ALEJANDRO N. MAYORKAS United States Attorney GEORGE S. CARDONA Assistant United States Attorney Chief, Criminal Division DAVID J. SCHINDLER (Bar No, 130490) Assistant United States Attorney Senior Litigation Counsel CHRISTOPHER M.E. PAINTER (Bar No. 154034) Assistant United States Attorney Major Frauds Section 1100 United States Courthouse 312 Worth Spring Street Los Angeles, CA 90012 (213) 894-0336/0358 Attorneys for Plaintiff UNITED STATES OF AMERICA UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA Case No. 96-881-MRP Plaintiff GOVERNEMNT'S REQUEST FOR AN v. ORDER TO SHOW CAUSE WHY KEVIN DAVID MITNICK, DEFENSE COUNSEL SHOULD NOT BE Defendant. SANCTIONED FOR RELEASING CONFIDENTIAL VICTIM LOSS LETTERS; EXHIBITS The United States of America by and through its undersigned counsel of record, hereby petition the court to issue an order to show cause to Donald Randolph, Esq., why he should not be sanctioned or held in contempt for releasing to the public confidential victim loss letters provided to defendant and his counsel pursuant to an explicit confidentiality agreement. This application is based upon the attached memorandum of points and authorities and the exhibits attached hereto. DATED; May 6, 1999 Respectfully submitted, ALEJANDRO N. MAYORKAS United States Attorney GEORGE S. CARDONA Assistant United States Attorney Chief, Criminal Division DAVID J. SCHINDLER Assistant United States Attorney Senior Litigation Counsel CHRISTOPHER M.E. Painter Assistant United States Attorney Attorneys for Plaintiff UNITED STATES OF AMERICA MEMORANDUM OF POINTS AND AUTHORITIES I. For several years, the government and counsel for defendant have maintained an agreement through which the government has disclosed proprietary and confidential victim information to defendant and his counsel in exchange for counsel's explicit agreement to maintain such information confidential. Indeed, copies of the proprietary software files stolen by defendant were made available to defendant under such an agreement after substantial negotiation. Similarly, victim loss letters were disclosed to counsel for defendant pursuant to a similarly explicit agreement not to disclose such letters. Attached as Exhibit A to the instant motion is a copy of a March 23, 1998 letter, wherein Mr. Randolph explicitly agreed not to disclose information contained in the victim loss letters disclosed to him. Mr. Randolph executed this letter on March 26, 1998. Notwithstanding (1) Mr. Randolph's explicit agreement not to disclose victim loss letters; (2) the fact that several of these letters explicitly state that they are confidential and business proprietary; and (3) that, as a matter of course, materials regarding sentencing proceedings are confidential and filed under seal, Mr. Randolph attached these same victim loss letters to a public filing. Apparently, Mr. Randolph and/or the defendant then provided copies of the victim loss letters to "2600" magazine, an online magazine, and to the "FreeKevin" website for posting on the web. Attached as Exhibit B are copies of the articles written on 2600 and the FreeKevin site about the victim letters as well as redacted copies of the electronic reproductions of the victim letters posted on these websites.1 Mr. Randolph's public disclosure and dissemination of the victim loss letters was clearly designed to cause additional injury to the victims of defendant's conduct or to cause such victims embarrassment or ridicule. The government cannot conceive of any excuse for Mr. Randolph's conduct. Accordingly, the government respectfully requests that the court issue an order to show cause why Mr. Randolph should not be sanctioned for his knowing violation of the confidentiality agreement that was designed to protect the victims of defendant's conduct from further harm. Furthermore, the government respectfully requests that this court enter an additional order explicitly prohibiting defendant or his counsel from publicly disclosing any additional confidential information that may be provided to them. 1The victim loss letters posted on the various websites were "scanned in" so that they are exact reproductions. The redactions in the exhibit were made for this motion by the government but the unredacted original letters appear on the Internet sites. Notably, the letters posted on the websites do not contain the exhibit markings of the letters attached to Mr. Randolph's filing or the holes that were punched on the public filing. This indicates that copies of the letters were given to these hacker sites apart from the improper public filing of the letters