DONALD C. RANDOLPH, ESQ., California State Bar Number 62468 RANDOLPH & LEVANAS 1717 Fourth Street, Third Floor Santa Monica, California 90401 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, ) EX PARTE APPLICATION TO vs. ) UNSEAL DEFENSE REQUEST FOR ) SANCTIONS AND PLEADINGS KEVIN DAVID MITNICK, et. al, ) RELATING TO RESTITUTION; ) DECLARATION OF GREGORY L. Defendants. ) VINSON ) ) DATE: July 26, 1999 ) TIME: 1:00 p.m. _____________________________ ) CTRM: 12 Defendant Kevin Mitnick, by and through his attorney of record, Donald C. Randolph, hereby brings this ex parte application to unseal the Defense Request for Sanctions for Government Misconduct, filed concurrently with this application, and to unseal previously filed pleadings relating to restitution. Good cause for this applications exists as follows: On July 13, 1999, one day after the last appearance in this matter, the defense received a response to a subpoena it had previously issued upon victim company Sun Microsystems. The documents contained therein included e-mail correspondence written by government agent Kathleen Carson Antona which were addressed directly to the various victim companies as well as internal memoranda between Sun employees regarding communications with the government relevant to the amount of loss allegedly caused by Mr. Mitnick's conduct. These recently received documents from Sun Microsystems clearly establish that the loss and restitution amounts claimed by the government throughout the course of this litigation were purposefully and artificially inflated in order to advance illegitimate government interests. On July 22, 1999, counsel for the defense spoke with Ms. Julie Hofmann, Esq. a representative of Sun Microsystems. Ms. Hofmann stated that the documents produced by her company pursuant to the defense subpoena did not include any confidential, proprietary, trade secret, or other privileged information of any kind. This application is based upon the files and pleadings of this case, the attached memorandum of points and authorities, and the attached declaration of Gregory L. Vinson. The government is opposed to this application. DATED: July 22, 1999 Respectfully submitted, RANDOLPH & LEVANAS By: __________________________ Donald C. Randolph Attorneys for Defendant KEVIN DAVID MITNICK MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION The government has repeatedly sought to suppress the facts of this case from public scrutiny on the bogus claim that information relevant to the issue of restitution is somehow confidential and deserving of a protective order. The government recently obtained a Court Order sealing all pleadings on the issue of restitution, regardless of whether they contained any confidential information or not. Based upon the newly received documents from Sun Microsystems, this Court should no longer authorize the withholding of government misconduct from the public particularly where, as here, the victim company claims no need for confidentiality. II. STATEMENT OF FACTS Beginning as far back as September 30, 1996, the defense requested evidence relevant to the alleged amount of loss caused by Mr. Mitnick's conduct in this case. For strategic reasons, the government refused to disclose such evidence prior to sentencing proceedings.1 Following the entry of Mr. Mitnick's plea, the government sought to bury the outlandish loss figures it solicited from the victims by conditioning their disclosure upon the defendant's willingness to maintain the information in secrecy. Upon the defendant's refusal to enter a code of silence in order to receive this evidence to which he was legally entitled, the government petitioned the Court for a protective order claiming that this evidence contained "proprietary and confidential data." )See, Government's Ex Parte Application to File Sentencing Pleadings Under Seal). On July 13, 1999, the defense received documents from Sun Microsystems in response to a previously issued subpoena. These documents were filed concurrently with this ex parte application as an exhibit to the Defense Request for Sanctions for Government Misconduct. Because of the Court's protective order, the defense was required, over objection, to file this pleading and the attached documents under seal. III. ARGUMENT The newly obtained documents demonstrate that the so-called "loss" figures are neither proprietary nor confidential in nature. This is further evidenced by statements of victim representatives, and the manner in which the government itself has treated these materials. The media has recently criticized the government's calculations of losses and restitution in this case; however, the new evidence establishes that years ago, the government showed virtually no interest in maintaining so-called victim loss information in confidence. This is evidenced by the fact that the FBI shared this very information between the victim companies of this case. For example, internal e-mail communications between Sun Microsystems employees demonstrates that the FBI disclosed directly to Sun the value of losses which Motorola reportedly suffered. Surely, if the government truly believed that this information was somehow confidential or sensitive, it would not have disclosed it to a potential competitor. In fact, the information solicited by the government and provided by the victim companies is not confidential so much as fictional. It is for this reason that the government seeks to bury the truth through a protective order. The government has stated that a protective order is necessary in order to protect the victim companies from further embarrassment in this matter. To be sure, public revelation of the complicity between the government and victim companies to overstate the value of damages actually caused by Mr. Mitnick is embarrassing, and rightfully so. However, this wrongdoing should no more be covered up than should Mr. Mitnick's own errant conduct. The defense has requested the presence of FBI agent Kathleen Carson Antona at the July 26, 1999 hearing in this matter. Assistant United States Attorney Christopher Painter indicated that the government would not cooperate in voluntarily securing her presence at this hearing. II. CONCLUSION For all the foregoing reasons, the defense respectfully requests that this Court unseal all portions of the record of this case relating to the issue of restitution. Should this Court find that, despite the government's active distribution of so-called confidential information between the victim companies, together with its prior failure to take any reasonable steps to ensure confidentiality of this material, there exist legitimate concerns regarding the confidentiality of victim information, the Court should refer this matter to a special master for the purpose of determining, item by item, the propriety of any protective order. DATED: July 22, 1999 Respectfully submitted, RANDOLPH & LEVANAS By: __________________________ Donald C. Randolph Attorneys for Defendant KEVIN DAVID MITNICK DECLARATION OF GREGORY L. VINSON I, Gregory L. Vinson, declare as follows, 1. I am an attorney at law, a member in good standing of the Bar of this Court, and an associate in the law firm Randolph & Levanas, counsel of record for defendant Kevin David Mitnick in the above-captioned case. 2. On July 22, 1999, I spoke with Ms. Julie Hofmann, Esq. a representative of Sun Microsystems. Ms. Hofmann stated that the documents produced by her company pursuant to the defense subpoena did not include any confidential, proprietary, trade secret, or other privileged information of any kind. 3. Later, on July 22, 1999, Ms. Julie Hofmann called my office and informed me that after conferring with a colleague, she could confirm that Sun did not seek to protect the information provided to the defense on the basis of any claim of confidentiality or any property interest. 4. On July 21, 1999, I spoke with Assistant United States Attorney Christopher Painter who indicated that the government would not cooperate to voluntarily ensure FBI agent Kathleen Carson Antona's presence at the hearing scheduled for July 26, 1999. 1. 5. Also on July 21, 1999, I left a message on Ms. Kathleen Carson Antona's voicemail at her work number advising her that the defense sought her presence at the July 26, 1999 hearing in this matter. I informed Ms. Carson that the defense would prefer not to subpoena her for this purpose and I requested that she contact me to discuss this matter further. As of this time, Ms. Antona had not responded to this request. 6. On July 22, 1999 I spoke with Assistant United States Attorney Christopher Painter who advised me that he was opposed to this application. I swear under penalty of perjury that the foregoing is true and correct. Executed this 22nd day of July, 1999, at Santa Monica, California. ____________________________ Gregory L. Vinson 1On a single occasion during plea negotiations, the government allowed defense counsel to review various letters prepared by the victim companies which purportedly evidenced losses totaling hundreds of millions of dollars. As evidenced in the Defense Request for Sanctions for Government Misconduct, the materially misleading information contained in these letters was contrived by the government specifically for the purpose of obtaining prosecutorial advantage. 2