Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel
Filing
30
MOTION for protective order
Regarding Preliminary Site Assessment by Odyssey Marine Exploration, Inc.. (Attachments: #
1 Text of Proposed Order)(Von Spiegelfeld, Allen) Motions referred to Magistrate Judge Mary S. Scriven.
Odyssey Marine Exploration, Inc. v. The Unidentified Shipwrecked Vessel
Doc. 30
Case 8:07-cv-00616-JSM-MSS
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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, appurtenances 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.
PLAINTIFF' S MOTION FOR PROTECTIVE ORDER REGARDING PRELIMINARY SITE ASSESSMENT
Plaintiff, Odyssey Marine Exploration, Inc. (" Odyssey ), by its undersigned
counsel , hereby moves for entry of a Protective Order granting Odyssey s request that (1) the
Court hold the Preliminary Site Assessment (hereinafter PSA" ) relative to the Unidentified
Shipwrecked Vessel under seal; (2) information contained within the PSA which is relevant to
the claim of Claimant Spain and which , if released, wil not jeopardize the security of the
Unidentified Shipwrecked Vessel, be released to Claimant Spain and counsel for Spain once
Claimant Spain designates a particular authority within Spain to take possession and control over
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the information and that authority and counsel for Spain both sign a Confidentiality Agreement not to release the information to any other person or authority, even authorities within the
Spanish governent, without leave of Cour.
The grounds supporting this motion are set forth in the accompanying
memorandum oflaw, which is incorporated herein by reference.
Respectfully submitted
Dated:
August 6, 2007
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 (813) 228-7411
sf
Facsimile: (813) 229- 8313
Attorneys for Plaintiff
/:
Case 8:07-cv-00616-JSM-MSS
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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, appurtenances 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
PLAINTIFF' S MEMORADUM OF LAW IN SUPPORT OF THE MOTION FOR ENTRY OF A PROTECTIVE ORDER REGARDING PRELIMINARY SITE ASSESSMENT
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 Regarding Preliminary Site Assessment.
BACKGROUND
The Paries
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
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and the recovery of shipwrecks around the world.
The Unidentified Shipwrecked Vessel rests at a depth of approximately 500
meters , beyond the terrtorial waters or contiguous zone of any sovereign nation , in the
Mediterranean Sea. For security reasons, the center point coordinates of the area in which the
Unidentified Shipwrecked Vessel is located have been provided to the Court under seal. Evidence at the Unidentified Shipwrecked Vessel indicates that efforts , if any, by any previous
owner to salvage the Unidentified Shipwrecked Vessel and/or its cargo have been long since
abandoned.
Claimant herein, Spain, filed a Verified Claim on May 30 2007 , (Dkt. 14) stating
in par 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.
Claimant , Spain s Verified Claim does not assert a basis for any claim specific to this
Unidentified Shipwrecked Vessel.
History
On April 9, 2007, Odyssey filed the initial Verified Complaint In Admiralty
Rem (Dkt. 1) against the Defendant in this case. Odyssey also turned over to the U. S. Marshal a
tea cup recovered from the Unidentified Shipwrecked Vessel for the symbolic arrest of the
Unidentified Shipwrecked Vessel.
On April 13 ,
2007, this Court entered the Order Appointing Substitute Custodian
(Dkt. 10) and found that Odyssey was duly qualified to serve as the Substitute Custodian of the tea cup and other artifacts recovered from the Unidentified Shipwrecked Vessel.
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On April 13 ,
2007 , this Court issued an Order Directing the Issuance of a Warrant
of Arest (Dkt. 6).
On April 13 ,
2007, the Clerk issued the Warrant of Arest.
On May 30 2007 , Claimant, the Kingdom of Spain filed its Verified Claim (Dkt.
14). Spain
s claim does not assert a basis for any claim specific to this Unidentified
Shipwrecked Vessel.
Along with this Motion, Odyssey filed its Amended Complaint which referenced
this Motion and the subject PSA.
Odyssey filed a Motion for Extension on July 23 2007 , (Dkt. 20) and this Court
entered an Endorsed Order (Dkt. 21) granting Odyssey s Motion and giving Odyssey until
August 6 ,
2007 to file its response.
The Wreck Site
The Unidentified Shipwrecked Vessel rests on the sea floor at a depth of
approximately 500 meters ,
within the Mediterranean Sea beyond the terrtorial waters or
contiguous zone of any sovereign nation. The Unidentified Shipwrecked Vessel' s position is
located within a five mile radius of the center point coordinates which have been provided to the
Court under seal. Odyssey first located the Unidentified Shipwrecked Vessel in January 2006
using sophisticated sonar and magnetometer equipment. Odyssey has recovered articles from the
Unidentified Shipwrecked Vessel and is ready and able to conduct further operations to explore
and document the shipwreck, consistent with archaeological protocols appropriate for this Unidentified Shipwrecked Vessel , and to recover additional artifacts from the Unidentified
Shipwrecked Vessel.
,"
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When Odyssey first filed the initial Complaint , it had surveyed the wreck site and
had begun an archaeological pre-disturbance survey taking video and photographs of the
Unidentified Shipwrecked Vessel. Odyssey believes that the vessel associated with the wreck
site is an Italian-registered passenger ship which sank in 1915 during World War
The Preliminary Site Assessment ("PSA"
Subsequent to the arrest and the Court appointing Odyssey as Substitute Custodian , Odyssey found and safely transported several artifacts to the Middle District of
Florida from the Unidentified Shipwrecked Vessel which are undergoing conservation according
to strict archaeological protocols. Odyssey has prepared a Preliminary Site Assessment
(hereinafter PSA") regarding the Unidentified Shipwrecked Vessel and the artifacts recovered
and wil present that to the Court under seal. It is Odyssey s desire that the Court has a full and
complete understanding of the wreck site , the artifacts recovered to date , and the efforts and
expense incurred by Odyssey to recover and conserve the artifacts in an archaeologically sound
manner.
Prior to filing the PSA, however, Odyssey hereby requests from the Court a
Protective Order stating that (1) the Court wil
hold the
PSA relative to the Unidentified
Shipwrecked Vessel under seal; (2) information contained within the PSA which is relevant to
the claim of Spain and which , if released, wil not jeopardize the security of the Unidentified
Shipwrecked Vessel, be released to Spain and to Spain s counsel only after Spain designates a
particular authority within the country to take possession and control over the information and
that both that authority and counsel for Spain sign a Confidentiality Agreement not to release the
information to any other person or authority, even authorities within the Spanish governent
without leave of Court.
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Spain s Appalling Behavior
The factual basis for Odyssey s request for a Protective Order include the sensitive and valuable nature of the information contained within the PSA and the actions to date
of Claimant, Spain against Odyssey in its effort to force Odyssey to reveal the location of
artifacts it has recovered. Odyssey is prepared to release certain information from the PSA as
directed by the Court to Claimant, Spain, however, Odyssey submits that given the information
garnered from the items recovered thus far, there is nothing which would require that the Kingdom of Spain or any other third party be given any more specific information other than
what is contained in this Amended Complaint and the Exhibits which are par of the public
record. These concerns are elaborated in the attached affidavit of Gregory P. Stemm , Odyssey
Cofounder.
Odyssey s recovery of artifacts from this and other sites has been the subject of
intense international media attention, especially in Spain. Many Spanish media reports have
been filled with inaccuracies including false claims that artifacts were recovered ilegally from
Spanish terrtorial waters. As a result of the false reports, and despite Odyssey s continued
assurance that no artifacts have been recovered anywhere near Spanish territorial waters
Odyssey became the subject of a criminal investigation in Spain. In fact , Odyssey became aware
through the Spanish press that Spanish authorities would intercept and inspect Odyssey s vessels
(the Ocean Alert and the Odyssey Explorer)
if they attempted to depart Gibraltar where they
were docked. Odyssey s attorneys were denied access to the order, however, and were told that
the order was "secret." Odyssey s attempts to appear in its defense were unsuccessful. Thus
Odyssey prepared a Sworn Statement of Gregory P. Stemm , Odyssey s Cofounder, explaining
Odyssey s actions and the facts surrounding the arrest , the recovery, and the subsequent claims
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and baseless detention of Odyssey s ships by Spain. (A copy of the Sworn Statement including
all Exhibits was attached to the Amended Complaint in this case).
Despite the fact that Odyssey provided the Sworn Statement and further information regarding its recovery to Spanish officials, and despite the assurance of the Spanish
criminal judge (Judge Juan Jose Navas Blanquez sitting in substitution of the Judge for the
Number Three First Instance and Preliminary Investigating Court of La Linea de la Concepcion
and district - a different judge from the one who signed the original "secret order ), that
Odyssey s vessels would not be boarded without the consent of the Master or forcibly taken to a
Spanish port, on July 12, 2007, while Odyssey was moving its vessel the
Ocean Alert
from
Gibraltar , and while the vessel was in international waters , Spain boarded the vessel under
protest from the Master and ilegally seized the vessel forcing it into the Spanish port of
Algeciras. Having alerted the Spanish media to the boarding and seizure, Spanish authorities
paraded the Ocean Alert
along the coastline for photograph and video opportnities.
Additionally, despite her protests, officials seized the personal computer of one of Odyssey
attorneys , Marie Rogers, and ilegally copied all attorney/client privileged information regarding
Odyssey and other clients. As of the date of this Amended Complaint , the computer has been
returned without the hard drive. The original hard drive and copy are retained in the custody of
the court. A formal complaint and request for the return of the hard drive and all copies taken
has been made to the court and is currently pending decision by the Judge as to the legitimacy of
the seizure of the laptop.
Once in Algeciras, Odyssey s crew and attorneys were forced by the Spanish
officials to sit in the scalding sun for approximately seven hours without food or water or use of
the restroom. Their passports were taken (but returned later that day) as were all of their
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electronic equipment (of which the hard drives have been removed and only the empty laptops
returned). The Odyssey Explorer
remains blockaded in Gibraltar by virte
of the
criminal order
and threatened seizure by Spain. Odyssey s rights granted by this Court to continue its recovery
have been restricted by Spain, and Odyssey s damages as a result of Spain s conduct are
extensive.
Given the conduct of Spain to date, Odyssey has every reason to believe that
Spain wil use any information contained in the PSA as a clue to the location of this wreck site.
Interestingly, counsel for Spain, Jim Goold, is the Chairman ofRPM Nautical Foundation, a
potential competitor in the provision of underwater archaeological services to Spain and other
countries. Clearly, Odyssey has an interest in assuring the confidentiality of any information
from the PSA which wil
be released
into his possession and control. Therefore, Odyssey
requests that the Court not release any of the information from the PSA unless and until a
confidentiality agreement is in effect which designates a particular authority within Spain to take
possession and control over the information and both that authority and counsel for Spain sign a
Confidentiality Agreement not to release the information to any other person or authority, even
authorities within the Spanish governent, without leave of Court.
11.
LEGAL ANALYSIS The Courts have long understood that, in salvage cases, especially those involving
sunken wrecks , secrecy is often of the utmost importance.
Unidentifed Wrecked and
America Discovery Group v. Abandoned Sailing,
See
Treasure Salvors,
Inc.
546 F. Supp. 919 (S. D. Fla. 1981);
291
Columbus
303 (4th
Atlantic Mutual Insurance Company, et. aI. 203 F. 3d
of the location important,
Cir. 2000). Not only is secrecy
but secrecy as to the amount of
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property obtained and the wreck' s
provenance data
l is also important.
This matter is no
different. This Court should exercise its discretion and grant a protective order guaranteeing the
PSA concerning this unidentified shipwreck remain protected.
Upon motion by a
party, the Court may protect the disclosure
or public
availability of "a
information. "
trade
secret or other confidential
research, development, or commercial
Fed. R. Civ. P.
26(c)(7). To determine whether the moving party has shown good
cause , this Court is required to balance the interests of those requesting the order with other
competing rights to the disclosure
County,
of the
material.
v.
See
McCarthy
v.
Barnett Bank of Polk
758 F.2d 1545
1304 (11th
876 F.2d 89 ,
91 (11th Cir. 1989);
Farnsworth
Procter
Gamble, Co.
1547 (11th Cir.1985);
Chicago Tribune Co.
v.
Bridgestone/Firestone, Inc. 263 F. 3d
Cir. 2001).
This Court has already recognized the unique nature of this maritime salvage
action and granted Plaintiffs motion for protective
order in sealing the exact location of the
current unidentified shipwreck (Dkt. 2, 4). In addition to the good cause shown for sealing the
coordinates of the wreck, good cause also exists to seal the PSA and place limitations on any
disclosure of information contained in the PSA to Claimant Spain.
As detailed above and in the Affdavit of Gregory P. Stemm, the preparation of
the PSA in this matter required the expenditure of vast amounts of time and expertise. (Affidavit
Paragraph 5). Indeed,
the research and expertise used to create the PSA is an essential part of the
and adds to the value of any
process of identifying and salvaging a historical shipwreck,
Provenance Data" is defined as "valuable historical and archeological information concerng the exact location depth and proximity of each item found with respect to other items. Cobb Coin Co.. Inc. v. Unidentified. Wrecked and Abandoned Sailing Vessel, 549 F. Supp. 540 , 558 (S. D. Fla. 1982). The Court fuher noted that "the provenance data is important not only to historians, archeologists and anthropologists , but it documents the . at 559. authenticity and thus enhances the resale value of otherwise precious artifacts.
1"
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recovered items. (Affidavit, Paragraph 6). The present wreck location is an active historical site
and the protection of the wreck' s
location for both archeological and salvage
purposes is
essential. The information contained in the PSA, if released, would greatly prejudice the security
of the Unidentified Shipwrecked Vessel and allow competing salvors to gain enough information
to attempt unauthorized salvage at the wreck site (Affidavit, Paragraphs 7, 15- 17).
Plaintiff is wiling to provide certain information from the PSA to Spain that is
relevant to its claim. Plaintiffs recent recovery has set off a media circus in Spain, leading to a
highly charged political environment with several competing internal individuals and authorities
in the Spanish
Governent apparently competing over jurisdiction and control
Minister of Culture,
over the
unidentified wreck. The Spanish
the autonomous State of Andalucia, and
Spain may all have competing claims for the shipwreck. Accordingly, in order to protect the
security of the Unidentified Shipwrecked Vessel while providing information to the Claimant in
this matter, this Court should require that any information from the PSA be released to Spain
only if a confidentiality agreement is signed preventing the dissemination of the disclosed PSA
excerpts to persons other than the intended party.
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
its interests in keeping the PSA confidential greatly outweigh any competing interest in the
unlimited disclosure of the
data.
Thus ,
Odyssey
s Motion for Protective Order should be
granted.
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Respectfully submitted
Dated:
August 6, 2007
s/ Allen von Spiegelfeld Allen von Spiegelfeld - FBN 256803 avonsp(ffow lerwhite. com Eric C. Thiel- FBN 016267 ethi el (ffow lerwhite. com FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa , Florida 33601 (813) 228-7411
Facsimile: (813) 229- 8313
Attorneys for Plaintiff
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on August 6 2007 , I electronically filed the foregoing
with the Clerk of the Court by using the CM/ECF system which wil send a
notice of electronic
fiing to James A. Goold, Covington & Burling LLP, 1201 Pennsylvania Ave. , NW, Washington
DC 20004, Attorneys for Claimant, Kingdom of Spain.
s/ Allen von Spiegelfeld Allen von Spiegelfeld - FBN 256803 avonsp(ffow lerwhite. com Eric C. Thiel- FBN 016267 ethiel(ffowlerwhite. com FOWLER WHITE BOGGS BANKER P. O. Box 1438 Tampa, Florida 33601 (813) 228-7411
Facsimile: (813) 229- 8313
Attorneys for Plaintiff
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