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 ) Plaintiff, ) NOTICE OF MOTION AND MOTION ) TO CONTINUE TRIAL DATE; v. ) DECLARATION OF DONALD C. RANDOLPH ) KEVIN DAVID MITNICK, et. al, ) ) DATE: November 30, 1998 Defendants. ) TIME: 1:30 p.m. ) COURT: 12 ) ) ) ) ________________________________) TO NORA M. MANELLA, UNITED STATES ATTORNEY, AND TO HER ASSISTANT, CHRIS PAINTER: PLEASE TAKE NOTICE that on November 30, 1998, at 1:30 p.m., defendant, KEVIN DAVID MITNICK, by and through his attorney of record, Donald C. Randolph, will move this Court for and order continuing the trial date in this case, currently scheduled for January 19, 1999, until April 13, 1999, or another date convenient to both the Court and counsel. /1 -------------- /1 Due to the proximity of the trial date in this matter, the defendant has concurrently submitted an Ex Parte Application for an (2) Co-defendant Lewis DePayne, by and through his attorney Richard Sherman, takes no position with respect to this motion. This motion is based upon the attached memorandum of points and authorities, the attached declaration of Donald C. Randolph, and any oral and documentary evidence which may be presented at hearing on this matter. DATED: November 24, 1998 Respectfully submitted, RANDOLPH & LEVANAS By: ______________________________ Donald C. Randolph Attorneys for Defendant KEVIN DAVID MITNICK ------------------------- Order Shortening Time in which to hear this motion as well as the Defendant's Motion for Discovery. (3) I. MEMORANDUM OF POINTS AND AUTHORITIES A. Introduction The government is delinquent in complying with its discovery obligations as set forth by this Court in its Omnibus Order Re: Discovery and Pretrial Management dated June 3, 1998. As a result of this delinquency, the defense is unable to competently meet the pretrial motion deadline of December 5, 1998, or the trial date currently set for January 19, 1999. The defense requests a reasonable continuance in the trial of this matter, and an order that the government timely comply with its discovery obligations as previously ordered by this Court. /2 B. The Government is in Continuing Violation of the Court's Order Regarding the Production of Discovery to the Defense. 1. Witness Statements On June 3, 1998, this Court signed an Omnibus Order Re: Discovery and Pretrial Management. Pursuant to this Order, the government was required to provide to the defendants copies of witness statements of any witness the government intends to call during its case-in-chief ninety (90) days prior to trial. [ Exhibit A, Omnibus Order Re: Discovery and Pretrial Management]. Using the current trial date of January 19, 1999, the government was obligated to provide this evidence to the defense on or before October 21, 1998. Nonetheless, this evidence was not made available to the defense until November 17, -------------------- Details relating to the government's failure to abide by its discovery obligations are more fully set forth in Defendant's Motion for Discovery, filed concurrently with this motion. (4) 1998, some sixty-three (63) days prior to trial, and nearly a full month after it was scheduled to be produced. /3 Due to the government's delay, the defense is unable to conduct its investigation, and prepare for trial within the time limits currently prescribed. Additionally, the defense is unable to comply with the Court's reciprocal discovery requirements absent a continuance of the trial date. For example, the Court's Order directs that the defendants shall make available to the government copies of all witness statements of any witness defendants intend to call at trial sixty (60) days prior to trial. Given that the government's initial production of this evidence occurred only three days prior to this deadline, the defendants' reciprocal obligations are impossible to fulfill. 2. Electronic Discovery The government has failed to provide the defense with complete and accurate copies of the electronic discovery within its possession as ordered by the Court in its Omnibus Order of June 3, 1998. Pursuant to this Order, the government was obligated to immediately provide to the defense "electronic copies of all electronically stored files ("the electronic discovery"), except encrypted files that the --------------------------- /3 Anticipating the lengthy investigations which would have to follow disclosure of the government's witness statements, the defendant requested that this evidence be disclosed immediately as far back as May 14, 1998, and in no case later 120 days prior to trial. See Exhibit B, Defendant Mitnick's Opposition to Government's Proposed Omnibus Order Re: Discovery and Pretrial Management. /4 A description of the investigation necessitated by the witness' statements will be submitted to the Court under separate cover for review in camera. (5) government has not decrypted." /5 As fully detailed in the defendant's motion for discovery, filed concurrently with this motion, the government has only partially complied with the Court's June 3, 1998 Order. Moreover, significant electronic discovery exists for which the defense has been provided no access whatsoever. Finally, those copies which have been provided to the defense omit significant data and files, apart from the encrypted files not subject to the Court's Order, in comparison to the versions held by the government. Due to the government's significant delay in producing discovery as ordered by this Court, and due to its continuing failure to produce certain discoverable evidence altogether, the defense cannot competently complete its investigations and prepare for trial in this matter absent a reasonable continuance in the trial date. II. CONCLUSION For all the foregoing reasons, the defendant respectfully requests that the Court continue the trial date from January 19, 1999 until April 13, 1999. DATED: November 24, 1998 Respectfully submitted, RANDOLPH & LEVANAS By: _____________________________ Donald C. Randolph Attorneys for Defendant KEVIN DAVID MITNICK -------------------- /5 The government's obligations to this effect were subject to the restrictions of a protective order described in paragraph 2 of the Court's Order. (6) DECLARATION OF DONALD C. RANDOLPH I, DONALD C. RANDOLPH, do declare as follows: 1. I am an attorney at law, a member in good standing of the bar of this Court, and appointed counsel of record for defendant Kevin David Mitnick in the above-entitled case. 2. Despite the exercise of diligence, given the government's failure to meet the Court's discovery Order, I believe that it is impossible for the defense to be prepared for trial as of the currently scheduled date of January 19, 1999. 3. To date, the government has not fully complied with the Court's June 3, 1998 discovery mandate. Moreover, the government has altered that discovery which has been provided to the defense and, in the course doing so, has withheld certain data from the copies provided to the defense apart from the encrypted files they are entitled to withhold pursuant to the Court's Order. 4. Absent a reasonable continuance, I will be unable to complete necessary investigations and competently prepare for trial in this matter by the currently scheduled trial date. I declare under penalty of perjury the above is true and correct. Executed this 24th day of November, 1998, in Santa Monica, California. ________________________ DONALD C. RANDOLPH