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

Filing 27

,: /:

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

Doc. 27 Att. 1

Case 8:07-cv-00616-JSM-MSS

Document 27-2

Filed 08/06/2007

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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-00616-JSM-MSS

THE UNIDENTIFIED SHIPWRECKED VESSEL its apparel, tackle, appurenances and cargo located within a five mile radius of the center coordinates provided to the Court under seal
Defendant; in rem
and

. The Kingdom of Spain
Claimant and Defendant.

AFFIDAVIT OF GREGORY P. STEMM IN RELATION TO . PLAINTIFF' S MOTION FOR ENTRY OF A PROTECTIVE ORDE REGARING PRELIMINARY SITE ASSESSMENT
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 infonnation contained herein and

hereby swear that the infonnation is tre

and accurate

to the best of my knowledge.

Dockets.Justia.com

,"

Case 8:07-cv-00616-JSM-MSS

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I am the Cofounder and Co-Chainnan

of Odyssey Marne 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 Preliminar

Site Assessment ("PSA"
extensive Preliminary Site Assessment

Odyssey" has prepared an

(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 artifacts from the Defendant
Site. The PSA also contains very sensitive and proprietar
infonnation (handled as

trade

secrets by the Odyssey) about Odyssey s sources and methods in conducting shipwreck

exploration , archaeological excavation, as well as arifact 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.
F or reasons that

I wil elaborate here, Odyssey is very reluctant to have

this PSA made available to the public. Release of the infonnation 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 of the 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 frenz

of

competing activities and attempts to recover the balance of the goods at the site. Such

Case 8:07-cv-00616-JSM-MSS

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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 in this
case , as well as this Court' s jurisdiction and authority to adjudicate the matter.

Odyssey is a publicly traded company in the United States (NASDAQ:
ticker "OMEX"), subject to all of the public disclosure requirements and strctures
of the

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

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

strict nondisclosure policy which serves to assure that no infonnation wil
under strct penalties and consequences for anyone that violates this policy.
Attached is a nondisclosure agreement which must be

be leaked

signed by all

Odyssey employees and consultants requiring them to maintain the confidentiality of
infonnation regarding Odyssey s business operations.
10.

Odyssey signed a similar nondisclosure agreement with Volvo when

began a project in March 2007, in which Odyssey agreed to bury treasure for Volvo as
par 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 pennission from Volvo to
communicate the natue of the project.

Odyssey provided the infonnation to the U.

State Deparent who communicated it to the Spanish Embassy with the express caveat

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

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

by a Spanish

official that an

internal investigation detennined that this leak originated from the Spansh Ministr of

Culture in Madrid.
11.

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

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

confidentiality

safeguards , would constitute an actionable selective

release of material non-public

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

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

Odyssey s sources and methods in conducting shipwreck exploration and archaeological

arifact recovery. This is infonnation 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 millons of dollars in financing, to accumulate.
13.

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

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's, George realized that new technologies could further advance the discipline of nautical
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 a fundamental tenet of RPVoperations. Source: http://ww. rpmnautical. org/aboutrpm. htm

Case 8:07-cv-00616-JSM-MSS

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Thisfrom the Project Overview section of the RPM Nautical Foundation s survey off
Spain in 2004:
An extensive survey of the coastal waters near Cadiz, Spain was conducted from May through 2004 in partnership with the Centro di Arquelogica Subaquatica of the Junta of Andalucia and Institute of Nautical of Archaeology. Archaeologists from CAS provided extensive information from 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

frequent interrptions due to adverse weather.

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

14.

Odyssey has been active in promoting
to the

the provIsIOn of underwater
of

archaeology servIces

Spanish Governent and the Autonomous region

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
provision of these services.
15.
to locate and

in competing with Odyssey.

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

work on the subject Defendant Site,

if even

only vague locational

infonnational is obtained through their Chainnan, 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 infonnation that may provide

Spain with access to the subject Defendant Site. For this reason, Odyssey is concerned
that any infonnation relative to the location of the Defendant Site which is provided to

Case 8:07-cv-00616-JSM-MSS

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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 will have a direct effect on the effciency,
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 infonnation and insights into the manner

that Odyssey conducts its operations,

such that a well-infonned 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 thoughout the world , all essential to Odyssey s operations. The
archival and curation infonnation 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 pennit media,
intenneddlers to "shadow "

competitors, or officious

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

rival claimant to circumvent Odyssey

s significant

investment in research , data-

collection , ocean surveys and ground-trthing,
operations on the Defendant Site.

and actually locate and begin recovery

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 pary, even for activities taken in violation of the Court'

orders and in derogation of Odyssey

s rights. The very

jurisdiction of this Cour 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
arrogated.
19.

The disclosure of the PSA or any par of it would cause irreparable har

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

par

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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Case 8:07-cv-00616-JSM-MSS

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I CERTIFY THT TH ABOVE IS TRUE AN OF MY KNOWLEDGE

CORRCT TO TH BEST

Gregory Cofounder.a

Co- Chairman Odyssey Marie

Exploration Ine

COUN OF HILSBOROUGH
by

STATE OF

FLORIA
'57tmlY

(fIrR V j5/J

The foregoing instrment

was aclrowledged before me

ths

day of August, 2007, :wn by me

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Case 8:07-cv-00616-JSM-MSS

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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
__n..m...

CONFIDENTIALITY POLICY

Purpose

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 History
1 October 27 , 2004
1 Revised

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

Policy
Working Relationship The Company and Person Affected have entered into a working relationship involving one or more aspects ofthe Company s business. Hereinafter referred to as the ("Working Relationship ). In order for the Person Affected and the Comp&1Y to potentially or actively engage in a Working Relationship, the Company agrees to furnished the Person Affected infonnation , including certain confidential, nonpublic infonnation, as well as general infonnation about the company and/or its operations (collectively "the Infonnation
4.2

Confidentiality In consideration of the Company s disclosure of the Infonnation, the Person Affected agrees that he/she/they wil keep the Infonnation confidential and that the Infonnation will not , without the prior written consent of the Company, be disclosed by the Person Affected, to any third parties, in any maner whatsoever, in whole or in part , and shall not be used by the Person Affected other than in connection with the proposed Working Relationship.

The Person Affected agrees that, at the conclusion of his /her review of the Infonnation, or within three business days after the Company s request, all copies of the Infonnation in any fonn 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.
Return ofthe Infonnation

4.4

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

The Person Affected further agrees that he wil 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 infonnation regarding the Company. (See also: Insider Trading Policy)

Iniunctive Relief The Person Affected acknowledges and agrees that, in the event of any
breach of this Agreement, the Company would be irreparably and immediately hared and could not be made whole by monetar 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 perfonnance ofthis 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 infonnation.

Attachment Page 3