Text Message Admissibility Hearing and Rulings
118 linesSAN JOSE, CALIFORNIA SEPTEMBER 22, 2021 P R O C E E D I N G S
(COURT CONVENED AT 8:41 A.M.)
(JURY OUT AT 8:41 A.M.)
JUDGE DAVILA: WE ARE BACK ON THE RECORD. ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. WE'RE OUTSIDE OF THE PRESENCE OF THE JURY. I UNDERSTAND COUNSEL WANTED TO SPEAK ABOUT SOME MATTERS BEFORE WE BRING THE JURY IN?
MS. TREFZ: YES, YOUR HONOR, THE TEXT MESSAGES THAT WE WERE TALKING ABOUT YESTERDAY.
JUDGE DAVILA: YES.
MS. TREFZ: GOOD MORNING, YOUR HONOR. KATIE TREFZ FOR MS. HOLMES. WE HAD A DISCUSSION THAT I'M SURE YOUR HONOR REMEMBERS FROM YESTERDAY ABOUT THE TEXT MESSAGES THAT THE GOVERNMENT SEEKS TO INTRODUCE TODAY THROUGH JUSTIN OFFEN WHO IS THE FIRST WITNESS THIS MORNING. THE GOVERNMENT PROVIDED US YESTERDAY EARLY EVENING WITH THE ADDITIONAL OR KIND OF THE UPDATED LIST OF TEXT MESSAGES THAT THEY ANTICIPATE SEEKING TO INTRODUCE. LATE IN THE -- LATE AT NIGHT WE PROVIDED OUR OBJECTIONS TO THEM AND SUGGESTED DESIGNATIONS FOR COMPLETENESS. THERE ARE A NUMBER OF TEXT MESSAGES WHERE THERE ARE NO OBJECTIONS AND NO COMPLETENESS DESIGNATION. I THINK, YOU KNOW, THOSE WE WOULD HAVE NO OBJECTION TO THE GOVERNMENT INTRODUCING TODAY. THERE ARE A NUMBER WHERE THERE ARE SUGGESTIONS FOR COMPLETENESS OR REQUESTS THAT WE WOULD MAKE FOR ADDITIONAL MESSAGES TO BE INCLUDED FOR COMPLETENESS, AND THEN THERE ARE A NUMBER WHERE WE HAVE 401, 403, 404(B), AND ONE WHERE WE HAVE AN 805 ARGUMENT.
ADDITIONALLY -- AND SO FOR THOSE, WE WOULD SUGGEST THAT -- AGAIN, THIS WITNESS IS NOT SOMEBODY WHO CAN RESOLVE THOSE BECAUSE HE'S NOT A FACT WITNESS. HE'S A WITNESS WHO, YOU KNOW, PUT THESE MESSAGES TOGETHER AND COLLECTED THEM AND PUT THEM TOGETHER IN A DATABASE OR IN A SPREADSHEET. SO WE DON'T THINK IT'S REALLY AN EFFICIENT WAY TO DEAL WITH THOSE ON THE FLY. WE WOULD SUGGEST THAT FOR THOSE -- I'M HAPPY TO TALK THROUGH THEM NOW, BUT, FRANKLY, WE THOUGHT IT WOULD BE MORE EFFICIENT FOR THE GOVERNMENT TO SIMPLY PUT ON THE ONES WHERE THERE'S NO OBJECTION AND THE WITNESS PRESUMABLY WILL LAY THE FOUNDATION FOR AUTHENTICATION, WHICH I BELIEVE IS THE REAL REASON WHY THIS WITNESS IS HERE. THAT'S WHAT WE WOULD SUGGEST. I'M HAPPY TO PROVIDE TO THE COURT WHAT WE HAVE PROVIDED TO THE GOVERNMENT LAST NIGHT WITH RESPECT TO THE INDIVIDUAL OBJECTIONS SO THE COURT HAS A SENSE. BUT THAT'S WHERE WE ARE THIS MORNING.
JUDGE DAVILA: OKAY. THANK YOU. I THINK YESTERDAY WE TALKED ABOUT AUTHENTICITY, AND I WAS LED TO BELIEVE THERE WON'T BE ANY DISCUSSION ABOUT OR OBJECTIONS ABOUT AUTHENTICITY. AUTHENTICATION, THAT'S NOT AN ISSUE AS TO THESE, OR IS IT?
MS. TREFZ: IT'S NOT AN ISSUE AS TO THE INDIVIDUAL MESSAGES. WE WILL HAVE A QUESTION FOR THE WITNESS ABOUT WHAT DIFFERENT COLUMNS MEAN IF THEY'RE NOT ADDRESSED BY THE GOVERNMENT. BUT, YES, THERE WILL BE NO ISSUE WITH RESPECT TO AUTHENTICATION.
JUDGE DAVILA: OKAY. OKAY. MR. LEACH?
MR. LEACH: YOUR HONOR, WE WANT TO DISPLAY ALL OF THE TEXT MESSAGES THAT WE PROPOSE TO THE DEFENSE TODAY. WE THINK THE FOUNDATION HAS BEEN LAID FOR ALL OF THE TEXTS THAT WE'VE TALKED ABOUT. THIS WITNESS DOESN'T KNOW THE SUBSTANCE, BUT HE CAN TALK ABOUT THE DATE, AND I THINK IT'S IMPORTANT TO DISPLAY TO THE JURY AS THEY'RE COMING IN AT LEAST FOR THESE. I UNDERSTAND THE OBJECTION -- WITH RESPECT TO THE RULE OF COMPLETENESS, I THINK THERE ARE SEVEN STRINGS WHERE THERE'S A DISPUTE ABOUT WHETHER THOSE TEXTS ARE NECESSARY FOR COMPLETENESS BETWEEN US. I'M HAPPY TO GO THROUGH THOSE NOW OR USE THE DEFENSE PROPOSED EXHIBIT AND YOUR HONOR CAN DECIDE IN THE MOMENT. I ALSO URGE THE COURT TO TAKE UP THE 401 AND 403 OBJECTIONS NOW BECAUSE, EITHER OUTSIDE OF THE PRESENCE OF THE JURY OR AS THEY'RE DISPLAYED WITH MR. OFFEN, BECAUSE OUR TRIAL TIME IS PRECIOUS.
JUDGE DAVILA: RIGHT.
MR. LEACH: WE'VE PLANNED ON PUTTING THESE IN THROUGH MR. OFFEN, AND THERE'S BEEN A LOT OF MOTION PRACTICE AROUND THIS AND I THINK THE TIME HAS COME, THEY'RE EITHER RELEVANT OR THEY ARE NOT. SO WE WOULD URGE THE COURT TO HEAR AND RESOLVE THE OBJECTIONS AS HE'S TESTIFYING. IF WE WANT TO TAKE IT UP NOW, WE'RE PREPARED TO DO THAT, TOO. I THINK MOST OF THESE OBJECTIONS CAN BE RESOLVED EFFICIENTLY EITHER NOW OR IN THE MOMENT AS HE'S TESTIFYING.
JUDGE DAVILA: WELL, THANK YOU. IT'S TEN TO 9:00 NOW. I WAS TOLD THIS WOULDN'T TAKE LONG AND THAT'S WHY WE WOULD COME OUT AT 8:45 OR 8:30 OR 7:00 A.M. TO RESOLVE THIS. WHAT IS THE UNIVERSE OF DOCUMENTS THAT ARE IN DISPUTE? IS THIS SOMETHING THAT WE CAN REALISTICALLY DO IN TEN MINUTES?
MR. LEACH: I DON'T KNOW IF WE CAN GET THROUGH -- IT'S THE DEFENSE OBJECTION SO I'M NOT SURE. I THINK HOPE SPRINGS ETERNAL, AND WE MIGHT BE ABLE TO BAT SOME OF THEM OUT.
JUDGE DAVILA: WELL, SHOULD I RECEIVE A LIST OF THESE TO LOOK AT OR HOW WOULD YOU LIKE ME TO --
MS. TREFZ: I'M HAPPY TO PROVIDE WHAT WE PROVIDED TO THE GOVERNMENT AS WELL AS OUR PROPOSAL FOR, YOU KNOW, TO THE EXTENT THAT THE COURT OVERRULES OUR OBJECTIONS. SO I'M HANDING UP NOW --
JUDGE DAVILA: OKAY. THANK YOU. IS THIS YOUR NEXT WITNESS?
MR. LEACH: THIS IS OUR NEXT WITNESS, YOUR HONOR.
MS. TREFZ: AND, YOUR HONOR, I WOULD JUST NOTE THAT ALTHOUGH THESE ISSUES HAVE BEEN PENDING FOR A LONG TIME, AS I NOTED THE OTHER DAY, THE GOVERNMENT HAD, OR YESTERDAY, THE GOVERNMENT ONLY PROVIDED US WITH THE IDENTIFICATION OF THE MESSAGES THAT THEY WANTED TO ACTUALLY INTRODUCE ON MONDAY NIGHT OR ON MONDAY AFTERNOON. AND, YOU KNOW, WE HAD ASKED FOR THAT, YOU KNOW, AS EARLY -- YOU KNOW, MANY WEEKS AGO.
JUDGE DAVILA: THAT'S OKAY. WE DON'T HAVE TO DO THAT.
MS. TREFZ: OKAY.
JUDGE DAVILA: THAT'S OKAY.
(PAUSE IN PROCEEDINGS.)
JUDGE DAVILA: I SEE -- IF YOU CAN JUST HELP ME, MS. TREFZ, IN THE DESIGNATIONS FOR COMPLETIONS THERE ARE NUMBERS THERE. WHAT DO THOSE INDICATE?
MS. TREFZ: THOSE MATCH WITH THE FIRST COLUMN, YOUR HONOR, THE RECORD NUMBER, AND THE ENDING NUMBER ON --
JUDGE DAVILA: ARE THOSE ADDITIONAL TEXTS THAT YOU WOULD LIKE TO ADD?
MS. TREFZ: CORRECT, YOUR HONOR. SO IN THE RECORD -- THE WAY THAT THIS SHEET IS LAID OUT IS THAT YOU HAVE PAGE, DATE, RECORD COLUMN BEGIN, RECORD COLUMN END, THOSE ARE DESIGNATIONS PROVIDED BY THE GOVERNMENT. THEN WE HAVE IDENTIFIED OUR ADDITIONAL DESIGNATIONS FOR COMPLETENESS, WHICH ARE INCLUDED IN THE PACKET SO YOU CAN SEE THE FULL SET.
JUDGE DAVILA: IN THIS PACKET (INDICATING)?
MS. TREFZ: CORRECT. TO THE EXTENT THAT THE GOVERNMENT HAS NO OBJECTION TO OUR COMPLETENESS DESIGNATIONS, I THINK THERE ARE A LIMITED NUMBER -- 1, 2, 3, 4 -- THERE ARE MAYBE 14 TEXT MESSAGES WHERE WE HAVE A 401, 403, ET CETERA, OBJECTION.
JUDGE DAVILA: OKAY. SO DO I -- SHOULD I KNOW THEN YOUR STANDING AS TO THE COMPLETENESS DESIGNATIONS, MR. LEACH?
MR. LEACH: YES, YOUR HONOR. ON ROWS 67 THROUGH 69 THE GOVERNMENT OBJECTS TO THE INCLUSION OF TEXT 19895 IN THE SECOND ROW THROUGH 19914. THE REMAINDER IN THAT BOX ARE FINE. IN ROWS 185 --
MS. TREFZ: SORRY, MR. LEACH. DO YOU MIND SAYING THAT ONE MORE TIME?
MR. LEACH: SURE. THROUGH ROWS 67 THROUGH 69, THE GOVERNMENT OBJECTS TO 19895 THROUGH 19914. IN ROWS 185, THE GOVERNMENT OBJECTS TO THE ADDITION OF ALL OF THE MESSAGES WITH THE EXCEPTION OF 31764, 31765, 31760, AND 31762. IN ROWS 220, THE GOVERNMENT OBJECTS TO THE TWO DESIGNATED TEXTS 34230 AND 34231. IN ROW 221, THE GOVERNMENT OBJECTS TO THE ADDITION OF ALL OF THE PROPOSED TEXTS. IN ROW 301, THE GOVERNMENT OBJECTS TO THE TWO TEXTS PROPOSED 41902 AND 41903. AND IN ROW 315, THE GOVERNMENT -- STRIKE THAT. THE GOVERNMENT HAS NO OBJECTION THERE. AND WE DON'T OBJECT TO THE ADDITION OF THE REMAINING TEXTS IN THE FAR RIGHT COLUMN THAT MS. HOLMES HAS DESIGNATED.
JUDGE DAVILA: OKAY. THANK YOU. AND THE GOVERNMENT'S OBJECTIONS RELATED TO YOUR FEELING THAT THESE DON'T APPLY TO 106?
MR. LEACH: CORRECT, I DON'T THINK THEY'RE NECESSARY FOR THE RULE OF COMPLETENESS.
JUDGE DAVILA: OKAY.
MR. LEACH: AND THEY'RE HEARSAY.
JUDGE DAVILA: OKAY. AND THESE ARE IDENTIFIED IN THE PACKET THAT YOU GAVE ME?
MS. TREFZ: YES, YOUR HONOR.
JUDGE DAVILA: IT'S FIVE MINUTES TO 9:00. WHAT WOULD YOU LIKE ME TO DO? SHOULD WE KEEP OUR JURY WAITING WHILE WE GO THROUGH THIS?
MS. TREFZ: WE WOULD OBVIOUSLY DEFER TO THE COURT, YOUR HONOR, BUT I THINK THE -- I BELIEVE THAT THE COMPLETENESS ISSUE IS, YOU KNOW, I BELIEVE THAT WE ARE ON SOLID GROUND ON ALL OF THOSE.
JUDGE DAVILA: OKAY.
MS. TREFZ: IF YOU WOULD LIKE TO --
JUDGE DAVILA: MS. KRATZMANN, WOULD YOU INFORM OUR JURY THAT WE'RE GOING TO BE DELAYED THIS MORNING?
COURT CLERK: YES, YOUR HONOR, I WILL.
JUDGE DAVILA: THEN I'LL LOOK AT THESE. DO I HAVE ALL OF THE INFORMATION THAT I NEED FOR THIS DECISION DO YOU THINK?
MR. LEACH: I BELIEVE SO, YOUR HONOR.
MS. TREFZ: I BELIEVE SO, YOUR HONOR.
JUDGE DAVILA: OKAY.
MS. TREFZ: ON MANY OF THE 401 AND 403 OBJECTIONS, WE JUST DON'T KNOW WHAT THE GOVERNMENT BELIEVES IT'S RELEVANT TO.
JUDGE DAVILA: SURE. I'M LOOKING AT THE COMPLETENESS ISSUES NOW AND THAT'S WHAT I'M GOING TO HAVE TO SPEND SOME TIME LOOKING AT. AND THAT'S ALL IN THIS PACKET?
MS. TREFZ: CORRECT, YOUR HONOR.
JUDGE DAVILA: GREAT. OKAY. THANK YOU.
(RECESS FROM 8:53 A.M. UNTIL 9:47 A.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. WE'RE BACK ON THE RECORD. ALL PARTIES PREVIOUSLY PRESENT ARE PRESENT ONCE AGAIN. WE'RE OUTSIDE OF THE PRESENCE OF THE JURY. THANK YOU. WE TOOK A BREAK AND WENT THROUGH THE PROPOSED SUBMISSIONS THROUGH THE LENS OF 106. LET ME JUST SAY THAT I KNOW THAT I THINK MS. TREFZ, YOU HAD INDICATED IN ONE OF THESE COLUMNS, OTHER OBJECTIONS, 401, 403, POSSIBLE 404(B). I DID NOT DO ANY TYPE OF ANALYSIS ON THAT. I JUST LOOKED AT THE 106 CONVERSATION THAT WE HAD. LET'S SEE IF I CAN GUIDE YOU ACCORDINGLY. ON PAGE 68, I THINK IT MIGHT BE EASIER FOR ME TO TELL YOU I THINK WHAT DOES NOT DEPORT WITH 106, DOES NOT COMPORT, AND, THEREFORE, WOULD NOT BE ADMISSIBLE. ON PAGE 2 -- EXCUSE ME, PAGE 68, THE BOTTOM OF THE PAGE ENDING IN 898 AND 901, THOSE WILL NOT BE PERMITTED. WHEN I INDICATE THIS, EVERYTHING ELSE WOULD. I'M TELLING YOU WHAT IS NOT GOING TO BE ADMITTED. PAGE 69, 908, 910, 907, 909, 912, 911, AND 914 ARE NOT -- WON'T BE ADMITTED UNDER 106. IT APPEARS TO BE A LACK OF FOUNDATION FOR THOSE, AND THEY'RE NOT TO COME IN UNDER A 106 ANALYSIS. NEXT IS PAGE 220. ON 220 LET ME SAY THAT I WILL ALLOW 230 AND 231 FOR 106 PURPOSES. PAGE 221, I WILL ALLOW 271, 273, 275, 272, 270, 269, AND 274 UNDER 106. NEXT I BELIEVE IS PAGE 301, PAGE 301. 902 AND 903 WILL BE PERMITTED UNDER 106. I BELIEVE THAT COMPLETES THAT ANALYSIS. AS I SAID, I'M NOT MAKING ANY ANTICIPATORY RULING UNDER 401, 403, OR 404(B). I TRIED TO LOOK AT THE 404(B) AND I COULDN'T SEE IT. MAYBE YOU WANT TO TELL ME IN ADVANCE, MS. TREFZ, WHAT THAT IS.
MS. TREFZ: I CAN, YOUR HONOR, IF IT'S USEFUL.
JUDGE DAVILA: LET'S DO THAT. LET'S KEEP OUR JURY WAITING FOR ONE HOUR. IT'S NOW FIVE TO 10:00, SO LET'S FINISH THIS CONVERSATION IN FIVE MINUTES.
MS. TREFZ: I CAN DO THAT. YOUR HONOR, THE FIRST 404(B) IS ON 175 TO 176. LET ME TURN TO THAT.
JUDGE DAVILA: WHAT PAGE IS THAT ON?
MS. TREFZ: 175 TO 176.
JUDGE DAVILA: OKAY.
MS. TREFZ: WE BELIEVE THIS IS PART OF THE SAME EXCHANGE, AND OUR 404(B) ISSUE HERE, YOUR HONOR, IS THAT THIS SEEMS TO REFER TO "THE WALL STREET JOURNAL" REPORTER, AND ALTHOUGH THERE ARE 404(B) DISCLOSURES ABOUT JOURNALISTS -- STATEMENTS TO JOURNALISTS IN CATEGORY 6 OF THE GOVERNMENT'S 404(B) DISCLOSURES, THERE IS NO DISCLOSURE ABOUT ANY INTENT TO DECEIVE "THE WALL STREET JOURNAL" REPORTER. SO THAT'S THE 404(B) ISSUE THERE.
MR. LEACH: THE INDICTMENT ALLEGES DECEIT OF REPORTERS, YOUR HONOR. THIS IS INEXTRICABLY INTERTWINED WITH THE SCHEME TO DEFRAUD. IT APPEARS THAT THE DEFENDANT AND MR. BALWANI ARE TALKING ABOUT MAKING MODIFICATIONS TO A PARTICULAR STORE IN ORDER TO DECEIVE THE REPORTER WHO IS COMING IN. IT'S INEXTRICABLY INTERTWINED AND THIS GOES TO THEIR NOTICE AND KNOWLEDGE AND IT'S PART OF THE SCHEME TO DEFRAUD.
JUDGE DAVILA: MS. TREFZ, AS TO THE NOTICE ISSUE, IT WOULD SEEM, JUST LOOKING AT IT, IT WOULD SEEM TO BE RELEVANT FOR THAT ISSUE AND NOT NECESSARILY 404(B) IF IT ONLY GOES AS TO THE KNOWLEDGE. AND IT COULD BE CONDITIONALLY ADMITTED FOR THAT PURPOSE AS I'VE DONE IN ANOTHER PIECE OF EVIDENCE. THAT IS, IT GOES TO THE ISSUE OF NOTICE AND KNOWLEDGE OF THE PARTIES.
MS. TREFZ: NOTICE AND KNOWLEDGE AS TO WHAT, YOUR HONOR?
JUDGE DAVILA: WELL, AS TO THE CONTENTS OF THIS CONVERSATION. AS YOU SAID, THERE'S A SUGGESTION THAT THERE IS SOMETHING NEGATIVE BY THE PARTIES. IS THIS CHARACTER EVIDENCE AS TO THEM AND THEIR RELATIONSHIP WITH "THE WALL STREET JOURNAL"?
MS. TREFZ: THAT'S HOW WE READ THE POTENTIAL INFERENCE, YOUR HONOR.
JUDGE DAVILA: AND WHAT IS YOUR COMMENT AS TO WHETHER OR NOT THIS IS INEXTRICABLY INTERTWINED WITH THE SCHEME, THE CONTINUING SCHEME TO DEFRAUD, WHICH WOULD INCLUDE MISLEADING JOURNALISTS OR OTHER INFORMATION GATHERING SOURCES?
MS. TREFZ: WELL, YOUR HONOR, THE GOVERNMENT IDENTIFIED IN CATEGORY 6 OF ITS 404(B) DISCLOSURES THE ALLEGED ISSUES WITH RESPECT TO JOURNALISTS. SO OUR POSITION IS THAT THEY'VE, YOU KNOW, THEY'VE CHOSEN WHAT THEY WANT TO PUT IN WITH THAT, AND THEY DID NOT IDENTIFY ANYTHING WITH RESPECT TO "THE WALL STREET JOURNAL" REPORTER.
JUDGE DAVILA: OKAY.
MR. LEACH: I GO BACK TO, YOUR HONOR, THE INDICTMENT ALLEGES DECEIT OF JOURNALISTS. THIS IS DECEIT OF A JOURNALIST DURING THE SCHEME TO DEFRAUD. NO NOTICE WAS REQUIRED. I THINK THE DEFENDANT HAS KNOWN AND SEEN THIS COMING FOR A LONG PERIOD OF TIME, SO THERE COULDN'T POSSIBLY BE PREJUDICE. THIS SHOWS THE DEFENDANT'S KNOWLEDGE OF THE CONDITIONS IN THE ARIZONA MARKET, IT SHOWS HER AGREEING AND COORDINATING WITH HER COCONSPIRATOR, SO IT'S EVIDENCE OF THE CONSPIRATORIAL AGREEMENT. THIS IS INEXPLICABLY INTERTWINED WITH EVERYTHING THAT THE GOVERNMENT ALLEGES. I DON'T SEE HOW 404(B) APPLIES, AND EVEN IF IT DID, IT'S MORE THAN SATISFIED.
JUDGE DAVILA: SO I DON'T KNOW IF -- I CAN'T SEE YET, BUT MAYBE YOU WANT TO COMMENT ON THIS, MR. LEACH, AS TO WHETHER OR NOT A PRIMA FACIE CASE HAS BEEN SHOWN YET, AND I'M HAPPY TO HEAR FROM YOU ABOUT THAT, AND I'M ALSO CURIOUS AS TO WHETHER OR NOT A PRIMA FACIE CASE CAN BE SHOWN JUST THROUGH THE TEXT MESSAGES AND WHETHER OR NOT YOU'RE SUGGESTING THAT THIS COLLOQUY HERE SUFFICES FOR THAT FOUNDATION.
MR. LEACH: I'M SUGGESTING THAT THE ENTIRETY OF THE TEXTS, YOUR HONOR, SHOW THE CLOSENESS OF THE RELATIONSHIP, THE CONSTANT COMMUNICATION THAT INCLUDES WORK AND INCLUDES NON-WORK MATTERS. SO IT CERTAINLY SHOWS THE CLOSE RELATIONSHIP. I DO THINK THE GOVERNMENT HAS MADE A PRIMA FACIE SHOWING OF THE CONSPIRACY AT THIS POINT THROUGH MS. CHEUNG AND MS. GANGAKHEDKAR. I THINK THE EMAILS SUGGEST THERE IS COORDINATION BETWEEN MR. BALWANI AND MS. HOLMES. MS. CHEUNG TESTIFIED HOW SHE WENT DIRECTLY TO MR. BALWANI AND DID NOT GO BECAUSE SHE KNEW TYLER SHULTZ WAS GOING TO MS. HOLMES. SO I THINK THERE IS A PRIMA FACIE SHOWING OF A CONSPIRACY. EVEN IN THE ABSENCE OF A CONSPIRATORIAL AGREEMENT, YOUR HONOR, THIS GOES TO HER KNOWLEDGE. THIS GOES TO HER KNOWLEDGE OF WHAT IS GOING ON IN THE ARIZONA LAB. IT SHOWS HER ABILITY TO CONTROL ALL OF THAT. IT SHOWS HER KNOWLEDGE THAT THEY MIGHT NOT BE ABLE TO RUN ALL OF THE TESTS IN A PARTICULAR SERVICE CENTER AND THAT MIGHT BE DISAPPOINTING TO SOMEBODY FROM THE PUBLIC COMING IN. SO EVEN OUTSIDE OF THE CONSPIRACY, I DON'T THINK THAT'S NECESSARY FOR A FINDING HERE. I'D ALSO ADD, BALWANI IS HER COO. HE'S AN AGENT. YOU KNOW, HIS STATEMENTS ARE BOTH STATEMENTS OF A COCONSPIRATOR IN FURTHERANCE OF THE CONSPIRACY, AND STATEMENTS OF HER AGENT. SO THERE'S NO HEARSAY ISSUE. AND THIS ALL GOES TO NOTICE.
MS. TREFZ: WITH RESPECT TO THE PRIMA FACIE SHOWING, YOUR HONOR, THESE TEXTS ARE SUBSTANTIALLY AFTER, MORE THAN A YEAR AFTER THE ISSUES THAT MS. CHEUNG TESTIFIED TO AND MORE THAN A YEAR AND A HALF AFTER MS. GANGAKHEDKAR LEFT THERANOS. SO I'M NOT SURE THAT YOU CAN JUMP THAT FAR AHEAD.
JUDGE DAVILA: WELL, ARE THEY IN THE TIMEFRAME OF THE CONSPIRACY AS ALLEGED IN THE INDICTMENT?
MS. TREFZ: YES.
JUDGE DAVILA: OKAY. WELL, THAT WOULD SEEM TO -- IF THEY'RE RELEVANT AND THEY'RE ADMISSIBLE FOR THAT PURPOSE, IT WOULD SEEM THAT THE STATEMENTS WOULD COME DURING THE TIME PERIOD OF THE CONSPIRACY, THE EXISTENCE OF THE CONSPIRACY, AND MR. LEACH ARGUES THEY'RE IN FURTHERANCE OF.
MS. TREFZ: I UNDERSTAND HE ARGUES THAT, YOUR HONOR. WE WOULD DISAGREE THAT JUST BECAUSE THEY'RE IN THE TIME PERIOD OF THE CONSPIRACY THEY'RE -- THE ALLEGED CONSPIRACY, THAT YOU CAN EASILY CONNECT 2013 TO 2015. 2013, THE LAB HAD NOT EVEN BEEN OPENED.
JUDGE DAVILA: I THINK THE KEY WORD THERE IS "EASILY." THAT'S THE KEY WORD, CAN IT EASILY BE PROVED? SO LET ME -- I DO THINK THAT THE -- I DON'T SEE THE 404(B). I RESPECT THE ANALYSIS, BUT I THINK THESE WOULD BE ADMISSIBLE FOR A DIFFERENT REASON, TO SHOW NOTICE OF AT LEAST THE LAB PROCEEDINGS HERE. IT SEEMS THAT THAT'S WHAT THIS COLLOQUY IS ABOUT, AND I'LL SO INSTRUCT THE JURY WITH A LIMITING INSTRUCTION AT THIS POINT, AT THE ADMISSIBILITY POINT. THIS MAY, THERE MAY BE A TIME, IF IT IS CONNECTED UP CONSPIRATORIALLY, THE PARTIES CAN TELL ME YOUR THOUGHTS ON THAT AS WHETHER, AT THE TIME OF FINAL INSTRUCTIONS, THE COURT NEEDS TO ADD A FINAL INSTRUCTION THAT TOUCHES ON THIS OR ANY OTHER INFORMATION, COLLOQUIES, OR CONVERSATIONS THAT MIGHT ALLOW IT TO BE CONSIDERED BY THE JURY FOR SOME OTHER PURPOSE.
MS. TREFZ: UNDERSTOOD, YOUR HONOR.
JUDGE DAVILA: AND DID YOU -- THERE WAS ANOTHER 404(B), I THINK.
MS. TREFZ: YEAH. THERE ARE TWO MORE, AND THEY RAISE THE SAME ISSUE. THOSE ARE AT 220 AND 221. SO JUST DRAWING YOUR ATTENTION TO 220, THERE IS MESSAGE 34235. THERE IS A REFERENCE THERE TO ROCHELLE, AND WE BELIEVE THAT THE GOVERNMENT WOULD CONTEND THAT THAT'S A REFERENCE TO ROCHELLE GIBBONS AND THERE'S BEEN NO 404(B) NOTICE WITH RESPECT TO MS. GIBBONS.
MR. LEACH: YOUR HONOR, THIS TEXT RELATES TO MR. BALWANI AND MS. HOLMES LEARNING THAT A "WALL STREET JOURNAL" REPORTER IS GOING TO WRITE A STORY. THEY'RE SURMISING THAT TYLER SHULTZ AND ADAM ROSENDORFF ARE TWO OF THE SOURCES FOR THE ARTICLE. THEY ARE PLOTTING -- FURTHER DOWN IN 242, IT IS TYLER, ERIKA, AND ADAM -- WE BELIEVE THAT TO BE REFERENCE TO TYLER SHULTZ, ERIKA CHEUNG AND ADAM ROSENDORFF -- AND THIS IS EVIDENCE OF THEIR RETALIATION AGAINST THOSE TWO. I DON'T HAVE THE BENEFIT OF THE 404(B) NOTICE AT HAND, BUT I THINK IT WAS RETALIATION AGAINST EMPLOYEES. I THINK THIS MINOR REFERENCE TO ROCHELLE GIBBONS IS JUST A RED HERRING IN A SEA OF INFORMATION AND DOESN'T WARRANT REDACTION AND FALLS WITHIN THE SCOPE OF THE RETALIATION THAT THE TWO ARE PLOTTING.
JUDGE DAVILA: THIS IS MR. BALWANI'S EMAIL, OR TEXT, RATHER, EXCUSE ME, TEXT I THINK.
MS. TREFZ: YES. AND THERE'S A SIMILAR MESSAGE FROM MR. BALWANI ON THE FOLLOWING PAGE AT 34256.
JUDGE DAVILA: ANY COMMENT ON THAT?
MR. LEACH: YOUR HONOR, IT'S INEXTRICABLY INTERTWINED WITH THE PLOT RELATING TO MR. SHULTZ, MS. CHEUNG, AND MR. ROSENDORFF. I'M NOT SURE HOW THE ADDITION OF ANOTHER EMPLOYEE REALLY ADDS TO THE ANALYSIS, AND THESE ARE STATEMENTS BY MR. BALWANI. IT GOES TO HER KNOWLEDGE, IT GOES TO HER INTENT, IT GOES TO THE CONSPIRATORIAL AGREEMENT. I FAIL TO SEE ANY PREJUDICE FROM THE INCLUSION OF ANOTHER PERSON THAT THE JURY REALLY HAS NOT EVEN HEARD ABOUT HERE.
MS. TREFZ: JUST TO BE CLEAR, YOUR HONOR, ROCHELLE GIBBONS WAS NOT AN EMPLOYEE OF THERANOS.
JUDGE DAVILA: OKAY.
MS. TREFZ: OUR REQUEST ON THOSE WOULD BE TO REDACT THE INFORMATION ABOUT ROCHELLE.
JUDGE DAVILA: JUST THE NAME ITSELF ROCHELLE?
MS. TREFZ: CORRECT. ON THE SECOND ONE, WE WOULD SUGGEST THE SECOND SENTENCE SHOULD BE REDACTED.
JUDGE DAVILA: MR. LEACH, ANY OBJECTION TO REDACTING THE SENTENCE?
MR. LEACH: I DON'T OBJECT. I JUST THINK IT'S UNNECESSARY. IT'S DIFFICULT TO UNDERSTAND THESE COMMUNICATIONS WITHOUT THE WHOLE CONTEXT, AND THE FACT THAT THEY'RE INCLUDING A THIRD OR FOURTH PERSON IN THEIR RETALIATION SCHEME IS REALLY GETTING TO A LEVEL WHERE I JUST DON'T THINK IT'S NECESSARY.
JUDGE DAVILA: WELL, I AGREE. I HAVE TO AGREE WITH YOU. I DON'T SEE THE ADDITION OF ROCHELLE BEING NECESSARILY PREJUDICIAL, AND I'M STRAINED TO SEE THE 404(B) ANALYSIS HERE. BUT WE'LL JUST REDACT THE NAME ROCHELLE.
MS. TREFZ: THANK YOU.
JUDGE DAVILA: THAT SHOULD TAKE CARE OF THE ISSUE.
MS. TREFZ: AND THEN I WOULD JUST FLAG, YOUR HONOR, THAT I DON'T BELIEVE THAT THE INFORMATION ABOUT TYLER SHULTZ GOING TO "THE WALL STREET JOURNAL" IS IN THE RECORD YET, AND SO I WOULD SUGGEST THAT SOME OF THIS INFORMATION SHOULD BE -- AND DR. ROSENDORFF HASN'T TESTIFIED EITHER YET. SO I WOULD SUGGEST THAT SOME OF THESE REFERENCES WOULD BE MORE APPROPRIATE TO WAIT ON.
JUDGE DAVILA: OKAY. I APPRECIATE THE HEADS UP. SHOULD WE BRING THE JURY IN?
MR. LEACH: YES, YOUR HONOR.
JUDGE DAVILA: LET'S DO THAT. DO WE NEED TO BREAK AT 11:00?
MR. DOWNEY: I THINK MR. LEACH SAID HE WOULD BE AN HOUR OR AN HOUR AND A QUARTER, AND SO I THINK IF HE COULD GET THROUGH THE DIRECT JUST TO KEEP THINGS MOVING.
JUDGE DAVILA: OKAY. THANK YOU.
(JURY IN AT 10:07 A.M.)
JUDGE DAVILA: THANK YOU. PLEASE BE SEATED. WE ARE BACK ON THE RECORD IN THE UNITED STATES VERSUS ELIZABETH HOLMES CASE. ALL COUNSEL, MS. HOLMES IS PRESENT. OUR JURY AND ALTERNATES ARE PRESENT. GOOD MORNING, LADIES AND GENTLEMEN. LET ME APOLOGIZE FOR THE DELAY. I NEEDED SOME TIME TO TALK TO THESE LAWYERS ABOUT SOME MATTERS THAT CONCERN THE COURT AND THE EVIDENCE IN THE CASE. I APOLOGIZE THAT I DIDN'T START THAT EARLIER. LET ME ASK YOU THAT QUESTION THAT I PROMISED YOU I WOULD ASK YOU EVERY DAY, AND YOU'RE FAMILIAR WITH IT NOW. I NEED TO KNOW WHETHER ANYONE HERE HAS BEEN EXPOSED TO ANY OUTSIDE MATERIAL, INFORMATION VIA NEWSPAPERS, RADIO, BLOGS OR ANY SOCIAL MEDIA THAT MAY HAVE TOUCHED ON THIS CASE OR ANYTHING TO DO WITH IT, INCLUDING CONVERSATIONS WITH OTHER INDIVIDUALS. IF ANYONE HAS BEEN EXPOSED TO THAT, PLEASE RAISE YOUR HAND. LET ME KNOW. AGAIN, IF YOU WOULD LIKE TO SPEAK PRIVATELY ABOUT THAT, WE CAN DO THAT. THANK YOU. I SEE NO HANDS. THANK YOU FOR YOUR CONTINUED FIDELITY TO THAT ADMONITION. I APPRECIATE THAT AND THE LAWYERS APPRECIATE THAT. THANK YOU. LET ME TURN TO THE GOVERNMENT AND ASK YOU IF YOU HAVE ANOTHER WITNESS.
MR. LEACH: WE DO, YOUR HONOR. THE UNITED STATES CALLS JUSTIN OFFEN.
JUDGE DAVILA: GOOD MORNING. IF YOU WOULD COME FORTH HERE AND FACE OUR COURTROOM DEPUTY AND RAISE YOUR RIGHT HAND, SHE HAS A QUESTION FOR YOU.
COURT CLERK: GOOD MORNING.
(GOVERNMENT'S WITNESS, JUSTIN OFFEN, WAS SWORN.)
JUSTIN OFFEN: YES.
JUDGE DAVILA: THANK YOU. LET ME INVITE YOU TO HAVE A SEAT HERE, SIR. MAKE YOURSELF COMFORTABLE. FEEL FREE TO ADJUST THAT CHAIR AND MICROPHONE AS YOU NEED. I'LL ENCOURAGE YOU TO SPEAK DIRECTLY INTO THE MICROPHONE. WHEN YOU ARE COMFORTABLE, WOULD YOU PLEASE STATE YOUR NAME AND SPELL IT, PLEASE.
JUSTIN OFFEN: MAY I TAKE MY MASK OFF?
JUDGE DAVILA: YOUR LAWYER -- EXCUSE ME -- MR. LEACH IS GOING TO ASK YOU QUESTIONS ABOUT THAT.
JUSTIN OFFEN: SURE. MY NAME IS JUSTIN OFFEN.
JUDGE DAVILA: SPELL IT PLEASE.
JUSTIN OFFEN: J-U-S-T-I-N, LAST NAME OFFEN, O-F-F-E-N.
JUDGE DAVILA: THANK YOU. COUNSEL.