NORA M. MANELLA United States Attorney DAVID C. SCHEPER Assistant United States Attorney Chief, Criminal Division DAVID J. SCHNIDLER Senior Litigation Counsel CHRISTOPHER M.E. PAINTER Assistant United States Attorney Major Frauds Section 1100 United States Courthouse 312 North 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. CR 96-881-MRP Plaintiff, OMNIBUS ORDER RE: DISCOVERY AND PRETRIAL MANAGEMENT KEVIN DAVID MITNICK and LEWIS DE PAYNE, Defendants. Defendants have filed a number of pretrial motions, specifically, defendant Mitnick filed motions for: (a) access to a computer; (b) expanded library time while housed at the Metropolitan Detention Center; and (c) a bill of particulars. Defendant De Payne separately filed a motion for a bill of particulars, along with the following discovery related motions for: (a) pretrial discovery; (b) exculpatory evidence; (c) discovery of electronic surveillance; (d) exculpatory evidence and evidence regarding cooperating witnesses; and (e) discovery of the government's intention to introduce evidence of other acts pursuant to Rule 404(b). The government opposes the motions. On March 30, 1998, the Court heard argument from the parties and reserved ruling on the various motions, pending preparation of a discovery plan and pretrial management plan designed to expedite these proceedings. Accordingly, the court hereby adopts the following omnibus discovery and pre-trial management plan. Electronic Discovery 1. The government will make electronic copies of all electronically stored files ("the electronic discovery"), except encrypted files that the government has not decrypted, and provide these copies to defendants subject to the restrictions in paragraph 2. 2. The government and defense shall stipulate to a protective order with respect to material provided to the defense that the government designates as "confidential material." This material shall include: (a) files containing proprietary software taken from victim companies, entities, or individuals without authorization; (b) files containing access codes (including passwords and credit card information) obtained without authorization; (c) files containing "hacker tools" (i.e., programs or commands used to gain unauthorized access into computer systems); and (d) stolen electronic mail. Each defendant, his counsel, and any witness, expert or consultant, or other person given access to this confidential material by the defense in this case, shall be given a copy of the protective order, and shall sign a statement agreeing to the restrictions on use of the material in the protective order and submitting to the court's jurisdiction. The protective order shall specifically prohibit any person granted access to the confidential material by the defense, including the defendants, from disclosing that material to, or discussing the contents of that material with, any person not covered by the protective order. 3. Subject to the ordinary procedures employed by the Metropolitan Detention Center ("MDC") regarding the use and availability of attorney conference rooms, defendant Mitnick shall be permitted to review the electronic discovery during meetings with his attorneys, Donald Randolph and Greg Vinson, and any expert retained by the defense, in the attorney conference rooms. Subject to the restrictions set forth below, defendant Mitnick's counsel may bring a copy of the electronic discovery to The conference room so that defendant Mitnick may view the electronic discovery on a laptop computer that will remain in the custody of the MDC. 4. The laptop computer shall be provided by defense counsel to MDC. The laptop computer shall not be equipped with a modem and shall not have the capability to connect to telephone lines, or to any other computer or computer network. The laptop computer will be configured in "read only" format to permit review of the electronic discovery and to prevent any alteration of files or programming of any sort by defendant Mitnick. If it becomes necessary to alter the configuration of the laptop computer to permit review of any of the electronic discovery materials, defendant agrees to allow the government (including the MDC) to adopt any additional security measures, such as allowing periodic inspection of the hard drive, to ensure compliance with this order. In addition, neither defense counsel nor any expert accompanying defense counsel shall be permitted to bring any cellular phone or other form of wireless communication device into the attorney conference room. Defendant Mitnick and his counsel agree to submit the laptop computer to the government for examination and compliance with this paragraph. During the period while the laptop computer remains in the custody of the MDC, it shall not be made available to anyone other than counsel for defendant Mitnick. Upon completion of the case and/or prior to the return of the laptop to counsel for defendant Mitnick, any electronic files contained on the laptop computer shall be erased. 5. Defendant may not alter the electronic files or otherwise engage in any type of computer programming. Defense counsel or his associate will supervise defendant during the sessions to ensure defendant Mitnick's compliance. 6. Defendant Mitnick shall not have access to, or possession of, any computer or computer equipment except as set out in the above paragraphs. Further, defendant may not retain a copy, in any form, of any of the confidential information, and his review of any such information shall occur only during the supervised session in the attorney conference rooms as described above. Defendant shall not be permitted to possess any computer equipment or confidential material in his cell. 7. The government shall, at all times, retain custody and control over original evidence, including computer hardware seized during the investigation, and any electronic files stored on any computer seized during the investigation. The government shall, upon reasonable notice, make any computer hardware seized during the investigation available for inspection by defendants. However, to protect the integrity of the original evidence, defendants and/or their representatives shall not be permitted to power up the original computer or enter any operating commands without supervision of trained government personnel. Encrypted Files 8. The government need not produce to defendants copies of any encrypted files that the government has not been able to review. Should either defendant provide the government with the decryption keys necessary to convert any encrypted file into a readable format, then any such file shall be made available for inspection by defendants. Exhibit List 9. Sixty (60) days prior to trial, the government shall provide defendants with a tentative list of exhibits the government intends to introduce at trial during its case-in- chief. 10. Thirty (30) days prior to trial, defendants shall provide the government with a tentative list of exhibits defendants intend to introduce at trial. [If the Court orders the government to produce a tentative exhibit list more than 60 days prior to trial, then the government requests that defendants produce their tentative exhibit list 30 days following production of the government's exhibit list.] Expert Reports and Summaries of Testimony 11. Sixty (60) days prior to trial, all parties shall produce copies of any reports of examinations or tests together with summaries of expert witness testimony as set forth in Fed. R. Crim. P. 16(a)(1)(D), (E) and Fed. R. Crim. P. 16(b)(1)(B), (C). [The government requests that expert reports and summaries be produced simultaneously.] Witness Statements 12. Ninety (90) days prior to trial, the government shall produce to defendants copies of witness statements of any witness the government intends to call during its case-in-chief. 13. Sixty (60) days prior to trial, defendants shall produce to the government copies of any witness statements of any witness defendants intend to call at trial. Motions in Limine 14. Any motions in limine shall be filed forty-five (45) days prior to trial. The parties shall adhere to all filing schedules set forth in the Local Rules. Jury Instructions 15. Proposed jury instructions shall be filed no later than 30 days prior to trial. Trial Date 16. The court previously vacated the April 27, 1998 trial date. Trial in this matter is hereby set for January 19, 1999 11:00 AM (The government requests a trial date of ___________________. Defendants request a trial date of January 19, 1999.) DATED: This 3 day of June, 1998. ___________________________________ HONORABLE MARIANA R. PFAELZER CERTIFICATE OF SERVICE I, BELINDA B. TUNQUE, declare: That I am a citizen of the United States and resident or employed in Los Angeles County, California; that my business address is Office of United States Attorney, United States Courthouse, 312 North Spring Street, Los Angeles, California 90012; that I am over the age of eighteen years, and am not a party to the above-entitled action; That I am employed by the United States Attorney for the Central District of California who is a member of the bar of the United States District Court for the Central District of California, at whose direction the service by mail described in this Certificate was made; that on December 1, 1998, I telefaxed and deposited in the United States mails in the United States Courthouse at 312 North Spring Street, Los Angeles, California, in the above entitled action, in an envelope bearing the requisite postage, a copy of GOVERNMENT'S CONSOLIDATED OPPOSITION TO DEFENDANT MITNICK'S MOTION: (A) FOR DISCOVERY; AND (B) TO CONTINUE THE TRIAL IN THIS MATTER; MEMORANDUM OF POINTS AND AUTHORITIES; EXHIBIT addressed to: SEE ATTACHED at their last known addresses, at which places there are delivery services by United States mail. This Certificate is executed on December 1, 1998 at Los Angeles, California. I certify under penalty of perjury that the foregoing is true and correct. _______________________ BELINDA B. TUNQUE CERTIFICATE OF SERVICE I, BELINDA B. TUNQUE, declare: That I am a citizen of the United States and resident or employed in Los Angeles County, California; that my business address is Office of United States Attorney, United States Courthouse, 312 North Spring Street, Los Angeles, California 90012; that I am over the age of eighteen years, and am not a party to the above-entitled action; That I am employed by the United States Attorney for the Central District of California who is a member of the bar of the United States District Court for the Central District of California, at whose direction the service by mail described in this Certificate was made; that on June 2, 1998, I deposited in the United States mails in the United States Courthouse at 312 North Spring Street, Los Angeles, California, in the above entitled action, in an envelope bearing the requisite postage, a copy of OMNIBUS ORDER RE: DISCOVERY AND PRETRIAL MANAGEMENT addressed to: DONALD RANDOLPH, ESQ. RICHARD SHERMAN, ESQ. 1717 Fourth Street 16000 Ventura Boulevard 3rd Floor Fifth Floor Santa Monica, CA 90401 Encino, CA 91436 at their last known addresses, at which places there are delivery services by United States mail. This Certificate is executed on June 2, 1998 at Los Angeles, California. I certify under penalty of perjury that the foregoing is true and correct. _______________________ BELINDA B. TUNQUE ATTACHMENT TO PROOF OF SERVICE United States v. Kevin David Mitnick No. CR 96-881-MRP DONALD C. RANDOLPH, ESQ. 1717 Fourth Street, 3rd Floor Santa Monica, CA 90401 Fax: (310) 395-1833 RICHARD G. SHERMAN, ESQ. 16000 Ventura Boulevard Fifth Floor Encino, CA 91436 Fax: (513) 379-1190