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 DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, ) CASE NO. CR 96-881-MRP ) Plaintiff, ) EX PARTE APPLICATION RE: ) CONTINUANCE OF TRIAL DATE v. ) AND REQUEST FOR ORDER RE: ) DISCOVERY KEVIN DAVID MITNICK, et. al, ) ) DATE: Defendants. ) TIME: ) COURT: 12 ) _________________________________) TO ALEJANDRO MAYORKAS, UNITED STATES ATTORNEY, AND TO HIS ASSISTANTS DAVID SCHINDLER AND CHRISTOPHER PAINTER: Defendant, KEVIN DAVID MITNICK, by and through his attorney of record, Donald C. Randolph, hereby brings this Ex Parte Application Re Continuance of Trial Date and Request for Order Re: Discovery. The trial is currently set for April 20, 1999, at 9 a.m. The defense requests a continuance of approximately sixty days until June 22, 1999. Good cause for this application exists for the reasons set forth herein, and includes the following material changes in the circumstances surrounding the disclosure of discovery and requirements for trial preparation as known to the defense at the last appearance on December 3, 1998: 1. The government has failed to produce its Exhibit List and proposed Protective Order as required pursuant to the Court's Ominibus Order Re: Discovery and Pretrial Management dated June 3, 1998; 2. Mr. Mitnick was not allowed to access the laptop computer at the MDC for a period of approximately one month following its delivery from the government; 3. The time required for the witness interviews and follow-up investigation will be extensive, as determined by the defense review and analysis of the government's witness statements (consisting of some 1,300 pages of witness statement received on November 17, 1998, nearly one month after this Court ordered them to be disclosed in its Omnibus Order); 4. Defense counsel will be engaged in United States v. Castro, et al., CR-98-748-ABC, which, over counsel's objection, was postponed by government motion from February 16, 1999 until March 9, 1999. In that case, for which the defendant faces a life sentence if convicted, the government estimates its presentation of the evidence to take approximately six weeks, until approximately April 16, 1999. This application is based upon the attached Memorandum of Points and Authorities, the attached declarations of Donald C. Randolph and 2 Kevin David Mitnick, the exhibits, the files and pleadings of the case, and any oral or documentary evidence which may be adduced at hearing on this matter. /// /// The government is opposed to the relief herein requested. DATED: January 19, 1999 Respectfully submitted, RANDOLPH & LEVANAS By: _________________________ Donald C. Randolph Attorneys for Defendant KEVIN DAVID MITNICK 3 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION For the following reasons outside the control of the defense, the defendant is essentially no better informed of the case against him at this time than he was on December 3, 1998, the date of the last hearing in this matter. II. ARGUMENT 1. The Government has not Abided by its Representations with Respect to Disclosure of the Exhibit List. Pursuant to the Court's Omnibus Order Re: Discovery and Pretrial Management dated June 3, 1998, the government was obligated to produce an Exhibit List on or before November 20, 1998. Due, in part, to the government's failure to provide this information, on December 3, 1998, the defense was forced to seek a continuance of the trial date until April 20, 1999. To date, the defense has yet to receive this discovery as ordered by the Court. During the last hearing before the Court in this matter, counsel for Mr. Mitnick stated that the parties had resolved remaining disputes regarding the disclosure of outstanding discovery, in particular, the Exhibit List. That statement was based entirely upon representations made by counsel for the government that the Exhibit List would be provided to the defense within one week of December 3, 4 1998. Since that time, the defense has made every effort to obtain this discovery, including the following: (1) On December 8, 1998, defense counsel sent a letter to the government confirming the government's representations with respect to disclosure of the Exhibit List. Exhibit A. (2) On December 8, 1998, the government advised the defense that the Exhibit List would be prepared during the week ending on December 11, or by the beginning of the week of December 14, 1998. Exhibit B. (3) On December 31, 1998, the defense forwarded a letter to the government again requesting the Exhibit List and the government's proposed protective order applicable to the electronic discovery. The defense informed the government that it would have no choice but to seek the intervention of the Court if these items were not produced on or before January 6, 1999. Exhibit C. (4) During conversations on January 4 and 5, 1999, the government advised the defense that the Exhibit List and proposed protective order would be disclosed on or before January 14, 1999. See Exhibit D. (5) On January 14, 1999, the government informed defense counsel that the Exhibit List and proposed protective order would be disclosed by Friday, January 15, 1999. To date, the defense has yet to receive a copy of the proposed 5 protective order or the tentative Exhibit List *1 which, according to government counsel, contains approximately sixty (60) pages of exhibits to be presented at trial. The volume of electronic discovery in this case is truly massive, consisting of over 500 million bytes, which roughly translates to over 100 million pages of written data. Most of this evidence has been in the government's possession since at least 1996, and much of it for even longer. Given this mass of information, the timely production of an Exhibit List, the witness statements, and the proposed Protective Order identifying files which the government considers to contain proprietary data, would greatly assist the defense in focusing its investigation on those matters which the government perceives to be most relevant. a. The Government's Disclosures of Electronic Evidence. The Court is reminded that despite its June 3, 1998 Order requiring the production of discovery to the defense, the government did not comply with either the substance, or timing of the Court's Order. The government's production of electronic discovery to the ______________________ *1 On January 15, 1999, counsel for defense checked on the availability of the Exhibit List at government's counsel's offices. At approximately 12:30 p.m., the Exhibit List was not available. 6 defense pursuant to the Court's June 3, 1998 Order is as follows: (1) 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 addition to the fact that the government redacted data beyond the scope sanctioned by the Court (i.e. encrypted files) this evidence was presented in an altered format compared to the original such that it does not constitute an accurate copy of the evidence maintained by the government and is substantively deficient for the purposes of forensic analysis. (2) On July 29, 1998, the government disclosed two CD-ROMs containing evidence obtained by the government through search warrants directed at third parties. (3) On October 27, 1998, the government disclosed two back- up tapes of evidence obtained from computer systems at the University of Southern California. (4) On November 17, 1998, nearly a full month after they were due, the government produced a copy of its witness statements to the defendants. (5) On December 2, 1998, the government produced two CD- ROMs primarily containing evidence obtained by Motorola Corporation from Colorado Supernet (an Internet Service Provider) pursuant to a civil seizure warrant. (6) On December 3, 1998, the government produced two 7 CD-ROMs containing system back-up reports of USC computer systems. (7) On December 21, 1998, the government produced one CD- ROM containing "deleted" and "slack space" files from the personal computers seized in Seattle, Washington and Raleigh, North Carolina which they had previously withheld. At this time, the government also produced two additional CD-ROMs containing files related to stolen Motorola software found on Colorado Supernet's network. The government's delays in producing this discovery have resulted in unmanageable time constraints for the defense given the current trial date. At best, the government has misrepresented to this Court that it is prepared to proceed to trial by virtue of the fact that it has yet to comply with its obligations to produce the discovery in a timely manner. At worst, it appears that the government continues to engage in a systematic effort to provide the defense with as little information, and at as late a date as possible. *2 ______________________ *2 The government initially refused to provide the defense with a copy of the electronic evidence at all. Then, after being ordered to produce such a copy, the government provided only an incomplete copy which redacted so-called "deleted" file space. Eventually, the government agreed to provide this information as well. Exhibit C. Nonetheless, the government has altered the format of the electronic evidence provided to the defense and, thereby, further obstructed the defendant's ability to meaningfully review this evidence. The defense has no choice but to resolve this issue through the Court and will move for an "image" copy of the evidence, as it originally requested well over 6 months ago, and has since continued to request. 8 2. Since the Date of the Last Hearing Defense has Experienced Significant Delays in its Ability to Review the Electronic Discovery. Since the last hearing in this matter, the defendant has experienced significant delays in his ability to review the electronic discovery due to the unanticipated length of the inspection of the laptop computer conducted by the Metropolitan Detention Center. The MDC did not approve Mr. Mitnick's use of the laptop computer until January 8, 1999, nearly a full month after it was provided to them by the FBI following that agency's inspection of the computer. The defense made all available efforts to expedite this procedure as evidenced in the attached correspondence. Exhibit E. Moreover, Mr. Mitnick's review of the discovery is further hampered due to the MDC's policy which only allows review of the electronic evidence between the hours of 7:30 a.m. and 4 p.m., Monday through Friday, excluding holidays (such as the recent observance of Martin Luther King Jr.'s birthday). The net effect of these restrictions, together with the unanticipated delay caused by the MDC's inspection, is that Mr. Mitnick will be unable to review meaningfully the electronic discovery prior to the current trial date of April 20, 1999. The electronic discovery relating to seizure of the laptop computers alone consists of over 11,000 files. This evidence comprises only 3 of the 11 CD ROMs which have been provided to the defense (some of which was provided as late as December 21, 1998). 9 Given the defendant's limited opportunity to review this evidence, it is, for all practical purposes, impossible to conduct a competent review of this data given the current trial date. 3. The Defense Investigation and Trial Preparation Will Require Additional Time. At the time of the last hearing on December 3, 1998, the defense had only been in receipt of the more than 1,300 pages of witness statements for approximately ten days. Consequently, counsel for the defendant did not have the ability to determine the exact scope of the investigation which would be required with respect to these potential witnesses. Further review of the witness statements has revealed the need for an investigation of literally global proportions. A preliminary list of the potential witnesses and their last known locations is included as Exhibit F. There are over 120 potential witnesses located in at least four foreign nations, and fourteen states within this country. Among others, the following investigations and/or motions must be made in the defense of this case: - Investigations into the facts surrounding the legality of interceptions of communications allegedly made by Mr. Mitnick to the Internet Service Providers the Well and Netcom; - Interview of named witness employees of the alleged victim companies. These witnesses are located in at least fourteen (14) states and four (4) countries including Europe and Asia; - Investigate facts relevant to the legality of searches conducted 10 in Seattle, Washington and Raleigh, North Carolina; - Investigate the nature of files alleged by the government to be proprietary information to determine the scope of the protection, if any, afforded by federal wire fraud and computer fraud statutes under the facts of this case (this process cannot commence until the government identifies which files it believes contain proprietary data subject to non-disclosure through its proposed protective order); - Investigate facts relevant to the participation of private citizens, specifically Tsutomu Shimomura and New York Times reporter John Markoff, in the government's investigation and apprehension of Mr. Mitnick; - Motion for Disclosure of an "Image" Copy of the electronic evidence seized from computers allegedly owned by Mr. Mitnick; - Motion to Compel Disclosure of Discovery Relating to Damages Alleged in Count 16 of the Indictment. The defense has experienced further delays in preparing for trial due to difficulties associated with retaining a qualified forensic expert in the field of computer security analysis. The defense contacted a qualified expert in July, 1998 for the purpose of serving as an expert in this case. At that time, this expert expressed his ability and desire to work in such a capacity with the defense. Mindful of the Court's repeated admonitions regarding the expense of preparing the defense in this case, the expert's services were not utilized during the several months in which the parties were engaging in settlement negotiations which the defense believed in good faith 11 would result in a disposition in this matter. In December, 1998, the defense again contacted the expert and forwarded him case materials for his review. On or about January 12, 1999, the expert informed the defense that he would be unable to participate in the defense due to conflicts arising from the identities of the victim companies. This experience in retaining an expert is representative of problems the defense has encountered in retaining an expert witness in this field. There are relatively few individuals within the country, much less in the southern California region, who are qualified to act as experts in this type of case. Furthermore, due to their expertise, the likelihood of a potential conflict arising from their involvement with one or more of the alleged victims is relatively high. Naturally, the government has not been faced with the prospect of similar problems in this regard. 4. Schedule Conflicts Counsel for Mr. Mitnick represents defendant Jorge Castro in United States v. Castro, CR 98-738-ABC. Trial in this case is expected to last approximately six weeks, according to the government's most recent estimate. At the last hearing on December 3, 1998, trial in the Castro case was set for February 16, 1999. This trial date would have allowed defense counsel the ability to complet the Castro case and have at least 3-4 weeks to conduct final preparations prior to trial in the instant case. However, on January 11, 1999, over the objections of defense counsel, trial in the Castro case was continued by government motion until March 9, 1999. 12 Unfortunately, there is no realistic possiblity of postponing the trial date in the Castro case. Mr. Castro is and has been detained in solitary confinement at the Metropolitan Detention Center under the rubric of "Administrative Detention" for a period of over six months. This state of confinement has resulted in his deteriorating psychological condition to the extent that he is currently being treated with a regimen of medication and psychological counseling. Despite the best efforts of counsel, the Metropolitan Detention Center has refused to ease the conditions of Mr. Castro's confinement and, to date, the Court has declined to order them to do so. Consequently, rather than risk the potential of permanent psychological damage, as noted by the examining psychiatrist, counsel must seek the earliest possible trial date. 5. Additional Considerations Counsel for the defendant has been consistently and diligently working on various aspects of this case since being appointed by this Court. These efforts have included sentencings in two previous cases, CR 88-1031-MRP, and CR 95-603-MRP, both before this Court. In addition, counsel has pursued issues before this Court and appellate courts including, inter alia, those relating to bail, defendant's access to electronic discovery, access to encrypted data (see also Appellate Case Nos. 97-50365, 98-50241, and 98-50391) as well as lengthy settlement negotiations. Although not all of the defendant's arguments have prevailed, all of these matters have presented legitimate legal issues deserving of consideration. 13 Counsel has been mindful of the Court's repeated admonitions with respect to the cost of preparing this defense, and has undertaken steps to mitigate costs and expenses wherever possible. Unfortunately, this consideration has contributed to the length of time required to prepare this case for trial. This case is complex, not only from a legal, but also a practical and logistical standpoint. The defense has attempted to avoid the expenditure of time and or costs where there is a noticeable possibility that such effort may later prove to be unnecessary. However, it now appears certain that this case will go to trial. Thus, in order to prepare for this eventuality, those efforts and costs which heretofore may have been deferred must now be borne. The defense is prepared to make these efforts, but seeks the time required to complete them. III. CONCLUSION For all the foregoing reasons, the defendant respectfully requests that this Court continue the trial in this matter from April 20, 1999, until June 22, 1999. DATED: January 19, 1999 Respectfully submitted, RANDOLPH & LEVANAS By: __________________________ Donald C. Randolph Attorneys for Defendant KEVIN DAVID MITNICK 14 DECLARATION OF KEVIN DAVID MITNICK I, Kevin David Mitnick, declare as follows, 1. I am the defendant in the matter of United States v. Kevin David Mitnick, CR 96-881-MRP, currently pending before this Court. 2. Mr. Randolph has informed me that he cannot be prepared for trial given the current trial date for the reasons set forth in this application. 3. I wish for Donald C. Randolph to continue representing me as counsel of record in the matter before this Court. 4. I join in my attorney's request in this Application for the sole reason that I wish my attorney to be adequately prepared to effectively represent me at trial. I swear under penalty of perjury that the foregoing is true and correct. Executed this 19th day of January, 1999, at Los Angeles, California. _______________________ Kevin David Mitnick 15 DECLARATION OF DONALD C. RANDOLPH I, Donald C. Randolph, declare as follows, 1. I am an attorney at law, a member in good standing of the Bar of this Court, and appointed counsel of record for defendant Kevin David Mitnick in the above-captioned case. 2. When previously requesting a continuance of this matter before the Court on December 2 and 3, 1998, I based my requested continuance upon my understanding of the facts at that time, including presuppositions that the government would timely comply with its duties to disclose discovery, and that the Metropolitan Detention Center would timely grant Mr. Mitnick access to the laptop computer upon their receipt of same. 3. None of the foregoing presuppositions proved true. In fact, I was required to expend considerable efforts to bring these necessary events to pass. 4. On December 3, 1998, I was aware of my obligation in the matter of United States v. Castro, CR 98-748-ABC, which I originally anticipated would commence trial after the trial in the instant case. 5. Following the Court's latest continuance of this matter, the Castro case was set for trial on February 16, 1999. I anticipated a period of 3-4 weeks in between trials during which time I planned to prepare for trial in the instant matter. Nonetheless, I was concerned about even this short a period of time in between trials and, therefore, requested a continuance of the instant case beyond the April 20, 1999 date. The Court denied this request. 16 6. Given the newly scheduled date of trial in the Castro matter, which was set by government motion over my objection, I will be required to complete the Castro trial and commence trial in this case, effectively without any break. The timing of these two matters is unfortunate and inadvertent. However, given the government's failure to comply with this Court's Orders and its own agreements, I am in a situation where I do not believe that I can reasonably be prepared to competently represent Mr. Mitnick at a trial commencing April 20, 1999. 7. The new trial date I have requested in this application is similarly presented upon a presumption that the Court will order the government to timely meet its obligations, and that the government will comply with this Court's Orders. I swear under penalty of perjury that the foregoing is true and correct. Executed this 19th day of January, at Los Angeles, California. ________________________ Donald C. Randolph 17