Juror Questionnaire Disclosure and Safeway-Cost Evidence Hearings
62 linesSAN JOSE, CALIFORNIA OCTOBER 12, 2021 P R O C E E D I N G S
(COURT CONVENED AT 8:35 A.M.)
(JURY OUT AT 8:35 A.M.)
JUDGE DAVILA: LET'S GO ON THE RECORD IN THE HOLMES MATTER. LET ME JUST CAPTURE THE APPEARANCES OF THE PARTIES, PLEASE, ONCE AGAIN. WHO APPEARS FOR THE GOVERNMENT?
MR. LEACH: GOOD MORNING, YOUR HONOR. ROBERT LEACH, JEFF SCHENK, JOHN BOSTIC, AND KELLY VOLKAR FOR THE UNITED STATES.
JUDGE DAVILA: THANK YOU. GOOD MORNING. AND FOR THE DEFENSE?
MR. DOWNEY: GOOD MORNING, YOUR HONOR. KEVIN DOWNEY, LANCE WADE, KATIE TREFZ, AND ANDREW LEMENS FROM WILLIAMS & CONNOLLY FOR MS. HOLMES, AND OUR COCOUNSEL JOHN CLINE IS PRESENT, AND SO IS MS. HOLMES.
JUDGE DAVILA: THANK YOU. GOOD MORNING. I WANTED TO TOUCH BASE ABOUT THIS WEEK'S PROCEEDINGS. WE HAVE ONE WITNESS ON THE STAND, AND IF I RECALL CORRECTLY ABOUT THE TIME ESTIMATE, YOU HAVE ABOUT ANOTHER HOUR OR SO, MR. LEACH?
MR. LEACH: YES, THAT'S RIGHT.
JUDGE DAVILA: OKAY. AND THEN YOUR CROSS?
MR. DOWNEY: YOUR HONOR, I THOUGHT WE WOULD PROBABLY BE TO SORT OF MID TO LATE AFTERNOON, SO I ADVISED MR. LEACH TO HAVE ANOTHER WITNESS AVAILABLE.
JUDGE DAVILA: GREAT. OKAY. THANK YOU. AS FAR AS SCHEDULING, I WOULD LIKE TO GO UNTIL 3:00 TODAY IF WE COULD. I'LL ASK THE JURY THAT, AND PERHAPS AS WELL TOMORROW, MAYBE 4:00 O'CLOCK TOMORROW IF WE CAN. FRIDAY WE'LL HAVE TO END AT 1:00 O'CLOCK, 1:00 O'CLOCK ON FRIDAY. SO I'LL INFORM OUR JURY OF THAT SCHEDULE. ALSO, YOU RECALL THERE WAS AN ANCILLARY MOTION REGARDING THE QUESTIONNAIRES THAT WE HAD TALKED ABOUT, AND I INDICATED THAT I WOULD LIKE TO MEET WITH THE JURORS AND TALK WITH THEM IN MY CHAMBERS. YOU HAVE HAD THE WEEKEND TO THINK ABOUT THAT PROCESS. LET ME ASK, MR. DOWNEY, WHAT IS YOUR POSITION ABOUT WHETHER OR NOT YOU OR A MEMBER OF YOUR TEAM WOULD LIKE TO JOIN IN NOT THE CONVERSATION, BUT JUST TO BE PRESENT?
MR. DOWNEY: YOUR HONOR, AS I'VE SAID LAST WEEK, I THINK WE WOULD LIKE TO BE PRESENT. OUR VIEW IS THAT UNDER RULE 43 AND INDEED UNDER THE DUE PROCESS CLAUSE, IT'S AN ELEMENT OF TRIAL FOR WHICH DEFENSE COUNSEL SHOULD BE PRESENT.
JUDGE DAVILA: OKAY.
MR. SCHENK: GOOD MORNING, YOUR HONOR. I'VE LOOKED AT CASES BETWEEN OUR LAST CONVERSATION AND THIS MORNING AND I WOULD BE HAPPY TO SEND THEM TO THE COURT OR PROVIDE THEM TO THE DEFENSE. MY UNDERSTANDING IS THAT THERE'S NOT A TON OF CASE LAW ON THIS ISSUE. THERE IS NO CONSTITUTIONAL RIGHT. I THINK THE CASE LAW IS PRETTY CLEAR ON THAT. UNDER THE RULES OF PROCEDURE, THOUGH, I THINK THE QUESTION IS A LITTLE BIT LESS CLEAR. I THINK THAT WHEN THE JURY HAS NOT YET BEEN IMPANELED, THE CASE LAW INSTRUCTS US THAT MS. HOLMES HAS A RIGHT TO BE PRESENT. I DON'T, THOUGH, THINK THAT THAT RIGHT IS THE SAME ONCE THE JURY HAS BEEN SEATED, AND TO ENTERTAIN A MOTION OR A MATTER LIKE THIS ONE, WHICH IS ANCILLARY TO THE SPECIFIC TRIAL PROCEEDING. IN FACT, THE COURT COULD CERTAINLY HAVE THIS DIALOGUE AT THE END OF THE TRIAL WITH THE JURORS TO ASK THEM HOW THEY FEEL ABOUT THE RELEASE OF CERTAIN INFORMATION IN THEIR QUESTIONNAIRES, AND I DON'T THINK ANYBODY WOULD BE ARGUING TO THE COURT THAT THE DEFENDANT HAS A RIGHT TO BE PRESENT AT THAT STAGE. AND I'M NOT SURE THAT THE ANALYSIS CHANGES ALL THAT MUCH, BECAUSE THE CONVERSATION IS THE SAME. THE COURT'S CONVERSATION WITH THESE JURORS WOULD BE IDENTICAL IF IT HAD IT TODAY OR IF IT HAD IT POST-TRIAL, AND I THINK IT WOULD BE FINE FOR THE COURT TO HAVE THAT CONVERSATION WITH JURORS WITHOUT THE PRESENCE OF THE DEFENDANT, THOUGH I WANT TO ANNOUNCE FOR THE COURT, I THINK THE CASE LAW IS A LITTLE BIT UNCLEAR OR MAYBE LESS THAN COMPLETELY DECIDED IN THE CIRCUIT. AND, AGAIN, I'LL BE HAPPY TO PROVIDE THE CASES THAT I'VE LOOKED AT TO COME TO THAT CONCLUSION.
JUDGE DAVILA: WELL, THANK YOU. THAT WAS MY INITIAL ANALYSIS AS WELL, AND THAT'S WHAT I WAS TALKING ABOUT LAST WEEK, MR. DOWNEY. I KNOW YOU TALK ABOUT DUE PROCESS, AND I'M NOT CERTAIN I'VE SEEN IT, AND MAYBE YOU CAN EDUCATE ME IN A WAY. THE TRIAL HAS BEGUN AND THE JURORS ARE HERE. THIS IS TOUCHING ON NOT AN EVIDENTIARY MATTER THAT THE JURY WOULD RECEIVE AND OTHERWISE CONSIDER IN THEIR DELIBERATIONS, BUT IT'S MORE FUNCTIONALLY WITH THE COURT AND PERSONAL TO THEM AS TO QUESTIONNAIRES AND INFORMATION THAT MIGHT OR MIGHT NOT BE RELEASED PURSUANT TO THE SECONDARY MOTION THAT IS NOT PART OF OUR TRIAL OTHER THAN IT'S THE MEDIA COALITION, I THINK, DESIRE'S TO GAIN INFORMATION ABOUT OUR JURY BASED ON THE ANSWER TO THE QUESTIONNAIRES. SO, AGAIN, I, I AM NOT CERTAIN I SEE THE DUE PROCESS, IT RISES TO A DUE PROCESS ISSUE. I'M HAPPY TO RECEIVE SOMETHING FROM YOU IF YOU WOULD LIKE TO PRESENT SOMETHING TO ME, ALTHOUGH I THOUGHT WE SHOULD GET THE ISSUE RESOLVED SOMEHOW.
I EXPRESSED TO YOU LAST WEEK MY INITIAL RETICENCE ABOUT HAVING COUNSEL PRESENT, AND IT'S NOT LIKE I DON'T WANT COUNSEL PRESENT, I ENJOY COUNSEL, BUT FOR THIS PURPOSE I DIDN'T WANT TO OTHERWISE OFFER ANY INTIMIDATION FOR OUR JURY IN THIS QUESTIONNAIRE. I'M TRYING TO THINK IF I HAD YOU OR A REPRESENTATIVE OF YOUR TEAM, IT WOULD BE ONE FROM EACH TEAM BACK IN MY OFFICE. I SUPPOSE I CAN SEAT EACH OF YOU COMFORTABLY IN THE CORNER AND HAVE THEIR BACKS TO YOU, AND I DON'T KNOW IF ANY OF YOU WOULD OBJECT TO THAT. AND I DON'T MEAN TO BE FLIP, I JUST DON'T WANT THE JURORS TO BE OTHERWISE IN DISCOMFORT SUCH THAT THEIR RESPONSES TO MY QUESTIONS WOULD BE LESS THAN CANDID AND THEY MIGHT OTHERWISE BE INTIMIDATED FOR THE PURPOSE. I ALSO DON'T WANT TO IN ANY WAY AFFECT THEIR JUDGMENT. I SEE THEM AS TWO SEPARATE ISSUES. THEY WILL SOON BE DELIBERATING THIS CASE AND TO HAVE CONTACT WITH COUNSEL IN THE INTIMACY OF THE JUDGE'S CHAMBERS WHILE THE CASE IS BEING TRIED IS SOMETHING THAT CAUSES ME CONCERN AS WELL. I KNOW YOU WON'T BE PARTICIPANTS OF THE CONVERSATION, THAT IS, I'M NOT GOING TO PERMIT YOU TO SPEAK TO THE JURORS. YOU'RE THERE TO WITNESS. BUT, AGAIN, I'M CONCERNED A LITTLE BIT ABOUT UNTOWARD CONTACT WITH OUR JURORS IN THAT RESPECT ALSO. THOSE ARE THE THINGS THAT I'M THINKING ABOUT FOR YOUR BENEFIT. I DON'T WANT THAT TO INFLUENCE THEIR DELIBERATIVE PROCESS IN ANY WAY. ANYTHING YOU WOULD LIKE TO SAY, MR. DOWNEY?
MR. DOWNEY: NO, YOUR HONOR. I THINK REALLY ONLY TWO POINTS. I THINK SOME OF THE CONCERNS THAT THE COURT HAS ARE THE SAME CONCERNS THAT DEFENSE COUNSEL SHARES. WE'RE CONCERNED ABOUT ADDRESSING THE JURORS ON THIS MATTER PRIOR TO DELIBERATIONS AND, RESPECTFULLY, I THINK WE WOULD BE CONCERNED ABOUT COUNSEL HAVING A COLLOQUY WITH THEM ON THIS SUBJECT. BUT WE'RE ALSO CONCERNED ABOUT THE COURT HAVING A DIALOGUE WITH THEM, NOT BECAUSE THE COURT HAS ANY IMPROPER INTENT, BUT JUST BECAUSE THAT TYPE OF A DIALOGUE, AS I SAID LAST WEEK, IS UNPREDICTABLE AND CAN HAVE AN INFLUENCE ON THE DELIBERATIONS LATER THAT NONE OF US CAN SEE. SO I'M CONCERNED ABOUT THE PROCEDURE FOR THAT REASON, WHICH IS ONE OF THE REASONS THAT ANIMATES OUR REQUEST TO BE PRESENT. SO I DON'T FUNDAMENTALLY DISAGREE ABOUT THE DYNAMIC AND IT'S AWKWARDNESS, BUT IT'S JUST A QUESTION OF HOW WE CONDUCT IT AND THE ABILITY TO PROTECT MS. HOLMES'S RIGHTS. I THINK THE SECOND ISSUE ON WHICH I THINK WE HAD A DISAGREEMENT LAST WEEK, AND I DISAGREE WITH MR. SCHENK FOR THE SAME REASON, THE JURORS ARE ONLY HERE TO PARTICIPATE IN THIS PROCEEDING. THEY'RE NOT HERE IN AN ANCILLARY PROCEEDING. THEY WERE SUMMONED FOR THIS PROCEEDING. THE MEDIA COALITION INTERVENED IN THIS PROCEEDING. THIS IS NOT A MATTER THAT IS ANCILLARY TO THE TRIAL. THIS IS PART OF THE TRIAL, AND I THINK HAVING A DIALOGUE WITH THEM ABOUT IT PRIOR TO THE TIME THAT THEY DELIBERATE RUNS A LOT OF RISK.
JUDGE DAVILA: WELL, IT'S NOT PART OF THE TRIAL PROCESS IN THE SENSE THAT IT'S EVIDENTIARY. IT'S SEPARATE. I SEE IT AS A SEPARATE ISSUE. IT RELATES TO THEM, THE JURORS PERSONALLY, AS TO THEIR PERSONAL INFORMATION AND HOW MUCH, IF ANY, WILL BE RELEASED PURSUANT TO THE MOTION OF THE MEDIA COALITION. IT DOESN'T HAVE ANYTHING TO DO WITH THE EVIDENCE THAT IS COMING IN IN THIS CASE OR ANYTHING ABOUT THEIR THOUGHT PROCESS IN THAT REGARD. IT RELATES TO THEM PERSONALLY AS I SAID WITH THIS PERSONAL INFORMATION. I SEE IT -- IT'S IN THE SAME TRIAL, BUT I DO THINK IT'S A SEPARATE ISSUE IN AND OF ITSELF. ALL RIGHT. WELL, AND DO YOU HAVE A -- I DIDN'T ASK YOU TO DO THIS, BUT LET ME ASK YOU, DO YOU HAVE THOUGHTS ABOUT -- YOU'RE CONCERNED ABOUT THE CONVERSATION THAT THE COURT HAS. DO YOU WANT TO OFFER A SCRIPT? DO YOU HAVE A SCRIPT TO OFFER THE COURT FOR THIS PURPOSE?
MR. DOWNEY: I DON'T. I'M SURE YOUR HONOR HAS A SCRIPT IN MIND. I'D BE HAPPY TO RECEIVE IT FROM YOU AND TO COMMENT AND, IF THERE'S ANY CONCERN ABOUT IT, TO LET THE COURT KNOW THAT.
JUDGE DAVILA: WELL, I APPRECIATE THAT OFFER, BUT --
MR. DOWNEY: I DON'T REALLY HAVE IN MIND PRECISELY THE INFORMATION THAT THE COURT WOULD LIKE TO RECEIVE FROM THE JURORS. I RECOGNIZE THE AWKWARDNESS OF THE SITUATION NOT ONLY BECAUSE OF THE DYNAMICS, BUT ALSO BECAUSE WE CONSENTED TO A STATEMENT IN THE QUESTIONNAIRE THAT IT WOULD BE CONFIDENTIAL. HOW THEY TOOK THAT, FRANKLY, I DON'T KNOW. AND SO I'M RELUCTANT TO PRESCRIBE FOR THE COURT EXACTLY HOW YOU CONDUCT THAT CONVERSATION.
JUDGE DAVILA: WELL, THANK YOU. I THINK THIS IS APPROPRIATE. IT WAS THE COURT'S PROMISE -- LET ME SAY, WE HAD A HEARING ON THIS, IT WAS A PUBLIC HEARING, AND I INDICATED TO THE MEDIA COALITION'S LAWYERS, IT WAS THE COURT'S PROMISE THAT THIS WOULD BE CONFIDENTIAL, AND NOW THE MEDIA COALITION HAS BROUGHT TO MY ATTENTION THAT, JUDGE, YOU SHOULDN'T HAVE -- MR. ZANSBERG SAID YOU SHOULDN'T HAVE PROMISED THAT BECAUSE, YOU KNOW, THERE'S CERTAIN CASE LAW THAT SUGGESTS YOU SHOULDN'T HAVE DONE THAT. SO IF ANYTHING, IT'S THE COURT TO FALL ON ITS SWORD, IF YOU WILL, TO SAY, LADIES AND GENTLEMEN, PERHAPS I MISSPOKE, BUT LET'S HAVE A CONVERSATION ABOUT THAT. SO IT'S ON THE COURT TO HAVE THAT CONVERSATION, AND I'M NOT GOING TO ASK COUNSEL TO OTHERWISE OPINE OR SPEAK TO THAT. ALL RIGHT. THANK YOU FOR THAT. LET ME MOVE TO ANOTHER ISSUE, AND THIS IS THE ISSUE THAT -- THIS INVOLVES MR. LEACH. THANK YOU, MR. SCHENK.
MR. SCHENK: THANK YOU.
JUDGE DAVILA: THIS IS THE QUESTION ABOUT WHETHER OR NOT THE JURY SHOULD HEAR ABOUT MONETARY SUMS EXPENDED FOR THE DEVELOPMENT OF SAFEWAY STORES IN ANTICIPATION OF THERANOS MACHINES COMING IN. WE TALKED ABOUT THIS. I THINK THE NUMBER WAS 300 MILLION, OR SOMETHING LIKE THAT. MR. DOWNEY, YOU OBJECTED TO, I THINK, THE NUMBER SPECIFICALLY, AND TALKED ABOUT ITS RELEVANCE TO THE CASE. THIS ISN'T PERHAPS, I THINK YOU SUGGEST, NOT THE APPROPRIATE FORUM TO RAISE THAT NUMBER AT THIS TIME. ANY MORE THOUGHTS -- I THINK YOU ASKED TO DISCUSS THIS IF I'M NOT MISTAKEN, BUT MR. LEACH?
MR. LEACH: WE DID DISCUSS IT, YOUR HONOR. I DO ANTICIPATE THAT IT WILL COME UP SHORTLY WITH MR. BURD. THE GOVERNMENT'S POSITION IS THAT THIS IS HIGHLY RELEVANT EVIDENCE AND NOT UNDULY PREJUDICIAL. IT'S EMBEDDED IN A NUMBER OF EMAILS THAT MR. BURD SENDS TO MS. HOLMES. IT SPEAKS TO THE MATERIALITY OF THE STATEMENTS THAT WERE MADE TO MR. BURD. IT SPEAKS TO MS. HOLMES'S STATE OF MIND TO SHOW HER KNOWLEDGE THAT SAFEWAY WAS RELYING ON THE REPRESENTATIONS SHE WAS MAKING. THE NUMBER IS BIG. IT'S AT 1.3 -- OVER 350 MILLION, AND ANOTHER .400 MILLION. BUT THERE ARE A LOT OF BIG NUMBERS IN THIS CASE, AND IF THE RESPONSE TO IT IS SAFEWAY DIDN'T HAVE TO DO THAT, THAT WAS GRATUITOUS AND THEY'VE GOT ANOTHER USE FOR IT, THAT'S CERTAINLY INFORMATION THAT COULD BE DEVELOPED IN CROSS-EXAMINATION. BUT I DON'T SEE -- THIS IS HIGHLY RELEVANT. I DON'T THINK IT'S EXCLUDABLE UNDER 403 IN THE BALANCING, AND IT GOES TO HER STATE OF MIND. SO WE WOULD INTEND TO ELICIT IT.
JUDGE DAVILA: OKAY. THANK YOU.
MR. DOWNEY: YOUR HONOR, TO REMIND THE COURT, YOUR HONOR IS RIGHT, WE'RE CONCERNED ABOUT THE NUMBER. IT'S ALSO AN ISSUE THAT REQUIRES A GREAT DEAL OF ADDITIONAL EVIDENCE, AS I MENTIONED ON FRIDAY. WE HAVE TO SHOW -- FIRST OF ALL, THERANOS INVESTED AN ENORMOUS AMOUNT OF MONEY IN CUSTOMIZING ITS DEVICES TO BE PLACED IN THAT SPACE. SAFEWAY DEVELOPED THOSE SPACES KNOWING THAT THEY HAD ALTERNATIVE USES, AND THEY USED THEM ALTERNATIVELY TODAY. IT'S NOT RELEVANT TO THE ISSUE, THE CENTRAL ISSUE, WHICH IS, IS THAT MONEY OF WHICH THEY WERE DEFRAUDED? IT'S CLEARLY NOT. IT'S A SIDE ISSUE UNDER WHICH BOTH PARTIES UNDERTOOK SUBSTANTIAL EXPENSES AND SAFEWAY WAS ULTIMATELY NOT HARMED, SOMETHING THIS WITNESS CAN'T TESTIFY TO BECAUSE THIS WITNESS WASN'T AT SAFEWAY WHEN ALTERNATIVE USE WAS MADE OF THIS SPACE.
JUDGE DAVILA: IS IT RELEVANT TO SHOW, IF YOU WILL, SUBSEQUENT CONDUCT OF SAFEWAY? AND PUT ASIDE THE NUMBER FOR A MOMENT, BUT I SUPPOSE IT SPEAKS TO A MATERIALITY, PERHAPS NOT AS TO THE WIRE FRAUD MATERIALITY, BUT IT SEEMS TO HAVE SOME RELEVANCE THAT SAFEWAY, THE FACT THAT THEY EXPENDED SOME EFFORTS -- LET'S JUST CALL IT EFFORTS WITHOUT PUTTING A DOLLAR SIGN ON IT -- THEY EXPENDED SOME EFFORTS AS A RESULT OF THE CONTRACTUAL RELATIONSHIP THAT THEY HAD. AND WITHOUT THAT, ISN'T IT MISLEADING TO THE JURY TO HEAR, WELL, THEY INVESTED MONEY AND THEN THERE'S A WHOLE -- THERE'S A VACUUM OF, WELL, OKAY, BUT WHAT DID THEY DO? THEY DIDN'T DO ANYTHING ABOUT IT, THEY JUST INVESTED THIS MONEY. THAT DOESN'T TELL THE WHOLE STORY, IF YOU WILL, FOR A 403 ANALYSIS, NOT 404. BUT THAT TYPE OF A STORY, I THINK, THE JURY IS ENTITLED TO HEAR. NOW, THE QUESTION IS, SHOULD THEY HEAR IT'S 380, $400 MILLION? AND, MR. LEACH, I TEND TO, I TEND TO AGREE THAT UNDER A 403 ANALYSIS, THAT MIGHT BE MORE PREJUDICIAL THAN IT IS PROBATIVE. IT WOULD CAUSE THE JURY THEN TO THINK ABOUT -- THEY'LL FOCUS ON, JUST BECAUSE WE'RE HUMANS AND THAT'S WHAT WE DO, THEY FOCUS ON THE BIGGER NUMBER. THE 55 MILLION, WHICH IS THE INVESTMENT, AND WHICH IS THE ALLEGATIONS OF THE FRAUD ITSELF I SUPPOSE, THAT'S THE NUMBER SAFEWAY INVESTED, AT LEAST THAT'S WHAT WE HAVE HEARD SO FAR, THAT WOULD BE DWARFED BY THE EXPENDITURE THAT THEY MADE ON ALL OF THEIR STORES. AND I HAVE SOME CONCERN THAT THE JURY, NOTWITHSTANDING THE COURT'S INSTRUCTION OTHERWISE, THEY MIGHT FOCUS ON THAT IN SOME UNTOWARD MANNER. I'M WONDERING IF WE CAN FILTER, SANITIZE THE LANGUAGE. I THINK LAST WEEK I USED SUBSTANTIAL. YOU CAN THINK OF ANY OTHER ADJECTIVE YOU WANT I SUPPOSE.
MR. LEACH: THERE'S TWO EXHIBITS, YOUR HONOR, WHERE THE DOLLAR AMOUNT IS MENTIONED. ONE OF THEM I CAN REFRAIN FROM OFFERING. THE SECOND ONE, I THINK IT'S EXHIBIT 770 FOR DEFENSE COUNSEL, THERE'S A REFERENCE TO SAFEWAY IN TWO AND ONE HALF YEARS INVESTED 400 MILLION AND MORE THAN 50,000 MAN HOURS. I CAN REDACT THE NUMBER BOTH FOR THE DOLLAR AMOUNT EXPENDED AND THE NUMBER OF HOURS IF THAT'S THE COURT'S RULING.
JUDGE DAVILA: WELL, THANK YOU. AS I SAID, IT DOES HAVE SOME RELEVANCE. IT DOES. I THINK, MR. DOWNEY, IF THE JURY IS NOT INFORMED THAT SAFEWAY DID SOMETHING ABOUT IT, I THINK THAT'S NOT THE FULL STORY BECAUSE CLEARLY SAFEWAY DID. THE QUESTION ABOUT THE AMOUNT OF FUNDS THAT THEY EXPENDED AND THE TENSION THAT I HAVE BETWEEN THAT AND THE ACTUAL CHARGE IS SOMETHING THAT I'M CONCERNED ABOUT.
MR. DOWNEY: I THINK AT THE END OF THE DAY, YOUR HONOR, I THINK PRESENTED WITH THESE EXHIBITS WITH THAT REDACTION, THAT'S FINE WITH US. I DON'T WANT TO BE PUT IN THE POSITION CORRESPONDINGLY WHERE WE HAVE A TRIAL WHERE WE SHOW ALL OF THE COSTS THAT WERE UNDERTAKEN ON THE THERANOS SIDE WHICH DEMONSTRATES THEIR BELIEF AND GOOD FAITH AS TO THE IMMINENCE OF THE PROJECT, HOW ANY PURPORTED LOSS OF THOSE MONIES HAS BEEN MITIGATED AND WAS KNOWN TO BE CAPABLE OF MITIGATION AT THE TIME THIS WAS UNDERTAKEN. IF THE FACT IN EVIDENCE IS THAT THEY BELIEVED THAT THEY WERE GOING TO HAVE A PARTNERSHIP WITH THERANOS AND THAT THERE WERE GOING TO BE PATIENT SERVICE CENTERS IN THEIR STORES WITHOUT TRYING TO QUANTIFY OR IMPLYING MORE ABOUT IT, THAT'S FINE WITH US, YOUR HONOR.
JUDGE DAVILA: WELL, AND I DO THINK IT'S FAIR FOR THE GOVERNMENT TO BE ABLE TO PROBE SUBSTANTIAL CHANGES TO THE STORES. IT SOUNDS LIKE THAT'S WHAT THEY DID. IF THAT'S WHAT THE EVIDENCE IS, I THINK THEY'RE ENTITLED TO, HE'S -- IF THIS WITNESS HAS KNOWLEDGE, HE WOULD BE ENTITLED TO TESTIFY ABOUT WHAT THEY WERE GOING TO DO WITH THE ROLLOUT, ET CETERA, ET CETERA. I THINK HE TOLD US THEIR GAME PLAN WAS TO ALLOW FOR A CUSTOMER TO COME IN AND DO FULL STOP SERVICE ON THEIR HEALTH NEEDS WHILE THEY'RE SHOPPING, AND I THINK HE CAN DEVELOP THAT.
MR. DOWNEY: YOUR HONOR, THAT'S NOT -- I DON'T HAVE A CONCERN THAT THE PLAN AT LEAST AS OF THE TIME THAT THE CONTRACT WAS SIGNED IN 2010 AND THEREAFTER WAS TO HAVE PATIENT SERVICE CENTERS, THAT THE POTENTIAL THAT THOSE PATIENT SERVICE CENTERS HAD A NUMBER OF IMPLICATIONS, THAT'S NOT SOMETHING TO WHICH I OBJECT.
JUDGE DAVILA: ALL RIGHT. THANK YOU. SO, MR. LEACH, JUST TO BE CLEAR, I'M GOING TO -- THE NUMBER -- I'M NOT GOING TO ALLOW YOU TO GET THE NUMBER IN, THE 300, 400, THAT TYPE OF THING. BUT I WILL ALLOW YOU TO EXAMINE THE WITNESS AS TO THE TYPES OF CHANGES THEY MADE, ANTICIPATED THINGS THAT THEY DID, IF IT'S SUBSTANTIAL, WHATEVER THEY HAD TO DO ACROSS I DON'T KNOW HOW MANY STORES THEY DID IT, BUT THAT WOULD BE APPROPRIATE. AGAIN, WE HAVE TO BE CAREFUL ABOUT DOORS. I JUST REMIND EVERYBODY ABOUT THAT. OKAY. ANYTHING FURTHER?
MR. LEACH: JUST TO BE CLEAR, YOUR HONOR, THE NUMBER OF STORES THAT THEY MADE RENOVATIONS TO, I CAN EXPLORE THAT NUMBER?
JUDGE DAVILA: YES.
MR. LEACH: IT'S JUST NOT THE TOTAL DOLLAR AMOUNT?
JUDGE DAVILA: CORRECT.
MR. LEACH: UNDERSTOOD. THANK YOU.
JUDGE DAVILA: ANY COMMENT ABOUT THAT, MR. DOWNEY?
MR. DOWNEY: NO, YOUR HONOR.
JUDGE DAVILA: OKAY.
MR. DOWNEY: YOUR HONOR, JUST ONE QUESTION. HOWEVER THE ISSUE IS RESOLVED AROUND THE COLLOQUY WITH THE JURORS, JUST SO WE CAN HAVE A MEANINGFUL DIALOGUE BETWEEN US AS TO WHEN THE GOVERNMENT NEEDS TO HAVE THEIR WITNESSES PRESENT, DID YOU HAVE A TIME SLOT IN MIND?
JUDGE DAVILA: THANK YOU. WHAT I WAS HOPING TO DO IS TO -- I'M NOT GOING TO TELL THEM ABOUT THIS THIS MORNING BEFORE WE START EVIDENCE. I JUST DON'T WANT THEM TO FOCUS ON THAT WHILE THEY'RE HEARING THIS TESTIMONY. I MAY TELL THEM JUST BEFORE THE BREAK THAT WHAT I INTEND TO DO IS TALK TO THEM ABOUT THE MEDIA COALITION MOTION, ET CETERA. I INTEND TO PROVIDE THEM WITH THEIR QUESTIONNAIRES AT THE BREAK SO THEY CAN LOOK THOSE OVER IF THEY WISH. IF ANY JUROR WOULD LIKE TO SPEAK WITH ME TODAY, I'M HAPPY TO RECEIVE THAT AND WE CAN DO THAT. THEY'LL -- AND WE'LL END TODAY AT 3:00 HOPEFULLY, AND THEN THEY CAN STAY AFTER IF THEY'RE WILLING TO. IF NOT, THEN I WILL TELL THEM IF SOME OF THEM WANT TO TAKE THE QUESTIONNAIRE HOME WITH THEM, WE'LL PROVIDE THEM AN ENVELOPE THAT THEY CAN TAKE IT IN, AND THEN TOMORROW WE CAN DISCUSS IT EITHER AT A BREAK OR AT SOME TIME IN THE MORNING. WE'LL SEE WHO CHOOSES TO DO THAT, AND THEN WE'LL INCORPORATE THAT INTO OUR TIMEFRAME. I'D LIKE TO DO IT AT THE END OF THE DAY IF I CAN, BUT -- AND I EXPECT, I ANTICIPATE THAT PROCESS IS GOING TO TAKE PROBABLY 90 MINUTES I'M THINKING, IF EACH JUROR WANTS TO DO THAT, QUERY WHETHER THEY'LL WANT TO STICK AROUND FOR THAT LONG ALL AT ONE TIME. SO WE'LL JUST DO THE BEST THAT WE CAN.
MR. DOWNEY: AND IS IT THE COURT'S PREMISE THAT SOME OF THEIR ADDRESSES AND SO FORTH FOR THE JURORS, WOULD SOME OF THE INFORMATION BE REDACTED IN ANY EVENT?
JUDGE DAVILA: THEIR ADDRESSES ARE NOT --
MR. DOWNEY: OKAY.
JUDGE DAVILA: -- IN THE QUESTIONNAIRE. GEOGRAPHIC LOCATION IS, BUT NOT ADDRESSES.
MR. DOWNEY: OKAY.
JUDGE DAVILA: YES. AND I DON'T THINK THE COALITION -- I THINK THE COALITION'S LAWYER INDICATED, I DON'T THINK HIS COALITION OR ANY OF THE MEMBERS WERE SEEKING ADDRESSES. SO, YES.
MR. DOWNEY: THANK YOU, YOUR HONOR.
MR. LEACH: THANK YOU, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU.
COURT CLERK: COURT IS IN RECESS.
(RECESS FROM 8:57 A.M. UNTIL 9:09 A.M.)
(JURY IN AT 9:09 A.M.)
JUDGE DAVILA: GOOD MORNING EVERYONE. WE'RE BACK ON THE RECORD WITH OUR JURY AND ALTERNATES ARE PRESENT, RECONSTITUTED IN THE SEATING. THANK YOU. GOOD MORNING, EVERYONE. ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. AND MR. BURD IS ON THE STAND AGAIN. BEFORE WE RESUME EXAMINATION, LADIES AND GENTLEMEN, LET ME ASK YOU MEMBERS OF THE JURY AND OUR ALTERNATES, DURING THE LONG WEEKEND, WHICH I HOPE YOU ALL ENJOYED, DID ANY OF YOU HAVE OCCASION OR CAUSE TO COME ACROSS ANY INFORMATION OR DISCUSS WITH ANYONE ANYTHING ABOUT THIS CASE? DID YOU READ, HEAR, LISTEN OR SPEAK WITH ANYONE ABOUT ANYTHING THAT INVOLVES THIS CASE? IF SO, WOULD YOU PLEASE RAISE YOUR HAND? I SEE NO HANDS. THANK YOU. LET'S SEE, DID YOU WANT TO CONTINUE WITH YOUR DIRECT EXAMINATION?
MR. LEACH: I DID, YOUR HONOR. THANK YOU.
JUDGE DAVILA: PLEASE, LET'S PROCEED. SIR, IF YOU COULD ONCE AGAIN STATE YOUR NAME FOR THE RECORD.
STEVEN BURD: MY NAME IS STEVE BURD, SPELLED B-U-R-D.
JUDGE DAVILA: THANK YOU, SIR. AND I'LL REMIND YOU, SIR, YOU ARE STILL UNDER OATH.
(GOVERNMENT'S WITNESS, STEVEN BURD, WAS PREVIOUSLY SWORN.)