According to Donald Randolph's motion, the government missed a court-ordered deadline to provide the defence with copies of prosecution witnesses statements. The statements were finally handed over on Tuesday, almost a month late.
In addition, the prosecution is almost a week behind in handing over a list of evidence to the defence. Some electronic evidence is being withheld completely, claimed Randolph.
"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 defence cannot competently complete its investigations and prepare for trial in this matter absent a reasonable continuance in the trial date," stated the motion. The original trial was scheduled for Jan. 19, 1999.
The prosecutors attacked any delay. "The contention that we have been late with materials is disingenuous," says prosecutor David Schindler. "We've provided thousands of pages of discovery."
The text of the motion also implied that the government had paid a one-time Mitnick cohort and employee of Mitnick's previous attorney, Ron Austin, to spy on his client. "Austin was privy to confidential communications between Mr. Mitnick and Mr. Sherman which he later disclosed to the government," said the statement