RICHARD G. SHERMAN, ESQ.
Calif. State Bar No. 31098
16000 Ventura Boulevard, Fifth Floor
Encino, CA 91436
(818) 379-1180
Attorney for Defendant
Lewis DePayne
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
UNITED STATES OF AMERICA, ) CASE NO. CR 96-881-MRP
)
Plaintiff, ) DEFENDANT DEPAYNE'S RESPONSE
) TO GOVERNMENT'S PROPOSED
) OMNIBUS ORDER RE: DISCOVERY
) AND TRIAL MANAGEMENT
vs. )
)
)
LEWIS DEPAYNE, )
)
Defendant. )
) __________________________________)
Comes now Defendant Lewis De Payne, by and through his attorney
of record and files his Response to the Government's Proposed Omnibus
Order Re: Discovery and Trial Management.
This Response is based on all of the files and pleadings in this
case and the attached Memorandum.
Dated: May 8,1998
_______________________________
Richard G. Sherman
Attorney for Lewis DePayne
MEMORANDUM OF POINTS AND AUTHORITIES
I
PRELIMINARY STATEMENT
There are several problems which continue to pervade this
litigation in spite of the Court's efforts to bring some degree of
order to the instant situation. DePayne realizes that the Court
wishes to move forward with an Omnibus Order that would deal with
both discovery and pretrial management. The Proposed Omnibus Order
prepared by the government does not present a reasonable solution to
the problems at hand for several reasons:
1. Said Proposed Omnibus Order does not deal with the fact that
the government has ignored DePayne's requests for that pretrial
discovery to which he is entitled as a matter of law. (1)
____________________
(1) The government ignores the distinction between DePayne
and his co defendant Kevin Mitnick. All of the evidence amassed
thus far by the government, of which DePayne is aware, relates to
Mr. Mitnick, was taken from Mitnick, was stored by Mitnick, etc.
DePayne is presumed to be innocent and has claimed he has no
knowledge of the evidence against him with the one exception that
is described above.
2. Said Proposed Omnibus Order does not deal with the fact that
none of the information furnished to DePayne by the government (this
category does not include computer generated items) relates to
DePayne with one exception; that exception being, a tape recording,
which on its face, would create potential liability for DePayne on
one count of the Indictment. (2)
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(2) Counsel for DePayne has been engaged in the practice of
law before this Court for the past 37 years. He has been
representing Mr. DePayne in this action for over one year. He has
never, before this case, been faced with a situation where the
Defendant is not aware of what he has allegedly done which forms
the basis of the charges against him.
3. The Computer generated information in its present form is
useless to DePayne or anyone else for reasons described in DePayne's
"Reply to the Government's Opposition" to his Bill of Particulars and
there is no provision in the Omnibus Order for the correction of this
situation.
4. The Proposed Omnibus Order does not permit the copying of
"(b) files containing proprietary software taken from victim
companies, entities, or individuals without authorization". It is
necessary for the Defendants' counsel and their experts to have copies
of said "proprietary software" in order to determine whether said
software is really "proprietary" rather then being in the public
domain.
5. The Proposed Omnibus Order does not permit the copying of
"(d) files containing hacker tools (i.e. programs or commands used to
gain unauthorized access into computer systems.)." If the defendants
are going to be charged with the utilization of these tools it will
be necessary for defense counsel and their experts to copy hacker
tool files to determine whether or not they in fact are "hacker tools".
6. The Proposed Omnibus Order contains unreasonable limitations
on Mr. Mitnick's access (three times per month) to the computer
information to be stored in the "discovery room". DePayne is concerned
with this limitation as he is unfamiliar with said information and as
set forth in his Reply to the Government's Response to the Bills of
Particulars a review of those materials could take years.
7. The Proposed Omnibus Order while agreeing to provide
Defendants with an inventory of the electronically stored evidence
provides that "The inventory need not describe the contents of
individual electronic files". That limitation is absurd as the
Defendants will require guidance on the contents of said files rather
then be required to spend years making that determination for
themselves.
8. The Proposed Omnibus Order relieves the government of its
obligation to provide notes or work product prepared by government
counsel (it is doubted that such notes by counsel exist) and
government agents during their review of the electronic stored
evidence. It is difficult why the government is not willing to share
said notes with the defense. Perhaps those notes contain a great deal
of exculpatory information as is suspected by the Defendants.
9. The Proposed Omnibus Order provides that the Government's
tentative exhibit list should be provided to the Defendants 60 days
before trial. That list, after over one year since the Indictment in
this case, should be provided to the Defendants forthwith in order
that DePayne will have some idea of the nature of the Government's
case against him. (3) There is no valid reason for further delay in this
regard.
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(3) As stated to this Court previously by counsel for
DePayne it is his opinion that the Government does not have any
idea as to what its case might be against DePayne and accordingly
cannot identify any Exhibits with regard thereto.
10. The Proposed Omnibus Order provides that 90 days before
trial the Government will provide Defendants with witness statements
and 60 days before the Defendants will provide the Government with
the statements of its witnesses. It is respectfully submitted that
both side should provide witness statements as they become available.
11. The Proposed Omnibus Order does reflect that the Defendants'
discovery motions were taken under submission by the Court. It is
respectfully requested that the Court allow Defendants brief argument
on those motions before ruling thereon. Such rulings should be
reflected in the Proposed Omnibus Order.
As set forth more fully below the Proposed Omnibus Order
prepared by the Government is deficient in numerous aspects which
need to be addressed by the Court and counsel. (4)
--------------------
(4) Item numbers 1,2, and 3 above have been discussed in
prior pleadings which discussions will not be reiterated here.
II
THE DEFENDANTS SHOULD BE ALLOWED TO COPY
ALLEGED "PROPRIETARY SOFTWARE"
The Proposed Omnibus Order, at page 2 thereof, does not permit
the copying of "(b) files containing proprietary software taken from
victim companies, entities, or individuals without authorization". It
is necessary for the Defendants' counsel and their experts to have
copies of said "proprietary software" in order to determine whether
said software is really "proprietary" rather then being in the public domain.
In order to determine whether or not certain software is
"proprietary" it will be necessary to copy such software and give it
to defense experts for a determination as to whether or not it was in
fact proprietary (secret from all others) at the time it was
allegedly taken from a victim entity. The Government will want the
Court and Jury to assume that the entity from whom said software was
taken by Defendants (if that can be proven) was software developed
and owned by that particular entity to the exclusion of all others.
How can this be done without an extensive worldwide software search
that would have to be conducted by defense experts. It will also have
to be determined if this software was ever furnished to persons who
obtained the same without a confidentiality agreement or something
else that would insure its secrecy.
Another that will have to be performed by the Defendants is to
determine if any of the alleged "proprietary software" was the subject
of a patent or copyright of the victim entity or anyone else because
if it was said software could hardly be classified as a secret.
In the trial of this case the Government will assert that the
victim entities spent millions of dollars developing said software
and keeping secret from all outsiders. That will have a great effect
on the Defendants if they are convicted of any of the charged crimes.
Any expert analysis such as that above described will require
copies of the subject "proprietary software". (5)
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(5) It is a common sense observation that software
developed when it is alleged to have been purloined is in all
probably secret no longer, if it ever was.
III
THE DEFENDANTS SHOULD BE ALLOWED TO COPY FILES
CONTAINING ALLEGED "HACKER" TOOLS
The Proposed Omnibus Order, At pages 2-3 thereof, does not
permit the copying of "(d) files containing hacker tools (i.e.
programs or commands used to gain unauthorized access into computer
systems.)." If the defendants are going to be charged with the
utilization of these tools it will be necessary for defense counsel
and their experts to copy hacker tool files to determine whether or
not they in fact are "hacker tools" or have, as defense counsel
suspects a valid purpose unrelated to computer hacking.
IV
THERE SHOULD BE MORE ACCESS TO THE STORED COMPUTER
BY MR. MITNICK THEN THAT PROVIDED IN THE PROPOSED ORDER
The Proposed Omnibus Order, at page three thereof, contains
unreasonable limitations on Mr. Mitnick's access (three times per
month) to the computer information to be stored in the "discovery
room". DePayne is concerned with this limitation as he is unfamiliar
with said information and will rely on great part on examinations
conducted by Mitnick. As set forth in his Reply to the Government's
Response to the Bills of Particulars a review of those materials
could take years unless the Government narrows that information
considerably and sooner then the Proposed Order indicates is its
present intention. Three times a week might be sufficient but three
times a month is not under the present circumstances.
V
THE PROPOSED INVENTORY OF ELECTRONICALLY STORED EVIDENCE
MUST BE SUFFICIENTLY DESCRIPTIVE TO HAVE VALUE
The Proposed Omnibus Order, at page 4 thereof, while agreeing to
provide Defendants with an inventory of the electronically stored
evidence provides that "The inventory need not describe the contents
of individual electronic files". That limitation makes such an
inventory useless. As the Court will recall the Government has
already provided Defendants with such an inventory using the coded
names given to each file by its creator. That inventory was useless.
Defendants will require guidance on the contents of said files
rather then be required to make that determination for themselves.
The Government has admitted viewing all of the stored evidence and
knows the contents of each file which has any relevance to them. For
what reason can this information not be shared with the defense.
VI
THE NOTES OF GOVERNMENT ATTORNEYS AND AGENTS REGARDING CONTENTS
OF ELECTRONIC FILES SHOULD BE MADE AVAILABLE TO DEFENDANTS
The Proposed Omnibus Order, at page 4 thereof, relieves the
government of its obligation to provide notes or work product
prepared by government counsel (it is doubted that such notes by
counsel exist) and government agents during their review of the
electronic stored evidence. It is difficult to understand why the
government is not willing to share said notes with the defense.
Perhaps those notes contain a great deal of exculpatory information
as is suspected by the Defendants. (6)
--------------------
(6) It is interesting to note that when DePayne and his
attorney examined the subject electronic information they were
told by F.B.I. Special Agent Kenneth McGuire that although the
F.B.I. had seen all of the stored files there were no notes taken
with regard thereto.
VII
THE GOVERNMENT'S TENTATIVE EXHIBIT LIST SHOULD BE FURNISHED
TO DEFENDANTS AS SOON AS IT IS PREPARED
The Proposed Omnibus Order, at page 4 thereof, provides that the
Government's tentative exhibit list should be provided to the
Defendants 60 days before trial. That list, after over one year since
the Indictment in this case, should be provided to the Defendants
forthwith in order that DePayne will have some idea of the nature of
the Government's case against him. There is no valid reason for
further delay in this regard.
VIII
THE STATEMENTS OF WITNESSES SHOULD BE PROVIDED BY BOTH SIDES
AS SOON AS THEY BECOME AVAILABLE
The Proposed Omnibus Order, at page 5 thereof, provides that 90
days before trial the Government will provide Defendants with witness
statements and 60 days before the Defendants will provide the
Government with the statements of its witnesses. It is respectfully
submitted that both side should provide witness statements as they
become available. This might be of great aid in a pretrial resolution
of the instant prosecution.
IX
THE PROPOSED OMNIBUS ORDER SHOULD NOT BE ENTERED BEFORE THE COURT
HEARS ARGUMENT AND ISSUES RULING ON DEFENDANTS' DISCOVERY MOTIONS
The Proposed Omnibus Order does reflect that the Defendants'
discovery motions were taken under submission by the Court. It is
respectfully requested that the Court allow Defendants brief argument
on those motions before ruling thereon. Such rulings should be
reflected in the Proposed Omnibus Order. As stated several times
during the course of these proceedings by counsel for DePayne the
Government has consistently ignored requests for pretrial discovery
to which he is entitled.
As an example of such conduct the Court is asked to consider the
following situation. DePayne has requested, several times, that the
government furnish to him evidence of wire interceptions by the
Government or its agents. In support of this written application
DePayne has stated that such interceptions were conducted by two
Government agents or informants named Petersen and Shimomura.
DePayne even pointed to the Government that Shimomura has his own
Internet Web Site where he plays intercepted conversations between
Mitnick and DePayne in an attempt to publicize and sell a book he has
written about his adventures with Kevin Mitnick. The government
responds by informing DePayne that neither man is going to be a
Government witness. Whether or not they are going to be government
witnesses is not relevant. What is relevant is
whether or not the government has knowledge of such interceptions and
their content so that it may be determined by the Defendants as to
whether or not a Kastigar motion is appropriate.
The Government has not been entirely forthcoming with the Court
and counsel with regard to Pretrial Discovery to which DePayne is
entitled. This discovery should be taken into consideration before
any such order as that proposed by the Government is signed by the
Court.
X
CONCLUSION
Based on all of the foregoing it is respectfully submitted that
the Government's Proposed Omnibus Order should not be signed by the
Court without substantial revision thereof.
Respectfully Submitted
________________________________________
Richard G. Sherman
Attorney for Defendant
Lewis DePayne