RICHARD G. SHERMAN, ESQ. Calif. State Bar No. 31098 16000 Ventura Boulevard, Fifth Floor Encino, CA 91436 (818) 379-1180 Attorney for Defendant Lewis DePayne UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION UNITED STATES OF AMERICA, ) CASE NO. CR 96-881-MRP ) Plaintiff, ) DEFENDANT DEPAYNE'S RESPONSE ) TO GOVERNMENT'S PROPOSED ) OMNIBUS ORDER RE: DISCOVERY ) AND TRIAL MANAGEMENT vs. ) ) ) LEWIS DEPAYNE, ) ) Defendant. ) ) __________________________________) Comes now Defendant Lewis De Payne, by and through his attorney of record and files his Response to the Government's Proposed Omnibus Order Re: Discovery and Trial Management. This Response is based on all of the files and pleadings in this case and the attached Memorandum. Dated: May 8,1998 _______________________________ Richard G. Sherman Attorney for Lewis DePayne MEMORANDUM OF POINTS AND AUTHORITIES I PRELIMINARY STATEMENT There are several problems which continue to pervade this litigation in spite of the Court's efforts to bring some degree of order to the instant situation. DePayne realizes that the Court wishes to move forward with an Omnibus Order that would deal with both discovery and pretrial management. The Proposed Omnibus Order prepared by the government does not present a reasonable solution to the problems at hand for several reasons: 1. Said Proposed Omnibus Order does not deal with the fact that the government has ignored DePayne's requests for that pretrial discovery to which he is entitled as a matter of law. (1) ____________________ (1) The government ignores the distinction between DePayne and his co defendant Kevin Mitnick. All of the evidence amassed thus far by the government, of which DePayne is aware, relates to Mr. Mitnick, was taken from Mitnick, was stored by Mitnick, etc. DePayne is presumed to be innocent and has claimed he has no knowledge of the evidence against him with the one exception that is described above. 2. Said Proposed Omnibus Order does not deal with the fact that none of the information furnished to DePayne by the government (this category does not include computer generated items) relates to DePayne with one exception; that exception being, a tape recording, which on its face, would create potential liability for DePayne on one count of the Indictment. (2) -------------------- (2) Counsel for DePayne has been engaged in the practice of law before this Court for the past 37 years. He has been representing Mr. DePayne in this action for over one year. He has never, before this case, been faced with a situation where the Defendant is not aware of what he has allegedly done which forms the basis of the charges against him. 3. The Computer generated information in its present form is useless to DePayne or anyone else for reasons described in DePayne's "Reply to the Government's Opposition" to his Bill of Particulars and there is no provision in the Omnibus Order for the correction of this situation. 4. The Proposed Omnibus Order does not permit the copying of "(b) files containing proprietary software taken from victim companies, entities, or individuals without authorization". It is necessary for the Defendants' counsel and their experts to have copies of said "proprietary software" in order to determine whether said software is really "proprietary" rather then being in the public domain. 5. The Proposed Omnibus Order does not permit the copying of "(d) files containing hacker tools (i.e. programs or commands used to gain unauthorized access into computer systems.)." If the defendants are going to be charged with the utilization of these tools it will be necessary for defense counsel and their experts to copy hacker tool files to determine whether or not they in fact are "hacker tools". 6. The Proposed Omnibus Order contains unreasonable limitations on Mr. Mitnick's access (three times per month) to the computer information to be stored in the "discovery room". DePayne is concerned with this limitation as he is unfamiliar with said information and as set forth in his Reply to the Government's Response to the Bills of Particulars a review of those materials could take years. 7. The Proposed Omnibus Order while agreeing to provide Defendants with an inventory of the electronically stored evidence provides that "The inventory need not describe the contents of individual electronic files". That limitation is absurd as the Defendants will require guidance on the contents of said files rather then be required to spend years making that determination for themselves. 8. The Proposed Omnibus Order relieves the government of its obligation to provide notes or work product prepared by government counsel (it is doubted that such notes by counsel exist) and government agents during their review of the electronic stored evidence. It is difficult why the government is not willing to share said notes with the defense. Perhaps those notes contain a great deal of exculpatory information as is suspected by the Defendants. 9. The Proposed Omnibus Order provides that the Government's tentative exhibit list should be provided to the Defendants 60 days before trial. That list, after over one year since the Indictment in this case, should be provided to the Defendants forthwith in order that DePayne will have some idea of the nature of the Government's case against him. (3) There is no valid reason for further delay in this regard. -------------------- (3) As stated to this Court previously by counsel for DePayne it is his opinion that the Government does not have any idea as to what its case might be against DePayne and accordingly cannot identify any Exhibits with regard thereto. 10. The Proposed Omnibus Order provides that 90 days before trial the Government will provide Defendants with witness statements and 60 days before the Defendants will provide the Government with the statements of its witnesses. It is respectfully submitted that both side should provide witness statements as they become available. 11. The Proposed Omnibus Order does reflect that the Defendants' discovery motions were taken under submission by the Court. It is respectfully requested that the Court allow Defendants brief argument on those motions before ruling thereon. Such rulings should be reflected in the Proposed Omnibus Order. As set forth more fully below the Proposed Omnibus Order prepared by the Government is deficient in numerous aspects which need to be addressed by the Court and counsel. (4) -------------------- (4) Item numbers 1,2, and 3 above have been discussed in prior pleadings which discussions will not be reiterated here. II THE DEFENDANTS SHOULD BE ALLOWED TO COPY ALLEGED "PROPRIETARY SOFTWARE" The Proposed Omnibus Order, at page 2 thereof, does not permit the copying of "(b) files containing proprietary software taken from victim companies, entities, or individuals without authorization". It is necessary for the Defendants' counsel and their experts to have copies of said "proprietary software" in order to determine whether said software is really "proprietary" rather then being in the public domain. In order to determine whether or not certain software is "proprietary" it will be necessary to copy such software and give it to defense experts for a determination as to whether or not it was in fact proprietary (secret from all others) at the time it was allegedly taken from a victim entity. The Government will want the Court and Jury to assume that the entity from whom said software was taken by Defendants (if that can be proven) was software developed and owned by that particular entity to the exclusion of all others. How can this be done without an extensive worldwide software search that would have to be conducted by defense experts. It will also have to be determined if this software was ever furnished to persons who obtained the same without a confidentiality agreement or something else that would insure its secrecy. Another that will have to be performed by the Defendants is to determine if any of the alleged "proprietary software" was the subject of a patent or copyright of the victim entity or anyone else because if it was said software could hardly be classified as a secret. In the trial of this case the Government will assert that the victim entities spent millions of dollars developing said software and keeping secret from all outsiders. That will have a great effect on the Defendants if they are convicted of any of the charged crimes. Any expert analysis such as that above described will require copies of the subject "proprietary software". (5) -------------------- (5) It is a common sense observation that software developed when it is alleged to have been purloined is in all probably secret no longer, if it ever was. III THE DEFENDANTS SHOULD BE ALLOWED TO COPY FILES CONTAINING ALLEGED "HACKER" TOOLS The Proposed Omnibus Order, At pages 2-3 thereof, does not permit the copying of "(d) files containing hacker tools (i.e. programs or commands used to gain unauthorized access into computer systems.)." If the defendants are going to be charged with the utilization of these tools it will be necessary for defense counsel and their experts to copy hacker tool files to determine whether or not they in fact are "hacker tools" or have, as defense counsel suspects a valid purpose unrelated to computer hacking. IV THERE SHOULD BE MORE ACCESS TO THE STORED COMPUTER BY MR. MITNICK THEN THAT PROVIDED IN THE PROPOSED ORDER The Proposed Omnibus Order, at page three thereof, contains unreasonable limitations on Mr. Mitnick's access (three times per month) to the computer information to be stored in the "discovery room". DePayne is concerned with this limitation as he is unfamiliar with said information and will rely on great part on examinations conducted by Mitnick. As set forth in his Reply to the Government's Response to the Bills of Particulars a review of those materials could take years unless the Government narrows that information considerably and sooner then the Proposed Order indicates is its present intention. Three times a week might be sufficient but three times a month is not under the present circumstances. V THE PROPOSED INVENTORY OF ELECTRONICALLY STORED EVIDENCE MUST BE SUFFICIENTLY DESCRIPTIVE TO HAVE VALUE The Proposed Omnibus Order, at page 4 thereof, while agreeing to provide Defendants with an inventory of the electronically stored evidence provides that "The inventory need not describe the contents of individual electronic files". That limitation makes such an inventory useless. As the Court will recall the Government has already provided Defendants with such an inventory using the coded names given to each file by its creator. That inventory was useless. Defendants will require guidance on the contents of said files rather then be required to make that determination for themselves. The Government has admitted viewing all of the stored evidence and knows the contents of each file which has any relevance to them. For what reason can this information not be shared with the defense. VI THE NOTES OF GOVERNMENT ATTORNEYS AND AGENTS REGARDING CONTENTS OF ELECTRONIC FILES SHOULD BE MADE AVAILABLE TO DEFENDANTS The Proposed Omnibus Order, at page 4 thereof, relieves the government of its obligation to provide notes or work product prepared by government counsel (it is doubted that such notes by counsel exist) and government agents during their review of the electronic stored evidence. It is difficult to understand why the government is not willing to share said notes with the defense. Perhaps those notes contain a great deal of exculpatory information as is suspected by the Defendants. (6) -------------------- (6) It is interesting to note that when DePayne and his attorney examined the subject electronic information they were told by F.B.I. Special Agent Kenneth McGuire that although the F.B.I. had seen all of the stored files there were no notes taken with regard thereto. VII THE GOVERNMENT'S TENTATIVE EXHIBIT LIST SHOULD BE FURNISHED TO DEFENDANTS AS SOON AS IT IS PREPARED The Proposed Omnibus Order, at page 4 thereof, provides that the Government's tentative exhibit list should be provided to the Defendants 60 days before trial. That list, after over one year since the Indictment in this case, should be provided to the Defendants forthwith in order that DePayne will have some idea of the nature of the Government's case against him. There is no valid reason for further delay in this regard. VIII THE STATEMENTS OF WITNESSES SHOULD BE PROVIDED BY BOTH SIDES AS SOON AS THEY BECOME AVAILABLE The Proposed Omnibus Order, at page 5 thereof, provides that 90 days before trial the Government will provide Defendants with witness statements and 60 days before the Defendants will provide the Government with the statements of its witnesses. It is respectfully submitted that both side should provide witness statements as they become available. This might be of great aid in a pretrial resolution of the instant prosecution. IX THE PROPOSED OMNIBUS ORDER SHOULD NOT BE ENTERED BEFORE THE COURT HEARS ARGUMENT AND ISSUES RULING ON DEFENDANTS' DISCOVERY MOTIONS The Proposed Omnibus Order does reflect that the Defendants' discovery motions were taken under submission by the Court. It is respectfully requested that the Court allow Defendants brief argument on those motions before ruling thereon. Such rulings should be reflected in the Proposed Omnibus Order. As stated several times during the course of these proceedings by counsel for DePayne the Government has consistently ignored requests for pretrial discovery to which he is entitled. As an example of such conduct the Court is asked to consider the following situation. DePayne has requested, several times, that the government furnish to him evidence of wire interceptions by the Government or its agents. In support of this written application DePayne has stated that such interceptions were conducted by two Government agents or informants named Petersen and Shimomura. DePayne even pointed to the Government that Shimomura has his own Internet Web Site where he plays intercepted conversations between Mitnick and DePayne in an attempt to publicize and sell a book he has written about his adventures with Kevin Mitnick. The government responds by informing DePayne that neither man is going to be a Government witness. Whether or not they are going to be government witnesses is not relevant. What is relevant is whether or not the government has knowledge of such interceptions and their content so that it may be determined by the Defendants as to whether or not a Kastigar motion is appropriate. The Government has not been entirely forthcoming with the Court and counsel with regard to Pretrial Discovery to which DePayne is entitled. This discovery should be taken into consideration before any such order as that proposed by the Government is signed by the Court. X CONCLUSION Based on all of the foregoing it is respectfully submitted that the Government's Proposed Omnibus Order should not be signed by the Court without substantial revision thereof. Respectfully Submitted ________________________________________ Richard G. Sherman Attorney for Defendant Lewis DePayne