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, Plaintiff, v. KEVIN DAVID MITNICK, et. al, Defendants. _________________________________ ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. CR 96-881-MRP REPLY TO GOVERNMENT'S OPPOSITION RE: MOTION FOR DISCOVERY; DATE: March 9, 1999 TIME: 11:00 p.m. COURT: 12 Defendant, KEVIN DAVID MITNICK, by and through his attorney of record, Donald C. Randolph, hereby submits this Reply to the Government's Opposition to his Motion for Discovery and Sanctions, previously filed with this Court. DATED: March 8, 1999 Respectfully submitted, RANDOLPH & LEVANAS By: ______________________________ Donald C. Randolph Attorneys for Defendant KEVIN DAVID MITNICK MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Mr. Mitnick seeks this Court's intervention in resolving very real problems occasioned by the government's failure to comply with its discovery obligations. Mr. Mitnick's motion is not an attempt solely to continue the trial date as it has been mischarac terized by the government. Rather, the defense seeks the intervention of this Court to enforce its own Orders. Sanctions which are available to the Court include the exclusion from evidence of non-compliant or outstanding discovery disclosure or, if nec essary to preserve his rights, a brief continuance of the trial. Moreover, this dispute is not limited to merely seven files. As discussed below, there are, in fact, hundreds of files which the government intends to introduce at trial which have been provided to the defense in a format which differs from that which th ey will seek to introduce at trial, and which also renders the files entirely inaccessible to the defense. As discussed herein, the government's claim that it had "no notice that the defendant had any objections or questions regarding any item on the ten tative exhibit list" is simply preposterous, given the fact that each of questions here at issue were previously raised in defendant's correspondence dated February 8, 1999. (See Exhibit G to Defendant's Motion). It was only after the government continue d to provide evasive answers to these questions that defendant brought the instant motion. (Exhibit I to Defendant's Motion). II. ARGUMENT A. THE GOVERNMENT'S EXHIBIT LIST IS IMPERMISSIBLY OVER-INCLUSIVE AND VAGUE.1 The government responds to complaints regarding its over-inclusive Exhibit List by explaining that it has twice conceded that the list is, in fact, over-inclusive. (Government's Opposition at 9-10). Apparently the government believes that this acknowled gment somehow remedies the prejudice which the defendant is suffering by virtue of his inability to gauge the scope of the government's case. Unfortunately, it does not. 1. The Combined Exhibit List and Proposed Protective Order. Included within the Exhibit List are potentially hundreds of files which apparently have been included for the sole reason that the government believes they should be subject to a protective order. These files have been included in the Exhibit List irres pective of whether or not the government actually intends to introduce them as exhibits. Thus, the tentative exhibit list provided by the government is actually a combined exhibit list and proposed protective order with no distinction as to which files a re intended to be introduced at trial versus those which are solely intended to be subject to the protective order. Consequently, the defense has no means of determining whether the government intends to introduce any or all of the hundreds of computer f iles labeled "proprietary" at trial. There is no legitimate reason why these files should have been consolidated into the Exhibit List, nor was there any authorization for such consolidation in the Court's Order. The government offers no explanation, mu ch less justification, for its failure to identify with any reasonable degree of particularity those files, or portions thereof, which it actually intends to introduce at trial. 2. Over-inclusive Compressed Folders As previously argued, the government has identified numerous exhibits which are not singular files but, rather, "compressed" (or, as the government refers to them "zipped") files which actually contain many hundreds of separate files. The so-called "zipp ed" files have been compressed using a software utility called WinZip which allows the computer user to group numerous individual computer files into a single file name requiring less storage space on the computer. The defense has analogized this to plac ing numerous individual files into a single folder. Although the government has identified the "folder" name, it has failed to identify which file(s) within these folders it intends to introduce at trial. Moreover, as discussed below, the vast majority of these folders are also password-protected and therefore entirely inaccessible to the defense.2 3. Prejudice to the Defense As evidenced above, the government has totally failed to identify with any reasonable degree of particularity those exhibits which it intends to introduce at trial. In other instances, the government has failed to produce copies of the evidence as it in tends to introduce at trial. The net result of this course of conduct is serious prejudice to the defense and its ability to respond to the charges alleged. Specifically, due to the large volume of discovery actually presented in this case, an exhibit list which identifies with particularity those files which the government intends to introduce at trial is essential. It is time and cost prohibitive to requir e the defense to wade through thousands of irrelevant files given the quantity of data here at issue. Furthermore, the complex and technical nature of the vast majority of this evidence makes its review especially time-consuming. For example, the eviden ce includes hundreds of e-mail messages to and from persons whose identity is not clear and the subject matter of which is not readily apparent given their context. Additionally, with respect to the alleged proprietary files, the government maintains the burden of establishing that these files constitute "property" for the purposes of the wire fraud statute. Consequently, the defense must scrutinize each exhibit the government intends to present into evidence to determine whether it meets the technical requirements necessary to establish its proprietary nature. This process is time-consuming and cannot be accomplished unless the defense is informed of which files the government actually intends to introduce. The defense determined that the only practicable manner of reviewing the electronic evidence given its resources is to focus the review on those items considered most relevant by the government. By failing to reasonably identify the files which the gover nment intends to introduce at trial, the government has thwarted the ability of the defense to conduct the necessary investigation of the evidence in any type of reasonable fashion. Furthermore, by failing to provide the defense with "plain-text" version s or the required passwords for the password-protected files it intends to introduce, the government has absolutely prohibited the defense from reviewing encrypted evidence prior to trial. Because the government offers no justifiable explanation for the government's dereliction of its duties, and in order to remedy the prejudice which has resulted, Mr. Mitnick respectfully requests that the Court strike all exhibits which the government has failed to reasonably identify and order the government to produce an exhibit list in conformance with its previous order. B. THE GOVERNMENT HAS FAILED TO PROVIDE THE DEFENSE WITH A COPY OF THE EXHIBITS AS IT INTENDS TO INTRODUCE THEM AT TRIAL. In addition to producing a vastly over-inclusive exhibit list, the government has identified literally hundreds of files which are inaccessible to the defense. The government has not produced any plain-text version of these files as it intends to introdu ce at trial. Although the government labels its non-compliance as "trivial," fully one-fifth of the first one hundred electronic exhibits identified by the government are inaccessible to the defense.3 The government further attempts to alibi its non-compliance by relying upon the faulty assumption that the defense is in possession of the password(s) necessary to access these encrypted files. (See Government Opposition at 10 "the government assumes def endant has his own password.") It is improper for the government to place this burden on the defense, especially given the serious potential for prejudice which could and actually has resulted from presuming in error. This Court ordered the government to identify that information it intends to introduce at trial. Certainly, the government could have produced a plain-text version of the files as in intends to introduce at trial or, at the least, provide the password(s) necessary to review these files. For its own reasons, however, the government chose not to do so. Mr. Mitnick should not bear the unfair consequences of the government's tactical decision. Mr. Mitnick, therefore, respectfully requests that the Court p reclude the admission of any plain-text version of the password-protected files as such evidence has yet to be provided to the defense. C. BRADY/GIGLIO INFORMATION In October 1997, the government represented that it had complied with all of its Brady and Giglio obligations. Over a full year later, the defense received information falling squarely within these two categories of discovery and which had been in the go vernment's possession for years. The defense raised these examples to demonstrate the apparent fact that, either the government does not fully understand its discovery obligations under these doctrines4, or the government has not diligently complied with such obligations. In either case, the examples identified in defendant's motion give the defense justifiable reason to believe that there may be still more exculpatory information within the government's exclusive possession. Consequently, the defense respectfully requests that the Court order the government to review its files and produce any outstanding Brady and Giglio materials at once. III CONCLUSION Should the Court dismiss the arguments raised in this matter as a trivial discovery dispute between the parties, a great injustice will be served. Contrary to the government's overtures that it has exceeded its discovery obligations, the defense submits that the complaints raised in this motion reflect a continuing pat tern of conduct by the government to obscure the facts and evidence of this case. /// Mr. Mitnick respectfully requests that this Court closely scrutinize the arguments raised herein and in the interests of justice, order the requested relief. DATED: March 8, 1999 Respectfully submitted, RANDOLPH & LEVANAS By: __________________________ Donald C. Randolph Attorneys for Defendant KEVIN DAVID MITNICK 1 The government's tentative Exhibit List, containing 1708 entries, was previously filed with this Court on or about January 22, 1999. 2 The password-protection is accomplished through the use of relatively weak encryption; nonetheless, given the defense's resources, it is impossible to access these files without the proper password. Thus, while the government is correct in stating that these files are "zipped" (i.e. compressed) it is incorrect in claiming that they are not encrypted. In fact, the vast majority of the "zipped" files are both compressed and encrypted. 3 It is simply too time-consuming to list each and every file which is inaccessible due to password protection. Nonetheless, a representative sample can be found among the first 100 electronic files designated by the government, of which the following ex hibits are inaccessible to the defense: 89, 92, 112, 116, 130, 131, 142, 145, 147, 148, 154, 155, 160-61, 169, 172, 175-81. Using this ratio, approximately 340 of the government's 1700 exhibits are inaccessible to the defense. 4The fact that the government disputes the exculpatory nature of the witness statements identified in Exhibit H of defendant's motion underscores this likelihood. 11