Justin Offen — Direct
524 linesDIRECT EXAMINATION BY MR. LEACH:
MR. LEACH: MR. OFFEN, IF YOU'RE VACCINATED AND FEEL COMFORTABLE, IT'S OKAY TO TAKE OFF YOUR MASK, AND I CAN DO THE SAME.
JUSTIN OFFEN: I AM.
MR. LEACH: AND WHERE DO YOU WORK?
JUSTIN OFFEN: I WORK AT PWC, PRICEWATERHOUSECOOPERS.
MR. LEACH: AND WHAT IS PRICEWATERHOUSECOOPERS?
JUSTIN OFFEN: WE'RE A PROFESSION SERVICES FIRM. WE HELP COMPANIES -- APOLOGIES. WE ARE A PROFESSIONAL SERVICES FIRM. WE HELP COMPANIES PREPARE FINANCIAL STATEMENTS. WE HELP THEM WITH AUDIT SERVICES, TAX SERVICES, AND CONSULTING SERVICES.
MR. LEACH: DO YOU WORK WITHIN A PARTICULAR UNIT OF PRICEWATERHOUSECOOPERS?
JUSTIN OFFEN: YES. MY PRACTICE TEAM IS CALLED INVESTIGATIONS AND FORENSICS.
MR. LEACH: INVESTIGATION AND FORENSICS. LET'S TAKE THAT FIRST WORD. WHAT IS THE INVESTIGATION PART OF THE INVESTIGATION AND FORENSIC SERVICES UNIT?
JUSTIN OFFEN: WE, AGAIN, PROVIDE A MULTITUDE OF SERVICES. WE ARE WITHIN THE CONSULTING GROUP THAT I OUTLINED EARLIER. WE TYPICALLY HELP COMPANIES WHO ARE GOING THROUGH INVESTIGATIONS, INTERNAL OR EXTERNAL, TYPICALLY IN RESPONSE TO SOME TYPE OF EVENT THAT HAS OCCURRED. ADDITIONALLY, AS PART OF THE FORENSICS PART OF THAT, WE ALSO HELP COMPANIES PREPARE, MANAGE, STORE, AND ANALYZE LARGE VOLUMES OF DATA.
MR. LEACH: WHEN YOU SAY YOU HELP COMPANIES RESPOND TO AN EVENT, WHAT TYPE OF EVENTS DO YOU HAVE IN MIND?
JUSTIN OFFEN: THE EVENTS VARY. SOMETIMES IT'S FRAUD RELATED. SOMETIMES IT'S REGULATORY INQUIRY RELATED. SOMETIMES IT'S RELATED TO A DEAL, SOME TYPE OF M&A ACTIVITY. IT REALLY VARIES DEPENDING UPON THE COMPANY AND THE TYPE OF ENGAGEMENT THAT WE'RE HIRED FOR.
MR. LEACH: AND WHEN A CLIENT HIRES YOU TO PERFORM FORENSIC SERVICES, WHAT TYPES OF SERVICES DO YOU PROVIDE FOR CLIENTS?
JUSTIN OFFEN: AGAIN, IT'S A COMBINATION OF ACCOUNTING, FINANCIAL SERVICES, AND THEN TECHNOLOGY SERVICES. I WORK IN THE TECHNOLOGY SPACE TYPICALLY RELATED TO PRESERVATION, ANALYSIS, AND PRODUCTION OF SOME TYPE OF DATA AND ANALYTICS EXERCISE.
MR. LEACH: AND WHAT TYPES OF DATA DO YOU GATHER ON BEHALF OF CLIENTS? DESCRIBE THAT FOR US.
JUSTIN OFFEN: IT VARIES DEPENDING ON THE MATTER. BUT TYPICALLY SPEAKING, THERE ARE TWO LARGE BUCKETS OF DATA THAT WE HELP CLIENTS WITH. THE FIRST IS WHAT I'LL CALL STRUCTURED DATA. THAT'S THINGS THAT PICTURE WOULD GO INTO A MICROSOFT EXCEL OR SOME TYPE OF SPREADSHEET ROWS AND COLUMNS. THAT WOULD BE FINANCIAL RECORDS, ACCOUNTS PAYABLE INFORMATION, ACCOUNTS RECEIVABLE INFORMATION, GENERAL LEDGER, THAT TYPE OF DATA. AND THEN THE OTHER LARGE BUCKET THAT WE WORK WITH IS WHAT IS CALLED UNSTRUCTURED DATA, SO THAT WOULD BE WORD DOCUMENTS, WRITTEN PROS, YOU KNOW, LONGER KIND OF VERBAL MESSAGES, THOSE TYPES OF THINGS.
MR. LEACH: ARE YOU SOMETIMES CALLED UPON TO GATHER EMAIL ON BEHALF OF A CLIENT?
JUSTIN OFFEN: YES.
MR. LEACH: AND DOES THAT FALL IN THE STRUCTURED OR THE UNSTRUCTURED DATA CATEGORY?
JUSTIN OFFEN: MOSTLY UNSTRUCTURED. THERE ARE SOME METADATA RELATED TO EMAIL THAT COULD ALSO BE STRUCTURED. BUT GENERALLY SPEAKING, EMAIL WOULD BE CONSIDERED UNSTRUCTURED DATA.
MR. LEACH: AND ARE YOU ALSO ASKED BY CLIENTS TO GATHER, IN CONNECTION WITH GOVERNMENT INVESTIGATIONS, CELL PHONE DATA?
JUSTIN OFFEN: YES.
MR. LEACH: AND DOES THAT FALL IN THE STRUCTURED OR UNSTRUCTURED CATEGORY?
JUSTIN OFFEN: SIMILAR TO EMAIL, MOSTLY UNSTRUCTURED. BUT THERE'S A LOT OF METADATA AGAIN AFFILIATED WITH MESSAGES THAT IS ALSO CONSIDERED SOMETIMES STRUCTURED, OR ACTUALLY SEMI UNSTRUCTURED, WHICH IS A COMBINATION OF THE TWO.
MR. LEACH: AND WHAT DO YOU MEAN BY "METADATA"?
JUSTIN OFFEN: METADATA IS IDENTIFIABLE INFORMATION RELATED TO ELECTRONIC RECORDS. SO THINKING OF EMAIL OR TEXT MESSAGES, THE TO, FROM, DATES SENT, THOSE KINDS OF THINGS WOULD BE CONSIDERED THE METADATA.
MR. LEACH: ARE YOU A MEMBER OF ANY PROFESSIONAL ASSOCIATIONS?
JUSTIN OFFEN: YES. I'M A MEMBER OF THE CERTIFIED FRAUD EXAMINERS ASSOCIATION, AND I'M ALSO AN ORACLE CERTIFIED ASSOCIATE.
MR. LEACH: ARE YOU FAMILIAR WITH A COMPANY CALLED THERANOS?
JUSTIN OFFEN: YES.
MR. LEACH: HOW DID YOU BECOME FAMILIAR WITH THERANOS?
JUSTIN OFFEN: IN THE FALL OF 2016 WE WERE RETAINED BY WILMER HALE AND THERANOS. WE WERE RETAINED BY WILMER HALE LAW FIRM TO ASSIST THEM IN SOME LEGAL PROCEEDINGS THAT THEY WERE WORKING ON WITH THEIR CLIENT, THERANOS.
MR. LEACH: THE WILMER HALE LAW FIRM, WAS THAT A LAW FIRM THAT YOU WERE FAMILIAR WITH?
JUSTIN OFFEN: YES.
MR. LEACH: AND HOW WERE YOU FAMILIAR WITH THEM?
JUSTIN OFFEN: WE WORKED WITH THEM SEVERAL TIMES.
MR. LEACH: OKAY. ARE THEY A BIG FIRM? A SMALL FIRM? HOW WOULD YOU DESCRIBE THEM?
JUSTIN OFFEN: A LARGE FIRM.
MR. LEACH: OKAY. AND THERANOS HIRED WILMER HALE, WHO HIRED PWC; IS THAT RIGHT?
JUSTIN OFFEN: CORRECT.
MR. LEACH: AND WHAT WERE YOU HIRED TO DO?
JUSTIN OFFEN: THE SCOPE OF SERVICES OUR ENGAGEMENT LETTER WAS TO ASSIST WILMER HALE WITH LITIGATION AND OTHER LEGAL SERVICES FOR THEIR CLIENT, THERANOS.
MR. LEACH: AND CAN YOU TALK ABOUT THE DIFFERENT TYPES OF -- AND HOW LONG DID YOUR ENGAGEMENT WITH WILMER HALE LAST?
JUSTIN OFFEN: WE BEGAN WORK, I BELIEVE, SEPTEMBER OF 2016, AND WE WERE WORKING IN SOME CAPACITY THROUGH TO THE SPRING OF 2019. BUT THE MAJORITY OF THE WORK WAS IN 2017 AND EARLY 2018.
MR. LEACH: OKAY. BETWEEN THAT 2016 AND 2019 TIME PERIOD, DESCRIBE FOR US SOME OF YOUR ASSIGNMENTS.
JUSTIN OFFEN: YEAH. WE DID A COUPLE OF DIFFERENT THINGS. FIRST, WE HELPED THEM DEDUPE AND SCRUB SOME EXISTING DATA THAT THEY WERE USING FROM ANOTHER E-DISCOVERY PROVIDER; AND THEN WE ASSISTED WILMER AND THERANOS WITH SOME REDUCTIONS IN FORCE THAT THERANOS WAS EXECUTING ON; AND THEN WE ALSO ASSISTED THEM WITH ELECTRONIC DISCOVERY SERVICES, WHAT I WOULD CALL THE PRESERVATION OF ELECTRONIC DEVICES OR ASSETS, LAPTOPS, DESKTOPS, AND MOBILE PHONES; AND ULTIMATELY WE HELPED WILMER WITH THE PRODUCTION OF CERTAIN OF THOSE DOCUMENTS FOR WILMER IN RESPONSE TO VARIOUS LEGAL PROCEEDINGS AND REGULATORY INQUIRIES.
MR. LEACH: WHEN YOU SAY "THE PRODUCTION," WHAT DO YOU MEAN BY THAT?
JUSTIN OFFEN: THROUGH THE COURSE OF E-DISCOVERY ENGAGEMENT, IT BEGINS WITH THE IDENTIFICATION AND PRESERVATION OF ELECTRONIC DEVICES, AND THEN WE DO WHAT WE CALL PROCESSING, WHICH HELPS PREPARE THAT INFORMATION IN A WAY IN WHICH HUMANS CAN EASILY REVIEW IT. AND THEN WE GO THROUGH THE REVIEW PROCESS. ULTIMATELY CERTAIN DOCUMENTS OR MESSAGES ARE IDENTIFIED THAT ARE RESPONSIVE OR ARE RELEVANT TO THE LEGAL INQUIRIES OR LEGAL MATTERS. AND THEN THOSE, AT THE DIRECTION OF COUNSEL, ARE WHAT WE CALL PRODUCED TO WHOMEVER THEY'RE PRODUCING IT TO, WHETHER IN THIS CASE IT WAS THE S.E.C. OR THE DOJ OR SOME OTHER LEGAL MATTERS.
MR. LEACH: AND DID YOU HAVE A SENSE OF WHO WILMER HALE, ON BEHALF OF THERANOS, WAS PRODUCING DOCUMENTS TO?
JUSTIN OFFEN: APOLOGIES. ONLY TO THE EXTENT IN WHICH THEY SHARED WITH US KIND OF THE NAME OF THE MATTER. SO, FOR EXAMPLE, WE PRODUCED DOCUMENTS WE KNEW THAT WERE RELATED TO AN S.E.C. INQUIRY. WE PRODUCED DOCUMENTS THAT WERE IN RESPONSE TO A DOJ INQUIRY. BUT THAT WAS THE EXTENT OF OUR KNOWLEDGE OF WHAT IT WAS.
MR. LEACH: OKAY. DID YOU DO ALL OF THIS WORK YOURSELF?
JUSTIN OFFEN: NO.
MR. LEACH: DID YOU HAVE A TEAM?
JUSTIN OFFEN: YES.
MR. LEACH: AND HOW BIG WAS YOUR TEAM?
JUSTIN OFFEN: IT VARIED THROUGHOUT THE TWO AND A HALF OR SO YEARS THAT WE WERE WORKING. I WOULD SAY WE HAD A CORE TEAM OF ABOUT 15 TO 20 THAT WERE INVOLVED FOR THE MOST PART. AND THEN WE ENGAGED, FOR EXAMPLE, IN THE REDUCTION IN FORCE ACTIVITIES, WE BROUGHT IN ADDITIONAL TEAM MEMBERS. I THINK THE LARGEST WE EVER HAD WAS ABOUT 40 AT ONE TIME, BUT THAT WAS FOR THE SAKE OF A WEEK'S EXERCISE. IT WAS PRETTY MUCH THE 15 TO 20.
MR. LEACH: AND DO YOU HAVE AN APPROXIMATION OF HOW MANY HOURS PWC SPENT ON THIS ENGAGEMENT?
JUSTIN OFFEN: OVER 10,000 HOURS.
MR. LEACH: AND DO YOU HAVE A SENSE OF HOW MUCH PWC BILLED FOR THIS ENGAGEMENT?
JUSTIN OFFEN: YES.
MR. LEACH: AND IS IT MORE THAN A MILLION DOLLARS?
JUSTIN OFFEN: YES.
MS. TREFZ: OBJECTION, YOUR HONOR. RELEVANCE.
JUDGE DAVILA: OVERRULED.
BY MR. LEACH:
MR. LEACH: IS IT MORE THAN A MILLION DOLLARS?
JUSTIN OFFEN: YES.
MR. LEACH: AND IS IT MORE THAN 5 MILLION?
JUSTIN OFFEN: YES.
MR. LEACH: PRIOR TO AUGUST OF 2018, WHO WAS PAYING PWC'S FEES?
JUSTIN OFFEN: THERANOS.
MR. LEACH: AND AFTER THE AUGUST TIME PERIOD, WERE YOU RETAINED BY ANOTHER COMPANY CALLED SHERWOOD PARTNERS?
JUSTIN OFFEN: YES, ALTHOUGH WE WERE RETAINED IN DECEMBER OF 2018 BY THEM.
MR. LEACH: AND WHAT WAS SHERWOOD PARTNERS?
JUSTIN OFFEN: THEY WERE THE ORGANIZATION WHICH TOOK OVER THE INSOLVENCY OF THERANOS AS I UNDERSTAND IT.
MR. LEACH: I WANT TO FOCUS ON YOUR WORK PRIOR TO AUGUST OF 2018 IF WE COULD, PARTICULARLY AS IT RELATES TO YOUR COLLECTION, PRESERVATION AND COLLECTION OF EVIDENCE. DO YOU HAVE THAT TIME PERIOD AND SUBJECT IN MIND?
JUSTIN OFFEN: SURE.
MR. LEACH: OKAY. IN CONNECTION WITH YOUR ASSIGNMENT ON BEHALF OF WILMER HALE AND THERANOS, DID PWC GATHER THERANOS DIGITAL DEVICES THAT WERE ASSIGNED TO ELIZABETH HOLMES?
JUSTIN OFFEN: YES.
MR. LEACH: AND WHAT DID PWC DO?
JUSTIN OFFEN: WE IMAGED, AGAIN, TOOK FORENSIC COPIES OF SIX OF HER ASSETS.
MR. LEACH: AND WHEN YOU SAY "ASSETS," WHAT DO YOU MEAN?
JUSTIN OFFEN: THERE WERE TWO DESKTOPS, THREE LAPTOPS, AND ONE MOBILE PHONE.
MR. LEACH: AND WHERE DID PWC DO THIS?
JUSTIN OFFEN: VARYING PLACES. THESE DID NOT ALL OCCUR AT ONE TIME. THIS TOOK PLACE OVER ABOUT A YEAR AND A HALF-ISH TIMELINE FROM, AGAIN, LATE 2016 INTO EARLY 2018. BUT THE INITIAL ONES THAT WE IMAGED WERE DONE AT WILMER HALE'S OFFICES IN PALO ALTO, WHICH WAS RIGHT DOWN THE STREET FROM THERANOS'S OFFICES IN PALO ALTO.
MR. LEACH: AND WERE YOU PRESENT FOR SOME OF THE IMAGING?
JUSTIN OFFEN: YES.
MR. LEACH: AND FOR THOSE OF US NOT IN THE E-DISCOVERY BUSINESS, WHAT IS IMAGING?
JUSTIN OFFEN: SO IT'S THE USE OF FORENSIC SOFTWARE TO TAKE WHAT WE CALL FORENSIC COPIES OF THE ELECTRONIC ASSETS, AND THE KEY PIECE BEING THERE IS THAT THE SOFTWARE OR THE TECHNOLOGY USED TO COMPLETE THE IMAGE, IT PREVENTS ANY OF THE UNDERLYING DATA FROM BEING MANIPULATED OR ALTERED IN ANY CAPACITY. SO WE TAKE WHAT WE CALL A CLEAN FORENSIC COPY, MEANING FOR THE LAPTOPS, A DIRECT BYTE FOR BYTE COPY OF EVERY ELEMENT OF THE HARD DRIVE; AND THEN FOR THE MOBILE DEVICES, A LOGICAL COPY OF THE CONTENTS OF THE MOBILE DEVICE.
MR. LEACH: AND WHAT DID YOU MEAN BY "LOGICAL COPY"?
JUSTIN OFFEN: LOGICAL COPY, RATHER THAN TAKING THE UNDERLYING DISK, THE ACTUAL ONES AND ZEROS STORED ON THE DISK, BECAUSE OF THE VARIOUS ENCRYPTION TECHNOLOGY ON THE MOBILE DEVICES, TAKING THAT PURE FORENSIC COPY ISN'T REALLY HELPFUL BECAUSE YOU NEED TO THEN HAVE EACH UNDERLYING PASSWORD AND EACH UNDERLYING TECHNOLOGY EVERY TIME TO INTERPRET THAT OR READ THAT, SO YOU TAKE A LOGICAL COPY WHERE THE PASSWORD IS ENTERED INTO THE MOBILE DEVICE AND IT COPIES OFF -- AGAIN, FORENSIC SO THERE'S NO MANIPULATION, NO CHANGING OF METADATA -- EVERY SINGLE FILE AND RECORD THAT IS ON THAT PHONE.
MR. LEACH: WERE THERE ANY HICCUPS IN THE IMAGING OF THE DEVICES ASSIGNED TO MS. HOLMES?
JUSTIN OFFEN: NO, NOT TO MY RECOLLECTION.
MR. LEACH: OKAY. AND DID YOU PERSONALLY RETURN ANY OF THE DEVICES THAT PWC GATHERED FROM MS. HOLMES TO HER OR HER ASSISTANT?
JUSTIN OFFEN: YES. WE -- THE INITIAL IMAGE WE TOOK OF HER MOBILE DEVICE IN JANUARY OF 2017 I RETURNED TO HER ASSISTANT. I RETURNED TO LISA DURKIN, WHO I BELIEVE IS HER ASSISTANT.
MR. LEACH: SO AFTER PWC COLLECTED AND IMAGED THESE DEVICES, WHAT DID IT DO?
JUSTIN OFFEN: SO WE THEN LEVERAGED THAT I REFERENCED EARLIER WHERE ONCE WE DID THE COLLECTION AND PRESERVATION, WE THEN DO THE PROCESSING AND ANY ANALYSIS OR REVIEW THAT IS NEEDED FOR THE PURPOSES OF THIS DEVICE. WE WERE ASKED BY WILMER TO CREATE A FILE OF ALL OF THE MESSAGES OR CHATS FROM MS. HOLMES'S DIGITAL ASSETS BETWEEN HERSELF AND SUNNY BALWANI. SO THIS WAS ONE OF THE SPREADSHEETS OR OUTPUTS THAT WE CREATED.
MR. LEACH: DID YOU USE ANY TYPE OF SOFTWARE PRODUCTS TO DO THIS?
JUSTIN OFFEN: YES. SO FOR THE MOBILE DEVICE WE USED A SOFTWARE CALLED AXIOM, AN INDUSTRY RECOGNIZED SOFTWARE WHICH ENABLES YOU TO EFFECTIVELY PARSE OUT CONTENTS OF MOBILE DEVICES OR LAPTOPS WHERE IT CONTAINS CHAT MESSAGES OR THINGS OF THAT NATURE.
MR. LEACH: AND THE SOFTWARE PRODUCTS THAT YOU USED TO DO THIS, ARE THOSE COMMERCIALLY AVAILABLE?
JUSTIN OFFEN: CORRECT.
MR. LEACH: AND DO YOU FIND THEM TO BE RELIABLE?
JUSTIN OFFEN: VERY.
MR. LEACH: AND ARE THEY PRODUCTS THAT YOU HAVE USED FOR OTHER CLIENTS?
JUSTIN OFFEN: YES.
MR. LEACH: AFTER THE DEVICES WERE IMAGED AND PROCESSED, CAN YOU DESCRIBE WHAT PWC DID WITH THE DATA?
JUSTIN OFFEN: YES. SO WHEN AXIOM, AS I SAID, PARSES OUT THE UNDERLYING CHAT MESSAGES, IT CREATES A FILE, A CSV FILE, COMMA SEPARATED VALUE FILE, THAT HAS THE CONTENTS OF EVERYTHING THAT IT IDENTIFIED ON THOSE DEVICES AS BEING CHATS OR MESSAGES. IT LOOKS AT DIFFERENT TYPES OF CHAT OR MESSAGING SOFTWARE AND IT CREATES A FILE FOR EACH OF THOSE. SO FOR HER MOBILE DEVICE, IT ONLY CONTAINED WHAT WAS DEFINED AS COMMUNICATIONS OR IMESSAGES, SMS'S OR TEXT MESSAGES. SO IT CREATED ONE VERY LARGE FILE OFF OF HER MOBILE DEVICE OF THOSE. AND THEN WE ALSO LOOKED AT HER OTHER ASSETS TO IDENTIFY OTHER POTENTIAL CHATS OR MESSAGES THAT WERE CONTAINED ON THEM. FOR EXAMPLE, ONE OF HER LAPTOPS HAD SOME IMESSAGES AND SOME SKYPE MESSAGES, ET CETERA, SO WE COMPILED ALL OF THAT INTO A MASTER FILE WHICH WE THEN ANALYZED IN ANOTHER SOFTWARE CALLED ALTERYX.
MR. LEACH: WHAT IS ALTERYX?
JUSTIN OFFEN: ALTERYX IS A DATA ANALYTICAL TOOL, VERY COMMON FOR DOING VARIOUS ANALYSIS FOR STRUCTURED DATA. ONCE THE TOOL AXIOM PARSED THIS OUT, IT WAS THEN ABLE TO BE INGESTED AS STRUCTURED DATA FOR THE PURPOSES OF THE ANALYSIS THAT WE THEN CONTINUED TO DO.
MR. LEACH: FROM TIME TO TIME, DID PWC PROVIDE EXCEL FILES TO WILMER HALE TO REVIEW THE CONTENT OF TEXT MESSAGES?
JUSTIN OFFEN: YES.
MR. LEACH: AND YOU SHOULD HAVE TWO BINDERS IN FRONT OF YOU, MR. OFFEN. I WOULD DRAW YOUR ATTENTION TO THE FIRST BINDER, AND THERE SHOULD BE AN EXHIBIT IN THERE THAT WE HAVE MARKED AS EXHIBIT 3481.
JUSTIN OFFEN: YES.
MR. LEACH: DO YOU RECOGNIZE THIS DOCUMENT?
JUSTIN OFFEN: YES.
MR. LEACH: WHAT IS THIS?
JUSTIN OFFEN: BASED UPON THE FORMAT AND THE CODING, AND THE BATES NUMBERING MOST NOTABLY IN THE BOTTOM RIGHT CORNER, I BELIEVE THIS TO BE THE EXCEL FILE THAT WE CREATED THAT WILMER THEN PRODUCED TO THE DOJ.
MR. LEACH: AND THERE'S A BATES -- HOW LONG IS THIS DOCUMENT?
JUSTIN OFFEN: 589 PAGES.
MR. LEACH: OKAY. AND THERE'S A BATES NUMBER IN THE BOTTOM RIGHT CORNER. DO YOU RECOGNIZE THAT BATES NUMBERING SCHEME?
JUSTIN OFFEN: CORRECT.
MR. LEACH: AND HOW DO YOU RECOGNIZE THAT?
JUSTIN OFFEN: SORRY. THAT APPEARS TO BE THE BATES NUMBERING -- WELL, BOTH THE CODING, SO THE T-H-E-R WAS THE BEGINNING CODE FOR THE RESPONSE WILMER PUT TOGETHER FOR THE DOJ; AND THEN THE SUBSEQUENT NUMBERS ARE RELATED TO THE PAGES THAT WERE PRODUCED, AND THIS NUMBER REMINDS ME OF THE -- OR IT IS THE NUMBER OF THE FILE OF THE TEXT MESSAGES BETWEEN ELIZABETH AND SUNNY THAT WE PROVIDED TO WILMER WHICH WAS ULTIMATELY PRODUCED TO THE DOJ.
MR. LEACH: SO YOU BELIEVE PWC HAD A HAND IN PREPARING THIS IN THE FIRST INSTANCE?
JUSTIN OFFEN: YES.
MR. LEACH: AND DID YOU DO THAT FROM DATA THAT YOU HAD GATHERED IN THE COURSE OF YOUR WORK ON BEHALF OF WILMER HALE AND THERANOS?
JUSTIN OFFEN: YES.
MR. LEACH: OKAY. I WOULD DRAW YOUR ATTENTION TO THE FIRST BATES NUMBER. DO YOU SEE THE NUMBER 2566547?
JUSTIN OFFEN: YES.
MR. LEACH: AND ON THE LAST PAGE DO YOU SEE THE NUMBER 2567135?
JUSTIN OFFEN: YES.
MR. LEACH: YOU CAN PUT THAT BINDER TO THE SIDE, PLEASE. IN ADVANCE OF THE TRIAL IN THIS MATTER, MR. OFFEN, DID PWC RECEIVE A SUBPOENA TO PRODUCE CERTAIN RECORDS?
JUSTIN OFFEN: YES.
MR. LEACH: AND DID THAT SUBPOENA CALL FOR THE PRODUCTION OF TEXT, SMS OR SKYPE MESSAGES AND/OR IMESSAGES INVOLVING ELIZABETH HOLMES AND RAMESH BALWANI REFLECTED ON THE BATES NUMBERS THAT WE OBSERVED IN EXHIBIT 3481?
JUSTIN OFFEN: YES.
MR. LEACH: AND DID YOU OVERSEE PWC'S PROCESS IN RESPONDING TO THAT SUBPOENA?
JUSTIN OFFEN: YES.
MR. LEACH: LET ME DRAW YOUR ATTENTION, PLEASE, TO WHAT WE HAVE MARKED AS A DEMONSTRATIVE IN EXHIBIT 5386. DO YOU RECOGNIZE THIS?
JUSTIN OFFEN: YES.
MR. LEACH: AND IS THIS A DEMONSTRATIVE THAT PWC PREPARED IN ORDER TO EXPLAIN ITS PROCESS FOR RESPONDING TO THE SUBPOENA?
JUSTIN OFFEN: YES.
MR. LEACH: AND DO YOU FIND THIS HELPFUL IN EXPLAINING WHAT YOU DID IN ORDER TO RESPOND TO THAT?
JUSTIN OFFEN: YES.
MR. LEACH: YOUR HONOR, I'D LIKE TO DISPLAY EXHIBIT 5386.
MS. TREFZ: NO OBJECTION.
JUDGE DAVILA: IT MAY BE DISPLAYED TO THE JURY.
BY MR. LEACH:
MR. LEACH: MR. OFFEN, DO YOU SEE TO THE RIGHT THERE'S A HEADING PROCESS, AND THEN BENEATH THAT FOUR BOXES?
JUSTIN OFFEN: YES.
MR. LEACH: OKAY. AND WHAT IS CONVEYED IN THOSE FOUR BOXES?
JUSTIN OFFEN: ON THE FAR LEFT?
MR. LEACH: YES, ON THE FAR LEFT. EXCUSE ME.
JUSTIN OFFEN: SO WHAT THOSE ARE, THOSE ARE THE BEGINNING SOURCES FROM THE DIGITAL ASSETS THAT WE PROCEEDED TO COMPLETE THE OUTPUT OF THE SPREADSHEET FROM. THE TOP ONE REPRESENTS THE SOFTWARE USED TO DO THE INITIAL IMAGING AND ACQUISITION OF THOSE DEVICES IN 2016 AND IN 2017 RESPECTIVELY.
MR. LEACH: SO IN ONE OF THE GREY BOXES THERE'S AN IPHONE 6S. DO YOU SEE THAT?
JUSTIN OFFEN: YES.
MR. LEACH: AND IS THAT THE SERIAL NUMBER BENEATH THAT?
JUSTIN OFFEN: YES.
MR. LEACH: AND WAS THAT A DEVICE THAT YOU UNDERSTOOD BELONGED TO MS. HOLMES?
JUSTIN OFFEN: YES.
MR. LEACH: AND THEN THERE'S TWO BOXES FOR MAC PRO AND MAC AIR. ARE THOSE THE SERIAL NUMBERS FOR THOSE DEVICES?
JUSTIN OFFEN: I BELIEVE SO, YES. I DON'T HAVE THEM EXACTLY MEMORIZED, BUT I BELIEVE THOSE ARE THE EXACT ONES, YES.
MR. LEACH: THAT WOULD BE VERY IMPRESSIVE.
JUSTIN OFFEN: YEAH.
MR. LEACH: AND WERE THOSE DEVICES THAT YOU UNDERSTOOD WERE ASSIGNED TO MS. HOLMES?
JUSTIN OFFEN: YES.
MR. LEACH: AND THESE WERE DEVICES THAT PWC CONTINUED TO HAVE IMAGES OF IN ITS POSSESSION?
JUSTIN OFFEN: CORRECT. WE RETAINED THE EVIDENCE FILES THROUGHOUT THE DURATION OF THE ENGAGEMENT; AND THEN FROM AICPA STANDARDS, YOU RETAIN DATA FOR SEVEN YEARS AFTER THE CLOSE OF THE ENGAGEMENT.
MR. LEACH: AT THEN IN THAT BOX AT THE TOP, THERE'S CELLBRITE 5.4, EWFACQUIRE, MACQUISITION. WHAT ARE THOSE?
JUSTIN OFFEN: SO THOSE ARE THE VARIOUS SOFTWARE TOOLS THAT WE USED TO COMPLETE THE INITIAL FORENSIC IMAGES THAT I WAS REFERENCING EARLIER. THEY ARE IN SEQUENCE. SO CELLBRITE WAS USED FOR THE IPHONE; EWFACQUIRE WAS USED FOR THE MACBOOK PRO; AND MACQUISITION WAS USED FOR THE MACBOOK AIR.
MR. LEACH: AS WE MOVE TO THE RIGHT THERE'S A BOX THAT HAS THE NUMBER 80,948. WHAT DOES THAT REFER TO?
JUSTIN OFFEN: THAT IS THE TOTAL NUMBER OF MESSAGES WHICH WERE EXTRACTED OUT FROM THE PARSING PROCESS THAT I REFERENCED EARLIER FROM AXIOM FROM THOSE THREE DEVICES.
MR. LEACH: AND BENEATH THAT THERE'S A BOX THAT SAYS AXIOM EXPORTS. DO YOU SEE THAT?
JUSTIN OFFEN: YES.
MR. LEACH: AND THERE'S SOME ROWS WITH THE WORD "HOUSE." WHAT DOES HOUSE REFER TO?
JUSTIN OFFEN: HOUSE WAS THE INTERNAL PROJECT NAME THAT WE USED FOR THIS WORK. OUR WORK WAS BEING DONE UNDER PRIVILEGE FROM WILMER, AND ANY TIME WE COMPLETE ANY PRIVILEGE ENGAGEMENT, WE ASSIGN A PROJECT NAME SO THAT YOU DO NOT DISCUSS OPENLY THE CLIENT NAME IN CONFERENCES AND WORK PAPERS, ET CETERA.
MR. LEACH: IN THAT FIRST ROW TO THE RIGHT IT SAYS HOLMES PO1. WHAT DOES PO1 REFER?
JUSTIN OFFEN: THAT REPRESENTS HER MOBILE DEVICE. THIS FILE, THE CSV, REPRESENTS THE PARSED OUT CONTENTS OF ALL MESSAGES OF ALL OF THE IMESSAGES AND SMS MESSAGES THAT WERE ON HER MOBILE DEVICE.
MR. LEACH: AND AS WE GO TO THE RIGHT, THIS IS AN CSV FILE?
JUSTIN OFFEN: CORRECT.
MR. LEACH: AND IS THAT LIKE AN EXCEL FILE?
JUSTIN OFFEN: IT'S THE DATA THAT AN EXCEL FILE WOULD OPEN. IF YOU LOOKED AT THIS IN ITS BASE FORM, TEXT FORM, YOU JUST SEE THE VALUE, COMMA, VALUE, COMMA, VALUE, AND THEN EXCEL KNOWS TO INTERPRET THAT INTO ROWS AND COLUMNS.
MR. LEACH: AND TO THE RIGHT THERE'S A NUMBER, 80,089. AM I RIGHT TO INFER THAT THE VAST MAJORITY OF THE MESSAGES THAT WERE EXTRACTED FROM THE PHONES OR FROM THE DEVICES CAME FROM THIS ONE PHONE?
JUSTIN OFFEN: CORRECT. EACH OF THE NUMBERS IN PARENTHESIS REPRESENTS HOW MANY RECORDS WERE IN EACH OF THESE FILES. SO OF THE 80,949 TOTAL, 80,089 TOTAL CAME FROM HER MOBILE DEVICE.
MR. LEACH: TO THE RIGHT THERE'S A BOX FILTER, AND ABOVE THAT THERE'S A BOX WITH A NUMBER OF NAMES. WHAT IS CONVEYED THERE?
JUSTIN OFFEN: SO THE SUBPOENA THAT WE WERE RESPONDING TO HAD REQUESTED THAT WE PROVIDE THE TEXT AND CHAT MESSAGES BETWEEN MS. HOLMES AND MR. BALWANI. SO THE 80,948 REPRESENTS ALL OF THE MESSAGES THAT WERE ON MS. HOLMES'S DEVICES TO MR. BALWANI AND WHOMEVER ELSE SHE WAS COMMUNICATING WITH. SO WE FILTERED THAT POPULATION DOWN TO ONES WE BELIEVED THAT WOULD BE MESSAGES TO OR FROM MR. BALWANI. SO WE LEVERAGED, AGAIN, BASED UPON OTHER WORK WE WERE DOING WITH THE COMPANY, HIS VARIOUS HANDLES, PHONE NUMBERS, EMAILS, ET CETERA, THAT WOULD BE WHAT WE BELIEVED TO BE THE MESSAGES BETWEEN HERSELF AND HIM.
MR. LEACH: OKAY. AND BASED ON THAT FILTERING PROCESS, HOW MANY MESSAGES DID PWC IDENTIFY?
JUSTIN OFFEN: SO THAT WAS THE NEXT RIGHT BOX, IF YOU KEEP GOING OVER, THE 12,132.
MR. LEACH: AND ABOVE THAT IT SAYS RELATIVITY FOR REDACTION. WHAT IS RELATIVITY?
JUSTIN OFFEN: RELATIVITY IS AN E-DISCOVERY SOFTWARE WHICH TYPICALLY ATTORNEYS OR LEGAL PROFESSIONALS USE TO REVIEW DOCUMENTS AND MESSAGES. IT ENABLES THEM TO FOLDER, SEARCH FOR KEY WORDS, PROVIDE INDEXES, CODING, ET CETERA.
MR. LEACH: AND BENEATH THE 12,132 THERE'S A BOX, REPLACED IN ALTERYX. WHAT DOES THAT REFER TO?
JUSTIN OFFEN: SO THE FILES THAT WERE GENERATED BY AXIOM, IT PLACED THESE TAGS IN SOME PLACES FOR MS. HOLMES'S NAME OR PHONE NUMBER. SO WHERE IT SAYS THE PHONE BACKUP.TAR, FOR EXAMPLE, IPHONE BACKUP.TAR, THAT WAS THE WHERE THE CONTENTS IN THE FROM OR SENT OF RECEIVED NAME WAS, AND SO WE PLACED THAT WITH ELIZABETH HOLMES TO BE EASIER TO REVIEW.
MR. LEACH: CAN YOU PLEASE EXPLAIN THE BOXES AND PENTAGON ON THE RIGHT WHERE IT SAYS MATCH RECORDS NOT IN S.E.C. FILE, AND THEN THE NUMBERS TO THE RIGHT GOING DOWN. EXPLAIN WHAT YOU'RE CONVEYING THERE.
JUSTIN OFFEN: YEAH, WHAT WE WERE CALLING THE S.E.C. FILE WAS ACTUALLY THE FIRST EXHIBIT THAT YOU HAD ME LOOK AT WHICH WAS ACTUALLY THE DOJ FILE. TO BE CLEAR, THEY'RE THE EXACT SAME CONTENTS, THEY JUST HAD DIFFERENT REDACTIONS BY WILMER HALE, AND THAT'S WHY WE REFERRED TO IT AS THE S.E.C. FILE, WHICH WAS THE INITIAL ONE WE CREATED AND THEN IT WAS PRODUCED TWO DIFFERENT WAYS WITH DIFFERENT REDACTIONS. SO THE TOP NUMBER, THE 53, WE IDENTIFIED, WHEN WE RECREATED THIS SPREADSHEET LAST MONTH, THERE WAS AN ADDITIONAL 53 RECORDS WE RAN, OR CREATED THE SPREADSHEET THIS TIME, WHICH WERE NOT IN THE INITIAL FILE THAT WAS PRODUCED TO THE DOJ OR THE S.E.C. BACK IN 2017. WE ATTRIBUTED THOSE 53 RECORDS TO THE THREE DIFFERENT ITEMS THAT ARE LISTED ABOVE IT. THE FIRST ONE BEING THERE WERE 25 MESSAGES PRIOR TO JUNE 7TH IN THE RECREATION OF THE SPREADSHEET, WHICH NEVER EXISTED IN THE ORIGINAL ONE; THERE WERE 16 MESSAGES RELATED TO THE EMAIL SUNNY@DARWIN20.COM; AND THEN THERE WERE 12 JUST IMAGINES THAT HAD NO CONTENT IN THE SEARCHES, IN THE MESSAGE.
MR. LEACH: THERE ARE SOME BOXES --
JUSTIN OFFEN: SORRY, APOLOGIES. YOU ASKED ME TO GO THROUGH ALL OF THEM. TO THE RIGHT, TO DO THE MATCH PROCESS, WE TRIED TO MATCH THE TWO FILES, THE ONES THAT WE NOW CREATED, WHICH ARE THE 12,132 MESSAGES TO WHAT WE WERE REFERRING TO AS THE ORIGINAL FILE, THE 12,120. WE WENT THROUGH A SERIES OF PROGRAMMATIC MATCHES, VERY STRAIGHTFORWARD. WE SEARCHED FOR THE CONTENTS OF THE MESSAGE AND THE DATE THAT THE MESSAGE WAS SENT. WE DID DO SOME VARIATION IN THAT, LEADING AND TRAILING SPACES, THERE WAS SOME DIFFERENT INTERPRETATIONS OF TIME ZONES ON THE PHONE OR THE DATA THAT CAME THROUGH, SO WE DID A COUPLE VARIATIONS. BUT THE PROGRAMMATIC MATCHES WHERE WE DID THOSE SEARCHES THAT I JUST REFERENCED YIELDED 12,081. SO, AGAIN, THE VAST MAJORITY OF THEM WERE MATCHED. WE THEN PROCEEDED TO SEARCH THROUGH SOME OF THE ONES THAT HAD NOT MATCHED, AND THEN IN THE REMAINING BALANCE WE FOUND 21 MATCHES MANUALLY. THESE WERE MOSTLY DUE TO DIFFERENT INTERPRETATIONS IN EXCEL. FOR ANYONE WHO HAS WORKED WITH EXCEL, IF YOU START TYPING WITH A MINUS SIGN OR A PLUS SIGN, FOR EXAMPLE, EXCEL THINKS YOU'RE DOING A MATHEMATICAL EQUATION. SO ON THE ORIGINAL FILE, THOSE WERE COMING THROUGH AS N/A. AGAIN, IF ANY OF YOU HAVE SEEN EXCEL, IT'S PRETTY COMMON WHEN EXCEL DOESN'T KNOW WHAT IT'S DOING, IT PUTS THE N/A WHERE WE SAW THAT IT WAS ACTUALLY DUE TO THIS EQUATION. THE OTHER REASON IT WAS CAUSING THAT WAS 100 PERCENT, WHEN THE MESSAGE CONTENT WAS 100 PERCENT, THE ORIGINAL FILE INTERPRETED 100 PERCENT TO BE JUST 1. SO YOU LOST THE 00 AND THE PERCENT SIGN. SO THESE WERE SOME OF THE THINGS THAT FIT INTO THESE 21 MANUAL MATCHES.
MR. LEACH: AND THE BOX FOR NO MATCH, CAN YOU EXPLAIN WHAT THAT IS?
JUSTIN OFFEN: YEAH. OF THE OVERALL, THE ORIGINAL -- APOLOGIES -- OF THE ORIGINAL 12,120 FILE, WE DID NOT IDENTIFY 18 OF THOSE MATCHES. THEY WERE ALL OF THE SKYPE TYPE MESSAGES, NOT IMESSAGES OR TEXT MESSAGES.
MR. LEACH: AND ARE THERE SOME POSSIBILITIES WHY YOU WERE UNABLE TO MATCH THOSE 18 DOCUMENTS, OR 18 FILES?
JUSTIN OFFEN: YES. I THINK, AS I SAID AT THE VERY BEGINNING, WHEN WE INITIALLY COMPLETED THIS MATTER, WE HAD PRESERVED OR IMAGED SIX OF MS. HOLMES'S DEVICES. FOR THE PURPOSE OF THIS ANALYSIS, WE ONLY RAN IT ON THREE OF THEM. SO IT WAS NOT SURPRISING TO ME THAT THERE WERE SOME THAT DIDN'T MATCH. QUITE CANDIDLY, I EXPECTED IT TO BE A LARGER NUMBER. BUT WHEN WE ONLY IDENTIFIED 18 THAT HAD NOT MATCHED, I WAS CONFIDENT THAT OUR RECREATION OF THE SPREADSHEET WAS SUFFICIENTLY ACCURATE AND DID NOT ASK MY TEAM TO DO ANY ADDITIONAL WORK.
MR. LEACH: LET ME DRAW YOUR ATTENTION TO WHAT WE HAVE MARKED AS EXHIBIT 5387. THAT SHOULD BE IN YOUR SECOND BINDER.
JUSTIN OFFEN: YES, I'VE GOT IT.
MR. LEACH: DO YOU RECOGNIZE THIS?
JUSTIN OFFEN: YES.
MR. LEACH: WHAT IS THIS?
JUSTIN OFFEN: THIS IS THE RECREATED SPREADSHEET THAT WE JUST WALKED THROUGH THE PROCESS OF FROM THAT FLOW CHART.
MR. LEACH: THIS IS PWC'S RESPONSE TO THE SUBPOENA THAT WAS ISSUED TO PWC?
JUSTIN OFFEN: CORRECT.
MR. LEACH: AT THE TOP OF THIS DOCUMENT, THERE IS A ROW TITLED RECORD. DO YOU SEE THAT?
JUSTIN OFFEN: YES.
MR. LEACH: AND WHAT DOES RECORD REFER TO?
JUSTIN OFFEN: SO IT IS THE CONCATENATION OF THE SOURCE DEVICE AND THE AXIOM FILE NAME THAT WE JUST WALKED THROUGH. SO ON THE FLOW CHART, THE FIVE LINE ITEMS ON DIFFERENT FILES, AND THEN THE SYSTEMATICALLY GENERATED SEQUENCE NUMBER. THIS PURPOSE IS SIMPLY TO CREATE A UNIQUE IDENTIFIER FOR EVERY RECORD IN THIS FILE BECAUSE, AGAIN, IT CAME FROM FIVE SEPARATE UNDERLYING SOURCES. WE WANTED TO HAVE ONE UNIQUE NUMBER ACROSS ALL OF THEM.
MR. LEACH: FIVE SEPARATE OR THREE SEPARATE?
JUSTIN OFFEN: THREE SEPARATE DIGITAL ASSETS, BUT WE CREATED FIVE FILES THROUGH THE AXIOM WORK PROCESS.
MR. LEACH: AND THIS IS ASSIGNING A UNIQUE NUMBER SO YOU CAN IDENTIFY THE MESSAGE AND THE SOURCE?
JUSTIN OFFEN: CORRECT. SO VERY QUICKLY, THE FIVE FILES, THREE OF THEM CAME FROM ONE SOURCE BECAUSE THERE WERE THREE DIFFERENT TYPES OF MESSAGES ON THAT SOURCE. SO THERE WAS SOME IMESSAGES, THERE WAS SOME SKYPE, AND THERE WAS SOME SKYPE SYNC. THAT WAS IN THE FLOW CHART THAT WE JUST WALKED THROUGH.
MR. LEACH: TO THE RIGHT THERE'S A ROW CALLED TYPE. WHAT IS CONVEYED THERE?
JUSTIN OFFEN: THAT IS THE TYPE OF MESSAGE AS STORED ON THE ORIGINAL DEVICE.
MR. LEACH: TO THE RIGHT THERE'S A COLUMN MESSAGE SENT, DATE/TIME. DO YOU SEE THAT?
JUSTIN OFFEN: YES.
MR. LEACH: AND WHAT DOES THAT CONVEY?
JUSTIN OFFEN: THAT ALSO CONVEYS THE SENT TIME FROM THE VARIOUS FILES THAT AXIOM CREATED. SO FOR THE SMS OR IMESSAGE, IT'S THE TIME THE TEXT WAS SENT; FOR THE SKYPE ONES, IT'S THE TIME THAT THE SKYPE CHAT WAS SENT.
MR. LEACH: AND THERE'S A -- TO THE RIGHT THERE'S A COLUMN FOR MESSAGE. IS THAT THE SUBSTANCE OF THE MESSAGE?
JUSTIN OFFEN: YES, THE CONTENTS OF THE MESSAGE.
MR. LEACH: OKAY. AND THEN THERE ARE COLUMNS FOR SENDER/AUTHOR AND RECIPIENT. WHAT IS CONVEYED THERE?
JUSTIN OFFEN: THE SENDER/AUTHOR IS THE PERSON WHO GENERATED THE MESSAGE, AND THEN THE RECIPIENT IS THE INDIVIDUAL OR PHONE NUMBER THAT RECEIVED IT.
MR. LEACH: TO THE RIGHT THERE'S SOMETHING CALLED CHAT I.D. WHAT IS THAT?
JUSTIN OFFEN: SO WITHIN MOBILE DEVICES, AND ALSO THE SKYPE BUT MOSTLY FOR MOBILE DEVICES, YOUR PHONE, IPHONE RATHER, AN IPHONE CREATES A UNIQUE CHAT I.D., WHICH IS HOW, FOR THOSE OF YOU WHO HAVE AN IPHONE, WHEN YOU SEE YOUR CHAT OR YOUR MESSAGES LISTED, YOU KNOW, YOU ALWAYS SEE THEM GROUPED TOGETHER AND THEY COME WITH NEW ONES ACCORDINGLY, THE PHONE IS DISPLAYING THAT UNIQUE CHAT I.D. FOR EACH OF THOSE.
MR. LEACH: AND HOW LONG IS THIS DOCUMENT?
JUSTIN OFFEN: 449 PAGES.
MR. LEACH: AND DO YOU RECOGNIZE THE BATES NUMBERS TO THE RIGHT?
JUSTIN OFFEN: YES. BECAUSE THIS WAS A NEW MATTER, WE USED A NEW CODING AND WE STARTED ON NUMBER 1 FOR THE FIRST PAGE, AND I'M ASSUMING IT GOES THROUGH TO 449, BUT LET ME CONFIRM THAT. YES, IT GOES TO 449.
MR. LEACH: BASED ON PWC'S PROCESS, BASED ON THE BATES NUMBER, BASED ON THE FORMAT OF THIS DOCUMENT, IS THIS A TRUE DEPICTION OF DATA FROM THE THREE DEVICES THAT PWC -- OF THREE DEVICES THAT PWC COLLECTED FROM MS. HOLMES?
JUSTIN OFFEN: YES, I BELIEVE SO.
MR. LEACH: OKAY. MAY I APPROACH, YOUR HONOR?
JUDGE DAVILA: YES.
MR. LEACH: (HANDING.)
MR. LEACH: I'VE PLACED BEFORE YOU, MR. OFFEN, A DOCUMENT THAT WE HAVE LABELLED EXHIBIT 5387B. DO YOU SEE THAT AT THE BOTTOM?
JUSTIN OFFEN: YES.
MR. LEACH: OKAY. DOES THIS APPEAR TO BE A SUBSET OF THE MESSAGES REFLECTED IN 537, OR 5387?
JUSTIN OFFEN: FROM A FORMATTING PERSPECTIVE, YES. I CLEARLY DO NOT HAVE EVERY RECORD MEMORIZED, SO LET ME FLIP TO THIS PAGE.
MR. LEACH: OKAY.
JUSTIN OFFEN: YES.
MR. LEACH: OKAY. LET ME DRAW YOUR ATTENTION TO THE BOTTOM PART OF 5387B, AND DO YOU SEE THE BATES NUMBER 31 TO THE RIGHT?
JUSTIN OFFEN: YES.
MR. LEACH: AND IS THAT A BATES NUMBER FROM THE -- THAT IS ALSO USED IN 5387?
JUSTIN OFFEN: YES.
MR. LEACH: OKAY. AND DO YOU SEE TWO MESSAGES DOWN AT THE BOTTOM 7344 AND 7349?
JUSTIN OFFEN: YES.
MR. LEACH: AND BASED ON PWC'S PROCESS, THE BATES NUMBERING SCHEME, AND THE LOOK OF THIS DOCUMENT, DO YOU BELIEVE THIS TO BE DATA DRAWN FROM ONE OF MS. HOLMES'S DEVICES?
JUSTIN OFFEN: YES.
MR. LEACH: YOUR HONOR, I OFFER PAGE 1 OF 5387B.
MS. TREFZ: 403 TO THE LAST MESSAGE, YOUR HONOR, WHICH IS NOT IN THE SAME CHAIN.
JUDGE DAVILA: WHICH IS -- I'M SORRY?
MS. TREFZ: NOT IN THE SAME CHAIN. IT'S A RESPONSE TO SOMETHING ABOVE. OTHERWISE --
JUDGE DAVILA: OVERRULED. IT CAN BE ADMITTED. AND IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 5387B, PAGE 1 WAS RECEIVED IN EVIDENCE.)
MR. LEACH: THANK YOU. MS. HOLLIMAN, IF WE CAN ZOOM IN ON THE BOTTOM PORTION. WELL, BEFORE WE DO THAT, MS. HOLLIMAN.
MR. LEACH: MR. OFFEN, LET ME DRAW YOUR ATTENTION TO THE TOP OF THE DOCUMENT. DO YOU SEE WHERE IT SAYS RECORD?
JUSTIN OFFEN: YES.
MR. LEACH: AND ARE THESE THE COLUMNS THAT WE WERE TALKING ABOUT PREVIOUSLY THAT YOU COULD FILTER WITH AXIOM?
JUSTIN OFFEN: YES.
MR. LEACH: NOW, IF WE CAN ALSO HIGHLIGHT THE BOTTOM PORTION OF THE DOCUMENT, MS. HOLLIMAN. IN THE LEFT, MR. OFFEN, THERE'S SOME WRITING, HOLMES, IPHONE, IMESSAGE, MMS, SMS, 007344. CAN YOU EXPLAIN WHAT THAT IS?
JUSTIN OFFEN: SO THAT IS THE RECORD I.D. THAT WE DISCUSSED EARLIER. THIS IS THE CONCATENATION OF THE SOURCE FILE, SO AGAIN, ONE OF THOSE FIVE FILES WE REFERENCED. THIS ONE RELATES TO THE RECORDS THAT WERE COMING FROM HER IPHONE, AND THEN THE SYSTEMATICALLY CREATED SEQUENCE I.D. THAT AXIOM ASSIGNS TO THE FILE AS A UNIQUE IDENTIFIER.
MR. LEACH: AND IN THE THIRD COLUMN TO THE RIGHT, DO YOU INTERPRET THAT AS THE DATE THAT THE MESSAGE WAS SENT OR RECEIVED?
JUSTIN OFFEN: YES.
MR. LEACH: WOULD YOU PLEASE READ THE SUBSTANCE OF THE FIRST MESSAGE FOR US?
JUSTIN OFFEN: "PISSING ME OFF WE DON'T HAVE ANYONE MANAGING PSC, CTN PRODUCTION, CART PRODUCTION, ELISA ASSAYS, TSH.."
MR. LEACH: AND TO THE RIGHT IT SAYS SUNNY BALWANI. DOES THAT INDICATE THE SENDER OF THE MESSAGE WAS MR. BALWANI?
JUSTIN OFFEN: YES.
MR. LEACH: AND TO THE RIGHT, THERE'S A NAME ELIZABETH HOLMES. DOES THAT INDICATE THAT SHE WAS THE RECIPIENT?
JUSTIN OFFEN: YES.
MR. LEACH: OKAY. YOUR HONOR -- I'LL DRAW YOUR ATTENTION TO THE NEXT PAGE, MR. OFFEN. I WOULD OFFER PAGE 2 OF EXHIBIT 5387B, BATES NUMBER 32.
MS. TREFZ: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED AND IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 5387B, PAGE 2 WAS RECEIVED IN EVIDENCE.)
MR. LEACH: IF WE CAN PLEASE HIGHLIGHT THE TOP PORTION OF THE DOCUMENT, MS. HOLLIMAN.
MR. LEACH: DRAWING YOUR ATTENTION TO THE LEFT PORTION OF THIS DOCUMENT, MR. OFFEN. ARE THESE FURTHER MESSAGES FROM MS. HOLMES'S DEVICE?
JUSTIN OFFEN: YES, AGAIN, BASED UPON THE FORMAT AND THE BATES NUMBERING, AND I'M COMPARING THEM TO THE BROADER FILE, YES.
MR. LEACH: OKAY. LET ME DRAW YOUR ATTENTION TO THE NEXT PAGE, PAGE 3. IT'S THE THIRD PAGE OF THE DOCUMENT. THERE'S A BATES NUMBER 42 IN THE BOTTOM. DO YOU SEE THAT?
JUSTIN OFFEN: YES.
MR. LEACH: YOUR HONOR, THE GOVERNMENT MOVES THIS PAGE INTO EVIDENCE.
MS. TREFZ: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED, AND IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 5387B, PAGE 3 WAS RECEIVED IN EVIDENCE.)
MR. LEACH: MS. HOLLIMAN, IF WE CAN PLEASE HIGHLIGHT THE TOP PORTION.
MR. LEACH: MR. OFFEN, WHAT ARE THE DATES OF THESE MESSAGES?
JUSTIN OFFEN: THE DATES?
MR. LEACH: YES.
JUSTIN OFFEN: NOVEMBER 28TH, 2013.
MR. LEACH: OKAY. AND ARE THE FIRST TWO -- DOES IT INDICATE THAT THE FIRST TWO ARE FROM MR. BALWANI AND THE SECOND TWO ARE FROM MS. HOLMES?
JUSTIN OFFEN: YES.
MR. LEACH: COULD YOU PLEASE READ THE SUBSTANCE OF THE MESSAGES?
JUSTIN OFFEN: ALL FOUR?
MR. LEACH: YES, PLEASE.
JUSTIN OFFEN: "WE ARE AT 15 MILLION AS OF TODAY. "FREE CASH. "I SAW THAT. "DROP BY TO DISCUSS WHEN U CAN."
MR. LEACH: LET'S GO TO THE NEXT PAGE, MS. HOLLIMAN. DO YOU SEE THE EXHIBIT NUMBER 5387, BATES NUMBER 67?
JUSTIN OFFEN: YES.
MR. LEACH: I OFFER THAT INTO EVIDENCE.
JUDGE DAVILA: IT'S ADMITTED AND IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 5387B, PAGE 4 WAS RECEIVED IN EVIDENCE.)
MR. LEACH: IF WE CAN HIGHLIGHT ALL OF THE WAY DOWN, MS. HOLLIMAN, TO MESSAGE 872.
MR. LEACH: DOES THIS APPEAR TO BE A STRING OF MESSAGES ON NOVEMBER 19TH, 2014, MR. OFFEN?
JUSTIN OFFEN: YES.
MR. LEACH: AND DO THE FIRST TWO MESSAGES APPEAR TO BE FROM MR. BALWANI TO MS. HOLMES?
JUSTIN OFFEN: YES.
MR. LEACH: OKAY. AND COULD I ASK YOU TO PLEASE READ THE SUBSTANCE OF THE FIRST TWO MESSAGES?
JUSTIN OFFEN: "NEED TO FOCUS ON OPS. GETTING HURT IN MARKET. "CUSTOMER SERVICE SEEMS TO BE TERRIBLE. EVERYONE COMPLAINING."
MR. LEACH: I DRAW YOUR ATTENTION TO THE FOURTH MESSAGE. DO YOU SEE WHERE IT SAYS, "LAB, CUSTOMER SERVICE, TAT, ALL NEED DIRECTOR LEVEL PEOPLE"?
JUSTIN OFFEN: YES.
MR. LEACH: AND DOES THAT APPEAR TO BE A MESSAGE FROM MR. BALWANI TO MS. HOLMES?
JUSTIN OFFEN: YES.
MR. LEACH: FURTHER DOWN BELOW, FOR MESSAGE 866, DO YOU SEE WHERE IT SAYS, "WE NEED. THE LAB AND CALL CENTER FIXED: "NEED PROFESSIONALS ACROSS THE BOARD. NEED PM'S AND ALLISON OUT ASAP"?
JUSTIN OFFEN: YES.
MR. LEACH: AND DO THOSE SEEM TO BE ADDITIONAL MESSAGES FROM MR. BALWANI TO MS. HOLMES ON NOVEMBER 19TH?
JUSTIN OFFEN: YES.
MR. LEACH: AND LET ME DRAW YOUR ATTENTION TO THE NEXT PAGE, PLEASE. YOUR HONOR, I OFFER PAGE 68 OF EXHIBIT 5387B IN, WITH THE EXCEPTION OF MESSAGES ENDING IN 898 AND 901.
MS. TREFZ: ONLY OUR PRIOR OBJECTIONS, YOUR HONOR.
JUDGE DAVILA: THANK YOU. IT'S ADMITTED, AND IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 5387B, PAGE 5 WAS RECEIVED IN EVIDENCE.)
MR. LEACH: IF WE COULD HIGHLIGHT EVERYTHING, MS. HOLLIMAN, DOWN TO MESSAGE 899, OR EXCUSE ME, 897.
MR. LEACH: DOES THIS APPEAR TO BE A STRING OF MESSAGES ON NOVEMBER 19TH, 2014, MR. OFFEN?
JUSTIN OFFEN: YES.
MR. LEACH: AND THESE, AGAIN -- LET ME DRAW YOUR ATTENTION TO MESSAGE 881, THE FIFTH OR SIXTH ONE DOWN. DO THERE APPEAR TO BE FOUR MESSAGES FROM MR. BALWANI FROM 881 TO 886?
JUSTIN OFFEN: YES.
MR. LEACH: AND COULD I ASK YOU TO PLEASE READ THOSE FOR US?
JUSTIN OFFEN: "CALL CENTER, TECH SUPPORT, EVERYTHING. "REBUILD. "NEW LDTS, LAB MANAGER LIKE TRACY. "18C, CTN, TIP COATING."
MR. LEACH: AND THEN THERE APPEAR TO BE FOUR MESSAGES FROM MS. HOLMES. DO YOU SEE THAT?
JUSTIN OFFEN: THE NEXT FOUR IN THE FILE?
MR. LEACH: YES.
JUSTIN OFFEN: YES.
MR. LEACH: COULD YOU PLEASE READ THOSE FOR US?
JUSTIN OFFEN: "FUNDAMENTALLY, WE NEED TO STOP FIGHTING FIRES BY NOT CREATING THEM. "NEED TO FIX ROOT CAUSE HERE. "YES. "EXACTLY."
MR. LEACH: AND IF WE SKIP OVER THE NEXT MESSAGE, THERE'S A MESSAGE THAT SAYS "WE CAN'T SCALE WITH WAG." DO YOU SEE THAT?
JUSTIN OFFEN: YES.
MR. LEACH: AND "THEY ARE TERRIBLE AND WE NEED SWY AND CVS." DO YOU SEE THAT?
JUSTIN OFFEN: YES.
MR. LEACH: AND DO THOSE APPEAR TO BE FROM MS. HOLMES TO MR. BALWANI ON NOVEMBER 19TH?
JUSTIN OFFEN: YES.
MR. LEACH: AND YOU HAVE NO PERSONAL KNOWLEDGE ABOUT THE SUBSTANCE OF THESE MESSAGES. THIS IS DATA THAT YOU COLLECTED FROM MS. HOLMES'S DEVICES; IS THAT FAIR?
JUSTIN OFFEN: CORRECT. I NEVER REVIEWED THE INDIVIDUAL CONTENTS BEFORE.
MR. LEACH: OKAY. LET ME DRAW YOUR ATTENTION TO THE NEXT PAGE, PLEASE, ENDING IN 69. YOUR HONOR, I OFFER THE FIRST THREE MESSAGES ON 6 -- PRH 69 ON TRIAL EXHIBIT 5387B.
MS. TREFZ: NO OBJECTION BEYOND OUR PRIOR.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 5387B, PAGE 6 WAS RECEIVED IN EVIDENCE.)
BY MR. LEACH:
MR. LEACH: DO THESE APPEAR TO BE ADDITIONAL MESSAGES FROM NOVEMBER 19TH, 2014, MR. OFFEN?
JUSTIN OFFEN: YES.
MR. LEACH: AND WOULD YOU PLEASE READ THE SUBSTANCE OF THE MESSAGES?
JUSTIN OFFEN: ALL THREE?
MR. LEACH: YES, PLEASE.
JUSTIN OFFEN: "NEED CTN FIXED. OUR ROOT CAUSE OF ISSUES. "I KNOW. SEEMS LIKE THEY R A MESS. "YES."
MR. LEACH: LET ME DRAW YOUR ATTENTION TO PAGE 76. I OFFER PAGE 76 INTO EVIDENCE, YOUR HONOR.
MS. TREFZ: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 5387B, PAGE 7 WAS RECEIVED IN EVIDENCE.)
BY MR. LEACH:
MR. LEACH: DO YOU SEE THE TOP MESSAGE, MR. OFFEN, THE ONE ON NOVEMBER 28TH, 2014, AT 11:12 P.M.?
JUSTIN OFFEN: YES.
MR. LEACH: OKAY. WITHOUT USING THE EXPLETIVE, WOULD YOU PLEASE READ THE SUBSTANCE OF THAT MESSAGE?
JUSTIN OFFEN: "NORMANDY LAB IS A DISASTER ZONE. GLAD I CAME HERE. WILL WORK ON FIXING THIS."
MR. LEACH: AND DOES THAT APPEAR TO BE A MESSAGE FROM MR. BALWANI TO MS. HOLMES?
JUSTIN OFFEN: YES.
MR. LEACH: WOULD YOU PLEASE READ FOR US THE SUBSTANCE OF THE SECOND MESSAGE FROM THE TOP -- FROM THE BOTTOM BEGINNING "WE BUILT SOFTWARE."
JUSTIN OFFEN: "WE BUILT SOFTWARE TO REMOVE HUMAN ERROR AND HUMAN JUDGMENT. ALL DAY I SAW THESE PEOPLE USE THEIR JUDGMENTS TO WORK AROUND OUR PROCESSES."
MR. LEACH: IS THAT ANOTHER MESSAGE FROM NOVEMBER 28TH, 2014?
JUSTIN OFFEN: YES.
MR. LEACH: LET ME DRAW YOUR ATTENTION TO PAGE 87. I OFFER PAGE 87 OF EXHIBIT 5387B, YOUR HONOR.
MS. TREFZ: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 5387B, PAGE 8 WAS RECEIVED IN EVIDENCE.)
BY MR. LEACH:
MR. LEACH: WHAT IS THE DATE OF THIS MESSAGE, MR. OFFEN?
JUSTIN OFFEN: DECEMBER 16TH, 2014.
MR. LEACH: AND DOES THE MESSAGE READ: "ARE THERE ANY MATERIALS IN THE BINDERS YOU THINK SHOULD BE REMOVED FOR MURDOCH/NEWS CORP"?
JUSTIN OFFEN: YES.
MR. LEACH: AND WHO IS THE SENDER OF THIS MESSAGE?
JUSTIN OFFEN: ELIZABETH HOLMES.
MR. LEACH: LET ME DRAW YOUR ATTENTION TO PAGE 175. YOUR HONOR, I OFFER PAGE 175 INTO EVIDENCE.
MS. TREFZ: 401 AND 403, AND 404(B).
JUDGE DAVILA: AS TO THE ENTIRETY OF THIS COLLOQUY?
MS. TREFZ: 404(B) AND -- YEAH, 401, 403 AND 404(B) AS TO THE ENTIRETY.
JUDGE DAVILA: THANK YOU. DO YOU WISH TO RESPOND?
MR. LEACH: I THINK THIS IS THE MATTER WE DISCUSSED EARLIER.
JUDGE DAVILA: YES, WE DID. ANYTHING FURTHER ON OUR DISCUSSIONS?
MR. LEACH: NO.
JUDGE DAVILA: LADIES AND GENTLEMEN, THIS WILL -- THE OBJECTION IS OVERRULED. THIS WILL BE ADMITTED. THE COURT FINDS THAT THIS IS MORE PROBATIVE THAN PREJUDICIAL, AND THE COURT WILL INDICATE THAT THIS IS BEING ADMITTED AS TO THE ISSUE OF KNOWLEDGE AND NOTICE FOR MS. HOLMES, AND YOU'LL RECEIVE AN INSTRUCTION LATER AS TO HOW -- IN THE FINAL INSTRUCTIONS AS TO HOW YOU MAY TREAT THIS EVIDENCE. SO PLEASE NOTE THAT. MR. LEACH.
MR. LEACH: MAY I DISPLAY THAT PAGE, YOUR HONOR?
JUDGE DAVILA: YES.
BY MR. LEACH:
MR. LEACH: MR. OFFEN, I DRAW YOUR ATTENTION TO THE SECOND MESSAGE FROM THE TOP, THE MESSAGE ENDING 254. WHAT IS THE DATE OF THIS MESSAGE?
JUSTIN OFFEN: APRIL 21ST, 2015.
MR. LEACH: OKAY. AND IS THE MESSAGE FROM MS. HOLMES TO MR. BALWANI?
JUSTIN OFFEN: YES.
MR. LEACH: AND DOES THE FIRST MESSAGE READ, "WSJ GUY MIGHT SHOW UP TOMORROW"?
JUSTIN OFFEN: YES.
MR. LEACH: FURTHER DOWN MESSAGE 256, DOES THIS APPEAR TO BE A RESPONSE FROM MR. BALWANI TO MS. HOLMES?
JUSTIN OFFEN: YES, IT'S A MESSAGE FROM MR. BALWANI TO MS. HOLMES.
MR. LEACH: OKAY. AND WOULD YOU PLEASE READ THE SUBSTANCE OF THAT MESSAGE FOR US?
JUSTIN OFFEN: "WE NEED TOMORROW TO TEST AND THEN THE TEAM CAN PUSH IT IN PRODUCTION TOMORROW NIGHT."
MR. LEACH: OKAY. AND DOES, DOES IT APPEAR THAT MS. HOLMES WRITES AFTER THAT, "OKAY. "COULD JUST DO FOR HIM ONLY IF HE SHOWS UP..."
JUSTIN OFFEN: YES, THOSE ARE THE NEXT TWO MESSAGES.
MR. LEACH: OKAY. WOULD YOU PLEASE READ THE SUBSTANCE OF THE NEXT THREE MESSAGES?
JUSTIN OFFEN: THE NEXT THREE?
MR. LEACH: YES.
JUSTIN OFFEN: "HARD TO KNOW WHO HE IS AND WHAT ORDER HE BRINGS. "BETTER A PERFECT VEIN PUNCTURE THAN BAD FINGERSTICK. "OR MISS A TEST."
MR. LEACH: AND THEN ARE THERE -- IS THERE A MESSAGE FROM MS. HOLMES, "IT'S POSSIBLE HE TALKS TO DOCS FIRST DAY AND THEN DRAW SECOND DAY. " AND RESPONSE FROM MR. BALWANI, "SEEMS LIKE THIS GUY IS LOOKING TO WRITE SOMETHING NEGATIVE"?
JUSTIN OFFEN: YES.
MR. LEACH: LET ME DRAW YOUR ATTENTION -- I DON'T HAVE QUESTIONS FOR MR. OFFEN ON THIS, BUT I MOVE INTO EVIDENCE PAGE 176.
MS. TREFZ: SAME OBJECTIONS AS BEFORE, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU. OVERRULED. THIS MAY BE ADMITTED.
(GOVERNMENT'S EXHIBIT 5387B, PAGE 10 WAS RECEIVED IN EVIDENCE.)
JUDGE DAVILA: DO YOU WANT THIS PUBLISHED NOW?
MR. LEACH: I DON'T NEED THIS PUBLISHED NOW, YOUR HONOR. THANK YOU.
JUDGE DAVILA: ALL RIGHT.
BY MR. LEACH:
MR. LEACH: LET ME DRAW YOUR ATTENTION TO PAGE 185, MR. OFFEN. I OFFER PAGE 185, YOUR HONOR.
MS. TREFZ: 401, 403, AND 805, YOUR HONOR. 805 AS TO 31758.
JUDGE DAVILA: IS THAT COMMENT BEING OFFERED FOR ANY TRUTH?
MR. LEACH: NO, THE FIRST LINE IS NOT OFFERED FOR THE TRUTH. IT'S OFFERED FOR NOTICE. THE SECOND LINE IS A STATEMENT BY AN AGENT UNDER 801(D)(2)(E), AND IT IS OFFERED FOR THE TRUTH.
MS. TREFZ: I DON'T BELIEVE THIS MESSAGE HAS BEEN IDENTIFIED UNDER THE LOCAL RULES AS AN 801(D)(2) STATEMENT.
JUDGE DAVILA: IS THERE ANY FOUNDATION FOR THE INDIVIDUAL THAT IS LISTED HERE? BECAUSE I'M NOT SURE I HAVE THAT.
MR. LEACH: IN THE FIRST SENTENCE, YOUR HONOR?
JUDGE DAVILA: YES. FOR AGENCY PURPOSES, I'M NOT CERTAIN THERE'S A FOUNDATION FOR THAT.
MR. LEACH: I'M OFFERING THAT FIRST LINE FOR NOTICE, NOT -- FOR A NONHEARSAY PURPOSE. THE SECOND LINE IS NOT CONNECTED TO THAT FIRST PERSON.
JUDGE DAVILA: I THINK THE 805 GOES TO THE SECOND, THE SECOND LINE, THE COMMENT THAT THERE IS --
MR. LEACH: I THINK THAT'S A COMMENT BY THE SENDER OF THE MESSAGE, YOUR HONOR.
(PAUSE IN PROCEEDINGS.)
JUDGE DAVILA: ALL RIGHT. THE FIRST LINE YOU'RE ASKING TO BE ADMITTED PURELY FOR NOTICE AS TO MS. HOLMES ONLY?
MR. LEACH: YES.
JUDGE DAVILA: AND NOTICE OF WHAT SPECIFIC ISSUE?
MR. LEACH: KNOWLEDGE OF THE MEDIA, PERCEPTION OF THE COMPANY, HOW CERTAIN MESSAGES ARE GETTING ACROSS.
JUDGE DAVILA: I THINK I SEE THE END OF THIS COLLOQUY, THE END OF THE NEXT SENTENCE IS WHAT YOU'RE TALKING ABOUT PULLS THAT TOGETHER FOR ME. SO, LADIES AND GENTLEMEN, I WILL ADMIT THIS FOR KNOWLEDGE AND NOTICE, AGAIN, OF MS. HOLMES AS TO THE ISSUES AS YOU HEARD MR. LEACH DESCRIBE THEM, NOTICE OF MEDIA EXPOSURE, AND IT WILL BE ADMITTED FOR THAT LIMITED PURPOSE ONLY.
(GOVERNMENT'S EXHIBIT 5387B, PAGE 11 WAS RECEIVED IN EVIDENCE.)
MR. LEACH: MAY WE DISPLAY, YOUR HONOR?
JUDGE DAVILA: YES.
MR. LEACH: THANK YOU, MS. HOLLIMAN.
MR. LEACH: MR. OFFEN, LET ME DRAW YOUR ATTENTION TO THE FIFTH LINE, MESSAGE 31758. DO YOU SEE THAT?
JUSTIN OFFEN: YES.
MR. LEACH: AND IS THAT ANOTHER MESSAGE THAT WAS PULLED FROM MS. HOLMES'S PHONE?
JUSTIN OFFEN: YES.
MR. LEACH: OKAY. WOULD YOU PLEASE READ THE SUBSTANCE OF THAT MESSAGE FOR US?
JUSTIN OFFEN: "PETER (ONE OF THESE 2 GUYS) MET WITH RON CONWAY TODAY FOR BREAKFAST AND RON COMMENTED THAT THERE IS TOO MUCH HYPE AROUND THERANOS AND YOU. FYI, I AM WORRIED ABOUT OVEREXPOSURE WITHOUT SOLID SUBSTANCE WHICH IS LACKING RIGHT NOW. WE CAN TALK TOMORROW ABOUT OVEREXPOSURE."
MR. LEACH: AND THAT APPEARS TO BE A MESSAGE FROM MR. BALWANI TO MS. HOLMES?
JUSTIN OFFEN: YES.
MR. LEACH: LET ME DRAW YOUR ATTENTION TO THE LAST MESSAGE IN THIS CHAIN. DO YOU SEE WHERE IT SAYS, "WE NEED FDA CLEARANCE AND CTN CLEARANCE B"?
JUSTIN OFFEN: YES.
MR. LEACH: AND DOES THAT APPEAR TO BE ANOTHER MESSAGE FROM MR. BALWANI TO MS. HOLMES ON OR ABOUT APRIL 25TH, 2015?
JUSTIN OFFEN: YES.
MR. LEACH: LET ME DRAW YOUR ATTENTION TO PAGE 190. I OFFER PAGE 190, YOUR HONOR.
MS. TREFZ: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. WOULD YOU LIKE TO PUBLISH THAT NOW?
MR. LEACH: YES, PLEASE.
JUDGE DAVILA: IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 5387B, PAGE 12 WAS RECEIVED IN EVIDENCE.)
MR. LEACH: COULD WE HIGHLIGHT THE BOTTOM PORTION, PLEASE, MS. HOLLIMAN. WONDERFUL.
MR. LEACH: WHAT IS THE DATE OF THESE MESSAGES, MR. OFFEN?
JUSTIN OFFEN: APRIL 28TH, 2015.
MR. LEACH: OKAY. AND DO YOU SEE IN THE FIRST ROW WHERE IT SAYS, "IT IS MOST MADDENING THERE IS NO FOCUS IN ANY CHEM TEAMS AND NO PRODUCT COMING OUT."
JUSTIN OFFEN: YES.
MR. LEACH: AND DOES THAT APPEAR TO BE A MESSAGE FROM MR. BALWANI TO MS. HOLMES?
JUSTIN OFFEN: YES.
MR. LEACH: AND WOULD YOU PLEASE READ FOR US THE SUBSTANCE OF THE LAST MESSAGE IN THIS THREAD?
JUSTIN OFFEN: "MOST DISAPPOINTING HOW BAD THESE PEOPLE ARE."
MR. LEACH: YOUR HONOR, I OFFER PAGE 191 -- I NOTE THE TIME, YOUR HONOR. IS THIS --
JUDGE DAVILA: CAN WE CONTINUE OR --
MR. DOWNEY: HOW MUCH LONGER?
MR. LEACH: A LITTLE.
MR. DOWNEY: MAYBE WE SHOULD BREAK, YOUR HONOR.
JUDGE DAVILA: OKAY. LET'S TAKE OUR BREAK NOW, LADIES AND GENTLEMEN. I APOLOGIZE FOR THE ABBREVIATED SCHEDULE. BUT SHOULD THIS BE OUR 45 MINUTE BREAK, COUNSEL?
MS. TREFZ: YES, PLEASE.
MR. LEACH: THAT'S FINE, YOUR HONOR.
JUDGE DAVILA: LET'S DO THAT. WE'LL TAKE 45 MINUTES, LADIES AND GENTLEMEN, AND THEN WE'LL COME BACK. WE'RE GOING TO 3:00 TODAY. WE MAY TAKE ANOTHER SMALL BREAK, TEN MINUTE BREAK IN BETWEEN. BUT LET'S TAKE OUR RECESS NOW. PLEASE REMEMBER THE ADMONITION THAT IS IN PLACE. WE'LL SEE YOU IN 45 MINUTES. THANK YOU. SIR, YOU CAN STAND DOWN. WE'LL SEE YOU BACK IN 45 MINUTES.
(JURY OUT AT 11:07 A.M.)
JUDGE DAVILA: YOU CAN STAND DOWN, SIR.
JUSTIN OFFEN: THANK YOU.
JUDGE DAVILA: THE RECORD SHOULD REFLECT THAT OUR JURY HAS LEFT FOR THE MORNING BREAK. THE WITNESS HAS LEFT THE COURTROOM NOW. I JUST WANT TO SAY, COUNSEL, TO THE BEST OF YOUR ABILITIES, IF WE COULD, IF WE'RE GOING TO HAVE SOME DISCUSSION, LET'S DO THAT IN THE MORNING PRIOR TO THE JURY CALL. AND I HATE -- WE LOST ABOUT AN HOUR, MAYBE A LITTLE MORE TODAY. AND IT'S HARD TO PREDICT THESE THINGS, I KNOW. BUT YOU'RE SKILLED COUNSEL, YOU ALL ARE, AND I WOULD ASK YOU TO USE YOUR BEST JUDGMENT. I'LL GET HERE AS EARLY AS YOU WANT TO HAVE THESE CONVERSATIONS. AND I SHOULD TELL YOU, I'M NOT REVEALING ANYTHING UNTOWARD, OUR COURT REPORTER IS UP AT 5:00 A.M. EVERY DAY, SO SHE'S HAPPY TO COME HERE. SHE DOES NOT LIVE IN THE COURTHOUSE, LET ME SAY THAT, BUT SHE'S UP AND WE CAN DO THAT IF WE NEED TO. SO I APPRECIATE YOU BEARING THAT IN MIND, PLEASE. ALL RIGHT. THANKS. HAVE A GOOD BREAK.
COURT CLERK: COURT IS IN RECESS.
(LUNCH RECESS TAKEN AT 11:08 A.M.) AFTERNOON SESSION
(COURT CONVENED AT 11:53 A.M.)
(JURY OUT AT 11:53 A.M.)
JUDGE DAVILA: WE'RE ON THE RECORD OUTSIDE OF THE PRESENCE OF THE JURY. MS. HOLMES AND COUNSEL ARE PRESENT. WHAT IS THE STATUS OF OUR WITNESS LINEUP FOR TODAY?
MR. BOSTIC: SO, YOUR HONOR, THE GOVERNMENT'S NEXT WITNESS IS PREPARED TO TESTIFY. THE WITNESS HAS ALERTED US THAT HE HAS SOME DEMANDS ON HIS SCHEDULE ON FRIDAY, INCLUDING SOME INTERNATIONAL VISITORS THAT HE'S HOSTING OR MEETING WITH. THE GOVERNMENT AND DEFENSE COUNSEL HAVE CONFERRED AND IT'S OUR MUTUAL INTENTION TO PROCEED AS EFFICIENTLY AS POSSIBLE WITH HIS TESTIMONY IN THE HOPES OF FINISHING IT TODAY. WE WANTED TO ALERT THE COURT TO THE SITUATION IN CASE THERE IS ANY ROOM ON THE BACK END OF TODAY'S SCHEDULE TO EXTEND THE TIME SOMEWHAT.
JUDGE DAVILA: WHY DON'T WE -- THANK YOU. WHY DON'T WE INTERRUPT THIS CURRENT WITNESS'S TESTIMONY AND TAKE THAT WITNESS OUT OF ORDER AND CONCLUDE AND FOLLOW UP WITH THE OTHER WITNESS? CAN WE DO THAT?
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT DEFERS TO THE COURT. CAN I HAVE A MOMENT TO CONFER WITH MY COLLEAGUES?
JUDGE DAVILA: SURE. WILL THAT WORK FOR THE DEFENSE?
(DISCUSSION OFF THE RECORD.)
MR. LEACH: YOUR HONOR, SORRY, WITH MULTIPLE LAWYERS. MR. OFFEN IS FROM OUT OF TOWN AND HE FLEW IN FROM ATLANTA AND HE HAS ADDITIONAL COMMITMENTS LATER THIS WEEK, AND SO IT'S IMPORTANT WE FINISH WITH THE WITNESS.
JUDGE DAVILA: WE CAN HAVE THE WITNESSES ARM WRESTLE? THE VICTOR WILL COME IN --
(LAUGHTER.)
JUDGE DAVILA: I THINK WE CAN -- WHAT I'M TOLD IS THAT WE CAN FINISH BOTH OF THESE WITNESSES TODAY. WE MAY NEED TO GO UNTIL 5:00, OR LATER THAN 3:00. I TOLD THE JURY WE'RE GOING TO 3:00 TODAY, EXTENDING THEIR DAY. I SUGGEST WE CALL THE NEXT WITNESS -- BREAK THIS WITNESS'S TESTIMONY AND CALL YOUR NEXT WITNESS, START WITH THAT WITNESS. MY SENSE IS -- WHAT I'VE HEARD IS THAT AT LEAST MS. KRATZMANN INFORMED ME THAT SHE'S DISCUSSED IT WITH COUNSEL AND YOU THINK YOU CAN GET THIS WITNESS'S TESTIMONY DONE IN TWO HOURS. DOES THAT SOUND RIGHT?
MR. DOWNEY: THAT'S MR. BOSTIC'S ESTIMATE. BETWEEN US WAS ABOUT THREE.
JUDGE DAVILA: THREE. OKAY.
MR. BOSTIC: SO I DON'T THINK GOING UNTIL 5:00 WOULD BE NECESSARY.
JUDGE DAVILA: RIGHT. FOR THIS WITNESS, THIS NEXT WITNESS.
MR. BOSTIC: CORRECT, YOUR HONOR. I WOULD HOPE ALSO, EVEN WITHOUT DISTURBING THE ORDER, IT MIGHT BE POSSIBLE TO FINISH BOTH IN THE SAME DAY.
JUDGE DAVILA: IT COULD. WE COULD DO THAT. IT SOUNDS LIKE THAT'S POSSIBLE. I WONDER IF WE COULD -- AND IF NOT -- THIS WITNESS IS FROM ATLANTA DID YOU SAY?
MR. LEACH: YES, YOUR HONOR.
JUDGE DAVILA: WELL, HE SHOULD ENJOY THE WEST COAST AND SOAK UP AS MUCH AS HE CAN WHILE HE'S HERE. SO WHY DON'T WE BREAK THIS WITNESS'S TESTIMONY, GET THE NEXT WITNESS ON, AND THEN WE CAN RESUME. MY SENSE IS THAT IT PROBABLY WILL -- THE CURRENT WITNESS THAT IS ON NOW, IT SOUNDS LIKE YOU'RE ABOUT HALFWAY, IF NOT MORE, DONE WITH THESE.
MR. LEACH: YES.
JUDGE DAVILA: AND THEN OF COURSE THERE'S CROSS-EXAMINATION, AND THEN I EXPECT THERE MIGHT BE SOME, I DON'T KNOW, BUT THERE MIGHT BE SOME REQUEST TO READ ADDITIONAL INFORMATION IN THE RECORD. I DON'T KNOW. BUT IF WE CALL THE NEXT WITNESS, THEN, MR. LEACH, YOU AND MS. TREFZ, AS RESPECTIVE LAWYERS FOR THIS WITNESS, CURRENT WITNESS, CAN MAYBE DECIDE HOW BEST TO PROCEED.
MR. LEACH: UNDERSTOOD, YOUR HONOR. THANK YOU.
JUDGE DAVILA: SO LET'S DO THAT. CAN WE BRING THE JURY IN? ANYTHING FURTHER BEFORE WE BRING OUR JURY IN?
MR. DOWNEY: NOT FROM US.
JUDGE DAVILA: IS THAT ALL RIGHT WITH YOU, MS. TREFZ, IF WE BREAK UP YOUR WITNESS?
MS. TREFZ: SURE, YOUR HONOR. I EXPECT CROSS-EXAMINATION TO BE VERY SHORT OF THAT WITNESS, JUST FYI.
JUDGE DAVILA: SAY AGAIN.
MS. TREFZ: I EXPECT CROSS-EXAMINATION OF MR. OFFEN TO BE SHORT, AND SO I FULLY EXPECT WE WILL BE ABLE TO FINISH HIM SHORTLY.
JUDGE DAVILA: GREAT. ALL RIGHT. THANK YOU.
MR. LEACH: MAY I RETRIEVE THE BINDERS, YOUR HONOR?
JUDGE DAVILA: YES. THANKS.
(PAUSE IN PROCEEDINGS.)
(JURY IN AT 12:00 P.M.)
JUDGE DAVILA: THANK YOU. PLEASE BE SEATED. WE'RE BACK ON THE RECORD. ALL COUNSEL AND MS. HOLMES IS PRESENT. OUR JURY AND ALTERNATES ARE PRESENT. GOOD AFTERNOON, LADIES AND GENTLEMEN. I JUST WANT TO TELL YOU ABOUT OUR SCHEDULE. WE'RE GOING TO -- I'M GOING TO INTERRUPT THE TESTIMONY OF THE CURRENT WITNESS AND INTERRUPT THE EXAMINATION AND I'LL ALLOW THE GOVERNMENT TO CALL A WITNESS OUT OF ORDER. WE DO THIS SOMETIMES, AND THIS HAPPENS REGULARLY IN CASES, PARTICULARLY LENGTHY CASES WHERE WITNESSES AND OTHER SCHEDULES MIGHT INTERFERE. I'M INTERRUPTING THE TESTIMONY OF THE CURRENT WITNESS IN FAVOR OF THE NEXT WITNESS BECAUSE OF SCHEDULING CONFLICTS. I'M TOLD BY THE LAWYERS THIS NEXT WITNESS SHOULD BE -- MAY REQUIRE ABOUT THREE HOURS OF TESTIMONY, BOTH DIRECT AND CROSS-EXAMINATION, RECROSS, REDIRECT. IF WE HAVE TIME LEFT, I'M ALSO INFORMED BY THE PARTIES THAT THE CURRENT WITNESS WHO'S TESTIFYING ABOUT THE TEXT MESSAGES, I THINK THERE'S REMAINING MAYBE AN HOUR OF TESTIMONY. IS THAT ACCURATE, MR. LEACH?
MR. LEACH: I THINK LESS THAN THAT, YOUR HONOR.
MS. TREFZ: SUBSTANTIALLY LESS THAN THAT.
JUDGE DAVILA: RIGHT. SO I TOLD YOU 3:00 O'CLOCK. LET'S SEE WHERE THE DAY TAKES US AND WE CAN REVISIT. WE'LL PROBABLY TAKE A BREAK IN ANY EVENT AND WE CAN REASSESS THINGS. SO I JUST WANT TO LET YOU KNOW I'M INTERRUPTING THE CURRENT WITNESS'S TESTIMONY WITH CONSENT OF COUNSEL. THE GOVERNMENT HAS ANOTHER WITNESS TO CALL AT THIS TIME?
MR. BOSTIC: YES, YOUR HONOR. THANK YOU. THE UNITED STATES CALLS GENERAL JAMES MATTIS.
JUDGE DAVILA: THANK YOU.
MR. BOSTIC: YOUR HONOR, I UNDERSTAND THE WITNESS IS MAKE HIS WAY TO THE COURTROOM.
JUDGE DAVILA: ALL RIGHT. THANK YOU.
MR. BOSTIC: MAY I APPROACH THE WITNESS STAND, YOUR HONOR?
JUDGE DAVILA: YES. SIR, IF YOU WOULD COME FORWARD, PLEASE. I'LL INVITE YOU TO STAND FACING OUR COURTROOM DEPUTY. IF YOU WOULD RAISE YOUR RIGHT HAND, SHE HAS A QUESTION FOR YOU.
COURT CLERK: GOOD AFTERNOON.