ALEJANDRO N. MAYORKAS
United States Attorney
GEORGE S. CARDONA
Assistant United States Attorney
Chief, Criminal Division
DAVID J. SCHINDLER (Bar No, 130490)
Assistant United States
Attorney Senior Litigation Counsel
CHRISTOPHER M.E. PAINTER (Bar No. 154034)
Assistant United States Attorney
Major Frauds Section
1100 United States Courthouse
312 Worth Spring Street Los Angeles, CA 90012
(213) 894-0336/0358
Attorneys for Plaintiff
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA Case No. 96-881-MRP
Plaintiff GOVERNEMNT'S REQUEST FOR AN
v. ORDER TO SHOW CAUSE WHY
KEVIN DAVID MITNICK, DEFENSE COUNSEL SHOULD NOT BE
Defendant. SANCTIONED FOR RELEASING
CONFIDENTIAL VICTIM LOSS
LETTERS; EXHIBITS
The United States of America by and through its undersigned
counsel of record, hereby petition the court to issue an order to
show cause to Donald Randolph, Esq., why he should not be
sanctioned or held in contempt for releasing to the public
confidential victim loss letters provided to defendant and his
counsel pursuant to an explicit confidentiality agreement. This
application is based upon the attached memorandum of points
and authorities and the exhibits attached hereto.
DATED; May 6, 1999
Respectfully submitted,
ALEJANDRO N. MAYORKAS
United States Attorney
GEORGE S. CARDONA
Assistant United States Attorney
Chief, Criminal Division
DAVID J. SCHINDLER
Assistant United States Attorney
Senior Litigation Counsel
CHRISTOPHER M.E. Painter
Assistant United States Attorney
Attorneys for Plaintiff
UNITED STATES OF AMERICA
MEMORANDUM OF POINTS AND AUTHORITIES
I.
For several years, the government and counsel for defendant
have maintained an agreement through which the government has
disclosed proprietary and confidential victim information to
defendant and his counsel in exchange for counsel's explicit
agreement to maintain such information confidential. Indeed,
copies of the proprietary software files stolen by defendant were
made available to defendant under such an agreement after
substantial negotiation.
Similarly, victim loss letters were disclosed to counsel for
defendant pursuant to a similarly explicit agreement not to
disclose such letters. Attached as Exhibit A to the instant
motion is a copy of a March 23, 1998 letter, wherein Mr. Randolph
explicitly agreed not to disclose information contained in the
victim loss letters disclosed to him. Mr. Randolph executed this
letter on March 26, 1998.
Notwithstanding (1) Mr. Randolph's explicit agreement not to
disclose victim loss letters; (2) the fact that several of these
letters explicitly state that they are confidential and business
proprietary; and (3) that, as a matter of course, materials
regarding sentencing proceedings are confidential and filed under
seal, Mr. Randolph attached these same victim loss letters to a
public filing. Apparently, Mr. Randolph and/or the defendant
then provided copies of the victim loss letters to "2600"
magazine, an online magazine, and to the "FreeKevin" website for
posting on the web. Attached as Exhibit B are copies of the
articles written on 2600 and the FreeKevin site about the victim
letters as well as redacted copies of the electronic
reproductions of the victim letters posted on these websites.1
Mr. Randolph's public disclosure and dissemination of the
victim loss letters was clearly designed to cause additional
injury to the victims of defendant's conduct or to cause such
victims embarrassment or ridicule. The government cannot
conceive of any excuse for Mr. Randolph's conduct.
Accordingly, the government respectfully requests that the
court issue an order to show cause why Mr. Randolph should not be
sanctioned for his knowing violation of the confidentiality
agreement that was designed to protect the victims of defendant's
conduct from further harm. Furthermore, the government
respectfully requests that this court enter an additional order
explicitly prohibiting defendant or his counsel from publicly
disclosing any additional confidential information that may be
provided to them.
1The victim loss letters posted on the various websites
were "scanned in" so that they are exact reproductions. The
redactions in the exhibit were made for this motion by the
government but the unredacted original letters appear on the
Internet sites. Notably, the letters posted on the websites do
not contain the exhibit markings of the letters attached to Mr.
Randolph's filing or the holes that were punched on the public
filing. This indicates that copies of the letters were given to
these hacker sites apart from the improper public filing of the
letters