Escolar Documentos
Profissional Documentos
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a date and time convenient to the Court and counsel, /1 defendant, KEVIN
Randolph, will move this Court for an Order requiring the government
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/1 Due to the proximity of the trial date in this matter, the
defendant has concurrently submitted an Ex Parte Application for an
Order Shortening Time in which to hear this motion as well as the
defendant's Motion to Continue Trial Date.
(2)
By: ______________________________
Donald C. Randolph
Attorneys for Defendant
KEVIN DAVID MITNICK
(3)
I.
A. INTRODUCTION
The government is in violation of the Court's Order Re: Discovery
a full month past the date they were ordered to do so by this Court.
stored files that the government has not decrypted subject to the
ordered that ninety (90) days prior to trial, the government shall
trial. The government has failed to meet its obligations with respect
1. Witness Statements
(4)
these statements for years, (in some cases as many as five), there can
this discovery.
3. Electronic Evidence
a. Disclosures to Date
agreement that the defense would treat all of the files on the CDs as
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/2 The proposed order presented to the Court by the government
included defendant De Payne's request that such statements be produced
120 days prior to trial. The government's proposed order omitted
defendant Mitnick's request as detailed in his opposition to the
government's proposed omnibus order as follows:
(5)
evidence were made until October 27, 1998, when the government
following the Court's original Order. To date, the government has not
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/3 With the expectation that it would expedite disclosure of the
evidence, on or before July 6, 1998, the defendant unilaterally agreed
to treat all of the electronic discovery provided to him as if it were
subject to a protective order pending a proposal by the government to
designate those files which it believed deserved such protection. The
government has abused this agreement, however, by refusing to prepare
a protective order and, thereby, contributed to further complications
in the defendant's ability to review the evidence. See Exhibit A.
Because only the government knows which files it believes should
be subject to any protective order, the responsibility of designating
these files necessarily falls exclusively upon its shoulders. Pending
issuance of a properly framed protective order, the defendant is
subject to potential liability for the disclosure of information for
which there is no legitimate interest in guaranteeing its
confidentiality, such as personal writings.
(6)
Substantively Deficient.
the data contained thereon, and altered the format of the remaining
question.
See Exhibit A. The defendant explained that such a copy was necessary
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/4 When electronic files are "deleted" from a computer, generally
they are not irretrievably erased. Rather, the information is simply
stored in location on the disk where it may eventually be overwritten.
Thus, the so-called "deleted" files are viable records of data, though
they may not be patently present. This data can only be copied
through creation of a bit-stream copy.
(7)
3, 1998 Order.
c. The Government Currently Possesses and
Evidence.
data. Exhibit D.
disclosed to the defense for the first time with the belated
Sherman (Mr. Mitnick's former counsel and current counsel for co-
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/5 The Department of Justice's own manuals describe the value of
reviewing files from a bit-stream copy of the evidence. See Exhibit
C; Department of Justice, Federal Guidelines for Searching and Seizing
Computers, July 1994].
(8)
insight into Sherman's defense strategy at the same time that he was
acting as an informant against Sherman's clients.
employment with Mr. Sherman, the FBI records demonstrate that the
all interviews with Mr. Austin immediately upon the disclosure of his
obligations.
relating to the government's contact with Mr. Austin, after which the
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/6 Mr. Austin was apparently employed as a part-time clerk for Mr.
Sherman from approximately December, 1995 through June, 1996. The
government's reports indicate that, as far back as 1994, Mr. Austin
was writing correspondence designed to convince Mr. Mitnick that
Austin was not a government informant. Furthermore, the records
demonstrate that Mr. Austin had consensually recorded telephone calls
with Mr. Mitnick for the FBI prior to working for Mr. Sherman, and
that Mr. Austin recognized the potential for a "conflict of interest"
arising from such employment prior to its commencement.
(9)
II.
CONCLUSION
By: __________________________
Donald C. Randolph
Attorneys for Defendant
KEVIN DAVID MITNICK