Evidentiary Hearing on Rosendorff's Post-Theranos Employment
160 linesSAN JOSE, CALIFORNIA OCTOBER 5, 2021 P R O C E E D I N G S
(COURT CONVENED AT 8:13 A.M.)
(JURY OUT AT 8:13 A.M.)
JUDGE DAVILA: LET'S CALL OUR MATTER 18-58, UNITED STATES VERSUS HOLMES. GOOD MORNING. WE'RE WITH COUNSEL OUTSIDE OF THE PRESENCE OF THE JURY. LET ME HAVE COUNSEL IDENTIFY HIMSELF, PLEASE.
MR. BOSTIC: GOOD MORNING, YOUR HONOR. JOHN BOSTIC FOR THE UNITED STATES. I'M JOINED BY JEFF SCHENK, ROBERT LEACH, AND KELLY VOLKAR.
JUDGE DAVILA: THANK YOU.
MR. WADE: GOOD MORNING, YOUR HONOR. LANCE WADE ON BEHALF OF MS. HOLMES. WITH ME THIS MORNING ARE MR. DOWNEY, MS. TREFZ, MR. CLEARY, MR. CLINE, AND MS. HOLMES IS PRESENT AS WELL.
JUDGE DAVILA: THANK YOU. GOOD MORNING EVERYONE. SO WE'RE MEETING THIS MORNING REGARDING SOME EVIDENTIARY QUESTIONS. I THINK, MR. BOSTIC, YOU EMAILED MS. KRATZMANN AND SAID WE SHOULD MEET.
MR. BOSTIC: YES, YOUR HONOR. AND WE PREVIOUSLY FLAGGED THESE ISSUES FOR THE COURT AND INDICATED WE MIGHT NEED THE COURT'S GUIDANCE ON HOW TO HANDLE THEM. THESE ARE ISSUES RELATING TO DR. ROSENDORFF'S POST-THERANOS EMPLOYMENT. SINCE LEAVING THERANOS, HE HAS BEEN EMPLOYED BY A NUMBER OF LABORATORIES, INCLUDING THREE IN PARTICULAR THAT I UNDERSTAND THE DEFENSE MIGHT SEEK TO ELICIT TESTIMONY FROM HIM ABOUT DURING CROSS. IT'S THE GOVERNMENT'S POSITION THAT, FOR VARIOUS REASONS, THAT TESTIMONY IS NOT ADMISSIBLE AND THE EVIDENCE THAT THE DEFENSE SEEKS TO INTRODUCE IS NOT ADMISSIBLE UNDER 403, 608 AND 401. I'M HAPPY TO ADDRESS THOSE DIFFERENT CATEGORIES OF EVIDENCE IN TURN, BUT I'M NOT SURE WHETHER THE COURT WOULD FIND THAT MORE HELPFUL OR HEARING FROM THE DEFENSE ON WHY, AS THE PROPONENT, THE EVIDENCE IS --
JUDGE DAVILA: SURE. WHY DON'T YOU TELL ME WHAT IT IS YOU WANT TO DO, MR. WADE.
MR. WADE: SURE, YOUR HONOR. THERE ARE SEVERAL AVENUES BY WHICH THIS EVIDENCE CAN BE ADMITTED, AND I CAN SET FORTH EACH OF THEM. LET ME JUST FIRST GIVE A LITTLE BIT OF A FACTUAL, RELEVANT FACTUAL OVERVIEW.
JUDGE DAVILA: LET ME ASK A PRELIMINARY QUESTION. LAST NIGHT WE RECEIVED IN CHAMBERS AN EMAIL, I THINK IT WAS AFTER 5:00 O'CLOCK, AND IT PERHAPS CONTAINED SOME DOCUMENTS. IS THIS WHAT WE'RE TALKING ABOUT?
MR. WADE: IT'S NOT CLEAR, YOUR HONOR, THAT WE WOULD ACTUALLY SEEK TO OFFER ANY OF THE DOCUMENTS DEPENDING UPON --
JUDGE DAVILA: LET ME START FROM THE BEGINNING. ARE THESE THE DOCUMENTS THAT WE'RE TALKING ABOUT NOW? THE DOCUMENTS THAT THE COURT RECEIVED AFTER 5:00 O'CLOCK LAST NIGHT? THE COLLECTION? I'M NOT ASKING IF YOU'RE GOING TO INTRODUCE THEM.
JUDGE DAVILA: I THINK YOUR EMAIL SAID WE WILL ADDRESS TOMORROW WHY WE THINK THIS TESTIMONY IS ADMISSIBLE UNDER 401, 608(B), AND FOR BIAS. FOR PLANNING PURPOSES, WE CAN AVOID ADDRESSING THESE ISSUES UNTIL AFTER THE LUNCH BREAK IF THAT MAKES MATTERS EASIER FOR THE COURT. YOU SAID IN THE EMAIL, WE WILL LIKELY, UNDERLINED, NOT SEEK TO OFFER MANY OF THESE DOCUMENTS INTO EVIDENCE. DOES THAT MEAN MORE THAN ONE OR LESS THAN ONE?
MR. WADE: IT'S NOT CLEAR THAT WE'LL OFFER ANY, YOUR HONOR. WHAT WE WANTED TO DO, WITHOUT LAYING OUT OUR WHOLE CROSS-EXAMINATION IN A SHORT PERIOD OF TIME, WE WANTED TO GIVE SOME RELEVANT FACTUAL BACKGROUND TO THE COURT SO THE COURT CAN CONSIDER SOME TESTIMONY THAT WE SEEK. THE TESTIMONY REALLY RELATES TO -- IF I COULD GIVE THE COURT JUST A VERY QUICK OVERVIEW.
JUDGE DAVILA: THERE'S EIGHT DOCUMENTS HERE.
MR. WADE: THERE ARE EIGHT DOCUMENTS, BUT, FRANKLY, YOUR HONOR, WHAT IS REALLY AT ISSUE WOULD BE THE QUESTIONS AND ANSWERS THAT WE SEEK TO ELICIT FROM DR. ROSENDORFF. IF HE ANSWERS THE QUESTIONS TRUTHFULLY, AS WE UNDERSTAND HE PROBABLY WOULD BASED UPON THE DOCUMENTS, IT'S UNCLEAR TO US THAT WE REALLY NEED TO ADMIT THE DOCUMENTS THEMSELVES IN THE CASE. SO IT'S NOT CLEAR THAT EXTRINSIC EVIDENCE WOULD BE NEEDED. IT MAY BE NEEDED TO IMPEACH OR REFRESH. THERE ARE SEVERAL DIFFERENT POST-EMPLOYMENT ISSUES WITH DR. ROSENDORFF THAT WE WOULD SEEK TO QUESTION HIM ABOUT. LET ME GIVE AN OVERVIEW OF WHAT THEY ARE AND THEN I'LL EXPLAIN WHY THEY'RE RELEVANT. THE FIRST IS HIS EMPLOYMENT AT A COMPANY IMMEDIATELY FOLLOWING HIS EMPLOYMENT WITH THERANOS. HE WENT TO WORK AT A COMPANY CALLED INVITAE. WHILE HE WAS AT INVITAE --
JUDGE DAVILA: IT'S SPELLED?
MR. WADE: I-N-V-I-T-A-E. WHILE HE WAS AT THAT COMPANY, THE COMPANY HAD A MAJOR ISSUE WITH RESPECT TO A QUALITY CONTROL FAILURE THAT RESULTED IN INACCURATE AND UNRELIABLE PATIENT TEST RESULTS BEING SENT TO 50,000 PATIENTS RELATED TO GENETIC CANCER SCREENING.
JUDGE DAVILA: AND WHAT WAS THE TIMING OF THAT, THE YEAR?
MR. WADE: I BELIEVE THAT WAS IN 2016 OR '17. LET ME -- THE COURT'S INDULGENCE FOR A SECOND. 2017 IS WHEN IT CAME TO LIGHT, BUT THE RESULTS WERE THE 11 MONTHS PRIOR TO THAT. SO IT WAS THE PERIOD 2016 TO '17 WHEN THERE WERE INACCURATE RESULTS. THE COMPANY CAME TO THE CONCLUSION THAT THOSE RESULTS WERE, WERE DUE TO QUALITY CONTROL FAILURES WITHIN THE LAB. DR. ROSENDORFF LEFT THE COMPANY ALMOST IMMEDIATELY AFTER THAT, I BELIEVE THE MONTH FOLLOWING THE ANNOUNCEMENT OR THE DISCLOSURE OF THOSE ERRONEOUS RESULTS AND QUALITY CONTROL FAILURES. THAT'S ISSUE NUMBER ONE. ISSUE NUMBER TWO IS WHILE HE WAS AT -- WORKING AT INVITAE, HE ALSO WORKED AT A COMPANY CALLED UBIOME. HE WAS A LAB DIRECTOR THERE. HE WAS FIRED FOR FAILING TO MEET HIS PROFESSIONAL OBLIGATIONS, INCLUDING FOR NOT SHOWING UP IN THE OFFICE AND NOT MAKING HIMSELF SUFFICIENTLY AVAILABLE. THERE WERE ALSO VALIDATION REPORT ISSUES POTENTIALLY WITH RESPECT TO VALIDATION REPORTS HE SIGNED. HE WAS QUESTIONED BY FEDERAL AGENTS AND PROSECUTORS ABOUT THOSE ACTS IN I BELIEVE IT WAS NOVEMBER OR DECEMBER OF 2020. AND TWO PEOPLE FROM UBIOME, THE CEO, I BELIEVE, AND THE NUMBER TWO EXECUTIVE WERE INDICTED IN THAT CASE. THE FOURTH ISSUE --
JUDGE DAVILA: THE THIRD ISSUE.
MR. WADE: I'M SORRY, THIRD ISSUE. AND MAYBE THERE'S ONLY THREE BECAUSE ONE RELATES TO HIS COMPETENCE AT THERANOS, AND THEN WE HAVE INVITAE, UBIOME, AND THE LAST IS PERKIN ELMER, WHICH IS A MATTER THAT DR. ROSENDORFF HIMSELF ACTUALLY RAISED IN HIS TESTIMONY THE OTHER DAY. HE MENTIONED THAT HE STILL DEALS WITH INQUIRIES THERE AND MENTIONED WHERE HE WORKS. PERKIN ELMER HAS BEEN THE SUBJECT OF ONGOING INVESTIGATIONS RELATING TO THE ACCURACY OF ITS TEST RESULTS. IT WAS INSPECTED BY CMS, THE VERY SAME INSPECTORS WHO ARE -- THREE OF WHOM ARE WITNESSES IN THIS CASE CONDUCTED THAT INSPECTION. THEY ISSUED A NOTICE OF DEFICIENCIES THAT INDICATED THAT THERE WERE SERIOUS DEFICIENCIES WITHIN THE LAB. THOSE DEFICIENCIES INCLUDED INACCURATE TEST RESULTS, AND THEY ALSO INCLUDED DEFICIENT PERFORMANCE OF THE LABORATORY DIRECTOR IN NUMEROUS RESPECTS. THERE WAS AN OPPORTUNITY, MULTIPLE OPPORTUNITIES FOR THE LABORATORY DIRECTOR TO ADDRESS THOSE DEFICIENCIES AND TO SHOW COMPLIANCE IN REMEDIATION. THOSE EFFORTS, AS OF THE SPRING AND SUMMER, WERE UNSUCCESSFUL.
JUDGE DAVILA: SPRING AND SUMMER OF?
MR. WADE: OF 2021. THERE WAS A PROPOSED SANCTION AND NOTICE OF SANCTIONS ISSUED. THAT NOTICE OF SANCTIONS INDICATES THAT DR. ROSENDORFF COULD BE SUSPENDED FROM HIS ABILITY TO SERVE AS A LABORATORY DIRECTOR AS A RESULT OF THE IMMEDIATE JEOPARDY NOTICE AND HIS INABILITY TO CURE THOSE DEFICIENCIES. HE'S HAD COMMUNICATIONS WITH WITNESSES IN THIS CASE. MR. YAMAMOTO FROM CMS WHO WE UNDERSTAND THE GOVERNMENT MAY CALL IN THIS CASE. HE SPECIFICALLY RAISED CONCERN ABOUT THE CONSEQUENCES THAT COULD RESULT TO HIM PERSONALLY AS A RESULT OF THESE DEFICIENCIES AND THE NOTICE OF SANCTIONS. I NOTE THAT THIS WITNESS HAS PREVIOUSLY TESTIFIED IN THE GRAND JURY EVEN BEFORE THESE ISSUES, AND I'LL QUOTE --
JUDGE DAVILA: WHICH WITNESS ARE YOU TALKING ABOUT?
MR. WADE: MR. ROSENDORFF. AND I'LL QUOTE, "IF CMS SEES THAT THERE ARE CONSISTENT PROBLEMS WITH LABORATORY DIRECTOR JUDGMENT OR CONSISTENT ERRORS BY THE LABORATORY DIRECTOR, THEY CAN TAKE AWAY YOUR LICENSE TO BE A LAB DIRECTOR," CLOSED QUOTE. THOSE ARE THE INCIDENTS. WE THINK THERE ARE SEVERAL BASES TO ADMIT THESE AND TO QUESTION THE WITNESS WITH RESPECT TO THESE. ONE IS THE WITNESS'S COMPETENCE HAS BEEN PUT INTO QUESTION IN THIS CASE. ON NUMEROUS OCCASIONS HE'S BEEN OFFERED TO PROVIDE HIS OPINION WITH RESPECT TO CERTAIN ISSUES AND THE STANDARDS AND THE PROPRIETY OF SOME OF THE CONDUCT THAT OCCURRED AT THERANOS. HE SET HIMSELF FORTH AS COMPETENT WHEN HE WAS INTERVIEWED AND HIRED TO DO THE JOB AND HE MAINTAINS HIS COMPETENCE THROUGHOUT.
MUCH OF THE TESTIMONY THAT WAS OFFERED ON DIRECT EXAMINATION AND SUBSEQUENTLY ON CROSS-EXAMINATION RELATES TO 702 TYPE OF ISSUES, WHETHER IT WAS SPECIFICALLY -- AND RELATE TO HIS SPECIALIZED SKILL AND EXPERIENCE, WHETHER IT WAS SPECIFICALLY NOTICED AS SUCH OR WHETHER HE WAS SPECIFICALLY CERTIFIED AS SUCH, HE WAS OFFERING OPINIONS ABOUT LAB PRACTICES. HE WAS ALSO OFFERING OPINIONS THAT PEOPLE OTHER THAN HIMSELF WERE RESPONSIBLE FOR SOME OF THESE DEFICIENCIES THAT HE'S IDENTIFIED AT THERANOS. HE'S POINTED THE FINGER AT MANY OTHER PEOPLE, INCLUDING MY CLIENT, WHO STANDS HERE CHARGED TODAY AS THE COURT WELL KNOWS. TO THE EXTENT THAT FAILURES WITHIN THE LAB ARE THE RESULT OF INCOMPETENCE OF SOMEONE OTHER THAN MY CLIENT, IT'S EXCULPATORY OF MY CLIENT. AND HIS -- HE HAS INDICATED THAT THE FAILURES ARE THE RESULT OF, ARE THE RESULT OF AN UNWILLINGNESS OR AN INABILITY TO ACT BY MS. HOLMES, MR. BALWANI, AND OTHERS. WE THINK THE FACTS BELIE THAT, YOUR HONOR.
INDEED, IN THIS VERY CASE THE GOVERNMENT HAS PUT AT ISSUE MR. ROSENDORFF, DR. ROSENDORFF'S COMPETENCE. THEY ACTUALLY NOTICED AN EXPERT IN THE CASE WHO HAS -- WHO WE UNDERSTAND INTENDS TO OFFER TESTIMONY, THEY'VE NOTICED TESTIMONY THAT HE WAS, IN FACT, INCOMPETENT AND THAT ALL OF THE VALIDATION REPORTS THAT HE SIGNED SHOULD HAVE NEVER BEEN ISSUED. THAT IS THE TESTIMONY OF DR. MASTER THAT THEY'VE NOTICED, AND IT'S ALSO THE TESTIMONY OF, WE UNDERSTAND, OF DR. DAS WHO THEY'VE IDENTIFIED AS A WITNESS WHO THEY INTEND TO CALL. IN OTHER WORDS, TO THE EXTENT THAT THERE WERE DEFICIENCIES THAT WERE IDENTIFIED IN THE LAB, THEY RESULT FROM INCOMPETENCE OF DR. ROSENDORFF. SECONDLY, DR. ROSENDORFF WAS INTERVIEWED BY THE GOVERNMENT AND WAS IDENTIFIED AND DISCLOSED AS AN EXPERT IN THIS CASE. IN CONNECTION WITH HIS INTERVIEW IN 2020, HE PROVIDED A RESUME. HE WAS QUESTIONED ABOUT HIS PERSONAL EXPERIENCE AND HE WAS QUESTIONED ABOUT ITEMS ON HIS RESUME.
HIS RESUME WAS ATTACHED TO THE MEMORANDUM OF INTERVIEW. HIS RESUME WAS SUBSEQUENTLY ATTACHED TO THE EXPERT DISCLOSURE THAT WAS MADE TO COUNSEL IN THIS CASE. I BELIEVE IT'S THE ONLY EXPERT DISCLOSURE THAT WE HAVE NOT CHALLENGED IN THIS CASE. THAT, THAT INTERVIEW -- AND IN THAT INTERVIEW AND IN THAT RESUME DR. ROSENDORFF CONCEALED MATERIAL INFORMATION FROM FEDERAL AGENTS AND INDIRECTLY FROM THE DEFENSE BY FAILING TO DISCLOSE THAT HE WORKED AT UBIOME AT ALL, AND IT'S OMITTED COMPLETELY FROM HIS RESUME. HE ALSO FAILED TO DISCLOSE HIS NUMEROUS PROFESSIONAL FAILURES AT UBIOME AND INVITAE.
JUDGE DAVILA: IS THAT SOMETHING THAT PEOPLE TYPICALLY PUT ON THEIR RESUME, THEIR FAILURES?
(LAUGHTER.)
JUDGE DAVILA: IS THAT TYPICALLY SOMETHING WE SEE ON PEOPLE'S RESUMES, THEIR CAREER FAILURES?
MR. WADE: WHEN WITNESS ARE TOLD THAT THEY'RE GOING TO BE DISCLOSED AS EXPERTS IN THE FIELD, YES. IF I HIRED AN EXPERT AND IT TURNED OUT THE EXPERT HAD WHAT COULD BE PERCEIVED AS FOUR DIFFERENT SIGNIFICANT DEFICIENCIES OUT OF FIVE PERFORMANCES AS A LABORATORY DIRECTOR AND THAT EXPERT DID NOT DISCLOSE THAT, I WOULD CONSIDER THAT A MATERIAL CONCEALMENT AND I WOULD FIRE THAT EXPERT BECAUSE WHEN I'M -- WHEN THAT EXPERT IS BEING ASSESSED AND DISCLOSED AS AN EXPERT, WHICH DR. ROSENDORFF WAS IN THIS CASE, YOU HAVE TO DISCLOSE THE MATERIAL FACTS. HE KNEW EXACTLY WHAT THE GOVERNMENT WAS DOING, AND HE DIDN'T DISCLOSE THOSE FACTS, AND AS A RESULT WE BELIEVE HE HAS EXPOSURE UNDER 18 U.S.C. 1001 FOR CONCEALING MATERIAL INFORMATION FROM THE GOVERNMENT. FINALLY, I THINK HE KNOWS PRESENTLY, UNLESS THERE'S BEEN SUBSEQUENT EVENTS THAT THE GOVERNMENT HAS FAILED TO DISCLOSE TO US, HIS, HIS CAREER CURRENTLY SITS IN THE BALANCE. AND THE DECISION AS TO WHETHER HIS CAREER WILL BE -- HE'LL CONTINUE TO BE ABLE TO SERVE AS A LABORATORY DIRECTOR RESTS IN THE HANDS OF THE FEDERAL GOVERNMENT REGULATORS, FEDERAL GOVERNMENT REGULATORS THAT ARE PART OF THIS CASE AND THAT COOPERATE EXTENSIVELY WITH THIS TEAM, AND THAT GIVES HIM BIAS TO TESTIFY IN FAVOR OF THE FEDERAL GOVERNMENT AND TO AVOID THE DEFICIENCIES THAT HE'S IDENTIFIED IN HIS OWN TESTIMONY AS BEING THE TYPE OF DEFICIENCIES THAT COULD RESULT IN HIS INABILITY TO SERVE AS A LABORATORY DIRECTOR.
JUDGE DAVILA: AND THIS IS ADMISSIBLE UNDER 608(B) YOU'RE SAYING?
JUDGE DAVILA: AND WHAT IS THE CHARACTER FOR TRUTHFULNESS IN THIS? TELL ME.
MR. WADE: HIS CONCEALMENT OF TWO OF THE INCIDENTS FROM GOVERNMENT AGENTS WHEN HE WAS QUESTIONED ABOUT HIS PROFESSIONAL EXPERIENCE. I BELIEVE THAT HE CONCEALED -- HE PROBABLY CONCEALED THESE, THESE INCIDENTS FROM PERKIN ELMER WHEN HE WAS HIRED TO SERVE AS A COVID DIRECTOR. THAT GOES TO HIS CHARACTER FOR TRUTHFULNESS. IF HE'S NOT CANDID -- I UNDERSTAND, YOUR HONOR, THAT PEOPLE NORMALLY DON'T PUT THEIR FAILURES. BUT IF THEY'RE REPRESENTING THEMSELVES FOR AN IMPORTANT POSITION TO BE QUALIFIED AND IF THEY'VE ACTUALLY BEEN TERMINATED FROM SEVERAL JOBS FOR NOT BEING QUALIFIED, THAT'S ARGUABLY -- NOT ARGUABLY -- THAT IS MISLEADING. BUT AS TO BIAS, UNDER THE SUPREME COURT DECISION IN UNITED STATES VERSUS ABEL, 469 U.S. 45, THE RELATIONSHIP BETWEEN A PARTY AND A WITNESS WHICH MAY LEAD THE WITNESS TO SLANT, UNCONSCIOUSLY OR OTHERWISE, HIS TESTIMONY IN FAVOR OR AGAINST A PARTY IS BIAS, AND IT'S APPROPRIATE FOR INQUIRY IN THIS CASE. DR. ROSENDORFF --
JUDGE DAVILA: THE BIAS HERE IS, AS YOU SAY, BECAUSE HE'S CONCERNED, HE HAS CAREER CONCERNS THAT IF HE DOES NOT TESTIFY IN A WAY THAT IS OTHERWISE AGREEABLE TO THE GOVERNMENT, THAT THE GOVERNMENT HAS SOME CONNECTION WITH HIS CAREER?
JUDGE DAVILA: WHAT DOES THAT HAVE TO DO WITH THE GOVERNMENT? THAT'S THE BIAS ISSUE I'M TRYING TO EXPLORE.
MR. WADE: IT HAS DIRECTLY TO DO WITH THE FEDERAL GOVERNMENT. THE FEDERAL GOVERNMENT, INCLUDING THERE'S AN AGENT WHO WORKS UNDER HHS WHICH -- WHO IS SITTING IN THE BACK OF THIS COURTROOM. THEY'VE BEEN DEALING EXTENSIVELY WITH CMS AS THE COURT KNOWS FROM DISCOVERY MATTERS IN THIS CASE. THEY INTEND TO CALL THREE OF THE WITNESSES IN THIS CASE WHO ARE INVOLVED IN THAT JUDGMENT. SO IF HE DOESN'T SATISFY THE GOVERNMENT THAT -- OR IF HE DOESN'T BLAME OTHERS AND TAKES RESPONSIBILITY ON TO HIMSELF, THAT INCREASES THE LIKELIHOOD THAT HE COULD BE SUBJECT TO ADVERSE PENALTIES AND LOSE HIS ABILITY TO TESTIFY -- TO SERVE AS A LABORATORY DIRECTOR. THAT IS PRESENT RIGHT NOW IN THIS CASE. BUT FUNDAMENTALLY, YOUR HONOR, HIS COMPETENCE HAS BEEN PUT AT ISSUE BY THE EVIDENCE. THE GOVERNMENT HAS SAID HE'S COMPETENT.
JUDGE DAVILA: IS COMPETENCE AN ISSUE UNDER 608(B)? 608(B) REALLY TALKS ABOUT CHARACTER FOR TRUTHFULNESS, DOESN'T IT?
JUDGE DAVILA: WE'RE TALKING ABOUT 608(B) HERE, AND I THINK THAT'S WHAT YOU'VE SUGGESTED THIS WOULD BE ADMISSIBLE FOR.
MR. WADE: I THINK IT'S ADMISSIBLE UNDER 401. JUST SO THE RECORD IS CLEAR, AND MAYBE I HAVEN'T DONE A SUFFICIENTLY A GOOD JOB OF ADDRESSING THIS WITH THE COURT, I BELIEVE ALL OF THE EVIDENCE, GIVEN THE THEORY THAT THE GOVERNMENT HAS OFFERED WITH RESPECT TO THE THEORY OF DR. ROSENDORFF, IS ADMISSIBLE UNDER 401 BECAUSE IT GOES TO HIS COMPETENCE WHICH THE GOVERNMENT HAS PUT AT ISSUE IN THIS CASE, PERIOD, FULL STOP. WE DON'T NEED TO GO TO THE NEXT BRANCHES AT ALL. UNDER THE NEXT BRANCHES WITH RESPECT TO BIAS AND HIS CONCEALING INFORMATION FROM THE GOVERNMENT, WE THINK IT'S ADMISSIBLE AS WELL. IT'S ADMISSIBLE FOR BIAS ALSO BECAUSE IF THE GOVERNMENT -- HE HAS A MOTIVE, HE HAS CONCEALED MATERIAL INFORMATION FROM THE GOVERNMENT. HE HAS 18 U.S.C. 1001 EXPOSURE. TO THE EXTENT THAT HE TESTIFIES FAVORABLY FOR THE GOVERNMENT, THAT MAY DECREASE THE LIKELIHOOD THAT THEY, THAT THEY BRING CHARGES AGAINST HIM FOR THAT CONDUCT. THAT'S A BIAS BASIS. THERE'S A BIAS BASIS FOR THE PERKIN ELMER BECAUSE HIS CAREER HANGS IN THE BALANCE AT THE HANDS OF THE FEDERAL GOVERNMENT. AND SO -- AND THEN SEPARATE AND APART FROM THAT, THERE IS 608(B) BECAUSE WE DON'T THINK HE WAS CANDID AND TRUTHFUL IN STATEMENTS THAT HE HAS MADE TO THESE POTENTIAL EMPLOYERS.
JUDGE DAVILA: UNDER 608(B), SHOULD WE ALLOW EXTRINSIC EVIDENCE TO COME IN?
MR. WADE: NO, UNDER THE 608(B) THEORY WE SHOULD NOT. AS THE COURT KNOWS, WE CAN INQUIRE OF THE WITNESS, BUT WE CAN'T OFFER EXTRINSIC EVIDENCE. AND I WANT TO BE CLEAR, I DON'T INTEND TO NECESSARILY OFFER EXTRINSIC EVIDENCE. I INTEND --
JUDGE DAVILA: RIGHT. I THINK YOU'RE ON THAT PATH NOW TO TELL ME WHAT IS IT THAT YOU INTEND TO DO WITH THE EVIDENCE THAT YOU'VE TALKED ABOUT THIS MORNING WITH THIS WITNESS.
MR. WADE: I INTEND TO QUESTION HIM ABOUT THE EVENTS -- HIS COMPETENCE ABOUT THE FACT THAT THESE EVENTS HAPPENED AND THESE RESULTS HAPPENED, HE HAD QUALITY CONTROL FAILURES AT THIS COMPANY, AND IT RESULTED IN 50,000 INACCURATE RESULTS, AND HE WAS TERMINATED AS A RESULT. WITH RESPECT TO PERKIN ELMER, THERE WERE NUMEROUS DEFICIENCIES WITH RESPECT TO HIS RESPONSIBILITIES, THERE WERE QUALITY CONTROL FAILURES, THERE WERE INADEQUATE VALIDATION REPORTS.
JUDGE DAVILA: AND THESE ARE ALL EMPLOYMENTS POST-THERANOS?
JUDGE DAVILA: AND WHAT IS THE RELEVANCE OF THAT? WHY IS HE -- LET'S JUST STAY ON YOUR TRACK.
JUDGE DAVILA: IF HE'S INCOMPETENT POST-THERANOS, WHAT IS THE RELEVANCE TO HIS TIME AT THERANOS?
MR. WADE: BECAUSE HE WAS INCOMPETENT AT THERANOS, TOO, AND THAT'S THE REASON WHY MANY OF THE FAILURES WITHIN THE LAB HAPPENED. THE GOVERNMENT INTENDS TO OFFER THAT EVIDENCE ITSELF IN THIS CASE, SO THE IDEA THAT -- THE GOVERNMENT'S EXPERT HAS BASICALLY SAID THAT DR. ROSENDORFF IS INCOMPETENT, AND SO THE LABORATORY DIRECTOR WHO MS. HOLMES HIRED AFTER CMS CAME IN AND INSPECTED AND STARTED IDENTIFYING ISSUES, HE, TOO HAS SAID THAT DR. ROSENDORFF IS INCOMPETENT AND THAT THE VALIDATION REPORTS THAT HE SIGNED WERE DEFICIENT, AND SEVERAL OF THEM. ALL OF THE VALIDATION REPORTS FOR THE EDISON DEVICE WERE DEFICIENT. TWO OF THE GOVERNMENT'S WITNESSES INTEND TO OFFER THAT. THERE WAS EVERY REASON FOR THESE FOLKS TO BELIEVE THAT HE WAS COMPETENT. HE REPRESENTED HIMSELF TO BE COMPETENT, AND --
JUDGE DAVILA: WE DON'T HAVE TO GET INTO A CLOSING ARGUMENT HERE.
JUDGE DAVILA: I'M TRYING TO GLEAN WHAT IS THE RELEVANCE OF THE FACT THAT SOMEBODY IS INCOMPETENT POST HIS TIME AT THERANOS, AND I'M TRYING TO GAUGE THE RELEVANCE THAT AND MAYBE MR. BOSTIC CAN SHARE HIS OPINIONS.
MR. WADE: FUNDAMENTALLY, I BELIEVE THE TESTIMONY BEFORE THE COURT IS HE IS THE PERSON ULTIMATELY RESPONSIBLE WITHIN THE LABORATORY. HE'S THE PERSON UPON WHOM EVERYONE IS LEGALLY ENTITLED TO RELY.
JUDGE DAVILA: I UNDERSTAND.
MR. WADE: SO IF HE'S -- IF HE WAS INCOMPETENT AND DIDN'T DO HIS JOB, THAT IS EXCULPATORY OF MS. HOLMES. AND THE FACT THAT HE APPEARS TO HAVE ALMOST NEVER COMPETENTLY DONE HIS JOB IS HIGHLY RELEVANT.
JUDGE DAVILA: THAT'S CHARACTER EVIDENCE OF A DIFFERENT TYPE, ISN'T IT?
MR. WADE: THE GOVERNMENT HAS ELICITED HIS VIEWS AS TO THE RIGHT WAY AND WRONG WAY TO DO THINGS. HE APPEARS NOT TO BE QUALIFIED TO DO THIS BASED UPON HIS PERFORMANCE AT THESE MANY COMPANIES.
JUDGE DAVILA: THIS SOUNDS LIKE CHARACTER EVIDENCE FOR A DIFFERENT TRAIT.
MR. WADE: NO. IT GOES DIRECTLY TO COMPETENCE WHICH THE GOVERNMENT HAS PUT AT ISSUE IN THIS CASE. THE GOVERNMENT INTENDS TO OFFER EVIDENCE OF HIS INCOMPETENCE, SO I DON'T KNOW HOW IT WOULDN'T BE RELEVANT.
JUDGE DAVILA: LET ME ASK MR. BOSTIC ABOUT THAT. MR. BOSTIC?
MR. BOSTIC: THANK YOU, YOUR HONOR. THE COURT WON'T BE SURPRISED THAT I DISAGREE WITH A NUMBER OF THE REPRESENTATIONS AND CHARACTERIZATIONS THAT DEFENSE COUNSEL HAS MADE. LET ME START WITH THE FACTS, AS MR. WADE DID, AND JUST CLARIFY A FEW THINGS. FIRST, WHEN IT COMES TO THE INCIDENT AT INVITAE, FIRST OF ALL, THE DOCUMENT THAT THE DEFENSE HAS PROVIDED AS PROOF FOR THIS IS AN ARTICLE FROM A PUBLICATION CALLED "THE DARK REPORT," WHICH I HAVEN'T HEARD OF BEFORE. OBVIOUSLY THIS DOCUMENT ITSELF IS HEARSAY, SO NOT COMPETENT TO ACTUALLY PROVE THE TRUTH OF ANY OF THOSE FACTS. BUT SUBJECT TO THAT, I NOTE THAT, AS REPORTED IN THAT ARTICLE, IT DOES TALK ABOUT THE NEED, OR THE COMPANY'S DECISION TO RETEST 50,000 PATIENTS AFTER THE COMPANY DISCOVERED THAT THEY WEREN'T RUNNING A CERTAIN TEST, A TEST FOR WHAT I UNDERSTAND TO BE A VERY RARE GENETIC VARIATION THAT UNDERLIES A VERY TINY SLIVER OF GENETIC CANCERS.
THE COMPANY ESTIMATES THAT APPROXIMATELY 2 TO 15 PATIENTS WOULD HAVE BEEN AFFECTED BY THAT FAILURE TO INCLUDE THAT PARTICULAR TEST IN THEIR PANEL OF TESTS THAT THEY WERE RUNNING. THEY'VE DECIDED TO RETEST 50,000 PATIENTS AS A REMEDIAL MEASURE -- WHICH BY THE WAY, BRINGS THIS UNDER RULE 407 AND IT SHOULD BE KEPT OUT FOR THAT REASON -- BUT BESIDES WHICH, THAT NUANCE, I THINK, ILLUSTRATES WHY IT'S DANGEROUS TO ALLOW THE DEFENSE TO GO INTO THESE ISSUES HERE BECAUSE THE WAY THAT MR. WADE JUST CHARACTERIZED IT, YOU KNOW, INACCURATE RESULTS FOR 50,000 PATIENTS IS SIMPLY NOT CORRECT, AND ALLOWING FULL REIN FOR DR. ROSENDORFF TO BE QUESTIONED ON THESE ISSUES INVITES -- I HESITATE TO EVEN CALL THEM MINI-TRIALS BECAUSE THEY'RE TRIALS IN THEIR OWN RIGHT -- OF OUTSIDE THERANOS COMPLICATED SITUATIONS THAT WE SIMPLY DON'T HAVE THE COMPLETE RECORD TO LITIGATE AT THIS POINT. THAT'S INVITAE. I'LL ALSO POINT OUT ON UBIOME, MY UNDERSTANDING IS THAT DR. ROSENDORFF WORKED AT UBIOME FOR A NUMBER OF MONTHS.
DUE TO A MEDICAL ISSUE HE WAS ABSENT FOR PART OF THAT. HE EVENTUALLY SEPARATED FROM THE COMPANY. IT'S UNCLEAR FROM THE DOCUMENTS THAT I'VE SEEN THAT HE WAS FIRED FOR FAILURE TO PERFORM HIS DUTIES AS MR. WADE DESCRIBED, SO I THINK THAT'S ANOTHER FACT THAT MIGHT BE IN DISPUTE. AS TO THE GOVERNMENT'S INVESTIGATION OF UBIOME, LET ME RAISE THAT DR. ROSENDORFF WAS NEVER A TARGET OF THAT INVESTIGATION. HE WAS INTERVIEWED AS A WITNESS FAIRLY LATE IN THE INVESTIGATION. THAT CASE HAS SINCE BEEN CHARGED. TWO PEOPLE WERE CHARGED IN THAT CASE. DR. ROSENDORFF WAS NOT ONE OF THEM. THE GOVERNMENT'S VIEW IS THAT THE CASE AND THE CONDUCT AT ISSUE IN THAT CASE, WHICH REALLY RELATES TO BILLING BY THE WAY, INSURANCE BILLING AND NOT THE ACCURACY OF THE TESTS THEMSELVES AS THIS CASE DOES.
JUDGE DAVILA: THAT CASE DOES NOT REVOLVE AROUND LABORATORY PRACTICES OR INACCURACIES IN THE LAB. IT SOUNDS LIKE IT'S A HEALTH FRAUD TYPE OF A SITUATION.
MR. BOSTIC: THAT'S CORRECT, YOUR HONOR. THE ALLEGATIONS IN THAT CASE WERE THAT PATIENTS, AND THE INSURANCE COMPANIES ACTUALLY, WERE BILLED FOR TESTS BEFORE THEY WERE VALIDATED. OF COURSE DR. ROSENDORFF, AS THE LABORATORY DIRECTOR, HAD NOTHING TO DO WITH THE BILLING PRACTICES. HE TOLD THE GOVERNMENT THAT HE WAS UNAWARE OF THAT FRAUDULENT BILLING PRACTICE. THERE'S NO EVIDENCE TO THE CONTRARY. IN FACT, I UNDERSTAND THAT THE PREVIOUS LAB DIRECTOR AT UBIOME QUIT WHEN HE FOUND OUT ABOUT THE BILLING PRACTICES OF THAT COMPANY. SO THERE WOULD HAVE BEEN REASON FOR THE ACTUAL DEFENDANTS IN THAT CASE TO CONCEAL WHAT THEY WERE DOING FROM DR. ROSENDORFF. THE DANGER OF GETTING INTO THAT TOPIC IS THAT DR. ROSENDORFF WILL BE DEEMED GUILTY BY ASSOCIATION FOR HAVING BEEN PART OF THAT COMPANY, PART OF THE COMPANY THAT WAS SUBSEQUENTLY INVESTIGATED BY THE GOVERNMENT AGAIN, PART OF THE COMPANY THAT RESULTED IN THE PRINCIPALS BEING INDICTED AS THIS COMPANY DID.
THAT KIND OF GUILT BY ASSOCIATION WE THINK IS INAPPROPRIATE AND EXCLUDABLE UNDER 403. FINALLY, AS TO THE PERKIN ELMER SITUATION, THE CMS INSPECTION IN THAT CASE OBVIOUSLY HAS NOTHING TO DO WITH THE CONDITION OF THE LABORATORY AT THERANOS. I AGREE WITH THE COURT THAT THIS IS CHARACTER EVIDENCE. IF WE'RE TALKING ABOUT DR. ROSENDORFF'S COMPETENCY, ANOTHER WAY TO SAY THAT IS HIS CHARACTER FOR BEING A COMPETENT OR INCOMPETENT LABORATORY DIRECTOR, AND I THINK WHAT THE DEFENSE IS TRYING TO DO HERE IS TO BRING IN UNRELATED CONDUCT TO SHOW THAT HE HAS THAT CHARACTER TRAIT, AND THE CHARACTER TRAIT BEING A CARELESS LAB DIRECTOR. THAT IS NOT A PROPER USE OF THAT KIND OF EVIDENCE UNDER 404, AND I DON'T THINK THAT THE DEFENSE CAN SALVAGE THE ADMISSIBILITY BY RELYING ON RULE 608 BECAUSE I DON'T THINK IT'S CLEAR AT ALL THAT DR. ROSENDORFF ACTUALLY CONCEALED THIS INFORMATION FROM THE GOVERNMENT OR SAID ANYTHING INCONSISTENT WITH THE TRUTH IN THIS CASE.
THE DEFENSE CHARACTERIZES THAT INTERVIEW AND THAT INTERACTION WITH DR. ROSENDORFF AS DR. ROSENDORFF HOLDING HIMSELF OUT AS AN EXPERT. THE DEFENSE COMPARED IT TO A SITUATION WHERE A LITIGATING PARTY SELECTS AND HIRES AN EXPERT. THAT'S NOT AT ALL WHAT HAPPENED HERE. THE GOVERNMENT HAS ALWAYS VIEWED DR. ROSENDORFF'S TESTIMONY AS PRIMARILY, IF NOT ENTIRELY, PERCIPIENT TESTIMONY. OUT OF AN ABUNDANCE OF CAUTION, WE DID DISCLOSE SOME OF HIS OPINIONS AS EXPERT OPINIONS. HE DIDN'T END UP TESTIFYING AS AN EXPERT, HOWEVER. AND THE MEETING THAT WE HAD IN SEPTEMBER OF 2020 WITH DR. ROSENDORFF WAS FOR THE PURPOSE OF US ASKING HIM INFORMATION ABOUT WHAT HIS OPINIONS WERE SO WE COULD SUMMARIZE THEM AND PROVIDE THAT NOTICE TO THE DEFENSE. IT WAS NOT SO THAT DR. ROSENDORFF COULD CONVINCE US OF HIS QUALIFICATIONS OR PROVIDE US WITH A COMPREHENSIVE LIST OF EVERYTHING THAT HE HAS DONE. AND THROUGH THAT LENS, I JUST DON'T THINK IT HOLDS WATER TO SAY THAT HE CONCEALED INFORMATION OR LIED TO THE GOVERNMENT AND HAS ANY EXPOSURE UNDER 1001.
JUDGE DAVILA: EXCUSE ME. MR. WADE SUGGESTS THAT HE FALSIFIED INFORMATION ON HIS RESUME, AND THEN HE ALSO SUGGESTS THAT HE IS, IN ESSENCE, UNDER YOUR CONTROL BECAUSE OF THE BIAS AND HIS CAREER FEARS RELATED TO UNSATISFACTORY TESTIMONY AS JUDGED BY THE GOVERNMENT. CAN YOU COMMENT ON THAT?
MR. BOSTIC: YES, YOUR HONOR. AS TO BIAS FIRST, I THINK THERE'S THE, THE KIND OF CORE SITUATION THAT WE ALL HAVE IN MIND WHERE THERE'S A COOPERATING WITNESS WHO ALSO HAS SOME CRIMINAL LIABILITY FOR SIMILAR CONDUCT. THE COOPERATING WITNESS HAS ENTERED INTO AN AGREEMENT WITH THE GOVERNMENT, PERHAPS A PLEA AGREEMENT. ON CROSS, THE DEFENDANT'S LAWYER IS ENTITLED TO GET INTO THAT RELATIONSHIP, ANY PROMISES THAT HAVE BEEN MADE. THERE'S ENOUGH OF A NEXUS THERE TO MAKE THAT RELEVANT, NOT EXCLUDABLE UNDER 403. HERE I THINK THE BIAS ARGUMENT IS TOO ATTENUATED. IT'S COMPLETELY SPECULATIVE TO THINK THAT DR. ROSENDORFF'S TESTIMONY IN THIS CRIMINAL CASE WILL ACTUALLY HAVE ANY EFFECT ON WHAT ANOTHER GOVERNMENT REGULATORY BODY DOES WHEN VIEWING THE LABORATORY VIOLATIONS. THE NEXUS JUST HASN'T BEEN ESTABLISHED.
JUDGE DAVILA: MR. WADE SUGGESTS THAT THERE ARE WITNESSES IN THIS CASE WHO PERHAPS HAVE DONE THE INVESTIGATIONS IN THE LABS THAT THIS DOCTOR HAS WORKED AT, AND HE SUGGESTS THAT THAT INTIMACY AND CONNECTION BETWEEN THOSE TWO CASES SUGGESTS SOMETHING. IS THAT A CONCERN?
MR. BOSTIC: I DON'T THINK SO, YOUR HONOR. I THINK THE CMS WITNESSES HAVE A RELATIONSHIP TO THIS CASE THAT DR. ROSENDORFF ALSO DOES AND THAT THEY BOTH HAVE RELEVANT INFORMATION TO SHARE ABOUT THERANOS. I DON'T THINK THAT LINKS THOSE WITNESSES TO DR. ROSENDORFF. HIS LINK TO THEM IS THROUGH THE REGULATORY ACTIVITIES THAT AREN'T TIED TO THIS CASE. I THINK LOOKING AT THE ABEL DECISION, IT'S CLEAR HOW FAR AFIELD WE ARE HERE FROM WHAT HAPPENED THERE. THERE WE'RE TALKING ABOUT A WITNESS BEING IN THE SAME GANG AS THE DEFENDANT AND A GANG THAT REQUIRES THEM TO LIE AND DO ANYTHING TO HELP EACH OTHER. THAT KIND OF THING OBVIOUSLY IS CRITICAL TO EXPLORE ON CROSS-EXAMINATION. THAT IS COMPETENT BIAS EVIDENCE. THIS, THIS -- THE RELATIONSHIP THAT DR. ROSENDORFF HAS WITH THE FEDERAL GOVERNMENT IS ONE THAT MANY PEOPLE HAVE WITH THE FEDERAL GOVERNMENT, ANYONE WHO HAS DEALINGS WITH THE I.R.S. OR OTHER BRANCHES OF THE NUMEROUS GOVERNMENT WHICH IS NOT MONOLITHIC, YOU COULD MAKE THE SAME KIND OF ARGUMENT FOR. I THINK THE CONNECTION IS JUST NOT STRONG ENOUGH HERE.
JUDGE DAVILA: OKAY.
MR. WADE: YOUR HONOR, IF I COULD JUST CLARIFY A FEW FACTS. THE WITNESS SAYS IN HIS INTERVIEW WITH THE GOVERNMENT ON UBIOME THAT HE WAS FIRED. OKAY? SO THERE'S NO AMBIGUITY AS TO THAT. HE SAID HE WAS FIRED IN STATEMENTS TO THE GOVERNMENT. SO -- AND HE WAS FIRED ESSENTIALLY PROBABLY BECAUSE, I BELIEVE HE SAID IN HIS INTERVIEW, BECAUSE HE WASN'T SHOWING UP AND HE WASN'T DISPATCHING HIS PROFESSIONAL OBLIGATIONS.
JUDGE DAVILA: MR. BOSTIC SUGGESTS THAT THERE WAS A HEALTH ISSUE.
MR. WADE: THERE WAS A HEALTH ISSUE WITH RESPECT TO ONE ABSENCE, BUT NOT WITH RESPECT TO OTHER ABSENCES.
JUDGE DAVILA: SO WHEN WE GO INTO THIS -- AND THIS IS WHAT 608(B) TEACHES -- THE REASON FOR 608(B) AND EXTRINSIC EVIDENCE, AS YOU KNOW, IS TO AVOID MINI TRIALS, TO AVOID GETTING INTO THESE OFF RAMPS THAT TALK ABOUT PERHAPS HELPFUL INFORMATION, BUT LIKE YOU JUST HEARD ABOUT UBIOME, THEIR PROBLEMS WERE NOT LAB PROBLEMS APPARENTLY, THEY WERE BILLING PROBLEMS AT A DIFFERENT LEVEL. THIS IS THE ISSUE WE COME INTO THEN. IT BECOMES A 403 TYPE OF ISSUE. SHOULD WE ALLOW -- SHOULD THE COURT ALLOW ADDITIONAL EVIDENCE IN TO CLEAR THE RECORD TO SHOW THAT, WELL, THERE WERE PROBLEMS THERE, HE WAS THERE, THE PROBLEMS WERE NOT IN THE LAB, THEY WERE BECAUSE OF SOME ALLEGED INCOMPETENCE OR ALLEGED THEFT IN THE BILLING THAT HE HAD NOTHING TO DO WITH. THAT'S A DIFFERENT -- I THINK YOU'LL AGREE, THAT'S A DIFFERENT CIRCUMSTANCE.
JUDGE DAVILA: OTHERWISE YOU'RE SAYING, WELL, HE'S A BAD GUY AND, YOU KNOW, BAD GUYS, THEY SEEM TO COLLECT TOGETHER.
MR. WADE: YOUR HONOR, WHAT I'M SAYING IS THAT BIAS IS NOT SOMETHING THAT THE, THAT THE COURT -- THAT THE GOVERNMENT GETS TO DECIDE, WELL, HE'S BIASSED OR HE'S NOT BIASSED. IT'S IN THE EYES OF THE WITNESS. I READ HIS GRAND JURY TESTIMONY AS TO THE CONCERNS THAT HE HAS ABOUT THE ABILITY TO PRACTICE IF THINGS ARE SHOWN TO BE DEFICIENT. HE KNOWS THAT HIS ABILITY TO PRACTICE IS CURRENTLY AT ISSUE AND IN THE HANDS OF THE FEDERAL GOVERNMENT. HE KNOWS THAT. HE KNOWS THAT THOSE PEOPLE ARE THE SAME PEOPLE INVOLVED IN THIS CASE. HE KNOWS THAT. AND SO -- BUT THERE'S A MORE FUNDAMENTAL BIAS, YOUR HONOR. THE GOVERNMENT JUST SAID THAT HE WASN'T A TARGET AND HE WASN'T CHARGED, BUT HE WAS -- HE WAS ALMOST CERTAINLY A SUBJECT, WHICH MEANS THAT HE WAS WITHIN THE ZONE OF DANGER WITHIN THAT AND HE GOES IN TO INTERVIEW WITH THE GOVERNMENT AND THE FACT THAT THEY DON'T CHARGE HIM IS MAYBE EVIDENCE OF WHY HE WANTS TO COOPERATE WITH THIS OFFICE. IT'S THE SAME U.S. ATTORNEY'S OFFICE, YOUR HONOR.
JUDGE DAVILA: HOW LONG AGO WAS THAT?
MR. BOSTIC: THE INTERVIEW, YOUR HONOR, WAS IN DECEMBER OF 2020. I BELIEVE THE CASE WAS CHARGED IN MARCH OF 2021. BUT THE INVESTIGATION BEGAN IN 2019, I BELIEVE. AND I CAN ALSO REPRESENT TO THE COURT THAT THE, THE GOVERNMENT TEAM INVESTIGATING UBIOME WAS WELL AWARE OF DR. ROSENDORFF'S INVOLVEMENT IN THAT CASE IN 2019, WELL IN ADVANCE OF HIS INTERVIEW IN 2020 WITH THE THERANOS TEAM. SO THERE WOULDN'T BE A POINT IN HIM TRYING TO CONCEAL THAT FACT FROM THE GOVERNMENT AT THAT TIME.
JUDGE DAVILA: IS THAT A CASE THAT IS IN THIS DISTRICT?
MR. BOSTIC: IT IS, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. WELL, WE'RE CLOSING IN ON 9:00 O'CLOCK. I APPRECIATE YOUR EMAIL LAST NIGHT, MR. WADE, SAYING THAT THESE ISSUES ARE NOT LIKELY TO COME UP IN THE MORNING SESSION.
MR. WADE: YEAH. YES, YOUR HONOR. I HAVE OTHER TOPICS THAT I CAN RAISE AND WE'RE HAPPY, WE'RE HAPPY TO DISCUSS THIS AT LUNCH. I WOULD NOTE, AGAIN, FOR THE COURT'S CONSIDERATION AND FOCUS, IN CONSIDERING THE TESTIMONY THAT HE OFFERED MANY TIMES OVER DEFENSE OBJECTION THAT WENT INTO HIS COMPETENCE, I THINK THAT'S AN INDEPENDENT BASIS AND UNDER 403 -- I DON'T THINK WE NEED TO GET INTO -- THE BIAS IS AN APPROPRIATE REASON TO INQUIRE. I THINK 608 IS AN APPROPRIATE REASON, BUT I THINK IT'S ACTUALLY -- GIVEN WHAT HE HAS TESTIFIED AS TO HIS COMPETENCE AND HIS BLAMING OTHER PEOPLE, I THINK 401 IS THE MOST STRAIGHTFORWARD ANALYSIS, AND IF THE GOVERNMENT THINKS THAT WE'VE REPRESENTED THESE THINGS UNFAIRLY, THEY CAN GO INTO IT AND STRAIGHTEN THOSE ISSUES OUT WITHIN REDIRECT. BUT I WILL SAY THAT WE DID PROVIDE THAT ARTICLE FOR THE COURT'S BENEFIT BECAUSE IT WAS EASILY DIGESTIBLE. THOSE EVENTS ARE NOT THE SUBJECT OF DISPUTE. THEY'RE ALSO IN S.E.C. FILINGS OF THE COMPANY WHERE THEY DISCLOSE ESSENTIALLY THE SAME FACTS.
JUDGE DAVILA: WELL, I SEE -- THANK YOU. FIRST OF ALL, I SEE SOME 403 ISSUES ABOUT GETTING INTO THIS, AND THERE ARE SOME 611 ISSUES AS TO THIS WITNESS AND WHAT SHOULD HAPPEN HERE. SOME OF THIS IS CUMULATIVE. HOW MUCH -- AND I'M JUST CURIOUS, WHAT IS IT YOU WANT TO DO? YOU TOLD ME YOU WANT TO RAISE ALL OF THESE ISSUES, BUT I DON'T THINK ALL OF THESE ISSUES NECESSARILY UNDER A 403 ANALYSIS, PARTICULARLY THE UBIOME ISSUE, I HAVE SOME QUALMS ABOUT THAT, AND I'LL LET YOU KNOW.
MR. WADE: ON THE UBIOME ISSUE, YOUR HONOR, I THINK WE CAN ADDRESS THAT WITHOUT GOING INTO THE FACT THAT HE ENGAGED WITH THE GOVERNMENT. I THINK THE FACT THAT -- THE FACT THAT HE CONCEALED THAT FROM HIS RESUME BECAUSE HE WAS FIRED FOR INCOMPETENCE I THINK IS A FAIR AVENUE OF INQUIRY.
JUDGE DAVILA: IS THERE A DOCUMENT THAT SAYS YOU ARE FIRED BECAUSE YOU'RE INCOMPETENT?
MR. WADE: THERE'S A DOCUMENT THAT SAYS THAT WE'VE DECIDED TO MAKE A CHANGE. IN HIS INTERVIEW REPORT WITH THE GOVERNMENT, HE SAYS HE WAS FIRED, AND I BELIEVE HE SAYS BECAUSE HE SUSPECTS BECAUSE HE WASN'T MEETING HIS PROFESSIONAL OBLIGATIONS.
JUDGE DAVILA: I DIDN'T HERE COMPETENCE IN ANY OF THAT.
JUDGE DAVILA: AND I HEARD THERE WERE SOME HEALTH ISSUES.
JUDGE DAVILA: THAT'S THE PROBLEM WITH THIS TYPE OF EVIDENCE. YOU TRY TO PARSE IT TOGETHER AND PUT IT TOGETHER. I THINK I UNDERSTAND WHAT YOU WANT TO DO. YOU TOLD ME HOW VALUABLE THIS EVIDENCE IS TO YOUR CASE AND I APPRECIATE THAT. SO I'LL HAVE TO LOOK AT THIS. I'VE JUST GOT THESE DOCUMENTS. I'LL LOOK AT THESE AND WE'LL HAVE SOME FURTHER DISCUSSION. I DO HAVE SOME CONCERNS ABOUT THE CUMULATIVE NATURE OF THIS AND HOW MUCH OF THIS IS GOING TO -- IF IT COMES IN AT ALL, WHAT I'LL ALLOW YOU TO INQUIRE ON. HIS COMPETENCY MIGHT BE AT ISSUE. I THINK THERE ARE REASONS TO PROBE SOMEBODY'S COMPETENCY. BUT HOW FAR YOU GO WITH THAT AND WHAT TYPE OF EXTRINSIC EVIDENCE THAT IS PERMITTED FOR THAT I THINK IS A REAL ISSUE HERE, AND I'M NOT CERTAIN THAT I WOULD PERMIT YOU TO RAISE ALL OF THESE ISSUES AS YOU'VE SAID. PERHAPS HE HAD ISSUES AFTER HIS EMPLOYMENT, AND IF YOU WANT TO SUGGEST THAT HE HAD SOME PROBLEMS AT THERANOS AND THAT THEY CONTINUED. I DON'T KNOW EXACTLY WHAT IT IS. I WANT TO LOOK AT THESE AND SEE. I DO HAVE SOME ISSUES ABOUT GOING INTO EVERYTHING THAT YOU'VE TALKED ABOUT THIS MORNING, MR. WADE. I THINK THAT'S A LITTLE TOO BROAD.
MR. WADE: AS I TOLD THE COURT I WOULD, WE BASICALLY PUT ALL OF OUR CARDS ON THE TABLE WITH THE GOVERNMENT AT THE APPROPRIATE TIME AND WE WANT TO GIVE THEM THE OPPORTUNITY TO RAISE THIS, BUT WE BELIEVE THESE ARE APPROPRIATE AVENUES FOR INQUIRY AND WE'RE HAPPY TO ANSWER ANY FURTHER QUESTIONS IF THE COURT HAS ANY AS IT GOES ALONG HERE.
MR. BOSTIC: LIKEWISE, YOUR HONOR. JUST FOR NOW, IN CASE IT'S HELPFUL TO THE COURT, I DO HAVE A CASE I WOULD LIKE TO BRING TO THE COURT'S ATTENTION. I HAVE PROVIDED THE DEFENSE WITH A COPY. IT'S UNITED STATES VERSUS CANDOLI. I HAVE A COPY HERE. IT'S A NINTH CIRCUIT, AND IT'S BEEN HIGHLIGHTED ON PAGE 8.
JUDGE DAVILA: THANK YOU.
MR. BOSTIC: IN ESSENCE, IT DEALS WITH THE COURT EXCLUDING EVIDENCE THAT WOULD GO TO BIAS BECAUSE IT WOULD BE DIVERSIONARY AND COLLATERAL.
JUDGE DAVILA: HOW FAR -- HOW MUCH LONGER DO YOU THINK YOU HAVE, MR. WADE, NOT INCLUDING THIS INFORMATION THAT WE'VE DISCUSSED?
MR. WADE: AS I BELIEVE I HAVE TOLD THE COURT, I HESITATE TO EVER MAKE SUCH REPRESENTATIONS BECAUSE I'M TERRIBLE AT PREDICTING. I WOULD THINK WE PROBABLY HAVE ABOUT THE MORNING BEFORE WE WOULD GET INTO THIS GENERAL AREA, AND THEN IN THE AFTERNOON I WOULD THINK SOMETIME, MAYBE THE LATER PART OF THE AFTERNOON WE WOULD GET INTO THIS. BUT I WOULD BE HAPPY TO UPDATE THE COURT ON HOW I'M DOING ON THE BREAK.
JUDGE DAVILA: ARE WE GOING TO BE FINISHED WITH THIS WITNESS THIS WEEK?
MR. WADE: IT WAS OUR HOPE, AS I TOLD COUNSEL, THAT WE WOULD PASS THE WITNESS AT SOME POINT IN THE AFTERNOON AND SOMETIMES --
JUDGE DAVILA: TODAY?
JUDGE DAVILA: SO DO I NEED TO -- I'M STARTING TO RETHINK. MAYBE WE NEED TO BE IN SESSION FRIDAY.
MR. WADE: I BELIEVE THIS WITNESS HAS LIMITATIONS IN TERMS OF HIS ABILITY TO BE HERE PAST WEDNESDAY, AND I BELIEVE WE CAN, WE CAN FINISH THIS WITNESS. MY UNDERSTANDING IS THAT THE GOVERNMENT MAYBE HAS --
JUDGE DAVILA: WELL, HE'S BEEN HERE FOR WHAT, THREE OR FOUR DAYS?
JUDGE DAVILA: SO MAYBE HE'S EAGER TO STAY. I DON'T KNOW.
MR. WADE: WE'VE BEEN ADVISED -- BOTH PARTIES HAVE BEEN ADVISED BY BOTH COUNSEL THAT HE HAS COMMITMENTS AND TOMORROW IS HIS LAST -- HE WOULD HAVE TO GO MEET THOSE OBLIGATIONS AFTER TOMORROW. I DON'T THINK THERE WILL BE ANY ISSUE CERTAINLY WITH COMPLETING HIM TOMORROW.
JUDGE DAVILA: FROM YOUR SIDE?
JUDGE DAVILA: THAT'S VERY GENEROUS FOR YOU TO GIVE HALF A DAY TO THE GOVERNMENT.
MR. WADE: I BELIEVE MR. BOSTIC SUGGESTED THERE HE THOUGHT -- AGAIN, UNDERSTANDING IT'S JUST AN ESTIMATE -- MAYBE 90 MINUTES IS WHAT WE DISCUSSED LAST NIGHT, BUT I DON'T WANT TO SPEAK FOR MR. BOSTIC.
MR. BOSTIC: THAT WAS MY BEST ESTIMATE AT THE TIME, YOUR HONOR. AS MR. WADE'S CROSS GOES ON, THE REDIRECT GETS A LITTLE LONGER, AS THE COURT MIGHT IMAGINE. BUT MY INTENTION IS TO HAVE A REDIRECT MUCH SHORTER THAN THE CROSS. AS TO THE WITNESS'S AVAILABILITY, I APOLOGIZE, BUT IT WASN'T CLEAR TO ME FROM THE EMAIL WHETHER HE WAS UNAVAILABLE AFTER WEDNESDAY OR SIMPLY UNAVAILABLE STARTING NEXT WEEK. MR. WADE MIGHT HAVE A SHARPER MEMORY OF THAT THAN I DO.
JUDGE DAVILA: SO, MR. WADE, SHOULD I KEEP YOU FRIDAY THEN TO DO OTHER WITNESSES BECAUSE WE NEED TO MOVE? SHOULD WE HAVE A SESSION ON FRIDAY TO CAPTURE SOME ADDITIONAL EVIDENCE?
MR. WADE: I DEFER TO THE COURT. I KNOW THAT THE SCHEDULE HAS BEEN OUT THERE, AND THE JURORS MAY HAVE MADE PLANS.
JUDGE DAVILA: YOU MAYBE HAVE MADE PLANS. MAYBE YOU'VE MADE PLANS.
JUDGE DAVILA: LET ME, LET ME, I DO WANT TO TURN MY ATTENTION TO ONE OTHER TOPIC WHICH IS VERY IMPORTANT AND SOMEWHAT TROUBLING. WE -- THAT IS, MY CHAMBERS -- MY CAREER CLERK RECEIVED A PHONE CALL YESTERDAY FROM AN INDIVIDUAL, DR. KRAL, K-R-A-L. SHE INFORMED MY CAREER CLERK -- SHE PHONED BECAUSE THE DOCTOR RECEIVED A CALL FROM A JOURNALIST, AND THE JOURNALIST TOLD THE DOCTOR THAT THERE WAS AN EXHIBIT, A DEFENSE EXHIBIT DX 12846 WHICH WAS SUBMITTED BY THE DEFENSE AND ADMITTED AT THEIR REQUEST, AND THIS DOCUMENT CONTAINED WAS NOT REDACTED. IT CONTAINED THE NAME OF THE PATIENT, AND THE DOCTOR INFORMED MY CAREER CLERK THAT THIS WAS CLEARLY A HIPAA VIOLATION. I DON'T KNOW WHO THE JOURNALIST WAS, I DON'T KNOW WHAT THE CONVERSATION WAS, BUT IT WAS A JOURNALIST WHO CONTACTED THE DOCTOR AND INFORMED HER OF THIS.
OUR STAFF, MY WONDERFUL CHAMBERS STAFF, IMMEDIATELY CONTACTED THE COMMUNICATIONS DIRECTOR IN CHARGE OF PRESS RELATIONS FOR THE COURT, THE NORTHERN DISTRICT, AND SAW THAT THAT EXHIBIT WAS TAKEN DOWN. I THINK WE CONTACTED YOUR FOLKS, MR. WADE. I'M NOT SURE IF THAT HAS HAPPENED YET, BUT WHAT WE WILL NEED TO DO IS FOR YOU TO SUBMIT A PROPERLY REDACTED EXHIBIT FOR THE RECORD SUCH THAT THERE IS NOT ANOTHER HIPAA VIOLATION OF A DISINTERESTED PARTY IN THIS PARTICULAR CASE. AND WHAT I AM GOING TO REQUIRE PARTIES TO DO IS TO SCREEN THOROUGHLY ANY EXHIBITS THAT ARE PLACED INTO EVIDENCE AND MAKE SURE AND ENSURE THAT THERE ARE APPROPRIATE AND PROPER REDACTIONS SUCH THAT A MEMBER OF THE PUBLIC DOES NOT HAVE FEAR THAT HIS OR HER PROPRIETARY AND PRIVATE HEALTH INFORMATION IS MADE PUBLIC IN A CASE. THAT'S WHAT HAPPENED HERE. OF COURSE THE DOCTOR WAS OF GREAT CONCERN FOR HER PATIENT AND SHE DID WHAT SHE FELT WAS APPROPRIATE. I DON'T KNOW WHO THE JOURNALIST WAS. I DON'T HAVE THAT INFORMATION. I DON'T KNOW. MY SENSE IS THAT THE JOURNALIST WILL RESPECT THE PRIVACY OF THIS PATIENT AND KEEP THAT CONFIDENTIAL, BUT I DON'T HAVE ANY CONTROL OVER THAT EITHER.
MR. WADE: YOUR HONOR, OBVIOUSLY WE -- THIS IS AN ISSUE THAT HAS COME UP A COUPLE OF TIMES DURING COURT. I KNOW I REPRESENT TO THE COURT WE ARE MAKING DILIGENT EFFORTS AS WE'RE MOVING QUICKLY WITH A LOT OF DOCUMENTS TO TRY TO DO THAT, BUT THAT'S NOT AN ACCEPTABLE RESULT AND WE WILL ADDRESS THAT IMMEDIATELY AND REDOUBLE OUR EFFORTS ON CONTROL. I KNOW THERE'S A DESIRE BY THE COURT TO TRY TO MAKE INFORMATION PUBLIC QUICKLY. MAYBE SEPARATELY WE CAN WORK WITH THE COURT AND JUST ALLOW US A LITTLE MORE TIME TO DO AN EXTRA LEVEL OF REVIEW GIVEN THE SENSITIVITY OF SOME OF THIS INFORMATION, GIVEN THAT IT'S GOING UP ONTO THE INTERNET AND JOURNALISTS ARE GOING THROUGH IT. MAYBE WE NEED TO MAKE IT -- TAKE ANOTHER DAY OR SO JUST TO DOUBLE-CHECK.
JUDGE DAVILA: WELL, THAT SHOULD BE DONE, SHOULDN'T IT, AT THE TIME THE EXHIBIT IS OFFERED? SHOULDN'T THE REDACTIONS BE ON THE DOCUMENTS?
MR. WADE: THEY ARE. AS THE COURT IS SEEING SOMETIMES WHEN THE DOCUMENT IS PUBLISHED, I BELIEVE BOTH PARTIES HAVE PUT UP DOCUMENTS AND THEY INADVERTENTLY INCLUDED THAT, AND SO THERE'S AN EFFORT ON THE BACK END TO MAKE SURE THAT THAT INFORMATION IS REMOVED.
JUDGE DAVILA: I KNOW DOCUMENTS HAVE COME UP ON MY SCREEN AND I'VE INTERRUPTED YOUR EXAMINATION TO SAY I THINK THERE'S SOME REDACTIONS. I'VE BEEN INFORMED THAT, WELL, JUDGE, YOU'RE SEEING THE UNREDACTED FORM, BUT THE DOCUMENT HAS ALREADY BEEN REDACTED AND THE JURORS AND THE PUBLIC ARE SEEING THE REDACTED FORM. SO I ASSUME THAT THAT CAN BE DONE AND I ASSUME THAT THAT HAS BEEN DONE ONGOING. I WAS QUITE SURPRISED, AS I'M SURE YOU WERE, TO HEAR ABOUT IT.
JUDGE DAVILA: WE CAN'T DO THIS. THIS IS A TRIAL THAT INVOLVES OBVIOUSLY A LOT OF EXHIBITS, AND PERSONAL EXHIBITS REGARDING HEALTH, PROPRIETARY INFORMATION OF INDIVIDUALS WHO ARE NOT CONNECTED TO THIS CASE OTHER THAN THEY HAPPEN TO HAVE HEALTH ISSUES THAT SOMEHOW CAME TO BE DURING THEIR CONTACT WITH EITHER THERANOS OR OTHER MEDICAL PROVIDERS, AND IT'S INAPPROPRIATE FOR THEIR PRIVACY TO BE INVADED LIKE THIS WHEN HIPAA GUARANTEES THAT IT WON'T BE. SO I DON'T HAVE TO REMIND YOU ABOUT THIS. WE JUST NEED TO EXERCISE MORE CAUTION.
JUDGE DAVILA: THE OTHER ISSUE THAT COMES UP -- WE'RE ALREADY PAST 9:00 O'CLOCK -- BUT THERE WAS A MEDIA COALITION THAT FILED A MOTION TO UNSEAL QUESTIONNAIRES OF THE JURY. WE HAD A HEARING LAST WEEK. I THINK REPRESENTATIVES OF THE GOVERNMENT, MR. CLINE WAS A PARTICIPATE ON BEHALF OF MS. HOLMES. AS A RESULT OF THAT HEARING, I INFORMED THE PARTIES TO THAT MOTION THAT I WOULD ENGAGE A CONVERSATION WITH THE JURORS AND SPEAK WITH EACH OF THEM PRIVATELY IN CHAMBERS, IN CAMERA, WITH A COURT REPORTER, OF COURSE, TO ASK THEIR OPINIONS ABOUT THE ISSUE OF UNSEALING. I'M GOING TO INFORM THE JURORS OF THIS JUST BEFORE OUR BREAK. I DON'T WANT TO TELL THEM THAT AS WE START. I WANT THEM TO BE FOCUSSED ON THE TESTIMONY AND EVIDENCE HERE. BUT JUST BEFORE OUR BREAK, WHAT I BELIEVE I'LL DO -- AND I'M THINKING I'LL DO THIS TODAY, BUT IN LIGHT OF ALL OF THESE OTHER ISSUES IT MAY HAVE TO WAIT UNTIL NEXT WEEK -- BUT WHAT I WANT TO DO IS TO PROVIDE THE JURORS WITH THEIR QUESTIONNAIRES TODAY, OR AT SOME POINT DURING OUR TRIAL, SO THEY CAN REVIEW THEM OVER THE BREAK. I WILL THEN ASK THEM AT THE END OF OUR SESSION WHETHER OR NOT ANY OF THEM WISH TO STAY. THEY CAN STAY AFTER OUR COURT TO TALK WITH ME. IF THEY PREFER TO TAKE THEIR QUESTIONNAIRE HOME, REVIEW IT, AND COME BACK THE NEXT DAY, WE CAN HAVE A CONVERSATION AND ACCOMMODATE THEM IN THAT REGARD ALSO. SO THAT MIGHT INTERRUPT SOME OF OUR COURT TIME. MR. WADE, DO YOU NEED A MOMENT?
JUDGE DAVILA: SURE.
MR. DOWNEY: JUDGE, I THINK IF THERE'S TO BE AN EXERCISE WHERE THE JURORS HAVE THAT CONVERSATION WITH YOUR HONOR, WE WOULD BE INCLINED TO WAIVE THE PRESENCE OF THE DEFENDANT PERSONALLY FOR THAT. BUT I ASSUME -- WILL COUNSEL -- DOES THE COURT INTEND TO HAVE ONE COUNSEL FROM EACH SIDE PRESENT?
JUDGE DAVILA: NO.
MR. DOWNEY: I THINK UNDER RULE 24 THAT WOULD BE APPROPRIATE, SO WE WOULD REQUEST THAT COUNSEL HAVE THE OPPORTUNITY TO BE PRESENT.
JUDGE DAVILA: MY, MY INTENT WAS TO HAVE, AS I SAID AT THE MOTION, WAS TO HAVE AN INDIVIDUAL IN CAMERA CONVERSATION WITH EACH JUROR WITHOUT COUNSEL. WE'LL HAVE A REPORTER THERE THAT WILL REPORT MY QUESTIONS. I'M GOING TO ENDEAVOR TO ASK EACH JUROR THE SAME QUESTIONS. I'M NOT GOING TO DEVIATE FROM THAT. BUT MY SENSE IS THAT THIS IS AN ISSUE THAT IS COLLATERAL TO THE TRIAL -- THAT IS, THE EVIDENCE OF THE TRIAL -- AND IT INVOLVES THEIR QUESTIONNAIRES AND THE PRESS DESIRE TO HAVE ACCESS TO THOSE QUESTIONNAIRES. YOU HAVE ALREADY -- YOU AND THE GOVERNMENT HAVE ALREADY BEEN PARTICIPANTS IN THE VOIR DIRE PROCESS, OF COURSE, SO YOU'VE HAD AN OPPORTUNITY TO ASK THOSE QUESTIONS. THIS IS RELATED -- THIS ISSUE RELATES TO WHETHER OR NOT AND UNDER WHAT CIRCUMSTANCES THAT INFORMATION IN THOSE QUESTIONNAIRES WOULD BE PROVIDED. AS I SAID IN THE MOTION, AT THE MOTION, THE COURT INTENDS TO INVITE EACH JUROR IN, IN CAMERA WITH ME, AND I MAY HAVE A LAW CLERK THERE AS WELL, AND I'M GOING TO ASK THEM THE QUESTIONS. IN ESSENCE, I'M GOING TO ASK THEM THEIR FEELINGS ABOUT THE RECENT INFORMATION AND THEIR CONCERNS WITH ANY PRIVATE INFORMATION, AND THAT'S WHAT I INTEND TO DO. I DON'T THINK COUNSEL NEEDS TO BE PRESENT FOR THAT. IT'S NOT GOING TO BE AN EXAMINATION. THEY'RE NOT GOING TO BE PUT UNDER OATH. I'M NOT GOING TO ADMINISTER AN OATH TO THEM. I'LL ASK THEM THEIR FEELINGS. WE'LL HAVE A TRANSCRIPT OF IT AND COUNSEL MAY BE ABLE TO REVIEW THE TRANSCRIPT IF THEY WISH. BUT THE TRANSCRIPT, LET ME JUST SAY, WILL OTHERWISE BE SEALED PENDING RESOLUTION OF THE ISSUE. BUT THAT'S WHAT I TOLD THE LAWYER FOR THE MOTION. I ALSO INTEND TO IDENTIFY THE MEMBERS OF THE MEDIA COALITION TO THE JURORS AND THE MOVING PARTIES SO THEY HAVE THAT INFORMATION AS WELL.
MR. DOWNEY: WELL, I AGREE WITH THE COURT, IT'S A SENSITIVE PROCESS, AND MY PROPOSAL TO SIMPLY HAVE ONE COUNSEL PRESENT I THINK REFLECTS THAT. BUT WITH RESPECT, YOUR HONOR, I DON'T THINK THAT IT'S COLLATERAL TO THE TRIAL AND WE WOULD ASSERT OUR RIGHT TO HAVE AT LEAST COUNSEL PRESENT FOR THAT TYPE OF A DIALOGUE WHERE ISSUES AFFECTING THE TRIAL MAY BE RAISED BY THE JURORS. SO I UNDERSTAND YOUR HONOR'S INTENDED APPROACH, BUT WOULD OBJECT TO THE COLLOQUY HAPPENING OUTSIDE OF THE PRESENCE OF COUNSEL.
JUDGE DAVILA: AND MY THOUGHT ON THAT IS THAT HAVING COUNSEL PRESENT WOULD SERVE A CONTRADICTORY PURPOSE FOR THE INTERVIEW. MY SENSE IS THAT IT WOULD BE INTIMIDATING TO HAVE COUNSEL PRESENT WHEN I ASK THEM THOSE QUESTIONS, AND I WANT THE JURORS TO NOT BE INTIMIDATED OR FEEL UNDUE PRESSURE ABOUT THIS. THIS IS A QUESTION ABOUT THE QUESTIONNAIRES. MY SENSE IS THAT THE CONVERSATION WILL BE THEIR COMFORT LEVEL IN ALLOWING ANY INFORMATION TO BE REVEALED. I'M NOT GOING TO ASK THEM ABOUT THEIR THOUGHTS ABOUT THE CASE. I'M NOT GOING TO ASK THEM ABOUT THE EVIDENCE IN THE CASE AT ALL. THAT'S INAPPROPRIATE. IT'S INAPPROPRIATE, AND I DON'T INTEND TO DO THAT. AGAIN, MY INTENT IS TO ASK THEM QUESTIONS JUST ABOUT THIS QUESTIONNAIRE AND THAT'S IT. IF YOU WANT TO BE PRESENT, I'LL ASK THE GOVERNMENT IF THEY WANT TO BE PRESENT, THEN MAYBE WE WILL HAVE TO COME FRIDAY TO TAKE CARE OF THIS.
MR. DOWNEY: THAT WOULD BE FINE, YOUR HONOR.
JUDGE DAVILA: WE'LL HAVE TO DO THIS ON SOME OTHER DAY.
MR. DOWNEY: YEAH.
MR. LEACH: YOUR HONOR.
MR. BOSTIC: YOUR HONOR, FOR THE GOVERNMENT, I THINK WE DEFER TO THE COURT ON WHETHER COUNSEL'S PRESENCE IS NECESSARY. I THINK THE COURT'S POINT ABOUT FACILITATING THAT WITH THE JURORS IS WELL TAKEN AND SO WE DEFER TO THE COURT ON THAT. WE WILL MAKE OURSELVES AVAILABLE AT ANOTHER TIME IF THE COURT DECIDES TO PROCEED WITH COUNSEL PRESENT.
MR. DOWNEY: I WELL UNDERSTAND YOUR HONOR'S INTENT AND I THINK THE NATURE OF THE EXERCISE -- I THINK YOUR HONOR'S QUESTIONS WILL BE ALONG THE LINES THAT YOU'VE DESCRIBED. BUT THE NATURE OF THE EXERCISE IS A DIALOGUE AND WE DON'T KNOW WHAT WILL RESULT FROM THAT DIALOGUE. THAT'S WHAT ANIMATES MY QUESTION.
JUDGE DAVILA: SO WHAT WOULD HAPPEN IF WE'RE IN THERE AND IF I SAY, COME ON IN, AND I'D LIKE YOU TO JOIN ME, WHAT WILL YOU DO? IF YOU HAVE A CONCERN ABOUT A QUESTION, YOU'LL OBJECT AND YOU WOULD LIKE TO RAISE AN OBJECTION IN FRONT OF THE JURORS? IS THAT WHAT YOU WANT TO DO, MR. DOWNEY?
MR. DOWNEY: WELL, NO. BUT I THINK THE REACTIONS OF JURORS IN AN ONGOING TRIAL TO THEIR INFORMATION THAT THEY WERE TOLD WOULD BE CONFIDENTIAL BEING UNSEALED MAY AFFECT THEIR ATTITUDES IN A NUMBER OF WAYS. I DON'T KNOW THAT WE WOULD NEED TO QUESTION THEM, BUT I THINK WE HAVE A RIGHT TO BE PRESENT AT LEAST AND OBSERVE. IF ISSUES COME UP THAT WE WANTED TO ADDRESS WITH YOUR HONOR, WE WOULD PROBABLY DO IT WITHOUT THAT JUROR PRESENT AND PREVIEW TO YOUR HONOR ANYTHING THAT WE THOUGHT NECESSITATED THAT INQUIRY. SO I DON'T WANT TO -- IT'S NOT TO OUR ADVANTAGE TO MAKE THE JURORS UNCOMFORTABLE. BUT IT IS, I THINK, NECESSARY TO OBSERVE THE DIALOGUE WHEN IT'S IN PROCESS.
JUDGE DAVILA: I SEE. SO IF I WERE TO ENGAGE JURORS IN THIS COURTROOM AND TREAT THIS COURTROOM AS MY CHAMBERS, THAT IS, SEAL THE COURTROOM, AND INVITE THE JURORS IN, AND YOU AND THE GOVERNMENT WERE INVITED TO MY CHAMBERS AND I EXTENDED MY CHAMBERS TO THE VIEWING ROOM THAT WE HAVE AND YOU COULD WATCH IT ON A CLOSED CIRCUIT T.V., WOULD THAT SUFFICE FOR YOU?
MR. DOWNEY: WELL, YOUR HONOR, IT REALLY DEPENDS. IT SEEMS TO ME THAT WHAT I'M SUGGESTING WITH ONE COUNSEL BEING PRESENT IS MINIMALLY INVASIVE, AS WELL AS I THINK DEFERRING ANY ISSUES THAT COME UP SO THE JUROR IS NOT IN THE PROCESS OF BEING QUESTIONED. I THINK IT ELIMINATES THE CONCERN THAT THE COURT HAS. FUNDAMENTALLY, I THINK OUR DISAGREEMENT IS I DON'T AGREE THAT THIS IS COLLATERAL TO THE TRIAL. I THINK THAT'S THE ISSUE, AND I THINK FOR DEFENSE COUNSEL TO ABSENT ITSELF JUST IS NOT AN APPROPRIATE DISCHARGE OF COUNSEL'S DUTY.
JUDGE DAVILA: SO WHAT I HEAR YOU SAYING IS THAT THE TRANSCRIPT, YOUR OPINION IS THE TRANSCRIPT IS NOT SUFFICIENT FOR THAT PURPOSE?
MR. DOWNEY: THAT'S CORRECT, YOUR HONOR.
JUDGE DAVILA: AND WHAT ABOUT YOUR PARTICIPATION VIA VIDEO, WATCHING THE PROCEEDINGS VIA VIDEO?
MR. DOWNEY: GENERALLY THAT'S NOT APPROPRIATE, YOUR HONOR, AND I WOULDN'T WANT TO CONSENT TO THAT. BUT OBVIOUSLY IT'S BETTER THAN NOT BEING PRESENT. WE WOULDN'T HAVE THE OPPORTUNITY, I THINK, IN THE WAY THAT IS NORMAL TO OBSERVE THOSE INTERACTIONS, AND I DON'T THINK -- I'M NOT INSULTED THAT YOU THINK THAT MR. SCHENK AND I WOULD BE INTIMIDATING, BUT I DON'T THINK IT'S INTIMIDATING TO THE JURORS.
JUDGE DAVILA: WELL, YOU KNOW, A COUPLE OF BLUE SUITS NEXT TO THEM SITTING AND LOOKING AT THEM IN A JUDGE'S CHAMBERS, WHAT COULD BE INTIMIDATING ABOUT THAT? ALL RIGHT. WELL, WE SHOULD GET OUR JURY AND GET STARTED WITH THE EVIDENCE.
MR. DOWNEY: THANK YOU.
JUDGE DAVILA: THANK YOU, YOUR HONOR.
(RECESS FROM 9:16 A.M. UNTIL 9:24 A.M.)
(JURY IN AT 9:24 A.M.)