. (Spain has not yet completed its review of photographs and
request of specific images.

As more fully explained in Odyssey s Response to Spain s Motion to Seal
Pursuant to the Order of February 22 2008 (Dkt. 84), the photographs
represent Odyssey s valuable intellectual property and trade secrets from

which Odyssey s business derives substantial revenue. Producing the
photographs in electronic form substantially increases the likelihood of
unauthorized reproduction in a manner that is difficult to control and would
render it impossible for a source to be traced. In the event of such an

unauthorized reproduction, the possibility would exist for the images to be
widely circulated on the Internet in which case Spain could attempt to
disavow responsibility.
Regarding Spain

s argument that electronic versions of photographs are

necessary for close viewing, it must be noted that a stil photograph can zoomed in" (and enlargements made) just as with an electronic version, and
close ups could actually be clearer than close ups from an electronic image in

which resolution is compromised when "zooming in."

In fact,

Odyssey

typically uses printed versions ofthe images for analytical work and in
reports.

Producing the photographs in electronic form also substantially increases the
likelihood that the images could be altered, and/or that a violation of
Odyssey s property rights would otherwise occur.

Furthermore , it should also be noted that the photographs, and all evidence

produced in this case thus far, have been produced under the Court' s Order
(Dkt. 75), an initial order regarding discovery issued with Odyssey

agreement to expedite resolution of this case. Spain has not as yet been
required to make its Rule 26 disclosures or to produce any evidence in support

of its Verified Claim. As such, Spain is making demands beyond the Court'
Order without having presented one piece of evidence to support its assertion

that it has any interest whatsoever in the Defendant Site. If and when a trial

on the merits of Spain s claim occurs, the form of any documentation
necessary for trial can be determined by the Court.

Rule 26 (5) (b) Federal Rules of Procedure requires that a party return all

confidential information to the producing party upon completion of the

litigation. If Spain had a digital archive of the photographs, Odyssey would
have no way to assure that all digital copies of the photographs had been

returned unless Spain also undertook to document every transmission or

dissemination of the photo archive. Counsel for Spain s refusal to supply a
list of the recipients of this information further exacerbates the problem of

accountability in managing the distribution of photographs. Also , even
deleted" images can stil be recovered from computer hard drives , thus

making it virtally
electronically.

impossible to guaranty return of

photographs produced

This Court has agreed that the security of the site is of the utmost importance.
As such,

the Court should not apply an overly broad interpretation of the rules

of discovery by allowing an unverified claimant to gain unlimited access to
Odyssey s valuable intellectual property and confidential information by
simply stating that it believes it may have a claim. Spain s continued

insistence on seeking such information and , in fact, demanding the form in

which it receives the information, in the absence of any evidence whatsoever
of a valid claim (even on the site of the Italian registered passenger liner (Case

No. 8:07-cv-00616- SDM- MAP)), underscores the need for limited boundaries
as to Spain s requests.
10.

Finally, the Court has already made clear that Odyssey s opportnities for

remedies against the sovereign Governent of Spain are limited with regard

to the jurisdiction of this Court. Thus, if Spain is ultimately held not to have a
valid claim in any of these cases, yet a release of images results in significant

financial damages to Odyssey through loss of intellectual property rights

Spain may not be held accountable in any way. This Court can only protect
Odyssey s rights before such a loss occurs.

II.

Videotapes
11.

Spain has misrepresented Odyssey s position regarding production of the
videotapes.

12.

Counsel for Spain and Counsel for Odyssey agreed that Odyssey would

produce the videotapes and that Spain would not make more than one copy
until the matter could be brought before the Court. (See correspondence from
Melinda J. MacConnel, Counsel for Odyssey, to James Goold, Counsel for
Spain , dated February 27 2008 and correspondence between Counsel of
February 25 , 2008 ,

attached hereto as Composite Exhibit A.)

13.

Odyssey had not requested that Spain refrain from making duplicates , but
merely that Spain inform Odyssey ofthe number of duplicates made. Counsel

for Spain has refused this reasonable request.

14.

Again , Rule 26 (5) (b) Federal Rules of Procedure requires that a pary return all confidential information to the producing party upon completion of the

litigation. Odyssey would have no way to assure that all copies of the
videotapes had been returned if it did not know how many copies existed.
15.

To require Spain to inform Odyssey of the number of copies made, would
surely not be overly burdensome on Spain.

WHEREFORE , Odyssey respectfully requests this Court to deny Spain s Motion to
Compel Compliance with this Court' s Disclosure Order Relating to Photographs and
Videotapes.

Respectfully submitted
Dated: March 4, 2008

s/ Allen von Spiegelfeld Allen von Spiegelfeld - FBN 256803 avonsp(ffowlerwhite. com Eric C. Thiel- FBN 016267 ethiel(ffowlerwhite. 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 Marne Exploration, Inc. 5215 West Laurel Street Tampa, FL 33607 (813) 876- 1776 , ext. 2240
Fax: [phone]

E-mail: mmacconnel(fshipwreck.net
Attorneys for Plaintiff

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 4 2008 , I electronically filed the foregoing with the Clerk of the Court by using the CM/ECF system which wil send a notice of electronic Burling LLP, 1201 Pennsylvania Ave. , NW fiing to James A. Goold, Covington Washington , DC 20004; and David C. Banker, Bush Ross P. , 1801 North Highland Avenue Tampa, Florida 33602 Mailing Address: Post Office Box 3913 Tampa, Florida 33601 , Attorneysfor Claimant, Kingdom of Spain.

s/ Allen von Spiegelfeld Allen von Spiegelfeld - FBN 256803 avonsp(ffowlerwhite. com Eric C. Thiel- FBN 016267 ethiel(ffowlerwhite. 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 Marne Exploration, Inc. 5215 West Laurel Street Tampa, FL 33607 (813) 876- 1776 , ext. 2240
Fax: [phone]

E-mail: mmacconnel(fshipwreck.net
Attorneys for Plaintiff