Pretrial Evidence, Juror Questionnaires, and Scheduling
46 linesSAN JOSE, CALIFORNIA OCTOBER 14, 2021 P R O C E E D I N G S
(COURT CONVENED AT 8:33 A.M.)
(JURY OUT AT 8:33 A.M.)
JUDGE DAVILA: WE'RE BACK ON THE RECORD IN THE HOLMES MATTER. ALL COUNSEL ARE PRESENT AND MS. HOLMES IS PRESENT. WE'RE OUTSIDE OF THE PRESENCE OF THE JURY AND MEETING BEFORE THEY ARRIVE. I UNDERSTAND THE DEFENSE WANTED TO RAISE A QUESTION?
MR. DOWNEY: GOOD MORNING, YOUR HONOR.
JUDGE DAVILA: GOOD MORNING.
MR. DOWNEY: THREE ISSUES THAT JUST CAME UP, TWO OF WHICH I THINK MR. SCHENK AND I HAVE BEEN ABLE TO DEAL WITH ON OUR OWN, BUT THEY RELATE TO A WITNESS NOT YET TESTIFYING, BUT IT WILL BE MR. JHAVERI WHO IS ANOTHER WITNESS FORMERLY EMPLOYED AT WALGREENS. THERE ARE TWO QUESTIONS IN CONNECTION WITH HIS TESTIMONY THAT WE WERE CONCERNED ABOUT BECAUSE STATEMENTS ABOUT THEM APPEARED IN A 302 THAT WAS PRODUCED YESTERDAY. ONE IS THAT HE WANTED TO -- IN THE STATEMENT, HE REFERENCED THERANOS'S DECISION TO VOID TESTS, WHICH AS YOUR HONOR KNOWS WAS THE SUBJECT OF MOTION IN LIMINE PRACTICE. THE SUBSTANCE OF HIS STATEMENT WAS THAT WALGREENS MADE A DECISION TO CLOSE ITS STORES IN RESPONSE TO THAT ACTION BY THERANOS. MR. SCHENK AND I SPOKE THIS MORNING AND MR. SCHENK ASSURES ME THAT THE ISSUE OF VOIDING WILL NOT BE PART OF THE PRESENTATION, ALTHOUGH THE ISSUE OF THE DECISION TO CLOSE -- THE FACT THAT THE STORES WERE CLOSED IS SOMETHING THAT WILL BE PRESENTED, WHICH IS CERTAINLY FINE BY US. THE OTHER ISSUE IS HE WAS PRESENTED DURING THAT INTERVIEW WITH A "WALL STREET JOURNAL" ARTICLE AND ASKED TO CONTRAST THE KNOWLEDGE THAT HE HAD WITH CERTAIN ASSERTIONS IN "THE WALL STREET JOURNAL" ARTICLE. WE WERE CONCERNED ABOUT THAT METHOD OF PRESENTING EVIDENCE. AGAIN, MR. SCHENK ASSURES ME THAT NOT ONLY WILL THERE NOT BE REFERENCE TO OR INTRODUCTION OF THE ARTICLE, BUT THAT HE'LL SIMPLY BE ASKED ABOUT THE STATE OF HIS KNOWLEDGE AT THE TIME. SO I THINK AS TO THOSE TWO ISSUES THEY HAVE BEEN RESOLVED, BUT I JUST WANT TO MAKE THE COURT AWARE OF THEM IN CASE ANYTHING COMES UP DURING THE TESTIMONY.
JUDGE DAVILA: OKAY. LET ME JUST ASK MR. SCHENK IF HE HAS ANY COMMENT ON ANY OF THOSE TWO ISSUES. MR. SCHENK?
MR. SCHENK: THANK YOU, YOUR HONOR. WITH REGARD TO THE VOIDING OF THE TESTS, I DO NOT INTEND TO ASK MR. JHAVERI WHETHER HE HAS KNOWLEDGE OF THAT IN FACT. I THINK THERE'S A SEPARATE ISSUE ABOUT THE ADMISSIBILITY OF VOIDING OF THE TESTS. WE DON'T HAVE TO ADDRESS THAT WITH MR. JHAVERI. I DO NOT INTEND TO ASK HIM IF THERANOS VOIDED THE TESTS. I DO INTEND TO ASK HIM WHETHER THE THERANOS BLOOD TESTING SERVICES AT SOME POINT BECAME UNAVAILABLE AT WALGREENS, THEY STOPPED OFFERING BLOOD TESTING AT WALGREENS AND YOU CAN'T GO THERE ANYMORE AND GET THEM. I THINK IT'S MR. JHAVERI'S BELIEF OR KNOWLEDGE THAT PART OF THE REASON WAS BECAUSE TESTS WERE VOIDED. WE DON'T HAVE TO GET INTO THE REASON, RATHER WHAT I'M INTERESTED IN IS THE FACT THAT THERANOS SERVICES ARE NO LONGER AVAILABLE AT WALGREENS AND THAT THAT HAPPENED WHILE MR. JHAVERI WAS ENGAGED IN THE PROJECT.
JUDGE DAVILA: YOU HAVE NO OBJECTION TO THAT?
MR. DOWNEY: NO OBJECTION TO THAT. THE ONLY REQUEST WE HAVE IN CONNECTION WITH THAT, WHICH I'M SURE MR. SCHENK WILL COMPLY WITH, IS JUST THAT THE WITNESS BE APPRISED OF OUR AGREEMENT ON THAT SUBJECT.
JUDGE DAVILA: ALL RIGHT. ANYTHING ELSE INVOLVING -- MR. SCHENK, ANYTHING ELSE YOU WANT TO COMMENT ON?
MR. SCHENK: THE SECOND ISSUE THAT MR. DOWNEY RAISED WAS "THE WALL STREET JOURNAL" ARTICLE. MR. JHAVERI READ IT. I INTEND TO HAVE HIM TESTIFY THAT GENERALLY IT WAS NEGATIVE, THAT HE DIDN'T READ IT AND THINK THAT THE RELATIONSHIP WITH THERANOS HAD ANYTHING OTHER THAN A NEW OBSTACLE OR HURDLE AND HE NEEDED TO DO SOME INFORMATION GATHERING, SOMETHING LIKE THAT. I'M NOT GOING TO ASK HIM ABOUT THIS LINE OR THAT FACT OR DETAILS IN THE ARTICLE. THE POINT OF IT IS THAT MR. JHAVERI'S ROLE IN THE RELATIONSHIP CHANGED AT THAT POINT. OTHER PEOPLE AT WALGREENS, LIKE LAWYERS, GOT MORE INVOLVED IN THE RELATIONSHIP AT THAT POINT. SO IT WAS SORT OF A CAUSE OF HIM STEPPING BACK A LITTLE BIT IN SOME OF THE INTERACTIONS IN THE RELATIONSHIP, AND THAT'S THE FACT THAT I INTEND TO ELICIT. BUT I'M NOT GOING TO SHOW HIM THE ARTICLE, I'M NOT GOING TO ASK HIM ABOUT FACTS OR SENTENCES OR LINES IN THE ARTICLE, JUST GENERALLY THAT IT WAS NEGATIVE AND THAT IT CAUSED HIM TO STEP BACK A LITTLE BIT IN THE RELATIONSHIP.
MR. DOWNEY: I THINK THE FACT THAT THERE WAS A NEGATIVE ARTICLE IS NOT SOMETHING THAT WE OBJECT TO, AND, AGAIN, I WOULD JUST REQUEST THAT THE WITNESS BE ADVISED OF THAT LINE.
JUDGE DAVILA: OKAY. ALL RIGHT. THANK YOU. THANK YOU. MR. SCHENK, YOU HAD --
MR. DOWNEY: I HAD ONE OTHER ISSUE.
JUDGE DAVILA: YES?
MR. DOWNEY: WHICH I DON'T WANT TO DISCUSS IN DETAIL BECAUSE IT RELATES TO OUR UNDER SEAL SESSION YESTERDAY, BUT I WANTED TO MAKE A COMMENT AND REQUEST IN CONNECTION WITH THAT. WITHOUT GOING INTO THE SUBSTANCE OF THAT HEARING, UPON READING THE TRANSCRIPT, I DID HAVE A CONCERN THAT THAT ISSUE BE RESOLVED PROMPTLY IN LIGHT OF SOME OF THE COMMENTS THAT WERE MADE BY THE JURORS WHO WERE AVAILABLE FOR THAT SESSION LAST NIGHT. I DON'T WANT TO ARTICULATE THOSE COMMENTS. YOUR HONOR MAY BE AWARE OF WHAT I HAVE IN MIND. SO THAT THE JURY CAN BE IN A POSITION TO FULLY FULFILL ITS SERVICE OBLIGATIONS HERE, MY REQUEST WOULD BE THAT WE DEAL WITH THE ISSUES RELATED TO THE UNSEALING OF THE QUESTIONNAIRES, REDACTIONS THERETO, AND ANYTHING ELSE THAT IS PROPHYLACTIC THAT WE NEED TO DEAL WITH AS SOON AS POSSIBLE.
JUDGE DAVILA: THIS MORNING BEFORE WE START EVIDENCE?
MR. DOWNEY: YES, BEFORE WE START EVIDENCE WOULD BE OUR REQUEST.
MR. SCHENK: YOUR HONOR, I DON'T SHARE THE SAME CONCERN. I ALSO WAS PRESENT FOR THE HEARING. I'M HAPPY TO, AT THE RIGHT TIME, PROVIDE ADDITIONAL THOUGHTS ON THAT SUBJECT. BUT I DID NOT LEAVE THE SESSION OR AFTER HAVING NOW SEEN THE TRANSCRIPT WITH THE CONCERNS THAT MR. DOWNEY HAS RAISED. I WILL ALSO NOTE THAT THE COURT'S PLAN IS TO DEAL WITH THE REMAINING JURORS TODAY. THE COURT JUST DOESN'T INTEND TO TAKE TRIAL TRANSCRIPT TIME TO DO IT. WE HAVE OUT OF TOWN WITNESSES WHO ARE HERE THIS WEEK AND ARE READY TO TESTIFY. IT WOULD BE THE GOVERNMENT'S PREFERENCE TO GET THROUGH THE WITNESSES TODAY AND THEN USE, AS THE COURT HAD PLANNED, OUR POST-TRIAL TIME TO HANDLE THAT.
MR. DOWNEY: WELL, YOUR HONOR, THE ONLY ISSUE I'M FOCUSSED ON IS TO THE EXTENT FOR ANY JUROR, WITHOUT COMMENTING ON ANYTHING, TO THE EXTENT THAT THIS ISSUE HANGS OVER ANY JUROR AND THEY WOULD LIKE TO KNOW HOW IT BE RESOLVED, I WOULD RATHER HAVE THAT ADDRESSED NOW SO THAT WE'RE NOT IN A PERIOD WHERE THERE'S EFFECTIVELY A FULL DAY OF TRIAL FROM THE TIME THEY KNOW ABOUT THE ISSUE UNTIL THE TIME THE ISSUE IS ADDRESSED.
JUDGE DAVILA: WELL, THAT RAISES THE TOPIC IS ONCE WE COMPLETE THE QUESTIONING OF THE JURORS AND WHAT I WILL DO IS COLLECT THAT INFORMATION AND THEN RESPOND TO THE MOTION. I THINK WHAT YOU'RE ASKING ME TO DO IS TO PUT THIS TRIAL ON HOLD AND RESOLVE THAT ENTIRE MOTION, THAT IS, THE MEDIA COALITION'S MOTION BEFORE WE GO FORWARD. IS THAT WHAT YOU'RE ASKING ME TO DO?
MR. DOWNEY: WELL, WHAT I'M ASKING -- I GUESS EFFECTIVELY WHAT I'M ASKING, BUT WHAT I'M ASKING IS THAT THE COURT IS SURE THE JURY IS SERVING IN A MANNER CONSISTENT WITH THE DEFENDANT'S FIFTH AND SIXTH AMENDMENT RIGHTS, WHICH I KNOW THE COURT IS DEEPLY DEDICATED TO. I THINK SOME OF THE COMMENTS RAISE CONCERNS ABOUT THAT, SO I THINK IT'S AN ISSUE THAT WE NEED TO GET RESOLVED. I CERTAINLY APPRECIATE MR. SCHENK'S COMMENTS ABOUT WITNESS LOGISTICS. WE'VE TRIED TO WORK WITH HIM ON THAT. BUT I THINK WE HAVE THE BULK OF THE JURORS INTERVIEWED. I THINK WE OUGHT TO TAKE THE TIME TO RESOLVE WITH THE OTHER JURORS AND MAKE SURE THAT WE DON'T HAVE JURORS WHO ARE REPORTING A REACTION TO THAT, THAT IS AFFECTING THEIR ABILITY TO SERVE.
JUDGE DAVILA: I THINK WE HAVE SIX REMAINING TO INTERVIEW, AND THE TIMING OF THINGS LAST NIGHT, I THINK IT TOOK US LONGER THAN I THINK ANY OF US ANTICIPATED. I THINK WE FINISHED AFTER 5:00. AND HAVING -- I THINK WE STOPPED AT 3:00, AND IT TOOK US A COUPLE OF HOURS TO GET THROUGH NINE PEOPLE IF I RECALL CORRECTLY. SO IF WE WERE TO CONTINUE OUR CONVERSATION WITH THE OTHER SIX TODAY, I CAN DO THAT, AND THEN WHAT YOU'RE ASKING TO DO IS TO HAVE COLLOQUY AFTER THAT REGARDING --
MR. DOWNEY: I THINK IF THE AGGREGATION OF THE COMMENTS RAISES THE CONCERNS THAT I SUSPECT THE FIRST NINE DID, THEN I THINK IT IS AN ISSUE, YEAH, I THINK WE SHOULD RESOLVE IT.
JUDGE DAVILA: WELL, I THINK -- AS YOU ALL KNOW, THE -- I ASKED THE QUESTION ABOUT CONTINUED SERVICE, AND I THINK WE GOT AFFIRMATIVE ANSWERS FROM EVERY JUROR, THAT THEY WOULD CONTINUE TO BE FAIR AND IMPARTIAL TO BOTH SIDES IN THE CASE. I WANTED TO KNOW THAT BECAUSE THAT'S THE PRIMARY DIRECTIVE OF A JUROR'S SERVICE, AND THEY ALL INDICATED THAT THEY COULD DO THAT. AND I THINK I KNOW WHAT YOU'RE TALKING ABOUT. WE KNOW WHAT WE'RE TALKING ABOUT. AND THE THOUGHT OCCURRED TO ME THAT THERE MIGHT BE SOME -- I DON'T WANT TO USE THE WORD "EFFICIENCY," I HATE TO USE THAT IN A CRIMINAL CASE, BUT THERE MIGHT BE SOME ADVANTAGE TO RESOLVING AN ISSUE, A JURY ISSUE, EARLIER THAN LATER IT SEEMS TO ME. LET'S DO THIS. LET'S -- MS. KRATZMANN, ARE ALL OF OUR JURORS PRESENT NOW?
COURT CLERK: I HAVE NOT CHECKED YET, YOUR HONOR.
JUDGE DAVILA: OKAY. IT'S A QUARTER TO 9:00 AND I TOLD THEM WE ARE STARTING AT 9:00. AND THIS IS A TERRIFIC JURY AND THEY'VE BEEN EXTENDING THEIR TIME WITHOUT ANY COMPLAINTS. MY SENSE IS THAT I'M TAKING THAT AS THEIR DESIRE TO CONTINUE TO DEVOTE THEIR EFFORTS TO THE TRIAL AND THEY'RE NOT AT ALL DISENGAGED ABOUT STAYING LATER. I'VE CREEPED THAT TIME BACK FROM 2:00 TO 3:00, AND THEN TODAY I THINK IT WAS 4:00. IF I TOLD THEM, LET'S GO TO A NORMAL SCHEDULE OF 5:00, I THINK THEY WOULD NOT REVOLT. I BET THEY WOULD APPRECIATE THAT. ALL RIGHT. LET'S DO THIS, LET ME -- I THINK WHAT I WOULD LIKE TO DO IS TO FINISH WITH OUR CONVERSATION WITH THE JURORS THIS MORNING AND DO THAT IN A SEALED SESSION, CONTINUE OUR SEALED SESSION. AND WE HAVE SIX JURORS REMAINING TO SPEAK WITH, AND WE'LL TALK WITH THEM, AND LET'S SEE WHERE THAT LAYS. I HOPE WE CAN GET THIS DONE IN PERHAPS AN HOUR. I THINK WE CAN. AND THEN WE CAN PRESS ON WITH THE TRIAL AND DO OUR SCHEDULE ACCORDINGLY. MAYBE WE'LL GO UNTIL 5:00 INSTEAD OF ENDING AT 4:00 TODAY. SO, MR. SCHENK, IF YOUR TEAM COULD ADVISE YOUR WITNESSES. I HOPE THIS IS NOT TOO DISRUPTIVE OF THEIR SCHEDULES. BUT WE'LL TRY TO BE AS EFFICIENT AS WE CAN. MS. KRATZMANN, WHEN AT LEAST THE SIX HAVE ARRIVED, PLEASE LET ME KNOW AND THEN WE'LL SCHEDULE THEIR INTERVIEWS THIS MORNING. OF COURSE WE'LL DO THAT IN CHAMBERS AGAIN. I ASSUME THE SAME PARTIES WANT TO JOIN.
MR. SCHENK: YES, YOUR HONOR.
MR. DOWNEY: YES, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU.
MR. DOWNEY: THANK YOU.
(RECESS FROM 8:45 A.M. UNTIL 9:00 A.M.)
(SEALED PROCEEDINGS IN CHAMBERS.) /// ///
(PROCEEDINGS IN OPEN COURT.)
(COURT CONVENED AT 11:04 A.M.)
(JURY IN AT 11:04 A.M.)
JUDGE DAVILA: THANK YOU. WE'RE BACK ON THE RECORD. ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. OUR JURY AND ALTERNATES ARE PRESENT. GOOD MORNING AGAIN, LADIES AND GENTLEMEN. BEFORE WE BEGIN, I DO WANT TO ASK OUR JURY IF OVER THE EVENING WHETHER OR NOT ANY OF YOU HAD COME ACROSS ANY INFORMATION ABOUT THE CASE, IF YOU'VE HAD ANYONE TALK TO YOU ABOUT THE CASE IN ANY WAY, WHETHER YOU'VE LEARNED ANY INFORMATION ABOUT THE CASE FROM ANY MEDIA OR ANY OTHER INSTANCE. IF THAT HAS HAPPENED, WOULD YOU PLEASE RAISE YOUR HAND, PLEASE. I SEE NO HANDS. THANK YOU, LADIES AND GENTLEMEN, FOR YOUR CONTINUED FIDELITY TO THE ADMONITION. I DO WANT TO ASK COUNSEL AND THE JURY A QUESTION. WE'RE GOING UNTIL 4:00 TODAY, AND I HOPE YOU'VE GOT THAT IN YOUR SCHEDULE. I'VE JUST REALIZED THAT WE HAVE CLEARED OUR CALENDAR TOMORROW. ON THURSDAYS YOU RECALL THAT I HAVE A CIVIL CALENDAR, BUT WE'VE CLEARED OUR CALENDAR TOMORROW, SO IT WOULD BE POSSIBLE THAT WE COULD HAVE TESTIMONY TOMORROW. WOULD THAT -- IS THAT SOMETHING THAT ANY JUROR IS NOT ABLE TO MAKE? I KNOW WE'VE TRADITIONALLY HAD THURSDAYS OFF, AND I EXPECT THAT YOU HAVE PLANNED ACCORDINGLY. BUT IF WE WERE ABLE TO HAVE EVIDENCE TOMORROW, WE WOULD PROBABLY GO UNTIL 3:00 TOMORROW, IS THAT SOMETHING THAT IS -- THAT THE JURY WOULD BE ABLE TO DO? RESTRAIN YOUR ENTHUSIASM, PLEASE. YES?
JUROR: I MIGHT HAVE TO MOVE SOME THINGS AROUND, BUT POTENTIALLY I COULD.
JUDGE DAVILA: OKAY. LET ME DO THIS, LET ME SAY THIS, WHY DON'T -- MAY I FLOAT THAT IDEA FOR YOU NOW? DURING OUR BREAK, OUR NEXT BREAK, IF YOU COULD MAKE SOME INQUIRIES, IF YOU NEED TO, ABOUT OTHER ARRANGEMENT TO BE MADE, AND THEN I'LL ASK YOU THAT QUESTION WHEN WE COME BACK, WOULD THAT BE SUFFICIENT?
JUROR: (NODS HEAD UP AND DOWN.)
JUDGE DAVILA: ALL RIGHT. LET ME ASK THE LAWYERS, IS THAT SOMETHING THAT YOU CAN DO?
MR. SCHENK: YES.
MR. DOWNEY: THAT'S FINE WITH US, YOUR HONOR.
JUDGE DAVILA: OKAY. LET'S TRY TO DO THAT. AND I'M DOING THIS -- WE'VE LOST SOME COURT TIME FOR SOME OTHER PROCEDURES. I'M TRYING TO CATCH UP AND SEE IF WE CAN KEEP OUR CASE ON SCHEDULE FOR EVERYONE'S CONVENIENCE, INCLUDING YOURS, LADIES AND GENTLEMEN OF THE JURY. SO I APPRECIATE, DURING OUR BREAK, IF YOU COULD MAKE ANY INQUIRIES ABOUT ADJUSTING THINGS. SO TOMORROW WE WOULD -- MY ANTICIPATION WOULD BE, IF WE'RE ABLE TO, WE WOULD BEGIN AT 9:00 AND THEN END AT 3:00 TOMORROW. PLEASE REMEMBER THAT WE'RE ENDING AT 1:00 O'CLOCK ON FRIDAY. IF, WHEN YOU CHECK IN WITH YOUR EMPLOYERS OR WHATEVER OTHER OBLIGATIONS THAT YOU HAVE, IF THERE'S AN ALTERATION IN THAT SCHEDULE, I WOULD APPRECIATE KNOWING THAT, TOO. FOR EXAMPLE, IF STARTING LATER AND ENDING EARLIER IS SOMETHING THAT MAKES IT EASIER, I WOULD WELCOME THAT INFORMATION SO WE COULD ADJUST OUR SCHEDULE. ALL RIGHT. THANK YOU VERY MUCH. THANK YOU FOR THAT. MR. SCHENK, YOU HAVE A WITNESS?