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,

) ) Plaintiff, ) ) v. ) ) KEVIN DAVID MITNICK, et. al, ) ) Defendants. ) ) ) ) ) ) ________________________________)

CASE NO. CR 96-881-MRP NOTICE OF MOTION AND MOTION FOR DISCOVERY; DECLARATION OF DONALD C. RANDOLPH DATE: November 30, 1998 TIME: 1:30 p.m. 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. C. Exhibit D. 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