LOS ANGELES, CALIFORNIA, ON WEDNESDAY, OCTOBER 8, 1997 BEGINNING AT APPROXIMATELY 1:30 P.M. THE CLERK: ITEM NUMBER ONE, CRIMINAL 95-881. UNITED STATES OF AMERICA VERSUS KEVIN DAVID MITNICK AND LEWIS DEPAYNE. COUNSEL, PLEASE MAKE YOUR APPEARANCE. MR. SCHINDLER: GOOD AFTERNOON, YOUR HONOR, DAVID SCHINDLER AND CHRIS PAINTER ON BEHALF OF THE UNITED STATES. MR. RANDOLPH: GOOD AFTERNOON, YOUR HONOR, DONALD RANDOLPH ON BEHALF OF KEVIN MITNICK WHO IS PRESENT WITH COUNSEL. MR. SHERMAN: GOOD AFTERNOON, YOUR HONOR, RICHARD SHERMAN FOR MR. DEPAYNE. I BELIEVE WAIVERS ARE ON FILE. MR. RANDOLPH: YOUR HONOR, I THINK ONE OF THE REASONS WE ARE HERE TODAY IS TO PROPOSE -- FOR THE PARTIES TO PROPOSE A TRIAL DATE. THE GOVERNMENT -- WELL, FIRST OFF, THE TRIAL DATE THAT THE DEFENSE IS PROPOSING AND I BELIEVE IS CONCURRED UPON WITH THE GOVERNMENT AND WHEN I SAY THE DEFENSE I AM TALKING ABOUT MR. MITNICK IS APRIL THE 14TH -- IT IS A TUESDAY -- OF 1998. AFTER SPEAKING WITH MR. SCHINDLER AND MR. PAINTER, THEY HAVE ADVISED ME TODAY THAT IN TERMS OF DISCOVERY, ALL RULE 16, BRADY AND GIGLIO MATERIAL HAS BEEN EITHER DISCLOSED AT THIS POINT IN TIME TO THE DEFENSE IN HARD COPIES WHICH WE HAVE RECEIVED OR IS AVAILABLE FOR REVIEW IN THE COMPUTERIZED EVIDENCE THAT THE GOVERNMENT MAINTAINS. IT IS SEVERAL HUNDRED HOURS AT LEAST OF COMPUTERIZED TAPES THAT I AM AWARE OF, SO WE HAVE AGREED AT THIS POINT IN TIME IT WOULD BE PREMATURE THEN TO SET A DISCOVERY DATE FOR ANYTHING THAT ISN'T CONTAINED IN THOSE MATERIALS BECAUSE IT WOULD BE INCUMBENT UPON THE DEFENSE TO REVIEW THESE MATERIALS AND SEE IF THAT -- THE COURT: I DON'T KNOW WHAT YOU MEAN BY A DISCOVERY DATE. MR. RANDOLPH: WE HAD TALKED ABOUT SETTING A HEARING DATE FOR SOME MOTIONS -- DISCOVERY MOTIONS THAT WERE PREVIOUSLY FILED, YOUR HONOR, AND WERE TAKEN OFF CALENDAR FOR COUNSEL TO SEE IF THEY CAN RESOLVE ALL THE ISSUES. I GUESS WHAT I AM SAYING IS THAT WE ARE REQUESTING THAT THAT STATUS REMAIN THE SAME SO THAT WE CAN SEE IF WE AGREE THAT THAT APPEARS TO BE ALL THE DISCOVERY THAT WE ARE ENTITLED TO SO THAT WE ARE NOT ASKING THAT A HEARING DATE BE SET. THE ONLY CAVEAT THAT I HAVE IN TERMS OF THIS TRIAL DATE IS THAT AS MR. SCHINDLER HAS ADVISED ME BECAUSE OF THE AMOUNT OF DISCOVERY THAT IS CONTAINED IN THE COMPUTER TAPES HE WONDERS WHETHER I WILL BE ABLE TO GO THROUGH THAT DISCOVERY AND ADEQUATELY PREPARE IT IN TIME FOR THE TRIAL DATE OF APRIL THE 14TH, SO I WOULD WANT, ONE, TO LEAVE AN OPENING, YOUR HONOR, THAT IF BY ON OR BEFORE THE END OF THIS YEAR AFTER WE HAVE THOROUGHLY COME UP WITH A SYSTEM, BY THE WAY, SO THAT WE CAN REVIEW THIS COMPUTER EVIDENCE AND WORK OUT A WAY IN WHICH MY CLIENT CAN ALSO PARTICIPATE IN THAT REGARD, IF I DETERMINE THAT IT DOES NOT APPEAR I AM GOING TO BE ABLE TO MEET THE APRIL 14TH TRIAL DATE THAT I WILL AGREE BEFORE THE END OF THIS YEAR TO SEEK AN APPEARANCE BEFORE THIS COURT AND ADVISE THE COURT THAT THAT'S PROBLEMATIC, SO WITH THAT CAVEAT, THAT IS THE DATE THAT I THINK ALL PARTIES ARE SEEKING. THE COURT: WHAT DO YOU WANT TO DO, MR. SHERMAN? MR. SHERMAN: YOUR HONOR, I HAVE INFORMED THE UNITED STATES ATTORNEY AND MY CO-COUNSEL THAT ANY DATES THAT THEY AGREE UPON IS SATISFACTORY TO ME. MR. SCHINDLER: ONE ADDITION, YOUR HONOR, WHAT I HAD PROPOSED AND GIVEN TO BOTH COUNSEL WAS A PROPOSED SCHEDULE. WHAT HE WOULD ASK THE COURT IS TO ALLOW US TO CONTINUE TO MEET-AND-CONFER. WE WILL SUBMIT TO THE COURT A DETAILED PROPOSED SCHEDULE WHICH WILL CONTAIN DATES FOR THE FILING OF DISCOVERY MOTIONS AND OPPOSITION TO REPLIES, HEARING DATE ON DISCOVERY MOTIONS AS WELL AS THE DATE FOR FILING OF ANY SUBSTANTIVE MOTIONS, OPPOSITIONS, REPLIES AND A PROPOSED HEARING DATE WHICH WILL DOVETAIL OR ACTUALLY BACKTRACK -- THE COURT: WHY SHOULD THE COURT BE REQUIRED TO COME IN AND RULE ON DISCOVERY MOTIONS ? MR. SCHINDLER: I DON'T BELIEVE THAT THERE WILL BE ANY DISCOVERY MOTIONS. IN FACT, IT IS PREMATURE. I FEEL A LITTLE BIT LIKE RIP VAN WINKLE. WHEN LAST I WAS HERE BEFORE I LEFT AND CAME BACK WE WERE PROBABLY SAYING THE SAME THING TO THE COURT -- THE COURT: EXACTLY. MR. SCHINDLER: AND I AM SURE THE COURT IS UP THERE SCRATCHING HER HEAD WONDERING WHY WE ARE HERE. UNFORTUNATELY, FOR WHATEVER REASON THERE HAS BEEN A LITTLE BIT OF A CHICKEN AND THE EGG PROCESS GOING ON IN TERMS OF THE VIEWING OF THE COMPUTERIZED EVIDENCE. I THINK ALL THE PARTIES UNDERSTAND NOW - BOTH DEFENSE COUNSEL -- THAT THAT REALLY NEEDS TO HAPPEN AND THAT THERE MAY NOT BE ANY DISCOVERY MOTIONS. WE ARE TOSSING THAT TERM AROUND AS IF THERE NECESSARILY WILL BE SOME. FROM OUR PERSPECTIVE THERE WON'T BE ANY, BUT IT IS ALWAYS IMPOSSIBLE TO PREDICT AHEAD OF TIME. ALL I AM TRYING TO DO AND ALL THE GOVERNMENT IS TRYING TO DO IS TO SET UP SOME STRUCTURE OVER WHAT HAS BEEN A FAIRLY UNSTRUCTURED PROCESS UP UNTIL NOW AND IT IS A PROCEDURE AND A STRUCTURE THAT OBVIOUSLY WE WOULD LIKE THE COURT TO APPROVE IN TERMS OF -- THE COURT: WELL, IF I APPROVE IT I AM GOING TO HOLD YOU TO IT. MR. SCHINDLER: FROM OUR PERSPECTIVE, YOUR HONOR, WE ARE READY TO GO FORWARD. WE RECOGNIZE THAT IT REQUIRES THE DEFENSE'S ABILITY TO REVIEW THAT INFORMATION -- THE COURT: WELL, IT DOESN'T MEAN THAT MR. MITNICK HIMSELF HAS TO REVIEW ALL OF IT. MR. SCHINDLER: THAT IS CORRECT, YOUR HONOR. I CONCUR WHOLEHEARTEDLY WITH THE COURT. IT HAS NEVER BEEN OUR POSITION THAT HE DOES . I AM REFERRING SPECIFICALLY TO MR. RANDOLPH COMING AND TAKING A LOOK AS WELL AS MR. SHERMAN. MR. RANDOLPH: MAY I RESPOND; A COUPLE OF THINGS. FIRST, YOUR HONOR, TODAY IS THE FIRST TIME DESPITE DEFENSE REQUESTS -- NUMEROUS DEFENSE REQUESTS BY MY OFFICE FOR THE GOVERNMENT TO CONFIRM THAT ALL THE DISCOVERY THAT THEY HAVE AN OBLIGATION TO TURN OVER PURSUANT TO OUR WRITTEN REQUEST UNDER BRADY, GIGLIO AND RULE 16, THAT THEY HAVE MET THAT OBLIGATION EITHER IN THE HARD COPIES THEY HAVE GIVEN US OR IN THE COMPUTER EVIDENCE THAT IS AVAILABLE. THEY ANSWERED THAT QUESTION FOR THE FIRST TIME TODAY, AND THAT IS WHY I PUT IT ON RECORD, SO ONE OF THE REASONS WHY THIS DISCOVERY HAS STILL BEEN A CONTESTED ISSUE IS BECAUSE THE GOVERNMENT HAS NOT BEEN PREPARED TO MAKE THAT ASSERTION. NOW THEY ARE, SO IF WE BELIEVE THERE IS OUTSTANDING DISCOVERY THAT WE ARE AWARE OF THAT IS NOT CONTAINED IN THE COMPUTER OR IN THE HARD COPIES THEY HAVE GIVEN US, ONLY THEN WILL WE COME BACK TO THE COURT AND SAY "THIS EXISTS. THEY HAVE REFUSED TO GIVE IT TO US, AND WE NEED THE COURT'S GUIDANCE." THE COURT: DID YOU HEAR WHAT I SAID ABOUT THE DATE? MR. RANDOLPH: I DID, YOUR HONOR. THE ONLY OTHER POINT I WOULD LIKE TO MAKE IS THAT IN ORDER FOR ME ON BEHALF OF MR. MITNICK TO MEET THAT DEADLINE, I AM GOING TO BE IN THE PROCESS OF REQUESTING THAT THE COURT PROVIDE EXPERT SUPPORT FOR THE DEFENSE AS NEEDED AND REQUEST THE COURT FOR RESOLUTION OF ANY OTHER MATTERS REGARDING RESOURCES FOR THE DEFENSE SOME OF WHICH ARE PENDING BEFORE YOUR HONOR, AND I WOULD BE HAPPY TO ADDRESS AT ANY TIME THAT ISSUE. THE COURT: I HAD YOU IN HERE TO ADDRESS THE ISSUE. MR. RANDOLPH: I UNDERSTAND THAT. THE COURT: I HAVE BEEN THROUGH THOSE BILLS, AND THEY ARE VERY, VERY HIGH. MR. RANDOLPH: YOUR HONOR -- THE COURT: I AM GOING TO SIGN YOUR VOUCHERS, BUT IF YOU ARE ANTICIPATING THAT WE ARE GOING TO JUST GIVE YOU A BLANK CHECK, AND IF MR. MITNICK TELLS YOU THAT AN EXPERT IS NEEDED, YOU CAN HAVE ALL THE MONEY YOU WANT FOR THAT EXPERT AND ATTORNEYS FEES TO GO WITH THE -- TO TALK TO THE EXPERT AND ALL OF THAT IN AN UNLIMITED FORM YOU ARE WRONG. I AM NOT GOING TO. I UNDERSTAND THAT MR. MITNICK BELIEVES THAT HE IS ENTITLED T0 BETTER COUNSEL THAN ANYBODY TO GO OUT AND PAY FOR, BUT THAT DOESN'T NECESSARILY MEAN THAT THE UNITED STATES GOVERNMENT HAS TO PUT UP UNLIMITED AMOUNTS OF MONEY FOR THIS DEFENSE. YOU HAVE GOT TO BE AWARE OF THE FACT THAT YOU ARE ASKING FOR LOTS OF MONEY. MR. RANDOLPH: I APPRECIATE THAT, YOUR HONOR. I AM UNCOMFORTABLE DISCUSSING THIS IN THE PRESENCE OF THE GOVERNMENT. I THINK IT PLACES MY CLIENT AT A DISADVANTAGE. THE COURT: WHAT DID I -- THERE IS NOTHING THAT IS BEING SAID IN THIS COURTROOM THAT PLACES YOUR CLIENT AT A DISADVANTAGE . YOU RAISED THE MATTER OF RESOURCES, AND I TELL YOU THAT WHAT YOU ASKED FOR IS A LOT OF MONEY AND WHAT YOU ARE NOW SUGGESTING IS THAT THE COURT SHOULD JUST SIGN OFF ON ALL KINDS OF EXPERTS. I AM NOT SURE I AM GOING TO DO THAT. MR. RANDOLPH: I AM NOT SURE THAT I WAS SUGGESTING THAT, YOUR HONOR. IN THIS CASE MR. MITNICK WILL NOT DICTATE TO ANYBODY -- NOT TO THIS COURT -- NOT TO DEFENSE COUNSEL WHAT IS REASONABLE TO BE PROPOSED. THE COURT: THEN IF I HAVE YOUR ASSURANCE THAT THAT IS TRUE AND THERE WILL BE SOME REASONABLE REIGN OR CONTROL PUT ON THE AMOUNTS OF MONEY INVOLVED HERE THEN I AM SATISFIED BUT I HAVE RARELY EVER SEEN BILLS THAT HIGH -- MR. RANPOLPH: WELL, THERE WERE -- THE COURT: -- IN A MATTER SUCH AS THE ONE YOU TRIED IN FRONT OF ME. MR. RANDOLPH: WE CERTAINLY DID -- ON BEHALF OF THE DEFENSE, YOUR HONOR, I CERTAINLY DID TRY TO PRESENT CHAPTER AND VERSE WHY THAT HAPPENED AND HOPEFULLY CONVINCE THE COURT THAT IT WAS NOT THE FAULT OF THE DEFENSE. THE COURT: I AM NOT USUALLY EVER THE JUDGE IN THIS COURTHOUSE WHO LIMITS THE AMOUNT OF FEES. MR. RANDOLPH: I KNOW THAT. THE COURT: I AM NOT THAT -- I DO NOT HAVE THAT KIND OF HISTORY WITH LAWYERS, BUT I AM ABSOLUTELY STUNNED AT WHAT THOSE BILLS LOOK LIKE, AND I JUST WANT YOU TO KNOW THAT WHEN YOU SAY YOU WANT THE COURT TO GIVE YOU EXPERTS AND EVERYTHING THAT YOU JUST SAID, I DON'T THINK YOU HAVE GOT THE RIGHT TO ASSUME THAT I AM JUST GOING TO SIGN OFF ON WHATEVER YOU ASK FOR. MR. RANPOLPH: I DON'T ASSUME THAT FOR A MOMENT, YOUR HONOR, NEVER. THE COURT: WELL, JUST BE AWARE OF THAT. I AM GOING TO SIGN THE VOUCHERS THAT YOU GAVE ME BUT I AM JUST TELLING YOU THAT IS A LOT OF MONEY FOR WHAT YOU TRIED -- FOR THE NATURE OF WHAT YOU TRIED. MR. RANDOLPH: WELL, I HOPE THAT THE COURT -- I UNDERSTAND, YOUR HONOR. WE CERTAINLY -- IT DOES -- IN THIS CASE AND IN NO OTHER CASE IN WHICH I HAVE EVER REPRESENTED ANYONE IN AN INDIGENT PANEL STATUS SINCE THE EARLY '80S HAVE I EVER TRIED TO PRESENT IN WRITING A DETAILED EXPLANATION OF WHY THE BILLS WERE WHAT THEY WERE. I DID IN THIS CASE BECAUSE I TRULY BELIEVE IN GOOD FAITH THAT WHAT HAPPENED IN THE LAST SIX MONTHS WAS NOT THE FAULT OF THE DEFENSE. IN FACT, WE DID EVERYTHING UNDER THE SUN TO TRY AND AVOID HAVING TO GO DOWN THE ROAD AND HAVING THE ELONGATED EVIDENTIARY HEARING THAT WE DID, SO I FEEL THAT WE TRULY TRIED TO AYOID WHAT HAPPENED HERE. THE COURT: IF YOU ASK FOR AN EVIDENTIARY HEARING, THAT IS EXACTLY WHAT YOU ARE GOING TO GET. YOU HAVE GOTTEN WHATEVER YOU ASKED FOR, AND I AM MAKING ONLY THIS ONE COMMENT ABOUT THE AMOUNT OF MONEY EXPENDED BECAUSE OF WHAT YOU JUST SAID ABOUT EXPERTS, AND I CAN SEE ALL OF THIS COMING, AND I SAY T0 YOU AS FOLLOWS. I AM GOING TO LOOK AT THE BILLS CAREFULLY, AND I AM NOT JUST GOING TO AUTHORIZE EVERYTHING THAT SOMEBODY ASKS ME FOR. THE OTHER THING IS LET US NOW AGREE ON DATES AND LET US ADHERE TO THEM. MR. RANDOLPH: WELL, WITH THE ONE POSSIBILITY AFTER I HAVE FIGURED OUT A WAY TO GET THROUGH THE HUNDREDS OF HOURS OF COMPUTER EVIDENCE, YOUR HONOR, IF BY THE END OF THE YEAR IF I SEE THE APRIL DATE IS UNREALISTIC THEN I CERTAINLY WILL COME BACK TO THE COURT BY THEN. THAT IS THE ONLY HOLD-OUT THAT I AM MAKING. OTHERWISE, OBVIOUSLY MY CLIENT IS IN CUSTODY, AND I AM INTERESTED IN MEETING THAT DATE. THE COURT: WELL I CAN SEE NOW ANOTHER THING, WHICH IS, YOU ARE GOING TO MAKE AN APPLICATION TO THE COURT AND IN THE APPLICATION YOU ARE GOING TO SAY THAT THE COURT MUST ARRANGE TO HAVE HIM SENT TO A PARTICULAR PLACE WHERE HE CAN MEET YOU IN FRONT OF THE COMPUTER FOR 8 HOURS A DAY WITH TWO MARSHALS WITH HIM, AND I AM NOT GOING TO DO THAT, EITHER, SO I JUST -- I DON'T THINK WE SH0ULD FLY UNDER FALSE COLORS HERE. MR. MITNICK IS A CRIMINAL DEFENDANT, AND HE HAS A RIGHT TO PREPARE FOR TRIAL -- NO QUESTION ABOUT IT -- AND I CERTAINLY AM NOT GOING TO IN ANY WAY IMPAIR HIS RIGHT TO DO THAT, BUT I AM NOT GOING TO CAUSE THE MARSHALS TO TRANSPORT HIM JUST ANYWHERE YOU SAY AT ANY TIME YOU SAY IN ORDER TO LET HIM PARTICIPATE IN THE PREPARATION OF THE TRIAL WITH YOU. WE DON'T DO THAT FOR OTHER PEOPLE, AND THERE IS NO REASON WHY WE SHOULD DO IT FOR MR. MITNICK. I RECKON THAT YOU COULDN'T HIRE AN EXPERT BETTER THAN HE IS; WOULDN'T YOU AGREE? MR. RANDOLPH: I THINK THAT MR. MITNICK' S PARTICIPATION IN THE REVIEW OF THIS EVIDENCE IS CRITICAL TO THE DEFENSE. I AM COGNIZANT NOT ONLY OF WHAT THE COURT SAID TODAY BUT WHAT YOU SAID AT THE SENTENCING. THE COURT: THAT IS TRUE IN ANY CRIMINAL CASE. MR. RANDOLPH: RIGHT. WELL, I THINK IT IS PROBABLY MORE TRUE IN THIS CASE THAN IN MOST. BASICALLY I TAKE THE COURT'S COMMENTS TO ESSENTIALLY THROW A CHALLENGE AT THE DEFENSE TO FIGURE OUT A WAY THAT HE CAN PARTICIPATE IN REVIEWING -- THE COURT: I WANT YOU TO BE REASONABLE ABOUT WHAT YOU ASK THE COURT TO DO. THAT IS WHAT I WANT YOU TO DO. I AM NOT SAYING ARBITRARILY ANYTHING. I AM JUST -- YOU RAISED IT AND I AM NOW RESPONDING TO IT. I DO NOT REGARD THIS AS BEING A SITUATION IN WHICH NOT ONLY THE GOVERNMENT SHOULD PAY FOR THE EXPERTS AND THE ATTORNEYS AND THE COSTS AND ALL OF THAT BUT THE GOVERNMENT SHOULD ALS0 HAVE TO PAY TO HAVE MARSHALS TRANSPORT HIM BACK AND FORTH, AND THERE SHOULD BE SPECIAL RULES ABOUT THAT. I AM NOT GOING TO JUST GIVE YOU A BLANK CHECK. MR. RANDOLPH: I WILL TRY TO COME UP WITH A WAY, YOUR HONOR, THAT DOESN'T INVOLVE THE USE OF MARSHALS. OBVIOUSLY, THE FIRST THING WE DID WAS ASK THE GOVERNMENT TO PRINT IT ALL OUT SO THAT I COULD TAKE TO HIM HARD COPIES, AND APPARENTLY THAT IS ESSENTIALLY COST PROHIBITIVE AND LOGISTICALLY IMPOSSIBLE BECAUSE OF THE AMOUNT OF -- JUST THE VOLUME OF THE PAPERWORK. IN FACT, THAT IS THE REASON WHY THE GOVERNMENT MAINTAINS THIS DISCOVERY ON COMPUTER DISK BECAUSE OF THE VOLUMINOUS NATURE OF THE DISCOVERY, AND OBVIOUSLY THE COURT DOESN'T HAVE ANYTHING BEFORE IT TODAY SO WE WON'T HAVE TO DECIDE THIS. ALL I AM SAYING IS, YOUR HONOR, I APPRECIATE WHAT THE COURT IS SAYING. THE COURT: WELL, THERE IS ALSO THE OTHER PART OF IT WHICH IS THAT I AM NOT GOING TO LEAVE MR. MITNICK IN A POSITION WHERE HE HAS UNLIMITED ACCESS TO A COMPUTER. MR. RANDOLPH: I UNDERSTAND THAT. THE COURT: I AM NOT GOING TO. MR. RANDOLPH: IT WAS MY INTENTION, AND MAYBE I SHOULD JUST ASK YOUR HONOR BEFORE I SPEND A LOT OF TIME GOING DOWN THIS ROAD, IT WAS MY INTENTION TO TRY TO COME UP WITH -- AND I HAD ALREADY BREACHED THE SUBJECT WITH THE M.D.C. -- TO BRING IN A COMPUTER THAT IS NOT NETWORKED OR HOOKED UP WITH ANYTHING ELSE BUT SIMPLY HAS THE DISCOVERY THAT WE ARE TALKING ABOUT HERE ON IT -- TO BRING IT INTO THE ATTORNEY ROOM TO SIT THERE -- THE COURT: I WAS PRETTY SURE WE WOULD GET TO THAT. MR. RANDOLPH: WELL, COST EFFECTIVELY THAT IS THE MOST EFFICIENT WAY TO DO IT. HE WOULD BE MONITORED EITHER BY SOMEONE FROM MY OFFICE OR SOMEONE FROM THE M.D.C. BECAUSE THERE ARE ROOMS, AND THEY HAVE DONE THIS BEFORE AT THE M.D.C., YOUR HONOR, WHERE THEY SET UP A ROOM DOWN IN THE ATTORNEY ROOM WHERE -- THIS HAPPENED IN CASES THAT I KNOW OF -- WHERE THE DISCOVERY WAS SO VOLUMINOUS THEY COULDN'T EVEN KEEP IT UP ON THE FLOOR. THE DEFENDANTS HAD A RIGHT TO DO IT SO THEY HAVE ONE ROOM WHERE THEY HAYE A LOCK ON THE DOOR AND THEY MAINTAIN THAT ROOM. THE COURT: I AM NOT TALKING ABOUT A LOCK ON THE DOOR. I AM TALKING ABOUT ACCESS TO A COMPUTER WHICH IS DIFFERENT. MR. RANDOLPH: I UNDERSTAND. WELL, BASICALLY WHAT I WAS GOING TO TRY TO WORK OUT WITH THE M.D.C., AND AS I SAID, I STARTED ON THIS ROAD AND HAVE PROPOSED TO YOUR HONOR THAT MY CLIENT BE ALLOWED T0 ACCESS THE DISCOVERY THROUGH THE USE OF A STAND-ALONE LAP TOP THAT CANNOT BE HOOKED UP T0 ANYTHING ELSE VIA MODUM OR ANY OTHER WAY AND ONLY C0NTAINS THE DISCOVERY IN THIS CASE THAT HE CAN LOOK AT BECAUSE THE DISCOVERY THAT THE GOVERNMENT HAS GIVEN TO US IS IN THAT FORMAT WITH A COUPLE OF MODIFICATIONS, AND IT IS DISK RELATED. THE DISK CAN BE PUT IN AND THEN IT CAN BE REVIEWED ON THE COMPUTERS ON THE SCREEN AND BY THE CLIENT. I HADN'T FIGURED OUT EXACTLY HOW TO PROPOSE THE MONITORING OF THIS PROCESS WHILE HE IS DOING IT, BUT THAT IS WHAT I HAD IN MIND -- SOMETHING ALONG THOSE LINES. THE COURT: AND THAT IS WHAT I HAD IN MIND WHEN I RAISED IT WITH YOU -- THAT YOU WERE GOING TO ASK FOR SOMETHING ALONG THOSE LINES. MR. RANDOLPH: SHOULD I NOT GO DOWN THAT ROAD, YOUR HONOR?
THE COURT: I DON'T KNOW. I DON'T KNOW. WHAT IS THE GOVERNMENT'S POINT? YOU UNDERSTAND MY APPREHENSION ABOUT THIS. I AM NOT GOING TO HAVE A WHOLE SUCCESSION OF UNFORTUNATE EVENTS TAKE PLACE BECAUSE WHILE HE WAS INCARCERATED WE GAVE MR. MITNICK A C0MPUTER. I AM RAISING ALL THE THINGS THAT TROUBLE ME, AND I KNEW I WOULD GET TO THIS POINT. NOW I AM NOT TRYING TO MAKE IT DIFFICULT FOR YOU, MR. RANDOLPH, BUT THIS IS NOT A COURT DISPOSED TO SAY, "OH, WELL, MR. MITNICK SHOULD HAVE ACCESS TO A COMPUTER. HE HAS GOT A RIGHT TO PREPARE FOR HIS DEFENSE, AND WHAT HARM CAN IT DO." WELL THE ANSWER IS "PLENTY." MR. RANDOLPH: WELL, LET ME RESPOND TO THAT BRIEFLY, YOUR HONOR. THERE IS NO HARM THAT CAN BE DONE BY SOMEONE HAVING ACCESS AND USING A STAND-ALONE LAP TOP WITHOUT A MODUM ANYMORE THAN IF IT WAS A REMINGTON ELECTRIC TYPEWRITER OR EVEN MANUAL. THE COURT: DON'T GIVE ME ANY ASSURANCES ABOUT THIS, MR. RANDOLPH. I WILL LEAVE IT TO THE GOVERNMENT -- TO YOU TO STIPULATE ABOUT WHAT IS TO BE DONE. MR. RANDOLPH: ALL RIGHT. THE COURT: THIS IS NOT A TYPICAL CASE. MR. RANPOLPH: I KNOW THAT, YOUR HONOR. THE COURT: AND NOT ONE THAT WILL BE HELPED BY ASSURANCES FROM COUNSEL. WELL, YOU WILL SEE WHAT YOU CAN DO, AND YOU WILL LET ME KNOW. MR. SCHINDLER: IF I MAY, YOUR HONOR. I HEAR THE COURT LOUD AND CLEARLY, AND I UNDERSTAND THE PR0BLEMS THE COURT IS ADDRESSING, AND PLEASE ALLOW US SIMPLY TO MEET AND SEE IF WE CAN WORK OUT SOME WAY. I UNDERSTAND MR. RANDOLPH'S CONCERNS. I UNDERSTAND HIS NEED TO ALLOW HIS CLIENT TO SEE THE EVIDENCE. I AM VERY MINDFUL OF THE RESTRICTIONS THE COURT HAS PLACED ON MR. MITNICK THAT WE CONCUR WITH. GIVE US THE OPPORTUNITY. WHAT WE WILL THEN DO IS PROVIDE IN WRITING TO YOU A STIPULATION THAT WE HAVE APPROVED.
THE COURT: WHAT MIGHT SEEM TO BE OVERWHELMING TO S0ME PEOPLE DOESN'T SEEM OVERWHELMING TO THE COURT AT ALL. WE REGULARLY DEAL WITH CASES IN WHICH THE ENTIRE COURTROOM IS FILLED WITH DOCUMENTS AND COMPUTER RUNS, AND THERE ARE 3 COMPUTERS AT ALL TIMES, AND THERE ARE SCREENS AND EVERY OTHER THING. TWO HUNDRED HOURS IS NOTHING COMPARED TO WHAT SOME OF THE CASES ARE LIKE, BUT THERE IS THIS ONE ASPECT ABOUT IT, AND THAT IS THAT THERE IS CONSIDERABLE FEAR ON THE PART OF THE COURT IN THE ACCESS TO A COMPUTER. MR. SCHINDLER: AND THE GOVERNMENT CONCURS, YOUR HONOR, AND ALLOW US TO MEET WITH MR. RANDOLPH. I THINK I HAVE BEEN DOWN THIS ROAD BEFORE. THERE ARE SOME SOLUTIONS I MIGHT BE ABLE TO PROPOSE. THE COURT: HOW MUCH WOULD IT COST TO HAVE IT ALL PRINTED OUT? MR. SCHINDLER: WELL, IT GETS A LITTLE MORE COMPLICATED THAN THAT. IT IS NOT A MATTER OF JUST HAVING IT ALL PRINTED OUT. IT IS NOT JUST THE 200 HOURS THAT MR. SHERMAN IS REFERRING TO. THE COURT: HIS NAME IS RANDOLPH. MR. SCHINDLER: NO. MR. SHERMAN EARLIER SAID 200 HOURS. THE COURT: OH. MR. SCHINDLER: THERE IS ONE THING I AM SURE OF IS MR. RANDOLPH AND MR. SHERMAN. IT IS NOT JUST A COST PROBLEM. THE LOGISTICAL PROBLEM HERE INVOLVES THE FORMATTING OF SOME OF THE COMPUTER EVIDENCE. IT IS NOT IN A FORMAT THAT CAN BE TRANSFERRED ON TO A DISK TO PROVIDE TO MR. RANDOLPH. I DON'T WANT TO GET THE COURT BOGGED DOWN WITH THE TECHNICAL PROBLEMS. THAT IS WHY WE CAN MAKE IT AVAILABLE TO COME LOOK AT IT, THE F.B.I., BECAUSE WE OBTAINED A SPECIAL MACHINE IN THE FORMAT THAT WAS APPROPRIATE. PRINTING IT ALL OUT WOULD BE MORE THAN THIS COURTROOM. IT IS -- LOTS OF IT IS WHOLLY IRRELEVANT BUT, OF COURSE, ALWAYS BECAUSE THE GOVERNMENT -- BECAUSE MR. MITNICK IN OBTAINING A LOT OF THIS STUFF -- IT HAS NOTHING TO DO WITH THIS CASE BUT HE IS ENTITLED TO LOOK AT THAT STUFF, AND THAT IS WHY SIMPLY PRINTING IT ALL OUT IT WOULD FILL UP MORE THAN THE COURTROOM IN TERMS OF CONSTITUTING - EVEN THE TIME PROBLEM INVOLVED IN PRINTING OUT GIGABITS OF INFORMATION. THAT IS THE PROBLEM, SO THERE ARE SOME LOGISTICAL PROBLEMS. I HAVE SOME IDEAS IN MIND. THE STARTING POINT IS FOR MR. RANDOLPH TO COME LOOK AT THE STUFF ON THE COMPUTER AND THEN TO SEE IF WE CAN'T BRIDGE THE GAPS AS FAR AS GETTING MR. MITNICK ACCESS IN A CONTROLLED ENVIRONMENT WHERE HE WILL NOT HAVE UNFETTERED ACCESS TO A COMPUTER BY HIMSELF. OKAY. MR. RANDOLPH: I AM HOPEFUL, YOUR HONOR, THAT IN THIS PROCESS THE ONE THING THAT I HOPE I CAN CONVINCE THE COURT IS THAT THE CRIME AND THE ALLEGATIONS IN THIS CASE OF COMPUTER HACKING NECESSARILY INVOLVE THE USE OF TELEPHONE LINES AND A MODUM AND THAT UNLESS THE COMPUTER -- THE COURT: I KNOW THAT. MR. RANDOLPH: ALL RIGHT. THE COURT: I AM VERY WELL AWARE OF THAT. MR. RANDOLPH: SO ALL I AM HOPING THAT I CAN CONVINCE THE COURT, YOUR HONOR, IS THAT WHEN A COMPUTER - A LAP TOP IS NOT EQUIPPED T0 BE ABLE TO BE HOOKED UP WITH A TELEPHONE LINE WHICH NECESSARILY REQUIRES A MODUM, THEN IT IS RELEGATED TO AN INERT OBJECT WHICH IS SIMPLY A WORD PROCESSOR -- SIMPLY IS AN EFFICIENT WAY OF ACCESSING INFORMATION AND THAT IS WHY I HAVE BEEN PLANNING TO PROPOSE THE USE OF A LAP TOP IN AN EFFICIENT MANNER. THE GOVERNMENT AGAIN HAS HINTED THAT MUCH OF THIS INFORMATION IS IRRELEVANT AND THAT ALL I NEED TO DO IS LOOK AT IT. I CAN REPRESENT TO THE COURT THAT I KNOW ENOUGH ABOUT THE INFORMATION TO KNOW THAT MY LOOKING AT IT WILL NOT BE ABLE TO MAKE A DEFINITIVE DECISION ON WHETHER IT IS RELEVANT OR NOT, SO I DIDN'T WANT TO LEAVE THE GOVERNMENT'S STATEMENT STANDING ALONE WITHOUT RESPONDING THAT WHAT THE DEFENSE -- AS IN ANY CASE WHAT THE DEFENSE THINKS IS RELEVANT IS NOT NECESSARILY GUIDED BY WHAT THE GOVERNMENT BELIEVES, SO I WILL MEET WITH COUNSEL AS WE HAVE BEEN DOING OVER THE MONTHS TO COME UP WITH A PROPOSAL TO THE COURT. THE COURT: NO EX PARTE APPLICATIONS OF ANY KIND WILL BE ENTERTAINED -- NONE. MR. RANDOLPH: WELL, YOUR HONOR, FOR RESOURCES, EITHER AN EXPERT TO INTERPRET FOR THE DEFENSE WHAT WE HAVE -- AN EXPERT AS TO WHAT IT MEANS, YOUR HONOR, UNDER THE CJA -- THE DICTATES ARE THAT I SUBMIT THAT REQUEST IN AN EX PARTE FASHION TO THE COURT. THE COURT: WELL, THERE IS A PROBLEM THERE, TOO. MR. RANDOLPH: WELL, I AM OPEN TO SUGGESTION, YOUR HONOR. I DON'T -- I DON'T -- THE GOVERNMENT -- BECAUSE OBVIOUSLY THE COURT KNOWS -- I DON'T HAVE TO SAY IT -- BECAUSE OF THE WAY THE CJA WORKS WHETHER THERE BE PSYCHOLOGICAL EXPERTS OR TECHNICAL -- THE C0URT: PSYCHOLOGICAL EXPERTS? MR. RANDOLPH: ANY TYPE OF EXPERT, YOUR HONOR, THAT IS RELEVANT TO THE CASE, AS APPOINTED COUNSEL I AM REQUIRED TO SEEK THE APPOINTMENT AND SET FORTH THE EXPERTISE OF THE EXPERT, GIVE AN ASSESSMENT OF WHAT THE EXPERT WILL DO AND HOW MUCH IT WILL COST AND PRESENT THAT TO THE COURT EX PARTE WITHOUT PRESENTING IT TO THE GOVERNMENT. OTHERWISE, IT WOULD BE UNFAIR TO THE INDIGENT DEFENDANT. THE GOVERNMENT HAS NO OBLIGATION TO HAVE DISCLOSED TO THE DEFENSE, AND IN FACT, THEY HAVE NOT, WHAT EXPERTS THEY HAVE USED IN THIS CASE TO DATE. THE COURT: YOU GIVE ME FROM TIME TO TIME EX PARTE APPLICATIONS, BUT I MAY VERY WELL WANT TO DO SOMETHING MORE WITH THAT TO ASCERTAIN WHO THE EXPERT IS, HOW THE EXPERT IS GOING TO WORK, WHAT SORT OF COOPERATION HE IS GOING TO CARRY-ON WITH MR. MITNICK. I AM NOT -- YOU ARE NOT GOING TO BE GIVEN A BLANK CHECK. MR. RANDOLPH: I AM NOT ASKING FOR ONE, YOUR HONOR. THE COURT: NOT AT ALL. MR. RANDOLPH: I UNDERSTAND THAT. I WILL GIVE THE COURT AS MUCH INFORMATION AS I CAN. IF IT IS NOT ENOUGH, I WILL GIVE THE COURT WHATEVER IT TAKES. I DON'T HAVE ANY PROBLEM WITH THAT, YOUR HONOR. THE COURT: I THINK WE HAVE EXHAUSTED THE TOPIC. MR. RANDOLPH: ALL RIGHT. MR. SCHINDLER: THANK YOU, YOUR HONOR. WE WILL GET TO YOU THE PROPOSED STIPULATION ONCE WE HAVE HAMMERED IT OUT. THE COURT: THAT'S FINE. DATES HAVE TO BE IN IT. MR. SCHINDLER: YES, YOUR HONOR. THAT IS WHAT THE STIPULATION WILL HAVE. IT WILL HAVE A PROPOSED SCHEDULE FOR THE COURT TO AGREE UPON. MR. PAINTER: THANK YOU, YOUR HONOR. MR. SHERMAN: THANK YOU, YOUR HONOR.