NORA M. MANELLA
United States Attorney
DAVID C. SCHEPER
Assistant United States Attorney
Chief, Criminal Division
DAVID J. SCHNIDLER
Senior Litigation Counsel
CHRISTOPHER M.E. PAINTER
Assistant United States Attorney
Major Frauds Section
1100 United States Courthouse
312 North 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. CR 96-881-MRP
Plaintiff, OMNIBUS ORDER RE: DISCOVERY
AND PRETRIAL MANAGEMENT
KEVIN DAVID MITNICK
and LEWIS DE PAYNE,
Defendants.
Defendants have filed a number of pretrial motions,
specifically, defendant Mitnick filed motions for: (a) access to
a computer; (b) expanded library time while housed at the
Metropolitan Detention Center; and (c) a bill of particulars.
Defendant De Payne separately filed a motion for a bill of
particulars, along with the following discovery related motions
for: (a) pretrial discovery; (b) exculpatory evidence;
(c) discovery of electronic surveillance; (d) exculpatory
evidence and evidence regarding cooperating witnesses; and (e)
discovery of the government's intention to introduce evidence of
other acts pursuant to Rule 404(b).
The government opposes the motions. On March 30, 1998, the
Court heard argument from the parties and reserved ruling on the
various motions, pending preparation of a discovery plan and
pretrial management plan designed to expedite these proceedings.
Accordingly, the court hereby adopts the following omnibus
discovery and pre-trial management plan.
Electronic Discovery
1. The government will make electronic copies of all
electronically stored files ("the electronic discovery"), except
encrypted files that the government has not decrypted, and
provide these copies to defendants subject to the restrictions in
paragraph 2.
2. The government and defense shall stipulate to a
protective order with respect to material provided to the defense
that the government designates as "confidential material." This
material shall include: (a) files containing proprietary
software taken from victim companies, entities, or individuals
without authorization; (b) files containing access codes
(including passwords and credit card information) obtained
without authorization; (c) files containing "hacker tools" (i.e.,
programs or commands used to gain unauthorized access into
computer systems); and (d) stolen electronic mail. Each
defendant, his counsel, and any witness, expert or consultant, or
other person given access to this confidential material by the
defense in this case, shall be given a copy of the protective
order, and shall sign a statement agreeing to the restrictions on
use of the material in the protective order and submitting to the
court's jurisdiction. The protective order shall specifically
prohibit any person granted access to the confidential material
by the defense, including the defendants, from disclosing that
material to, or discussing the contents of that material with,
any person not covered by the protective order.
3. Subject to the ordinary procedures employed by the
Metropolitan Detention Center ("MDC") regarding the use and
availability of attorney conference rooms, defendant Mitnick
shall be permitted to review the electronic discovery during
meetings with his attorneys, Donald Randolph and Greg Vinson, and
any expert retained by the defense, in the attorney conference
rooms. Subject to the restrictions set forth below, defendant
Mitnick's counsel may bring a copy of the electronic discovery to
The conference room so that defendant Mitnick may view the
electronic discovery on a laptop computer that will remain in the
custody of the MDC.
4. The laptop computer shall be provided by defense
counsel to MDC. The laptop computer shall not be equipped with a
modem and shall not have the capability to connect to telephone
lines, or to any other computer or computer network. The laptop
computer will be configured in "read only" format to permit
review of the electronic discovery and to prevent any alteration
of files or programming of any sort by defendant Mitnick. If it
becomes necessary to alter the configuration of the laptop
computer to permit review of any of the electronic discovery
materials, defendant agrees to allow the government (including
the MDC) to adopt any additional security measures, such as
allowing periodic inspection of the hard drive, to ensure
compliance with this order. In addition, neither defense counsel
nor any expert accompanying defense counsel shall be permitted to
bring any cellular phone or other form of wireless communication
device into the attorney conference room. Defendant Mitnick and
his counsel agree to submit the laptop computer to the government
for examination and compliance with this paragraph. During the
period while the laptop computer remains in the custody of the
MDC, it shall not be made available to anyone other than counsel
for defendant Mitnick. Upon completion of the case and/or prior
to the return of the laptop to counsel for defendant Mitnick, any
electronic files contained on the laptop computer shall be
erased.
5. Defendant may not alter the electronic files or
otherwise engage in any type of computer programming. Defense
counsel or his associate will supervise defendant during the
sessions to ensure defendant Mitnick's compliance.
6. Defendant Mitnick shall not have access to, or
possession of, any computer or computer equipment except as set
out in the above paragraphs. Further, defendant may not retain a
copy, in any form, of any of the confidential information, and
his review of any such information shall occur only during the
supervised session in the attorney conference rooms as described
above. Defendant shall not be permitted to possess any computer
equipment or confidential material in his cell.
7. The government shall, at all times, retain custody and
control over original evidence, including computer hardware
seized during the investigation, and any electronic files stored
on any computer seized during the investigation. The government
shall, upon reasonable notice, make any computer hardware seized
during the investigation available for inspection by defendants.
However, to protect the integrity of the original evidence,
defendants and/or their representatives shall not be permitted to
power up the original computer or enter any operating commands
without supervision of trained government personnel.
Encrypted Files
8. The government need not produce to defendants copies of
any encrypted files that the government has not been able to
review. Should either defendant provide the government with the
decryption keys necessary to convert any encrypted file into a
readable format, then any such file shall be made available for
inspection by defendants.
Exhibit List
9. Sixty (60) days prior to trial, the government shall
provide defendants with a tentative list of exhibits the
government intends to introduce at trial during its case-in-
chief.
10. Thirty (30) days prior to trial, defendants shall
provide the government with a tentative list of exhibits
defendants intend to introduce at trial. [If the Court orders
the government to produce a tentative exhibit list more than 60
days prior to trial, then the government requests that defendants
produce their tentative exhibit list 30 days following production
of the government's exhibit list.]
Expert Reports and Summaries of Testimony
11. Sixty (60) days prior to trial, all parties shall
produce copies of any reports of examinations or tests together
with summaries of expert witness testimony as set forth in Fed.
R. Crim. P. 16(a)(1)(D), (E) and Fed. R. Crim. P. 16(b)(1)(B), (C).
[The government requests that expert reports and summaries
be produced simultaneously.]
Witness Statements
12. Ninety (90) days prior to trial, the government shall
produce to defendants copies of witness statements of any witness
the government intends to call during its case-in-chief.
13. Sixty (60) days prior to trial, defendants shall
produce to the government copies of any witness statements of any
witness defendants intend to call at trial.
Motions in Limine
14. Any motions in limine shall be filed forty-five (45)
days prior to trial. The parties shall adhere to all filing
schedules set forth in the Local Rules.
Jury Instructions
15. Proposed jury instructions shall be filed no later than
30 days prior to trial.
Trial Date
16. The court previously vacated the April 27, 1998 trial
date. Trial in this matter is hereby set for January 19, 1999 11:00 AM
(The government requests a trial date of ___________________.
Defendants request a trial date of January 19, 1999.)
DATED: This 3 day of June, 1998.
___________________________________
HONORABLE MARIANA R. PFAELZER
CERTIFICATE OF SERVICE
I, BELINDA B. TUNQUE, declare:
That I am a citizen of the United States and resident or
employed in Los Angeles County, California; that my business
address is Office of United States Attorney, United States
Courthouse, 312 North Spring Street, Los Angeles, California
90012; that I am over the age of eighteen years, and am not a
party to the above-entitled action;
That I am employed by the United States Attorney for the
Central District of California who is a member of the bar of the
United States District Court for the Central District of
California, at whose direction the service by mail described in
this Certificate was made; that on December 1, 1998, I telefaxed
and deposited in the United States mails in the United States
Courthouse at 312 North Spring Street, Los Angeles, California,
in the above entitled action, in an envelope bearing the
requisite postage, a copy of GOVERNMENT'S CONSOLIDATED OPPOSITION
TO DEFENDANT MITNICK'S MOTION: (A) FOR DISCOVERY; AND (B) TO
CONTINUE THE TRIAL IN THIS MATTER; MEMORANDUM OF POINTS AND
AUTHORITIES; EXHIBIT
addressed to: SEE ATTACHED
at their last known addresses, at which places there are delivery
services by United States mail.
This Certificate is executed on December 1, 1998 at
Los Angeles, California.
I certify under penalty of perjury that the foregoing is
true and correct.
_______________________
BELINDA B. TUNQUE
CERTIFICATE OF SERVICE
I, BELINDA B. TUNQUE, declare:
That I am a citizen of the United States and resident or employed in Los Angeles
County, California; that my business address is Office of United States Attorney, United States
Courthouse, 312 North Spring Street, Los Angeles, California 90012; that I am over the age
of eighteen years, and am not a party to the above-entitled action;
That I am employed by the United States Attorney for the Central District of California
who is a member of the bar of the United States District Court for the Central District of
California, at whose direction the service by mail described in this Certificate was made; that
on June 2, 1998, I deposited in the United States mails in the United States Courthouse at 312
North Spring Street, Los Angeles, California, in the above entitled action, in an envelope
bearing the requisite postage, a copy of OMNIBUS ORDER RE: DISCOVERY
AND PRETRIAL MANAGEMENT
addressed to: DONALD RANDOLPH, ESQ. RICHARD SHERMAN, ESQ.
1717 Fourth Street 16000 Ventura Boulevard
3rd Floor Fifth Floor
Santa Monica, CA 90401 Encino, CA 91436
at their last known addresses, at which places there are delivery services by United States mail.
This Certificate is executed on June 2, 1998 at Los Angeles, California.
I certify under penalty of perjury that the foregoing is true and correct.
_______________________
BELINDA B. TUNQUE
ATTACHMENT TO PROOF OF SERVICE
United States v. Kevin David Mitnick
No. CR 96-881-MRP
DONALD C. RANDOLPH, ESQ.
1717 Fourth Street, 3rd Floor
Santa Monica, CA 90401
Fax: (310) 395-1833
RICHARD G. SHERMAN, ESQ.
16000 Ventura Boulevard
Fifth Floor
Encino, CA 91436
Fax: (513) 379-1190