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
) DEFENDANT MITNICK'S
Plaintiff, ) OPPOSITION TO GOVERNMENT'S
) PROPOSED OMNIBUS ORDER RE:
v. ) DISCOVERY AND PRETRIAL
) MANAGEMENT
KEVIN DAVID MITNICK, et. al, )
) DATE: May 18, 1998
Defendants. ) TIME: 1:30 p.m.
) CTRM: 12
)
_________________________________ )
TO NORA M. MANELLA, UNITED STATES ATTORNEY, AND TO HER
ASSISTANTS, DAVID SCHINDLER AND CHRIS PAINTER:
PLEASE TAKE NOTICE THAT, defendant KEVIN DAVID MITNICK, by and
through his attorney of record, Donald C. Randolph, hereby files this
Opposition to the Government's Proposed Omnibus Order Re: Discovery
and Pretrial Management.
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This opposition is based upon the attached memorandum of points
and authorities, the files and pleadings in this case, and any oral or
documentary evidence which may be adduced at hearing on this matter.
DATED: May 14, 1998 Respectfully submitted,
RANDOLPH & LEVANAS
By: ____________________________
Donald C. Randolph
Attorneys for Defendant
KEVIN DAVID MITNICK
MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION
The government's Proposed Omnibus Order Re: Discovery and
Pretrial Management seeks to unduly restrict defense counsel's ability
to review the evidence in this case without legal justification.
Furthermore, the government's plan will result in exorbitant costs in
reviewing this evidence and will serve to unnecessarily prolong these
proceedings. The defendant objects to the government's proposal
because the government has failed to offer any legal or factual
justification for withholding this evidence or restricting the
defendant's access to it.
II.
ARGUMENT
A. The Government's Proposal Unjustifiably Seeks to Restrict
the Defendant's Access to Discoverable Evidence.
Despite repeated requests since October 6, 1996, the government
has refused to provide the defense with a copy of some portions of the
electronic discovery. The government has recited various
justifications for its refusal in this regard, none of which is
persuasive. Moreover, the government has not followed the requisite
legal procedures required for modification of the defendant's right to
access this information. Instead, the government has proposed
restrictions on the defendant's ability to review the evidence in this
case which, at best, are severely inconvenient, and at worst, will
unfairly deny the defendant his rights to due process of law and
effective assistance of counsel. Moreover, restricting access to
these materials will interfere with the defendant's Sixth Amendment
right to cross-examination at trial. See United States v. Hsu, 982
F.Supp. 1022, 1025 (E.D.Pa. 1997).
1. The Defense is Entitled to a Copy of the Evidence
Pursuant to Rule 16.
Federal Rule of Criminal Procedure 16(a)(1)(C) provides:
Upon request of the defendant the government shall permit
the defendant to inspect and copy or photograph books,
papers, documents...which are within the possession, custody
or control of the government, and which are material to the
preparation of the defendant's defense or are intended for
use by the government as evidence in chief at the trial, or
were obtained from or belong to the defendant. [Emphasis
added].
All of the electronic evidence in this case clearly falls within
the definition of discoverable evidence pursuant to Federal Rule of
Criminal Procedure 16. As such, it must be made available for
inspection and copying by the defense.
2. The Government has neither Moved nor Shown Good
Cause for Modification of the Defendant's Rights
to Access the Discovery.
Restrictions to the defendant's right of access to otherwise
discoverable materials cannot be sanctioned absent a specific and
sufficient showing of need. See infra, American Standard Inc., v.
Pfizer Inc., 828 F.2d 734, 740 (Fed. Cir. 1987); Coca-Cola Bottling
Co. v. Coca-Cola Co., 107 F.R.D. 288, 292 (D. Del. 1985). The
government has not demonstrated a basis sufficient to justify
restricting the defendant's access to these materials. The government
does not dispute that the evidence in question falls within the
definition of Rule 16(a)(1)(C). Nonetheless, it contends that it is
entitled to withhold and/or restrict the defendant's access to this
evidence without offering any legal basis to support its contention
nor has it received the approval of this Court for its position.
Under some circumstances, the defendant's right to access
discoverable material may be modified. Rule 16(d)(1) relating to
protective and modifying orders provides, in part:
Upon a sufficient showing the court may at any time order
that the discovery or inspection be denied, restricted, or
deferred, or make such other order as is appropriate.
In this case, the government has not demonstrated a sufficient showing
to justify modification of the defendant's right to the evidence in
question.
a. Evidence Containing Alleged Trade Secrets
Because federal criminal legislation regarding trade secrets was
only recently enacted, there is scant caselaw applying Rule 16(d)(1)
to discovery disputes involving alleged trade secret information.
Nonetheless, the issue has been accorded substantial consideration in
the analogous civil context through application of Federal Rule of
Civil Procedure 26(c)(7). This statute provides, in relevant part:
"Upon motion by a party or by the person from whom discovery
is sought, accompanied by a certification that the movant
has in good faith conferred or attempted to confer with
other affected parties in an effort to resolve the dispute
without court action, and for good cause shown, the court in
which the action is pending... may make any order which
justice requires to protect a party or person from
annoyance, embarrassment, oppression, or undue burden or
expense, including...that a trade secret or other
confidential research, development, or commercial
information not be revealed or be revealed only in a
designated way..." Fed.R.Civ.Pro. 26(c)(7).
In order to invoke the protection provided under this rule, the
party seeking a protective order bears the burden of persuasion and
must satisfy a number of criteria. First, the movant must establish
that the information it seeks to protect is, in fact, a trade secret.
American Standard Inc., v. Pfizer Inc., 828 F.2d 734, 740 (Fed. Cir.
1987); Coca-Cola Bottling Co. v. Coca-Cola Co., 107 F.R.D. 288, 292
(D. Del. 1985). To this effect, the government must demonstrate that
(a) the owner has taken reasonable measures to keep the information
secret and (b) that secrecy adds independent economic value to the
information. See 18 U.S.C. § 1839(3).
Second, the movant must demonstrate that disclosure of the
subject information will be harmful. American Standard, 828 F.2d 734,
740-1; Brown Bag Software v. Symantec Corp., 960 F.2d 1465 (9th Cir.
1992). The defense has already stated its willingness to enter into a
non-disclosure agreement which would ensure the secrecy of any
confidential trade secret information. [See, correspondence dated
4/23/98, Exhibit A]. The government does not object to the defense
having access to this material; rather, it only objects to defense
counsel's access to this material outside government supervision.
The implicit suggestion from this position is that defense counsel
cannot be trusted to maintain the information in a confidential and
secure manner. This inappropriate and unfounded suggestion is,
nonetheless, insufficient to support the government's position absent
a specific showing that harm will result. See, e.g., Smith, 869 F.2d
at 201; Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529 F.
Supp. 866, 891 (E.D. Pa. 1981) ("in order to establish good cause, it
must be shown that disclosure will work a clearly defined and serious
injury.") Mere assertions or hearsay allegations in an attorney's
affidavit will not suffice. 529 F. Supp. at 891. Considering that,
under the government's own plan, the alleged trade secrets will be
disclosed to the defense, it is difficult to imagine how the act of
providing a copy to the defense will result in any greater harm to the
owners of the information.
The defense need not show that the evidence in question is
material in order to be entitled to a copy of it pursuant to Rule
16(a)(1)(C). See, United States v. McVeigh, 954 F. Supp. 1441, 1446-
47 (D.Colo. 1997). Nonetheless, a showing of materiality may be
useful to the Court for the purpose of weighing the appropriateness of
any modification of the defendant's right to access this information.
To this effect, the defense offers the following showing of
materiality.
The defense is in need of a full copy of the designated
"proprietary" software for the purpose of detailed and efficient
analysis thereof. The defense must analyze the software in great
detail in order to determine, among other questions: who is the owner
of the software? What reasonable measures were taken to keep it
secret? Can an independent economic value can be attributed to its
secrecy? Is all or any part of the software in the public domain?
All of these questions are directly relevant to proving the
charges alleged in the indictment and will require considerable
analysis of the evidence. These efforts will be greatly frustrated if
the defense is limited to the restrictions inherent in the
government's proposal.
b. Encrypted Evidence.
The government has taken the unprecedented position that it is
entitled to withhold evidence allegedly obtained from the defendant,
within its own possession and which is material to the preparation of
the defendant's defense, on the justification that such evidence is
unintelligible to the government. There is no legal basis, nor has
one been offered, to justify the government's position in this matter.
This evidence should not be subject to a protective order since the
government cannot make the requisite specific showing of harm
resulting from its disclosure. To the extent that any encrypted file
contains proprietary data which might suffer harm through disclosure,
the defense reiterates its willingness to execute a non-disclosure
agreement to ensure its confidentiality.
The evidence in question consists of encrypted computer files
found on computer systems allegedly seized from the defendant's
various residences and are therefore discoverable pursuant to Rule
16(a)(1)(C). Moreover, the encrypted files are material to the
preparation of the defense. Although the government has stated that
it will not use the contents of the encrypted files as evidence in
chief, it has stated that it will attempt to prove the allegations in
the indictment by arguing that the contents of the encrypted files are
the same as the content of non-encrypted files bearing similar
filenames. [RT 3/30/98: 33-34, Exhibit B] Obviously, the actual
contents of these files are material for the purposes of proving or
disproving the government's allegations.
Additionally, the defense is informed and believes that some of
the encrypted material consists of correspondence and other data
written by the defendant. These statements of the defendant in the
possession or custody of the government are subject to disclosure
pursuant to Rule 16(a)(1)(A) in addition to 16 (a)(1)(C). See United
States v. Lanoue, 71 F.3d 966, 974 (1st Cir. 1995) (rule gives
defendant virtually an absolute right to his own recorded statements
absent extraordinary circumstances otherwise justifying protective
order); see also United States v. Bailleaux, 685 F.2d 1105, 1114 (9th
Cir. 1982) (adopting broad interpretation of relevance as applied to
defendant's statements as a matter of practicality).
Furthermore, some of the files may contain correspondence with
prospective government witnesses which may be used to impeach their
testimony. Finally, the encrypted files may contain exculpatory
evidence demonstrating, among other things, that the defendant was a
passive recipient of some of the data which the government alleges he
obtained without authorization. All of the above factors demonstrate
that the defendant will be seriously prejudiced by the government's
refusal to produce this discovery consistent with its obligations.
Naturally, the defense will provide the government with each
encrypted document (translated into plaintext), in its entirety, which
it intends to use in its case in chief through reciprocal discovery
procedures.
c. So-Called "Hacker Tools."
The government has refused to provide a copy of computer programs
which it dubs "hacker tools" without legal or rational justification.
This data is currently in the government's possession, was seized from
the defendant and, therefore, falls squarely within the scope of Rule
16(a)(1)(C). Moreover, this data is material to the preparation of
the defense. In the indictment, the government alleges that the
defendant used these programs as the method and means of perpetrating
unauthorized and fraudulent access to various computer systems.
[Indictment at 7-8, Exhibit C]. The defendant's access to this
evidence is necessary for the purposes of determining whether such
programs could be, or actually were, used in the manner alleged.
There is no reason why defense counsel should be restricted in any
respect from performing this analysis.
The government has demonstrated no harm whatsoever which may
result by providing defense counsel a copy of this data for
independent review. These computer programs are not contraband.
Moreoever, counsel for the defendant can assure the government that it
has no intention of utilizing these programs to gain unauthorized
access to any computer system. Furthermore, the defense is informed
that these programs (and newer, more effective programs of the same
ilk) are freely accessible in the public domain. Thus, no
legitimate government purpose will be served by denying the defense a
copy of this evidence for independent review.
d. Files Containing Access Codes.
Once again, the government has offered no basis for denying the
defense this evidence to which it is entitled. The government has
made no showing of harm which will result from disclosure of this
information. It is likely that no such harm is possible since the
access codes in question (essentially consisting of credit card
numbers and other passwords) are well over three years old and are
most likely obsolete. Furthermore, even if the codes are still
viable, no harm can result from their disclosure to defense counsel
absent an affirmative effort on their behalf to illegitimately use
these access codes. Once again, execution of a non-disclosure
agreement will more than adequately protect against any harms which
may cause the government concern in this regard.
For all of the above-mentioned reasons, the defense objects to
the government's refusal to comply with its obligations pursuant to
Rule 16(a)(1)(A) and (a)(1)(C).
B. Pretrial Management.
1. The Off-Site Discovery Room.
The defense has addressed some of the problems associated with
the deprivation of its right to a full copy of the evidence in this
case. Many of these problems can be attributed, in part, to the
government's proposed method of reviewing the discovery via the off-
site discovery room. This method of reviewing the evidence will
unquestionably result in exorbitant cost and unnecessary and grossly
inefficient expenditure of time and effort for the defense. This
procedure will require defense counsel to coordinate their schedule
together with those of retained experts and government officials each
and every time they seek to review the voluminous discovery in this
case. It will eliminate the possibility of reviewing these materials
outside of business hours, such as nights and weekends, thereby
imposing an unnecessary and unwelcome burden on the defense's ability
to review this material. The government will suffer no similar
inconvenience.
Apart from inconvenience, this procedure will unfairly confer
additional benefit upon the government by forcing the defense to
disclose the identity of its expert(s) who seek to gain access to the
discovery room. The government has been faced with no similar
dilemma. Finally, there remain inadequate assurances as to the
confidentiality afforded the defendant's review of the electronic
discovery at an off-site location administered by the government. For
one, the government has offered no assurance that the defendant,
counsel and their experts will be entitled to review this data without
supervision or monitoring of any kind. Secondly, details of the
defendant's review of this material will be available to the
government, despite the government's assertion that it will not
install any device to log the defendant's review of this material, due
to recording functions inherent in the operating systems of these
computers.
Additional problems exist in the function of the off-site
discovery room with respect to proposed limitations on the ability of
the defendant himself to review the discovery. Due to the sheer
volume and complexity of the data, the government's proposal to allow
Mr. Mitnick access to the discovery on only three occasions per month
is insufficient. Moreover, the government has given no indication of
how much notice it will require prior to allowing defendant to
schedule such an appointment. The defense believes that Mr. Mitnick
should be entitled to personally review the evidence in question as is
required in order to timely prepare for trail.
2. Inventory
The government's proposed inventory list does not provide
sufficient information to allow for efficient review of this data.
While general categorization of these files using terms such as
"operating software" or "stolen software" is of interest to the
defense, it will do little to assist the defense in focusing its
investigation of this universe of information to that material
relevant to the charges.
The defense has no objection to inclusion of the original
location of each file but requests that the government's inventory
identify with greater specificity the nature of the files and their
relevance to the charges. For example, instead of categorizing a file
as "stolen software," the inventory should read, "proprietary software
owned by Nokia Corp."
3. Exhibit List
The government should provide forthwith a list of the exhibits it
intends to introduce during its case in chief. The government has
been in possession of this material since at least February, 1995, and
the immediate production of its exhibit list will likely prove the
most effective manner of ensuring the timely commencement of trial in
this matter.
Given the proposed restrictions discussed above (if sanctioned by
the Court), it is reasonable for the defense to disclose its list of
exhibits to the government no later than 30 days prior to trial.
4. Expert Reports and Summaries of Testimony
For the same reasons cited above, these reports should be
disclosed to the defense as soon as they become available, and in no
case later than 120 days before trial.
5. Witness Statements
Ordinarily disclosed as part of standard discovery by the
government in this district, these statements should be disclosed to
the defense forthwith. Inasmuch as many of the allegations contained
in the indictment took place throughout the United States, the
defendant will need a reasonable opportunity to conduct investigations
and interviews of these witnesses. As this will likely be a lengthy
process, the defense should have the ability to commence forthwith and
in no case later than 120 days before trial.
6. Motions In Limine and Jury Instructions
The defense proposes that all motions in limine and jury
instructions be filed thirty (30) days prior to trial.
7. Trial Date
Until the discovery review procedure is in place, it is difficult
for the defense to gauge its efficiency and determine a feasible trial
date. Notwithstanding this uncertainty, the defendant requests a
trial date in mid-January, 1999. Good cause for this proposal
consists of the following:
(a) As stated above, the events which are the subject of this
indictment occurred throughout the United States and their
investigation will be time-consuming.
(b) Defense counsel's office does not have resources similar to
those of the government; only two attorneys, Donald C. Randolph and
Gregory L. Vinson, are participating in the preparation of this
defense. Furthermore, defense counsel has a number of additional
cases pending trial including:
i. United States v. Hakeem, Western District of
Michigan, No. 1:96-CR-184. Date of Trial ("DOT"):
May 26, 1998; estimated duration: 1 week.
ii. United States v. Berghoudian, Central Dist.
California, CR 97-1149-JMI. DOT: June 2, 1998;
estimated duration: 2 weeks.
iii. Noorani v. Schnee, L.A. County Superior
Court, No. SC044416. DOT: July 13, 1998;
estimated duration: 1 week.
iv. United States v. Carrington, Central Dist.
California, CR 98-34-CBM. DOT: July 21, 1998;
estimated duration: 1 month.
v. People v. Odulio, San Diego County Superior
Court, No. CD130232. DOT: September 1, 1998;
estimated duration: 3 weeks.
In addition to the above-referenced matters set for trial,
counsel has a number of non-trial appearances including sentencing and
appellate matters calendered during the coming months which will limit
its ability to prepare for trial in this matter.
III.
CONCLUSION
For all the foregoing reasons, the defendant objects to the
government's Proposed Omnibus Order Re: Discovery and Pretrial
Management.
DATED: May 14, 1998 Respectfully submitted,
RANDOLPH & LEVANAS
By: ________________________
Donald C. Randolph
Attorneys for Defendant
KEVIN DAVID MITNICK