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Elizabeth Holmes- Case Archive
Federal Criminal Trialtrial-daytrial-dayRobert S. LeachJeff SchenkKevin M. DowneySteven BurdWade MiquelondirectcrossredirectrecrossDay 17 - October 12, 2021Steven Burd described Safeway’s extensive preparations, laboratory problems, repeated delays, and unrealized Theranos rollout, while the defense emphasized Safeway’s diligence and contractual protections. Wade Miquelon then outlined the testing capabilities and validation materials Walgreens understood to support its partnership. The court also addressed juror-questionnaire disclosure procedures and limited renovation-cost evidence.
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Day 17 - October 12, 2021

Safeway Rollout Delays, Juror Questionnaires, and Walgreens Expectations

Judge Edward J. Davila
5Proceedings
3Pages
2Witnesses
2,127Lines
Day 17 of 51
Appearing:
Robert S. Leach Jeff Schenk Kevin M. Downey Steven Burd Wade Miquelon

Steven Burd described Safeway’s extensive preparations, laboratory problems, repeated delays, and unrealized Theranos rollout, while the defense emphasized Safeway’s diligence and contractual protections. Wade Miquelon then outlined the testing capabilities and validation materials Walgreens understood to support its partnership. The court also addressed juror-questionnaire disclosure procedures and limited renovation-cost evidence.

Full day summary

Before the jury entered, counsel disputed whether the defense could observe the judge’s planned conversations with jurors about possible disclosure of questionnaire information. The court later gave jurors a private review process and offered individual recorded conversations before deciding what, if anything, would be disclosed; the record contains no express final ruling on counsel’s attendance, and the day ended with sealed proceedings whose substance is not available. The court separately barred evidence of Safeway’s total store-renovation cost while permitting testimony about the nature and extent of its preparations. Former Safeway CEO Steven Burd testified that Safeway prepared nearly all 969 stores in its first rollout phase while expecting Theranos devices to provide broad testing and rapid in-store results. He described lost or improperly handled samples, nonsensical results, repeated delays, limited explanations, and a pilot that never occurred. On cross-examination, the defense emphasized Safeway’s extensive diligence, sophisticated advisers, commercial incentives, contractual protections, and the absence of a fixed launch deadline. Burd maintained that Johns Hopkins had lacked enough time with the analyzer to validate it, that he was not told the delays reflected a device problem, and that Safeway never achieved the intended public rollout. Walgreens’ former chief financial officer Wade Miquelon then testified that Theranos presented comprehensive fingerstick testing, rapid point-of-care results, lower costs, and performance of roughly 90 to 95 percent of conventional laboratory tests on Theranos devices. He said purported pharmaceutical-company reports were important to Walgreens’ assessment and distinguished speculative future testing from the capabilities on which Walgreens based its partnership interest.

1. Juror Questionnaire Disclosure and Safeway-Cost Evidence Hearings

Before Steven Burd's direct examination resumed, the court addressed scheduling, juror questionnaire disclosure procedures, and the permissible scope of Safeway renovation evidence.

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Procedural
Opening Appearances and Trial Scheduling

The court confirmed appearances and reviewed witness timing for the trial day.

Procedural
Juror Questionnaire Disclosure Procedure Hearing

Defense counsel sought to observe the judge's discussions with jurors about questionnaire disclosure, prompting debate over Rule 43, confidentiality, juror candor, and possible effects on deliberations.

Procedural
Safeway Renovation-Cost Evidence Hearing and Ruling

The court excluded Safeway's total renovation-cost figure but allowed evidence about substantial store changes, rollout preparations, and the number of renovated stores.

Procedural
Juror Questionnaire Disclosure Logistics

The court outlined how jurors could review their questionnaires and clarified that the forms included geographic locations but not addresses.

Highlights

Juror Questionnaire Disclosure Procedure HearingconfrontationDefense counsel invoked Rule 43 and due process in seeking to observe the judge's discussions with jurors, while the prosecution argued that no constitutional right applied and that the procedural question was less clear.Safeway Renovation-Cost Evidence Hearing and RulingrulingThe court barred the total dollar amount but permitted examination about the types and substantial nature of Safeway's store changes, its rollout plans, and the number of renovated stores.Safeway Renovation-Cost Evidence Hearing and Ruling“THE NUMBER -- I'M NOT GOING TO ALLOW YOU TO GET THE NUMBER IN, THE 300, 400, THAT TYPE OF THING.”— Edward J. DavilaCaptures the central limitation in the court's evidentiary ruling: Safeway's renovation activity could be explored, but its total cost could not be presented.

2. Steven Burd — Direct/Cross/Redirect/Recross (Continued)

Steven Burd completed direct, cross, redirect, and brief recross testimony about Safeway's Theranos partnership, expected in-store testing, due diligence, delays, and operational problems.

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Direct
Steven BurdRobert S. Leach
320 lines

Steven Burd described extensive Safeway preparations for a Theranos rollout, persistent problems at the on-campus laboratory, repeated unexplained delays, and an unmet pilot condition tied to a proposed $25 million payment. He said no Theranos mini-lab reached a Safeway store during his tenure.

Cross
Steven BurdKevin M. Downey
1177 lines

Defense counsel used Safeway's extensive due diligence, commercial incentives, and contractual safeguards to challenge the nature of its reliance on Theranos. Burd agreed that Safeway understood significant startup and regulatory risks but maintained that key analyzer capabilities were never validated and that no technology problem with the device was disclosed to him.

Redirect
Steven BurdRobert S. Leach
144 lines

Steven Burd reaffirmed Safeway's reliance on representations about Theranos's maturity, finances, device capabilities, and regulatory progress. He said no Walgreens, laboratory, or device problem was given to him as the reason for the December 2012 delays and clarified that Safeway's $275 million figure concerned store remodeling, not payment to Theranos.

Recross
Steven BurdKevin M. Downey
70 lines

Steven Burd distinguished centralized processing of fingerstick samples from Safeway's expected in-store, 20-to-30-minute model and acknowledged that he no longer remembered the conversation that prompted the email under examination.

Highlights

Steven Burd — Directtestimony highlightBurd testified that Safeway had planned construction for all 969 first-phase stores and completed construction at 98 percent of them while preparing for the Theranos rollout.Steven Burd — Directtestimony highlightBurd described lost samples, improperly controlled sample temperatures, nonsensical results, and unpredictable turnaround times at the Safeway on-campus laboratory.Steven Burd — Direct“WE HAD SAMPLES WHERE TEMPERATURE WAS NOT PROPERLY CONTROLLED, WE HAD SAMPLES THAT WERE LOST, WE HAD RESULTS THAT DIDN'T MAKE ANY SENSE.”— Steven BurdBurd identified specific operational problems underlying his concern about the on-campus laboratory's reputation.Steven Burd — DirectadmissionBurd testified that, to his knowledge, Theranos never placed a mini-lab in a Safeway store and Safeway never successfully offered Theranos testing to nonemployees and their families.Steven Burd — Crosstestimony highlightBurd testified that a Johns Hopkins laboratory director said Theranos had removed its analyzer before Hopkins had enough time to validate whether it could perform as represented.Steven Burd — Cross“WHAT THEY SAID WAS THAT WE DIDN'T HAVE THE BOX HERE LONG ENOUGH TO VALIDATE IT THE WAY WE WOULD LIKE. IN OTHER WORDS, THE BOX WAS TAKEN BACK BY THERANOS. AND THE LAB DIRECTOR SAID, LOOK, IF THEY CAN DO THIS, IT'S A GAME CHANGER, BUT I CAN'T VALIDATE FOR YOU THAT THEY'VE DONE IT. I DIDN'T HAVE ENOUGH TIME WITH THE BOX.”— Steven BurdThe testimony identifies a contemporaneous limitation on the scientific validation available to Safeway despite the perceived potential of the technology.Steven Burd — Crossjury eventDuring the break, the court told jurors about the Media Coalition's motion concerning their questionnaires, provided a private-review process, and explained that individual recorded conversations with the judge would be available before any decision about disclosure.Steven Burd — Redirecttestimony highlightBurd explained that he initially understood the reported CLIA milestone as approval relating to the device and all its assays, but later learned that understanding was incorrect.

3. Wade Miquelon — Direct

Wade Miquelon's direct examination addressed Walgreens' evaluation of Theranos and the benefits it associated with the proposed testing service. After the jury left, the court held sealed proceedings in chambers concerning juror questionnaires.

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Direct
Wade MiquelonJeff Schenk
349 lines

Wade Miquelon described the Theranos capabilities and validation materials that drove Walgreens' partnership interest, including expected fingerstick testing, rapid results, broad test coverage, and lower-cost retail laboratory operations.

Procedural
Sealed In-Camera Juror Questionnaire Proceedings

After the jury left, the court arranged for one counsel representative to return to chambers; following a brief recess, sealed proceedings occurred there.

Highlights

Wade Miquelon — Directtestimony highlightMiquelon said Walgreens understood that roughly 90 to 95 percent of conventional laboratory tests would be performed on Theranos devices, with only a small minority handled in a laboratory setting.Wade Miquelon — Directevidence eventThe court admitted Government Exhibit 291, and Miquelon explained that the three purported pharmaceutical-company reports were an important part of Walgreens' assessment of Theranos's technology.Wade Miquelon — Direct“RIGHT. THOSE FUTURE BASED TESTS, THOSE VERSION 3 I WOULD SAY, AGAIN, I THINK THOSE WERE ALWAYS PRESENTED AS A POSSIBILITY DOWN THE ROAD. SO THAT WASN'T THE BASIS FOR OUR PARTNERSHIP.”— Wade MiquelonMiquelon separated speculative future testing from the capabilities on which Walgreens based its partnership interest.
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