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 OF AMERICA,
CENTRAL DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, ) CASE NO. CR 96-881-MRP
)
Plaintiff, ) NOTICE OF MOTION AND MOTION
) FOR DISCOVERY; DECLARATION
v. ) OF DONALD C. RANDOLPH
)
KEVIN DAVID MITNICK, et. al, ) DATE: November 30, 1998
) TIME: 1:30 p.m.
Defendants. ) COURT: 12
)
)
)
)
)
________________________________)
TO NORA M. MANELLA, UNITED STATES ATTORNEY, AND TO HER ASSISTANT,
DAVID SCHINDLER AND CHRISTOPHER PAINTER:
PLEASE TAKE NOTICE that on November 30, 1998, at 1:30 p.m., or at
a date and time convenient to the Court and counsel, /1 defendant, KEVIN
DAVID MITNICK, by and through his attorney of record, Donald C.
Randolph, will move this Court for an Order requiring the government
to produce discovery pursuant to the Court's Omnibus Order Re:
----------------
/1 Due to the proximity of the trial date in this matter, the
defendant has concurrently submitted an Ex Parte Application for an
Order Shortening Time in which to hear this motion as well as the
defendant's Motion to Continue Trial Date.
(2)
Discovery and Pretrial Management dated June 3, 1998.
This motion is based upon the attached Declaration of Donald C.
Randolph and any oral and documentary evidence which may be presented
at hearing on this matter.
DATED: November 24, 1998 Respectfully submitted,
RANDOLPH & LEVANAS
By: ______________________________
Donald C. Randolph
Attorneys for Defendant
KEVIN DAVID MITNICK
(3)
I.
MEMORANDUM OF POINTS AND AUTHORITIES
A. INTRODUCTION
The government is in violation of the Court's Order Re: Discovery
and Pretrial Management. The government did not produce the
statements of the witnesses they intend to call at trial until nearly
a full month past the date they were ordered to do so by this Court.
Moreover, the government has failed to produce other evidence subject
to immediate disclosure on June 3, 1998, pursuant to the Court's Order
of the same date.
B. The Government is in Continuing Violation of the
Court's Discovery Order.
On June 3, 1998, this Court entered an Order requiring the
government to immediately disclose to the defense all electronically
stored files that the government has not decrypted subject to the
restrictions of a stipulated protective order. The Court further
ordered that 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. In addition, the
Court ordered the government to produce to the defendant's a list of
the exhibits it intends to use at trial sixty (60) days prior to
trial. The government has failed to meet its obligations with respect
to all three of these directives.
1. Witness Statements
On November 17, 1998, only sixty-three (63) days prior to trial,
the government produced a copy of its witness statements to the
defendants. Considering that the government has been in possession of
(4)
these statements for years, (in some cases as many as five), there can
be no legitimate reason why this evidence was not provided to the
defense in a timely fashion. /2
2. Exhibit List
The government was ordered to provide a tentative list of the
exhibits it intends to use at trial on or before November 19, 1998.
As of the time of this filing, the government has failed to provide
this discovery.
3. Electronic Evidence
a. Disclosures to Date
To date, the government has provided the defendant with the
following disclosures of electronic evidence:
On July 6, 1998, the government disclosed two CD-ROMs (compact
disks which store electronic data), consisting of evidence seized from
personal computers allegedly owned by Mr. Mitnick. In its letter
accompanying this evidence, the government indicated that the CD-ROMs
did not include any information that is inaccessible without a
password. Additionally, the government recited the parties' informal
agreement that the defense would treat all of the files on the CDs as
-------------------
/2 The proposed order presented to the Court by the government
included defendant De Payne's request that such statements be produced
120 days prior to trial. The government's proposed order omitted
defendant Mitnick's request as detailed in his opposition to the
government's proposed omnibus order as follows:
"[T]hese 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." (Emphasis added) .
(5)
if they were subject to a protective order until such time as the
government had presented the defendant with a proposed protective
order and a list of files contemplated under such order. /3
On July 29, 1998, the government disclosed two CD-ROMs containing
evidence obtained by the government through search warrants directed
at third parties. In its accompanying letter the government stated:
"[W]e are in the process of compiling the list of files
subject to the protective order. Once the penultimate CD
containing, among other things, files obtained from USC,
Fujitsu, Colorado SuperNet, and Netcom files has been
provided (by Friday [July 31, 1998]), we should be in a
position to compile the list. At that time, we will provide
you with a proposed protective order." (Emphasis added).
See Exhibit B.
Despite the government's representation that the "penultimate CD"
would be provided by Friday July 31, 1998, no further disclosures of
evidence were made until October 27, 1998, when the government
provided the defense with two digital "back-up" tapes containing
electronic evidence allegedly stored by Mr. Mitnick on computers owned
by the University of Southern California, more than four months
following the Court's original Order. To date, the government has not
produced any proposed protective order to the defense.
-----------------
/3 With the expectation that it would expedite disclosure of the
evidence, on or before July 6, 1998, the defendant unilaterally agreed
to treat all of the electronic discovery provided to him as if it were
subject to a protective order pending a proposal by the government to
designate those files which it believed deserved such protection. The
government has abused this agreement, however, by refusing to prepare
a protective order and, thereby, contributed to further complications
in the defendant's ability to review the evidence. See Exhibit A.
Because only the government knows which files it believes should
be subject to any protective order, the responsibility of designating
these files necessarily falls exclusively upon its shoulders. Pending
issuance of a properly framed protective order, the defendant is
subject to potential liability for the disclosure of information for
which there is no legitimate interest in guaranteeing its
confidentiality, such as personal writings.
(6)
b. The Government's Disclosures are
Substantively Deficient.
Apart from the government's delay in producing the electronic
discovery, much of the evidence which actually has been provided to
the defense is both altered and incomplete such that it is not an
accurate representation of the evidence possessed by the government.
During the process of copying the evidence stored on computers
allegedly owned by Mr. Mitnick, the government copied only portions of
the data contained thereon, and altered the format of the remaining
data, thereby potentially depriving the defense of important evidence
related to the nature of the files and use of the computers in
question.
The government withheld certain files (commonly referred to under
the misnomer "deleted" files), to which it has exclusive possession
and, presumably, access. /4 Recognizing the existence and potential
significance of the "deleted" files, the defendant requested, in
writing, on at least three separate occasions prior to the disclosure
of any electronic evidence, that the government produce a "bit-stream"
or "image" copy of the original data as it existed when it was seized.
See Exhibit A. The defendant explained that such a copy was necessary
in order to view any "deleted" file space, a fact known to the
----------------
/4 When electronic files are "deleted" from a computer, generally
they are not irretrievably erased. Rather, the information is simply
stored in location on the disk where it may eventually be overwritten.
Thus, the so-called "deleted" files are viable records of data, though
they may not be patently present. This data can only be copied
through creation of a bit-stream copy.
(7)
government prior to the defendant's explanation. /5
In sum, the government's withholding of the "deleted" file space
constitutes an abrogation of its duties pursuant to the Court's June
3, 1998 Order.
c. The Government Currently Possesses and
Has Failed to Disclose Additional
Evidence.
On July 31, 1998, the government informed counsel for defendant
Mitnick that it was in possession of additional electronic evidence
consisting of a "back-up" copy of Colorado Supernet's computer system
which it obtained from Motorola Corporation. Despite requests for
this evidence, the government has provided no copy of this discovery
to the defense nor other information such as whether they intend to
use the evidence at trial, nor an indication of the quantity of the
data. Exhibit D.
C. The Government Should Disclose All Evidence Relating to its
Contacts with Informant Ronald Austin.
Compelling evidence of outrageous government conduct has been
disclosed to the defense for the first time with the belated
production of its witness statements. Reports prepared by the FBI
create strong inferences that Ronald Austin, the government's key
informant against the defendants, was simultaneously a cooperating
government witness/informant and an employee of attorney Richard
Sherman (Mr. Mitnick's former counsel and current counsel for co-
--------------------
/5 The Department of Justice's own manuals describe the value of
reviewing files from a bit-stream copy of the evidence. See Exhibit
C; Department of Justice, Federal Guidelines for Searching and Seizing
Computers, July 1994].
(8)
defendant Lewis DePayne) at the time Mr. Sherman was representing
Kevin Mitnick. /6 See Exhibit E. Austin was privy to confidential
communications between Mr. Mitnick and Mr. Sherman which he later
disclosed to the government. Moreover, Austin was given direct
insight into Sherman's defense strategy at the same time that he was
acting as an informant against Sherman's clients.
Even if the government was previously unaware of Austin's
employment with Mr. Sherman, the FBI records demonstrate that the
government agents were certainly aware of Mr. Austin's role in
Sherman's office during to their interviews corresponding to the
reports dictated in July and August of 1996, but nonetheless continued
to seek information from Austin. The government's failure to cease
all interviews with Mr. Austin immediately upon the disclosure of his
relationship with Mr. Sherman constitutes, in itself, a serious
abrogation of the government's professional, ethical, and legal
obligations.
Obviously, the defense is obligated to investigate all details
relating to the government's contact with Mr. Austin, after which the
defendant will request all appropriate remedies.
----------------------
/6 Mr. Austin was apparently employed as a part-time clerk for Mr.
Sherman from approximately December, 1995 through June, 1996. The
government's reports indicate that, as far back as 1994, Mr. Austin
was writing correspondence designed to convince Mr. Mitnick that
Austin was not a government informant. Furthermore, the records
demonstrate that Mr. Austin had consensually recorded telephone calls
with Mr. Mitnick for the FBI prior to working for Mr. Sherman, and
that Mr. Austin recognized the potential for a "conflict of interest"
arising from such employment prior to its commencement.
(9)
II.
CONCLUSION
For all the foregoing reasons, the defendant respectfully
requests that this Court Order the government to immediately comply
with its previous Order of June 3, 1998, and to immediately produce
all such other discovery to which the defendant is legally entitled.
DATED: November 24, 1998 Respectfully submitted,
RANDOLPH & LEVANAS
By: __________________________
Donald C. Randolph
Attorneys for Defendant
KEVIN DAVID MITNICK