DONALD C. RANDOLPH, ESQ., California State Bar Number: 62468 RANDOLPH & LEVANAS A Professional Corporation 1717 Fourth Street, Third Floor Santa Monica, California 90401-3319 Telephone: 310/395-7900 Attorneys for Defendant KEVIN DAVID MITNICK UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) CASE NO. CR 96-881-MRP ) Plaintiff, ) REPLY IN SUPPORT OF ) DEFENDANT'S EX PARTE v. ) APPLICATION TO CONTINUE ) TRIAL DATE KEVIN DAVID MITNICK, et. al, ) ) Defendants. ) DATE: ) TIME: ) COURT: 12 _________________________________) TO ALEJANDRO MAYORKAS, UNITED STATES ATTORNEY, AND TO HIS ASSISTANTS DAVID SCHINDLER AND CHRISTOPHER PAINTER: Defendant, KEVIN DAVID MITNICK, by and through his attorney of record, Donald C. Randolph, hereby submits this Reply to the Government's Opposition to Defendant's Ex Parte Application to Continue Trial and Order Discovery. This Reply is based upon the attached memorandum of points and authorities, the Government's Proposed Exhibit List (filed concurrently with this reply and under seal), the files and records, and any oral or documentary evidence which may be adduced at hearing on this matter. DATED: January 22, 1999 Respectfully submitted, RANDOLPH & LEVANAS By: ________________________ Donald C. Randolph Attorneys for Defendant Kevin David Mitnick MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This case has presented novel logistical problems relating to the disclosure and review of evidence which have required greater lengths of time to address than either party could have anticipated. Perhaps the best indicator of the complexity associated with assimilating this data is found in the government's own difficulties, considering the following: - government's disclosure of witness statements (approximately one month late); - government's disclosure of electronic discovery (disclosed over a period of six months); - government's disclosure of tentative Exhibit List (produced one and one-half months after promised); - government's proposal of files subject to protective order (disclosed seven months after ordered to do so). Given the foregoing, and for all the reasons set forth herein, the Court should grant a reasonable continuance of the trial date. II. ARGUMENT A. The Original Pretrial Discovery Schedule Did Not Allow for Sufficient Defense Preparation Given the Facts of this Case. In June 1998, the defense submitted its position with respect to the Omnibus Order re: pretrial management and discovery. Even at that time, the defense did not fully recognize the complexity and vast scope of the preparations needed to prepare this case for trial, such as: 1. The magnitude of the electronic evidence, and the unique problems associated with reviewing it due to its technical nature, due to the fact that the government had yet to provide a copy to the defense, and due to the fact that the defendant is incarcerated; 2. The number of newly-disclosed government exhibits (consisting of over 1,700 computer files, virtually all of which require expert analysis); 3. The number of potential witnesses who might be called at trial (approximately 120) and the far reach of their locations (world-wide). While the discovery schedule ordered by the Court could be considered "generous" given the facts of most cases, this schedule simply did not adequately address the complexity and volume of the evidence presented by the government in this case. The discovery schedule still does not adequately address the uncommon facts of this case. B. The Government Failed to Meet its Discovery Obligations and Misled the Court and the Defense. 1. Exhibit List On December 3, 1998, the Court continued the trial in this matter due to the fact that the government had failed to comply with the Court's previous discovery Order. Also on December 3, 1998 the government made oral promises, later confirmed in writing on December 8, 1998 that it would produce the Exhibit List within one week. See Ex Parte Application at Exhibit B. In fact, the government did not produce the Exhibit List until one and one-half months later. Given the broad discrepancy between the government's written promise and its actual production of the Exhibit List, it is difficult to conclude other than that the government acted recklessly, at a minimum, in making representations which it knew would be relied upon by the defense. The government disingenuously suggests that its failure to produce the Exhibit List, according to its own promised timetable, was "attributable to defendant's demands that the government individually delineate which files it believed should be subject to a protective order." Government Opposition at 6, n.1. This contention is pure fiction. It is the government alone who decided to disclose the Exhibit List and the proposed Protective Order in a combined fashion, all to the detriment of the defense. The defense was therefore provided with a defective Exhibit List which is admittedly "over- inclusive" and contains "far more exhibits than we [the government] actually intend to introduce at trial." Exhibit A, attached. As a result, the defendant has been denied the primary benefit intended through production of the Exhibit List, to wit focusing the investigation through identification of those items of evidence the government believes are most relevant to the charges. 2. Protective Order The government is further incorrect in stating that the government's identification of files subject to a proposed Protective Order has "nothing to do" with the defendant's ability to prepare a defense. To the contrary, the Protective Order was necessary to identify those files which the government believes contain proprietary software obtained without authorization. Identification of these files is crucial to the preparation of the defense in this case insomuch as the nature of the data contained within the files will have an impact on the applicability of the charges listed under the Indictment. The government fails to acknowledge any responsibility for its own failure to identify those files it seeks to include under the Protective Order, as required by the Court, for a period of nearly eight months. 3. Defense Investigations The government contends that the defense has exercised a lack of diligence in investigating this case, such as through witness interviews since, "the fact that some of the witnesses in this case are in foreign countries has been known to defendant since 1996." Gov't Opposition at 7. Presumably, given this limited knowledge, the defense should have been expected to conduct investigations of these individuals despite the fact that their names, proposed testimony, and addresses were not known to the defense until the 1,300 pages of witness statements were produced to the defense on November 17, 1998. Naturally, the defense had no ability to meaningfully interview any potential witness prior to that date. Additional, costly investigations such as those involving searches and seizures in Seattle, Washington and Raleigh, North Carolina were not previously conducted until their necessity was proven due the breakdown of settlement negotiations. The defense also refrained from engaging in cost-intensive investigations into the electronic evidence at the MDC which required the presence of an attorney at all times during the review. The defense simply did not find it an appropriate expenditure of taxpayer dollars to hire an attorney to essentially baby-sit a laptop computer for hours on end when it believed in good faith that this case would settle. *1 III. CONCLUSION For all the foregoing reasons, a reasonably continuance of sixty days should be granted in this matter. DATED: January, 22, 1999 Respectfully submitted, RANDOLPH & LEVANAS By: ________________________ Donald C. Randolph Attorneys for Defendant Kevin David Mitnick *1 As previously noted, the defense is mindful of the Court's admonitions regarding the expenditure of CJA funds in this matter.