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, ) REPLY TO GOVERNMENT'S ) OPPOSITION TO DEFENDANT'S v. ) MOTION FOR ACCESS TO A ) COMPUTER FOR REVIEW OF KEVIN DAVID MITNICK, et. al, ) DISCOVERY; DECLARATION OF ) DONALD C. RANDOLPH Defendants. ) ) DATE: March 9, 1998 ) TIME: 1:30 p.m. ) COURT: 12 ) ) ________________________________) TO NORA M. MANELLA, UNITED STATES ATTORNEY, AND TO HER ASSISTANT, CHRIS PAINTER: The defendant, KEVIN DAVID MINTICK, by and through his attorney of record, Donald C. Randolph, hereby responds to the government's opposition to the motion for access to a computer filed previously with this Court. /// /// /// /// This reply is based upon the attached memorandum of points and authorities, the files and records in this matter, and upon any oral or documentary evidence which may be presented at the hearing on this matter. DATED: March 3, 1998 Respectfully submitted, RANDOLPH & LEVANAS By: ________________________________ Donald C. Randolph Attorneys for Defendant KEVIN DAVID MITNICK MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In seeking to deny the defendant access to a computer in this case, the government resultingly attempts to deny him effective assistance of counsel in the review of the discovery held against him. The government's professed assistance to defense counsel in this regard has taken the form of obstruction from the evidence to which he is lawfully entitled. II. ARGUMENT A. The Government has Failed to Adequately Provide the Defense with the Ability to Inspect and Copy the Discovery in its Possession. The government attempts to absolve itself of all responsibilities under Rule 16 on the plea that it has made this evidence "available for inspection." In actuality, the government has impermissibly frustrated the defense's ability to review the unfathomable volume of evidence in this case by precluding the defense from meaningful access to this morass of information. The technical difficulties facing the defendants in accessing the discovery in this case are compellingly articulated in the Reply to Government Response Re Bill of Particulars and supporting documentation submitted by defendant Lewis De Payne by and through his attorney, Richard G. Sherman. Defense counsel for defendant Mitnick endured a similarly unproductive appointment to review this material in June, 1997. It became readily apparent after just one such experience that future efforts to review the discovery in the manner proposed by the government would prove entirely futile. In addition to these difficulties, the government's offers to "assist" the defense by allowing review of the discovery at the FBI offices must be considered disingenuous considering the total lack privacy and confidentiality such review sessions would afford. As evidenced by the government's own investigation in this case, the act of reviewing data on a computer system leaves a clear record indicating which files were opened, for how long, and can even indicate each individual stroke entered into the computer keyboard. By virtue of these capabilities, any review of the discovery on the government's own computer system would irrevocably compromise the defendant's attorney work-product privilege by exposing every detail of the defense review of this material. B. The Defendant is Entitled to All of the Discovery Held Against Him in this Case. There is no question that all of the discovery in the government's possession falls within the ambit of Rule 16 and is therefore required to be provided to the defense. Nonetheless, the government inexplicably feels entitled to withhold some of this information, by its own designation, without either guidance or authorization from the Court. Even had the government properly moved to restrict the defendant's access to some information under the rubric of a protective order, such a motion would be inappropriate in this case. The government has charged the defendant with fourteen counts of wire fraud under 18 U.S.C. § 1343 and alleges in the indictment that the defendant: "carried out a scheme to defraud, and to obtain property by means of false pretenses representations and promises, by...stealing, copying, and misappropriating proprietary computer software..." Indictment at 2. An elements of this crime is that the defendant obtained property, thus in order to find the defendant guilty, the government must prove the existence of such property. In this case, the government seeks to relieve itself of this burden by unilaterally declaring that evidence in its possession constitutes "proprietary computer software," and then denying the defense access to the evidence necessary in order to refute such claim. The government has no authority to withhold this evidence. See United States v. Kai-Lo Hsu, 982 F.Supp. 1022 (E.D.Pa. 1997) (government's request for protective order covering purported 'confidential trade secrets' denied where proving existence of trade secret was element of crime.) Most audacious is the government's extortionate attempt to predicate the disclosure of encrypted discovery upon the defendant's willingness and ability to offer potentially self-incriminating statements. There is no authority to support a proposition that simply because the government does not understand the material in its own possession, it may lawfully withhold such material pending explanation from the defense. The Fifth Amendment dispels any question about whether a defendant must decipher evidence, and thereby potentially incriminate himself, in order to inspect evidence held against him by the government. Finally, the government greatly overstates the difficulty associated with providing a complete copy of the electronic discovery in this case. While the information is too vast to be comprehended by a human in any brief period of time, the burden on human resources associated with making a machine-readable copy is negligible. C. Providing the Defendant with Access to a Computer is the Most Cost-Effective way of Allowing Meaningful Review of the Discovery. While the Court surely has legitimate concerns regarding the public cost associated with the defendant's request for computer equipment, the government's own proposal is the most cost-prohibitive scenario possible. Under the government's plan, the defendant, accompanied by U.S. Marshals, would travel to the FBI to review the data. Obviously such review sessions could only take place in the additional presence of defense counsel. The Court has already expressed its disapproval of such a mechanism for reasons unrelated to the defendant's own objections. [Transcript of Hearing 10/8/97, Exhibit B]. In light of the extraordinary volume of data, and the need for both defense counsel and U.S. Marshals to be present at all times with the defendant, this method of review would likely be the most costly. Even if the Court were to decide that Mr. Mitnick was not to personally conduct this review, the defense would, nonetheless, be forced to seek appointment of an expert capable of both operating these computer systems and understanding the nature of the data contained therein, most likely at a comparable cost. The most cost-effective means of ensuring that Mr. Mitnick has the opportunity to meaningfully review the evidence in this case is to release Mr. Mitnick him on bail and thereby allow him to conduct such review at the offices of defense counsel. If otherwise unavailable, all necessary equipment can be leased at a likely cost of less than $1,000 per month. The second most cost-effective means of reviewing the discovery in this case is to provide for Mr. Mitnick's access to the necessary computer equipment at the Metropolitan Detention Center. The government opposes this scenario citing "security concerns" mentioned by Warden W.H. Seifert, which "significantly limit the type of equipment that inmates may access." Government's Opposition at 7 (quoting letter from Warden W.H. Seifert dated February 2, 1998). Interestingly, the Warden stated no similar concerns concerning Mr. Mitnick's access to a computer in response to a previous defense request for the same. [Letter dated January 27, 1997, Exhibit C]. Rather, his only concern lay with defense counsel transporting a computer into the facility. Thus, it appears that in reality there is no compelling security concern associated with Mr. Mitnick's access to an isolated computer system at the MDC. Morever, Mr. Seifert's objection to the defendant's latest request for computer access was predicated upon a presumption of the Court's disapproval of such a plan. This consideration has no bearing on the viability of this proposal for the purposes of ensuring prison security. The government misleads the Court regarding the authority it cites in support of its position here. The Supreme Court, in Pell v. Procunier, 417 U.S. 817 (1974) examined the question of a convicted inmate's visitation rights with members of the press but made no inquiry into the interests of the Bureau of Prisons versus an inmate's right to effective assistance of counsel. Meanwhile, in United States v. Robinson, 913 F.2d 712 (9th Cir. 1990) the Ninth Circuit upheld some restrictions on an inmate's ability to access legal materials only after finding that the district court judge "went out of his way to ensure Robinson 'meaningful access' to resources with which to prepare his defense." 913 F.2d 712, 718. The district court's efforts in this regard included arrangements for the defendant's documents to be transported back and forth every day from the courthouse to the jail and appointing stand-by counsel. Id., at 718 n. 4. Considering the technically complex nature of the evidence held against him, Mr. Mitnick clearly has a compelling interest in personally reviewing the electronic discovery in this case. The mere fact that Mr. Mitnick is represented by counsel does little to ensure him effective assistance of counsel due to the specialized nature of this evidence. Mr. Mitnick can only receive effective assistance of counsel if his attorney is able to first, actually review the discovery in confidence and, secondly, consult with someone who can understand and explain the nature of the evidence. Mr. Mitnick is qualified to assist the defense in this capacity, at no additional cost to taxpayers, provided he is given the equipment necessary to do so. III. CONCLUSION For all the foregoing reasons, the defendant's motion for computer access should be granted. DATED: March 3, 1998 Respectfully submitted, RANDOLPH & LEVANAS By: ____________________________ Donald C. Randolph Attorneys for Defendant KEVIN DAVID MITNICK