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 ) DEFENDANT MITNICK'S Plaintiff, ) OPPOSITION TO GOVERNMENT'S ) PROPOSED OMNIBUS ORDER RE: v. ) DISCOVERY AND PRETRIAL ) MANAGEMENT KEVIN DAVID MITNICK, et. al, ) ) DATE: May 18, 1998 Defendants. ) TIME: 1:30 p.m. ) CTRM: 12 ) _________________________________ ) TO NORA M. MANELLA, UNITED STATES ATTORNEY, AND TO HER ASSISTANTS, DAVID SCHINDLER AND CHRIS PAINTER: PLEASE TAKE NOTICE THAT, defendant KEVIN DAVID MITNICK, by and through his attorney of record, Donald C. Randolph, hereby files this Opposition to the Government's Proposed Omnibus Order Re: Discovery and Pretrial Management. /// /// /// /// /// This opposition is based upon the attached memorandum of points and authorities, the files and pleadings in this case, and any oral or documentary evidence which may be adduced at hearing on this matter. DATED: May 14, 1998 Respectfully submitted, RANDOLPH & LEVANAS By: ____________________________ Donald C. Randolph Attorneys for Defendant KEVIN DAVID MITNICK MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION The government's Proposed Omnibus Order Re: Discovery and Pretrial Management seeks to unduly restrict defense counsel's ability to review the evidence in this case without legal justification. Furthermore, the government's plan will result in exorbitant costs in reviewing this evidence and will serve to unnecessarily prolong these proceedings. The defendant objects to the government's proposal because the government has failed to offer any legal or factual justification for withholding this evidence or restricting the defendant's access to it. II. ARGUMENT A. The Government's Proposal Unjustifiably Seeks to Restrict the Defendant's Access to Discoverable Evidence. Despite repeated requests since October 6, 1996, the government has refused to provide the defense with a copy of some portions of the electronic discovery. The government has recited various justifications for its refusal in this regard, none of which is persuasive. Moreover, the government has not followed the requisite legal procedures required for modification of the defendant's right to access this information. Instead, the government has proposed restrictions on the defendant's ability to review the evidence in this case which, at best, are severely inconvenient, and at worst, will unfairly deny the defendant his rights to due process of law and effective assistance of counsel. Moreover, restricting access to these materials will interfere with the defendant's Sixth Amendment right to cross-examination at trial. See United States v. Hsu, 982 F.Supp. 1022, 1025 (E.D.Pa. 1997). 1. The Defense is Entitled to a Copy of the Evidence Pursuant to Rule 16. Federal Rule of Criminal Procedure 16(a)(1)(C) provides: Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents...which are within the possession, custody or control of the government, and which are material to the preparation of the defendant's defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant. [Emphasis added]. All of the electronic evidence in this case clearly falls within the definition of discoverable evidence pursuant to Federal Rule of Criminal Procedure 16. As such, it must be made available for inspection and copying by the defense. 2. The Government has neither Moved nor Shown Good Cause for Modification of the Defendant's Rights to Access the Discovery. Restrictions to the defendant's right of access to otherwise discoverable materials cannot be sanctioned absent a specific and sufficient showing of need. See infra, American Standard Inc., v. Pfizer Inc., 828 F.2d 734, 740 (Fed. Cir. 1987); Coca-Cola Bottling Co. v. Coca-Cola Co., 107 F.R.D. 288, 292 (D. Del. 1985). The government has not demonstrated a basis sufficient to justify restricting the defendant's access to these materials. The government does not dispute that the evidence in question falls within the definition of Rule 16(a)(1)(C). Nonetheless, it contends that it is entitled to withhold and/or restrict the defendant's access to this evidence without offering any legal basis to support its contention nor has it received the approval of this Court for its position. Under some circumstances, the defendant's right to access discoverable material may be modified. Rule 16(d)(1) relating to protective and modifying orders provides, in part: Upon a sufficient showing the court may at any time order that the discovery or inspection be denied, restricted, or deferred, or make such other order as is appropriate. In this case, the government has not demonstrated a sufficient showing to justify modification of the defendant's right to the evidence in question. a. Evidence Containing Alleged Trade Secrets Because federal criminal legislation regarding trade secrets was only recently enacted, there is scant caselaw applying Rule 16(d)(1) to discovery disputes involving alleged trade secret information. Nonetheless, the issue has been accorded substantial consideration in the analogous civil context through application of Federal Rule of Civil Procedure 26(c)(7). This statute provides, in relevant part: "Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including...that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a designated way..." Fed.R.Civ.Pro. 26(c)(7). In order to invoke the protection provided under this rule, the party seeking a protective order bears the burden of persuasion and must satisfy a number of criteria. First, the movant must establish that the information it seeks to protect is, in fact, a trade secret. American Standard Inc., v. Pfizer Inc., 828 F.2d 734, 740 (Fed. Cir. 1987); Coca-Cola Bottling Co. v. Coca-Cola Co., 107 F.R.D. 288, 292 (D. Del. 1985). To this effect, the government must demonstrate that (a) the owner has taken reasonable measures to keep the information secret and (b) that secrecy adds independent economic value to the information. See 18 U.S.C. § 1839(3). Second, the movant must demonstrate that disclosure of the subject information will be harmful. American Standard, 828 F.2d 734, 740-1; Brown Bag Software v. Symantec Corp., 960 F.2d 1465 (9th Cir. 1992). The defense has already stated its willingness to enter into a non-disclosure agreement which would ensure the secrecy of any confidential trade secret information. [See, correspondence dated 4/23/98, Exhibit A]. The government does not object to the defense having access to this material; rather, it only objects to defense counsel's access to this material outside government supervision. The implicit suggestion from this position is that defense counsel cannot be trusted to maintain the information in a confidential and secure manner. This inappropriate and unfounded suggestion is, nonetheless, insufficient to support the government's position absent a specific showing that harm will result. See, e.g., Smith, 869 F.2d at 201; Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529 F. Supp. 866, 891 (E.D. Pa. 1981) ("in order to establish good cause, it must be shown that disclosure will work a clearly defined and serious injury.") Mere assertions or hearsay allegations in an attorney's affidavit will not suffice. 529 F. Supp. at 891. Considering that, under the government's own plan, the alleged trade secrets will be disclosed to the defense, it is difficult to imagine how the act of providing a copy to the defense will result in any greater harm to the owners of the information. The defense need not show that the evidence in question is material in order to be entitled to a copy of it pursuant to Rule 16(a)(1)(C). See, United States v. McVeigh, 954 F. Supp. 1441, 1446- 47 (D.Colo. 1997). Nonetheless, a showing of materiality may be useful to the Court for the purpose of weighing the appropriateness of any modification of the defendant's right to access this information. To this effect, the defense offers the following showing of materiality. The defense is in need of a full copy of the designated "proprietary" software for the purpose of detailed and efficient analysis thereof. The defense must analyze the software in great detail in order to determine, among other questions: who is the owner of the software? What reasonable measures were taken to keep it secret? Can an independent economic value can be attributed to its secrecy? Is all or any part of the software in the public domain? All of these questions are directly relevant to proving the charges alleged in the indictment and will require considerable analysis of the evidence. These efforts will be greatly frustrated if the defense is limited to the restrictions inherent in the government's proposal. b. Encrypted Evidence. The government has taken the unprecedented position that it is entitled to withhold evidence allegedly obtained from the defendant, within its own possession and which is material to the preparation of the defendant's defense, on the justification that such evidence is unintelligible to the government. There is no legal basis, nor has one been offered, to justify the government's position in this matter. This evidence should not be subject to a protective order since the government cannot make the requisite specific showing of harm resulting from its disclosure. To the extent that any encrypted file contains proprietary data which might suffer harm through disclosure, the defense reiterates its willingness to execute a non-disclosure agreement to ensure its confidentiality. The evidence in question consists of encrypted computer files found on computer systems allegedly seized from the defendant's various residences and are therefore discoverable pursuant to Rule 16(a)(1)(C). Moreover, the encrypted files are material to the preparation of the defense. Although the government has stated that it will not use the contents of the encrypted files as evidence in chief, it has stated that it will attempt to prove the allegations in the indictment by arguing that the contents of the encrypted files are the same as the content of non-encrypted files bearing similar filenames. [RT 3/30/98: 33-34, Exhibit B] Obviously, the actual contents of these files are material for the purposes of proving or disproving the government's allegations. Additionally, the defense is informed and believes that some of the encrypted material consists of correspondence and other data written by the defendant. These statements of the defendant in the possession or custody of the government are subject to disclosure pursuant to Rule 16(a)(1)(A) in addition to 16 (a)(1)(C). See United States v. Lanoue, 71 F.3d 966, 974 (1st Cir. 1995) (rule gives defendant virtually an absolute right to his own recorded statements absent extraordinary circumstances otherwise justifying protective order); see also United States v. Bailleaux, 685 F.2d 1105, 1114 (9th Cir. 1982) (adopting broad interpretation of relevance as applied to defendant's statements as a matter of practicality). Furthermore, some of the files may contain correspondence with prospective government witnesses which may be used to impeach their testimony. Finally, the encrypted files may contain exculpatory evidence demonstrating, among other things, that the defendant was a passive recipient of some of the data which the government alleges he obtained without authorization. All of the above factors demonstrate that the defendant will be seriously prejudiced by the government's refusal to produce this discovery consistent with its obligations. Naturally, the defense will provide the government with each encrypted document (translated into plaintext), in its entirety, which it intends to use in its case in chief through reciprocal discovery procedures. c. So-Called "Hacker Tools." The government has refused to provide a copy of computer programs which it dubs "hacker tools" without legal or rational justification. This data is currently in the government's possession, was seized from the defendant and, therefore, falls squarely within the scope of Rule 16(a)(1)(C). Moreover, this data is material to the preparation of the defense. In the indictment, the government alleges that the defendant used these programs as the method and means of perpetrating unauthorized and fraudulent access to various computer systems. [Indictment at 7-8, Exhibit C]. The defendant's access to this evidence is necessary for the purposes of determining whether such programs could be, or actually were, used in the manner alleged. There is no reason why defense counsel should be restricted in any respect from performing this analysis. The government has demonstrated no harm whatsoever which may result by providing defense counsel a copy of this data for independent review. These computer programs are not contraband. Moreoever, counsel for the defendant can assure the government that it has no intention of utilizing these programs to gain unauthorized access to any computer system. Furthermore, the defense is informed that these programs (and newer, more effective programs of the same ilk) are freely accessible in the public domain. Thus, no legitimate government purpose will be served by denying the defense a copy of this evidence for independent review. d. Files Containing Access Codes. Once again, the government has offered no basis for denying the defense this evidence to which it is entitled. The government has made no showing of harm which will result from disclosure of this information. It is likely that no such harm is possible since the access codes in question (essentially consisting of credit card numbers and other passwords) are well over three years old and are most likely obsolete. Furthermore, even if the codes are still viable, no harm can result from their disclosure to defense counsel absent an affirmative effort on their behalf to illegitimately use these access codes. Once again, execution of a non-disclosure agreement will more than adequately protect against any harms which may cause the government concern in this regard. For all of the above-mentioned reasons, the defense objects to the government's refusal to comply with its obligations pursuant to Rule 16(a)(1)(A) and (a)(1)(C). B. Pretrial Management. 1. The Off-Site Discovery Room. The defense has addressed some of the problems associated with the deprivation of its right to a full copy of the evidence in this case. Many of these problems can be attributed, in part, to the government's proposed method of reviewing the discovery via the off- site discovery room. This method of reviewing the evidence will unquestionably result in exorbitant cost and unnecessary and grossly inefficient expenditure of time and effort for the defense. This procedure will require defense counsel to coordinate their schedule together with those of retained experts and government officials each and every time they seek to review the voluminous discovery in this case. It will eliminate the possibility of reviewing these materials outside of business hours, such as nights and weekends, thereby imposing an unnecessary and unwelcome burden on the defense's ability to review this material. The government will suffer no similar inconvenience. Apart from inconvenience, this procedure will unfairly confer additional benefit upon the government by forcing the defense to disclose the identity of its expert(s) who seek to gain access to the discovery room. The government has been faced with no similar dilemma. Finally, there remain inadequate assurances as to the confidentiality afforded the defendant's review of the electronic discovery at an off-site location administered by the government. For one, the government has offered no assurance that the defendant, counsel and their experts will be entitled to review this data without supervision or monitoring of any kind. Secondly, details of the defendant's review of this material will be available to the government, despite the government's assertion that it will not install any device to log the defendant's review of this material, due to recording functions inherent in the operating systems of these computers. Additional problems exist in the function of the off-site discovery room with respect to proposed limitations on the ability of the defendant himself to review the discovery. Due to the sheer volume and complexity of the data, the government's proposal to allow Mr. Mitnick access to the discovery on only three occasions per month is insufficient. Moreover, the government has given no indication of how much notice it will require prior to allowing defendant to schedule such an appointment. The defense believes that Mr. Mitnick should be entitled to personally review the evidence in question as is required in order to timely prepare for trail. 2. Inventory The government's proposed inventory list does not provide sufficient information to allow for efficient review of this data. While general categorization of these files using terms such as "operating software" or "stolen software" is of interest to the defense, it will do little to assist the defense in focusing its investigation of this universe of information to that material relevant to the charges. The defense has no objection to inclusion of the original location of each file but requests that the government's inventory identify with greater specificity the nature of the files and their relevance to the charges. For example, instead of categorizing a file as "stolen software," the inventory should read, "proprietary software owned by Nokia Corp." 3. Exhibit List The government should provide forthwith a list of the exhibits it intends to introduce during its case in chief. The government has been in possession of this material since at least February, 1995, and the immediate production of its exhibit list will likely prove the most effective manner of ensuring the timely commencement of trial in this matter. Given the proposed restrictions discussed above (if sanctioned by the Court), it is reasonable for the defense to disclose its list of exhibits to the government no later than 30 days prior to trial. 4. Expert Reports and Summaries of Testimony For the same reasons cited above, these reports should be disclosed to the defense as soon as they become available, and in no case later than 120 days before trial. 5. Witness Statements Ordinarily disclosed as part of standard discovery by the government in this district, these 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. 6. Motions In Limine and Jury Instructions The defense proposes that all motions in limine and jury instructions be filed thirty (30) days prior to trial. 7. Trial Date Until the discovery review procedure is in place, it is difficult for the defense to gauge its efficiency and determine a feasible trial date. Notwithstanding this uncertainty, the defendant requests a trial date in mid-January, 1999. Good cause for this proposal consists of the following: (a) As stated above, the events which are the subject of this indictment occurred throughout the United States and their investigation will be time-consuming. (b) Defense counsel's office does not have resources similar to those of the government; only two attorneys, Donald C. Randolph and Gregory L. Vinson, are participating in the preparation of this defense. Furthermore, defense counsel has a number of additional cases pending trial including: i. United States v. Hakeem, Western District of Michigan, No. 1:96-CR-184. Date of Trial ("DOT"): May 26, 1998; estimated duration: 1 week. ii. United States v. Berghoudian, Central Dist. California, CR 97-1149-JMI. DOT: June 2, 1998; estimated duration: 2 weeks. iii. Noorani v. Schnee, L.A. County Superior Court, No. SC044416. DOT: July 13, 1998; estimated duration: 1 week. iv. United States v. Carrington, Central Dist. California, CR 98-34-CBM. DOT: July 21, 1998; estimated duration: 1 month. v. People v. Odulio, San Diego County Superior Court, No. CD130232. DOT: September 1, 1998; estimated duration: 3 weeks. In addition to the above-referenced matters set for trial, counsel has a number of non-trial appearances including sentencing and appellate matters calendered during the coming months which will limit its ability to prepare for trial in this matter. III. CONCLUSION For all the foregoing reasons, the defendant objects to the government's Proposed Omnibus Order Re: Discovery and Pretrial Management. DATED: May 14, 1998 Respectfully submitted, RANDOLPH & LEVANAS By: ________________________ Donald C. Randolph Attorneys for Defendant KEVIN DAVID MITNICK