In the Preliminary Pretrial Conference on June 9th Spain and Odyssey updated the Court on the current status of discovery. For the most part they argued about the timing and sequencing of discovery. Evidently, Judge Pizzo saw a potential problem in the proceedings in that Spain is playing the Sovereign Immunity card.
http://docs.justia.com/cases/federal/district-courts/florida/flmdce/8:2007cv00614/197978/114/
"The Kingdom of Spain contends that the vessel which is the subject of this case is the Spanish Royal Navy Frigate Nuestra Señora de las Mercedes (“Mercedes”), and states its intention to file a dispositive motion asserting that the Mercedes is immune from any claims or arrest in the United States under, inter alia, the Foreign Sovereign Immunities Act."
"The parties have not yet briefed the issue, and the Court has not determined whether immunity under any of these authorities applies. Nonetheless, because Spain’s assertion of sovereign immunity is a challenge to this Court’s jurisdiction, the Court is duty-bound to determine this issue at the earliest possible stage in the case."
"Although it is not yet clear whether FSIA applies in this context, the Court finds that the approach courts take in FSIA cases – ordering discovery “circumspectly and only to verify allegations of specific facts crucial to an immunity determination” – is likewise appropriate here."
"Accordingly, the Court will defer setting discovery deadlines for sixty days to allow Spain to file a dispositive motion asserting sovereign immunity. Odyssey then will have sixty days to respond. If, in framing its response, Odyssey determines discovery is warranted relating to particular issues Spain raises in its motion, Odyssey may make a specific request for leave from the Court to conduct discovery on those issues."
"Although it is not yet clear whether FSIA applies in this context, the Court finds that the approach courts take in FSIA cases – ordering discovery “circumspectly and only to verify allegations of specific facts crucial to an immunity determination” – is likewise appropriate here."
("[S]overeign immunity is an immunity from the burdens of becoming involved in any part of the litigation process, from pretrial wrangling to trial itself. . . . The Court . . . must balance ‘between permitting discovery to substantiate exceptions to statutory foreign sovereign immunity and protecting a sovereign's or sovereign agency's legitimate claim to immunity from discovery.'").
"Accordingly, the Court will defer setting discovery deadlines for sixty days to allow Spain to file a dispositive motion asserting sovereign immunity. Odyssey then will have sixty days to respond. If, in framing its response, Odyssey determines discovery is warranted relating to particular issues Spain raises in its motion, Odyssey may make a specific request for leave from the Court to conduct discovery on those issues."
"Accordingly, it is hereby ORDERED:
1. Counsel for Spain is directed to file a motion asserting immunity on or before August 11, 2008.
2. Counsel for Odyssey is directed to file a response on or before October 10, 2008.
DONE AND ORDERED in Tampa, Florida on June 11, 2008."