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, ) DEFENDANT MITNICK'S REPLY
) TO GOVERNMENT'S
v. ) CONSOLIDATED OPPOSITION TO
) DEFENDANT'S MOTIONS;
KEVIN DAVID MITNICK, et al., ) DECLARATION OF
) DONALD C. RANDOLPH
Defendants. )
) DATE: December 2, 1998
) TIME: 3:00 p.m.
________________________________) CTRM: 12
TO NORA M. MANELLA, UNITED STATES ATTORNEY, AND TO HER
ASSISTANTS, DAVID J. SCHINDLER AND CHRISTOPHER M.E. PAINTER:
Defendant, KEVIN DAVID MITNICK, by and through his attorney of
record, Donald C. Randolph, hereby files this reply to the
government's consolidated opposition to defendant Mitnick's motion
(A) for discovery; and (B) to continue the trial in this matter.
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This Reply is based on attached Memorandum of Points and
Authorities, the files and records in this matter, and upon such
further evidence as may be presented at the expedited hearing on this
matter.
DATED: December 2, 1998 Respectfully submitted,
RANDOLPH & LEVANAS
By:
DONALD C. RANDOLPH
Attorneys for Defendant
KEVIN DAVID MITNICK
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I.
INTRODUCTION
In its Opposition, the government attempts to deflect the Court's
focus from the government's violations of this Court's Order by
somehow placing the "blame" on the defense. The government's strategy
in this regard is presented in a carefully-worded pleading, replete
with invective such as "misleading filings", "bad faith", "troubling",
"disingenuous", "manufacture of discovery dispute", and "outrageous".
As discussed herein, the government has blurred the facts of the
communications between counsel regarding that portion of the discovery
compliance which constitutes "witness statements". Additionally, the
government continues to blur the facts regarding the electronic
discovery compliance, and clearly seeks to take advantage of the
complexity of this issue and in this Court's presumed lack of
expertise in sophisticated computer technology. It is respectfully
submitted that the government is acting with an apparent confidence
that this Court will not scrutinize the facts and will not impose any
sanctions against the government for its numerous failures to comply
with this Court's orders.
Perhaps the most blatant example of the government's strategy is
the government's misrepresentations regarding the status of the
settlement negotiations between the parties. In short, the government
states that "the parties had reached a settlement agreement", and that
"Mitnick once again back[ed] out of the agreement at the last minute,
with no notice to the government". This statement is false. The
parties engaged in numerous and comprehensive global settlement
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discussions, and numerous drafts of plea agreements and accompanying
correspondence were exchanged between the parties. Although many
matters were resolved, others remained unresolved. Ultimately, no
settlement agreement was ever reached, and the proof of this simple
fact is obvious: there is no final document, executed by the parties,
which purports to be a "settlement agreement". Therefore, there is no
plea agreement reached from which Mr. Mitnick could "back out" or
"withdraw".
This being the case, the question is why would the government
assert otherwise? Why would the government breach the confidentiality
of plea negotiations and place blame for their failure on the defense?
Indeed, why would the issue of "blame" for the failure of plea
negotiations, the determination of which is totally subjective and
completely irrelevant to the trier of fact, be placed squarely before
the Court in this case? The answer is simple: the government is
attempting to poison the Court against the defense with this otherwise
irrelevant issue. The defense respectfully requests this Court to
sanction the government for misrepresenting that Mr. Mitnick
"withdrew" from a nonexistent plea agreement. The time spent by both
parties in good faith settlement negotiations in an attempt to obtain
a global resolution is undoubtedly relevant to the current status of
the case; however, the subjective finger-pointing as to which party is
responsible for the failure of the negotiations is clearly irrelevant.
II.
GOVERNMENT'S FAILURE TO PROVIDE DISCOVERY
As set forth in this pleading before this Court, the government
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is in violation of this Court's Omnibus Discovery Order in numerous
respects.
A. Electronic Discovery
In its Opposition, the government apparently acknowledges that it
encountered some "technological glitches," and failed to produce
substantial amounts of discovery until October 27, 1998, some four
months after the Order was issued. However, the government argues
that there can be no prejudice to the defense, since Mr. Mitnick
himself was not reviewing the discovery via the laptop computer./1 In
this way, the government is attempting to deflect this Court's focus
on the two most important factors:
First, the government is admittedly four months delinquent in
complying with the Court's order with no good cause presented;
Second, this discovery was ordered to be provided to the defense
for use in trial preparation, not as a courtesy to the client. It is
the obligation of defense counsel to receive discovery (hopefully in a
timely fashion) and review it. This obligation can not be met when
the government does not follow the order of this Court.
The government contends that it was not required to "produce
copies of files that had been deleted or that were not readily
apparent on the hard drives." The Court's Order of June 3, 1998 makes
no such distinction. The Order reads as follows:
"1.The government will make electronic copies of all
electronically stored files (the "Electronic Discovery")
_____________________
/1 The reasons for Mr. Mitnick's nonparticipation in the review of
discovery to date as set forth in the attached Declaration.
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except encrypted files that the government has not
decrypted, and provide these copies to Defendant subject to
the restrictions in Paragraph 2."
In its Motion for Discovery, the defense sets forth numerous
letters written to the government requesting a complete copy of the
computer files, e.g., an "image copy", inasmuch as deleted files
remain stored on the computer unless they are overwritten or otherwise
erased. The government's analogy to "paper documents" is illustrative
of this point. Of course, with a hard copy of a document, if material
has been erased, then the substance obviously is not retrievable and
cannot technologically be reproduced. Conversely, on a computer,
"deleted" files are not erased, but they are stored in a separate
section of the hard drive where they are patently evident to anyone
who is sufficiently computer literate. Moreover, these files can be
easily reproduced. Of course, the government knows this fact very
well, but it attempts to mislead this Court by arguing otherwise.
III. WITNESS STATEMENTS
In its Opposition, the Government argues that it did not produce
the witness statements in a timely fashion because "Mitnick's counsel
instructed government counsel not to produce the witness statements so
as not to complicate matters further." The facts are substantially
different, as set forth in the attached Declaration. Defense counsel
does not have the power to "instruct" the government not to comply
with the Order of this Court. When the government fails to comply
with Court orders, the defense's only recourse is to seek the
intervention of the Court and sanctions if appropriate. In this case,
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given the status of the settlement negotiations and, hopefully,
imminent resolution of the entire case, defense counsel proposed the
following to the government: if the government would stipulate to
reasonable continuance should the negotiations fail, the defense would
not demand timely compliance of the witness statements and would
not complain about a delay in their production. This proposal would allow
the parties to remain focused on the settlement negotiations, would
save the government time in preparation of the discovery, and would
not create a disadvantage to the government if the case was ultimately
continued. However, approximately two (2) weeks after the defense
proposal, AUSA David Schindler stated unequivocally that the
government could not stipulate to any continuance in this matter. As
such, the government rejected the defense proposal, and the discovery
was already two weeks late.
The truth of the matter is that both of the parties were
completely focused on the good faith settlement negotiations, and the
government was in no position to timely comply with the discovery
order. This fact is based on the following:
1. After the settlement negotiations failed, defense counsel
inquired of the government as to the status of the witness statement.
Government counsel replied, "We are putting them together as fast as
possible";
2. Even though co-defendant was not a party to the settlement
negotiations, the government failed to timely produce witness
statements to his counsel. The reason for this failure is obvious:
the government had not put the discovery together;
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3. The government's failed to meet previous discovery
deadlines, including the electronic discovery and the protective order
that was ordered to be prepared last summer.
4. The government's failure to meet discovery deadlines even
after failure of settlement negotiations, including the government's
exhibit list and expert summaries which were due on November 19, 1998.
In summary, the government has failed to meet this Court's discovery
orders, in part, due to the fact that it was engaged in settlement
communications with Mr. Mitnick and focused its attention on that
aspect of the case. Rather than accepting responsibility in this
regard, the government has improperly attempted to deflect this
Court's attention and avoid responsibility for its own actions.
IV. THE SETTLEMENT NEGOTIATIONS
As set forth in the attached Declaration, Defense counsel has
expended over 100 hours between August and October, 1998 in attempting
to resolve this case and all matters between the United States
Government and Kevin Mitnick. Although many issues were resolved,
some critical matters were not and a settlement was not reached.
Needless to say, this process deflected a substantial amount of
attorney time from basic case preparation. To the extent that a
portion of the need for continuance is due to this situation, the
defense accepts responsibility. The defense is extremely mindful of
this Court's prior admonitions regarding unwarranted expenditure of
CJA funds. Given the complexity of this case, the cost of an
investigation and interview of government witnesses spread throughout
the United States, Europe, and the Far East and the accompanying cost
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of experts to decipher the computer discovery, it was felt that the
high cost of a full-blown trial workup could have been avoided with a
successful settlement. Indeed, both parties believed that a
settlement of this matter was close.
If the parties erred in not bringing the status of the discovery
and trial preparation to the attention of this Court sooner, it was
only because the parties believed that a settlement was imminent,
particularly during the month of October, 1998. These matters
unraveled in November, 1998, and within a week and a half thereafter,
the defense filed its motions with this Court on November 24, 1998.
DATED: December 2, 1998 Respectfully submitted,
RANDOLPH & LEVANAS
By: _________________________
Donald C. Randolph
Attorneys for Defendant
KEVIN DAVID MINTICK
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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 attorney of record for defendant, Kevin Mitnick in
the above entitled case.
GOVERNMENT'S FAILURE TO PROVIDE WITNESS STATEMENTS
2. In their Opposition, the government has misstated the facts
surrounding their failure to provide the defense with the witness
statements as required by the Court under its order. Since August,
1998, the defense and the government have engaged in settlement
negotiations (discussed further hereinbelow). The witness statements
were due on or about October 21, 1998. Shortly before that date, I
personally discussed the matter with government counsel, Christopher
Painter. I advised Mr. Painter of the following:
a. In light of the fact that the parties were engaged in good
faith settlement negotiations, I agreed to not demand timely government
compliance with the Court's Order so long as government counsel would
stipulate to a continuance of the trial date in the event that the case
ultimately did not settle. This proposal was designed, inter alia, to
keep the parties' focus on settling the case.
b. Mr. Painter stated that he understood my proposal in this
regard, and would confer with Mr. Schindler regarding the government's
position.
3. Thereafter, I spoke with government counsel on October 22,
1998, October 27, 1998, October 29, 1998, and November 4, 1998. The
purpose of all of these conversations was the ongoing settlement
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negotiations. I do not recall any further conversation during this time
concerning our prior conversation about the discovery documents. Since
the parties were continuing to work on the settlement of the case, I
assumed in good faith that the government was in agreement with my
proposal, and I did not seek leave of the Court to enforce its discovery
Order.
4. On or about November 6, 1998, I had another conversation with
government counsel. For the first time during this conversation, Mr.
Schindler advised that the government could not and would not entertain
any proposal to continue the trial date. I expressed my dismay
regarding his position, particularly in light of the fact that the
parties' concentration in recent months had been focused on the
settlement efforts.
5. Thereafter, the parties were unable to settle the matter. On
Monday, November 9, 1998, I began a jury trial which ended on November
25, 1998. On evenings and weekends, during the course of this trial, I
prepared the motions for discovery, continuance, and Ex Parte
application which were filed with this court on November 24, 1998.
EXHIBIT LIST AND EXPERT REPORTS AND SUMMARIES
6. Nowhere in its Opposition does the government address the fact
that this Court's Omnibus Order required the government to produce an
exhibit list and expert reports and summaries of testimony sixty (60)
days prior to the trial date. Given the current trial date of January
19, 1998 that discovery was due on or before November 19, 1998. With
respect to the exhibit list, it is my recollection that at the date of
our last hearing, this Court commented that it did not see why the
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tentative exhibit list could not be immediately produced to the Defense.
ELECTRONIC DISCOVERY
7. The Court's Omnibus Order in this regard is clear. The
government was to provide to the defense complete copies of this
discovery with the exception of the encrypted files. These copies were
to be accompanied by a protective order that the government was to
prepare. As set forth in detail in our pleadings, the government has
simply failed to comply with this portion of the Court's order.
8. The laptop computer was not previously provided to Mr. Mitnick
for several reasons, including the following:
a. Given the government's lack of compliance with the
requirement to prepare a protective order, anything that Mr. Mitnick
viewed, including his own correspondence, would subject Mr. Mitnick to
future sanctions, a situation that would be untenable for a defendant
already facing supervised release;
b. The Court's order required defense counsel to personally
supervise Mr. Mitnick's review of any electronic discovery, creating a
situation which was simply impossible given the amount of time spent in
the settlement process;
c. Most of the files that were critical for Mr. Mitnick to
review were not included in the materials given to the defense, although
ordered by the Court to do so.
GOVERNMENT CONDUCT WITH RESPECT TO RON AUSTIN
9. In its Opposition, the government suggested that the defense
was completely knowledgeable of the information contained in the
recently disclosed FBI discovery reports concerning Ron Austin. This is
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not the case. The defense believes in good faith that no FBI 302 report
concerning Ron Austin was ever disclosed to defense counsel in any of
the prior pleadings or declarations with this Court. The significance
of the 302's, as set forth in the accompanying motions, is that Ron
Austin was surreptitiously (and apparently illegally) tape-recording
conversations with Kevin Mitnick as part of his cooperation agreement
with government. The government has failed to disclose their written
agreement with Ron Austin in this regard (Giglio material) or the
government's authorization of Mr. Austin's surreptitious tape-recording
of Kevin Mitnick. Defense counsel was aware that Austin had tape-
recorded Mr. Mitnick. However, it is the government's complicity in
these events, the fact that a plea agreement was in existence, and the
government's participation in obtaining privileged attorney-client
information that is of significance in this regard. It is this latter
information that is contained in the FBI 302's that were not previously
disclosed to the defense.
Settlement Negotiations
10. Between August, 1998, and October, 1998, my office expended
over one hundred hours engaging in personal and telephonic conferences
with the prosecution, drafting and reviewing correspondence between
the parties, researching legal issues, and consulting with my client
in an attempt to reach a reasonable settlement in this matter.
Although numerous obstacles towards reaching a settlement were
overcome during this period, the parties reached an irreconcilable
impasse, at which point settlement negotiations ceased. Prior to this
point, I believed in good faith that a settlement would be reached in
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this matter.
Trial Preparation
11. Numerous tasks remain to be accomplished before I will be
prepared to competently represent my client at trial in this matter,
including the following:
a. Review of the witness statements provided by the
government on November 17, 1998, demonstrate that an
investigation of worldwide proportions will be required in
order to prepare for trial in this matter. Witnesses
interviewed by the government stated residences in the
countries of Japan, Finland, the United Kingdom, and Canada.
Furthermore, witnesses were interviewed throughout the United
States in, for example, Texas, North Carolina, Washington,
Colorado, Illinois and Northern California.
b. The Court's Omnibus Discovery Order, as it is currently
written, requires that one of the defendant's attorneys be
present at all times while Mr. Mitnick is reviewing the
electronic discovery in this case. I respectfully submit that
absent relaxation of this requirement, or Court authorization
to hire an additional attorney to work on this case, I will be
unable to review the discovery and prepare for trial.
c. The defense must retain forensic expert(s) in the field
of computer security in order to review the audit logs and
other communications records of the various computer systems
from which the electronic evidence was obtained. The defense
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has contacted candidates for this purpose but did not seek CJA
funds for the appointment of such expert due to the
significant costs which would be required.
12. Mindful of the Court's numerous admonitions regarding the
expenditure of CJA funds in the defense of this case, I have pursued a
defense strategy which I believed in good faith would result in an
efficient resolution of this case without compromising the quality of
Mr. Mitnick's representation. To this end, between August, 1998, and
October, 1998, my efforts in this case were dedicated primarily
towards negotiating a reasonable plea agreement.
I swear under penalty of perjury that the foregoing is true and
correct.
Executed this 2nd day of December, 1998 at Santa Monica,
California.
____________________________
Donald C. Randolph
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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
I am employed in the County of Los Angeles, State of California.
I am over the age of 18 years and not a party to the within action.
My business address is:
1717 Fourth Street, Third Floor
Santa Monica, CA 90401-3319
On December 2, 1998, I served the foregoing document described as
DEFENDANT MITNICK'S REPLY TO GOVERNMENT'S CONSOLIDATED
OPPOSITION TO DEFENDANT'S MOTIONS; DECLARATION OF DONALD C.
RANDOLPH
on interested parties in this action by placing a true copy thereof
enclosed in a sealed envelope addressed as follows:
Richard G. Sherman
16000 Ventura Boulevard, 5th Floor
Encino, CA 91436
Christopher Painter
Assistant United States Attorney
312 N. Spring Street, 11th Floor
Los Angeles, CA 90012
I caused such envelope with postage thereon fully prepaid to be
placed in the United States mail at Santa Monica, California.
I declare that I am employed in the office of a member of the bar
of this Court at whose direction the service was made.
EXECUTED on March 5, 1997, at Santa Monica, California.
___________________________
Keith D. Bershatsky
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Attached: Declaration of Donald C. Randolph in support of motion for discovery and motion to continue