Exhibits 504, 551, and 1496 Admissibility Hearing
67 linesSAN JOSE, CALIFORNIA OCTOBER 15, 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: LET'S GO ON THE RECORD IN THE HOLMES MATTER. ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. WE'RE OUTSIDE OF THE PRESENCE OF THE JURY. I UNDERSTAND THAT COUNSEL WANTED TO SPEAK ABOUT SOMETHING THIS MORNING?
MR. DOWNEY: GOOD MORNING, YOUR HONOR. KEVIN DOWNEY FOR MS. HOLMES. I WANTED TO PREVIEW FOR THE COURT TWO ISSUES THAT MAY ARISE DURING THE TESTIMONY OF DAN EDLIN, WHO I THINK WILL BE CALLED AT SOME POINT LATER THIS MORNING. ONE OF THE ISSUES IS FAMILIAR TO THE COURT, BUT I WANTED TO REFAMILIARIZE THE COURT BECAUSE IT'S BEEN A WHILE SINCE IT CAME UP. TWO OF THE EXHIBITS THAT ARE ON THE GOVERNMENT'S LIST OF EXHIBITS FOR MR. EDLIN SEEM TO RELATE TO A CLAIM THAT MS. HOLMES ATTEMPTED TO DEFRAUD OR MAKE MISREPRESENTATIONS TO THE DEPARTMENT OF DEFENSE. I THINK THE GOVERNMENT AGREES WITH US THAT DEFRAUDING THE DEPARTMENT OF DEFENSE IS NOT PART OF THE CASE. IT'S NOT 404(B) EVIDENCE. SO I THINK THE -- I THINK THAT THAT PROHIBITION APPLIES AS AGREED TO BY THE GOVERNMENT. THEY SAY, HOWEVER, THAT THE PRESENTATION SENT TO THE DOD IS INEXTRICABLY INTERTWINED WITH THE REST OF MS. HOLMES'S CONDUCT AND MS. HOLMES'S REPRESENTATIONS TO INVESTORS. THAT REALLY CAN'T BE TRUE. WE KNOW THAT THE REPRESENTATIONS THAT THEY SEEK TO INTRODUCE WERE MADE ABOUT A YEAR AND A HALF AFTER THERE WERE REPRESENTATIONS TO INVESTORS IN THE WAVE IN 2010 INVESTORS AND ABOUT A YEAR AND A HALF BEFORE THE NEXT SET OF INVESTORS. THERE'S NO APPARENT RELATIONSHIP BETWEEN THE REPRESENTATIONS MADE IN THIS POWERPOINT PRESENTATION MADE TO THE DOD OR ANY RELATIONSHIP TO DIRECT REPRESENTATIONS TO INVESTORS. ALSO, OBVIOUSLY THE NATURE OF THE EVIDENCE IS POTENTIALLY INFLAMMATORY, SO THERE'S ALSO A 403 ISSUE. SO WE HAVE ASKED PREVIOUSLY THAT THIS BE EXCLUDED IN A PRIOR PLEADING, BUT I WANTED TO REFAMILIARIZE THE COURT. IF YOU WOULD LIKE ME TO PASS UP THE TWO EXHIBITS THAT I THINK WE HAVE CONCERNS ABOUT, I'D BE HAPPY TO.
JUDGE DAVILA: WELL, THAT WOULD BE HELPFUL. SURE.
COURT CLERK: DO YOU HAVE AN EXTRA COPY, COUNSEL?
MR. DOWNEY: I HAVE AN EXTRA COPY FOR THE COURT. I DON'T THINK I HAVE A SECOND COPY. I CAN PROVIDE THESE
(HANDING.) THESE ARE, YOUR HONOR, EXHIBITS 504 AND 551. 551 IS A MORE LENGTHY POWERPOINT PRESENTATION. 504 IS A SHORTER DOCUMENT WHICH JUST HAS AT THE BACK A NUMBER OF REPRESENTATIONS THAT I ANTICIPATE THAT MR. BOSTIC WILL SEEK TO ASK MR. EDLIN ABOUT ON HIS DIRECT EXAMINATION.
JUDGE DAVILA: ALL RIGHT. THANK YOU. I'M NOT GOING TO GO THROUGH THESE JUST NOW, BUT I DO WANT TO HEAR COMMENT. GOOD MORNING, MR. BOSTIC.
MR. BOSTIC: GOOD MORNING, YOUR HONOR. JOHN BOSTIC FOR THE UNITED STATES. I'M HAPPY TO EXPLAIN HOW THESE PARTICULAR EXHIBITS FIT IN WITH THIS CASE AND WHY THEY'RE ADMISSIBLE. FIRST, THE GOVERNMENT DOESN'T AGREE THAT THESE WOULD NOT BE ADMISSIBLE UNDER 404. I'LL CIRCLE BACK TO THAT, BUT JUST TO MAKE THAT CLEAR. THEY ARE ABSOLUTELY INEXTRICABLY INTERTWINED WITH THE FRAUD CHARGED IN THIS CASE. THE PRESENTATIONS THAT DEFENSE COUNSEL IS REFERENCING ARE PART OF HOW THERANOS'S RELATIONSHIP AND CONTACTS WITH THE MILITARY BEGAN AND WERE MAINTAINED. THE NATURE OF THAT RELATIONSHIP WITH THE MILITARY IS A CORE PART OF THIS CASE BECAUSE PART OF THIS CASE INVOLVES MS. HOLMES'S FALSE STATEMENTS TO OTHERS ABOUT THE NATURE OF THAT RELATIONSHIP. SO THE GOVERNMENT NEEDS TO BE ABLE TO SHOW WHAT THE TRUTH WAS, WHAT WAS ACTUALLY HAPPENING, AND THE PROGRESSION AND NATURE OF THAT RELATIONSHIP OVER TIME. THESE COMMUNICATIONS WITH THE MILITARY ARE PART OF TELLING THAT STORY, SO THE JURY NEEDS TO HAVE THAT CONTEXT.
MORE SPECIFIC TO THE FALSE STATEMENTS IN THOSE COMMUNICATIONS, THEY'RE INEXTRICABLY INTERTWINED WITH THE SCHEME TO DEFRAUD HERE BECAUSE, LIKE MANY OF THE TOPICS AT ISSUE, THE DEFENDANT'S MISLEADING STATEMENTS ON THE TOPIC OF THE MILITARY OFTEN CAME IN THE FORM OF EXAGGERATIONS, INCREASING THE IMAGE OR IMPRESSION OF WHAT WAS ACTUALLY HAPPENING WITH THE MILITARY, WHEREAS WHERE THINGS ACTUALLY STOOD WERE AT A MUCH MORE KIND OF RUDIMENTARY OR SUPERFICIAL LEVEL. IN ORDER TO HAVE SOMETHING TO EXAGGERATE IN THE FIRST PLACE, MS. HOLMES HAD TO GET THE MILITARY ON THE HOOK, AS IT WERE. SHE HAD TO GET THEM INTERESTED IN THERANOS'S TECHNOLOGY SO THAT THERE COULD BE SOME LEVEL OF CONTACT FOR HER TO THEN CHARACTERIZE TO OTHERS. IN ORDER TO GET THE MILITARY INTERESTED IN THERANOS'S TECHNOLOGY, MISREPRESENTATIONS ABOUT WHAT THAT TECHNOLOGY COULD DO WERE NECESSARY.
SO THAT WAS PART OF THE OVERALL SCHEME TO DEFRAUD BECAUSE IT WAS NECESSARY TO INITIATE AND CONTINUE AND MAINTAIN THAT CONTACT WITH THE MILITARY IN ORDER, REALLY IN SERVICE OF THE CHARGED FRAUD AS TO INVESTORS IN THIS CASE. IT'S ALSO VERY RELEVANT TO MS. HOLMES'S KNOWLEDGE OF THE FALSITY OF THE REPRESENTATIONS SHE MADE LATER. BECAUSE MS. HOLMES KNEW THAT THE MILITARY'S INTEREST WAS PREMISED ON THE MILITARY'S IMPRESSION OF WHAT THE THERANOS TECHNOLOGY WAS CAPABLE OF, AND BECAUSE SHE KNEW THAT IMPRESSION WAS FALSE BASED ON HER MISLEADING STATEMENTS IN THE EARLY STAGES OF THOSE CONVERSATIONS, SHE WAS AWARE THAT THE DEALINGS WITH THE MILITARY WERE LIKELY NOT TO GET OFF THE GROUND, AND THAT THE MILITARY WAS UNLIKELY TO ACTUALLY BE ABLE TO USE THERANOS'S TECHNOLOGY. SO BEING ABLE TO SHOW THAT IS VERY RELEVANT AND PROBATIVE OF HER KNOWLEDGE OF FALSITY AND HER INTENT TO DECEIVE LATER REGARDING THOSE STATEMENTS TO THE MILITARY.
JUDGE DAVILA: SO IT'S THE TIMING THAT I THINK YOU'RE CONCERNED WITH, MR. DOWNEY.
MR. DOWNEY: IT'S IN PART, YOUR HONOR, THE TIMING, BUT IT'S ALSO A DIFFERENT ISSUE. JUST TO RESET THE TABLE AS TO WHAT THE ALLEGATIONS ARE AS TO DOD, THEY'RE NOT ABOUT EXAGGERATIONS OF THE CAPACITY OF THERANOS TECHNOLOGY. THE ALLEGATION OF THE INDICTMENT AS IT RELATES TO DOD IS THAT INVESTORS WERE TOLD THAT THERE WAS REVENUE IN CONNECTION WITH DOD PROJECTS, BUT THERE WAS NOT SIGNIFICANT REVENUE IN CONNECTION WITH THOSE PROJECTS. THAT HAS NOTHING TO DO WITH STATEMENTS MADE 18 MONTHS AWAY FROM ANY REPRESENTATIONS TO INVESTORS. THE QUESTION IS SIMPLY A FINANCIAL ONE OF WHAT WAS THE FINANCIAL STRENGTH OF THAT RELATIONSHIP. I THINK TO SUGGEST THAT PRESENTATIONS MADE TO DOD OVER A LONG PERIOD OF TIME NEED TO COME INTO THE CASE HAS NOTHING TO DO WITH THE ALLEGATION. NOT TO MENTION, YOUR HONOR, THAT IT'S CLEARLY BOTH DESIGNED TO AND IS INFLAMMATORY.
MR. BOSTIC: AND, YOUR HONOR, JUST TO CORRECT A POINT THERE. IT'S NOT THE CASE THAT THE MISREPRESENTATIONS ABOUT THE MILITARY WERE LIMITED TO THE AMOUNT OF REVENUE THAT THERANOS WAS GETTING. I THINK THE COURT HAS ALREADY HEARD TESTIMONY FROM WITNESSES WHO WERE TOLD THAT THE THERANOS DEVICE WAS BEING USED BY THE MILITARY. INVESTORS WILL, OR ARE EXPECTED TO TESTIFY THAT MS. HOLMES TOLD THEM THAT THE THERANOS DEVICE WAS IN ACTIVE USE BY THE MILITARY AND THAT WAS A MATERIAL FACT FOR THEM. THEY CARED ABOUT THAT. THAT FACT WAS NOT TRUE. AND IN ORDER TO SHOW THAT MS. HOLMES KNEW THAT IT WASN'T TRUE, IT'S IMPORTANT FOR THE JURY TO UNDERSTAND THAT THAT USE WAS NEVER GOING TO OCCUR BECAUSE THE MILITARY'S INTEREST IN THE DEVICE IN THE FIRST PLACE WAS BASED ON A FALSE IMPRESSION OF WHAT THE DEVICE COULD DO.
JUDGE DAVILA: DO YOU INTEND TO, DO YOU INTEND TO INTRODUCE THE ENTIRETY OF THIS -- I GUESS THIS IS A POWERPOINT PRESENTATION?
MR. BOSTIC: I WOULD, YOUR HONOR. AND I READ THE DEFENSE'S OBJECTION AS ONLY APPLYING TO THE FALSE STATEMENTS, SO THAT'S WHAT I'M FOCUSSING ON. BUT IT'S THE FALSE STATEMENTS THAT ARE A VERY PIVOTAL PART OF THAT EXHIBIT, AGAIN, FOR THE PURPOSES OF SHOWING MS. HOLMES'S KNOWLEDGE THAT THE MILITARY WAS UNLIKELY TO END UP USING THE THERANOS DEVICE, AND THAT MONTHS LATER WHEN SHE WAS TELLING INDIVIDUALS THAT THE DEVICE WAS IN USE BY THE MILITARY, THAT COULD NOT HAVE BEEN TRUE BECAUSE OF WHAT THE MILITARY ACTUALLY WANTED.
JUDGE DAVILA: AND TELL ME AGAIN THE TIMING OF WHEN THIS PRESENTATION WAS PRESENTED.
MR. BOSTIC: I BELIEVE -- LET'S SEE. I'LL TURN TO THOSE EXHIBITS, BUT I BELIEVE THEY'RE IN 2012. MAYBE DEFENSE COUNSEL HAS --
MR. DOWNEY: IT'S JANUARY OF 2012, YOUR HONOR.
JUDGE DAVILA: THANK YOU.
MR. BOSTIC: IT'S CERTAINLY WITHIN THE TIME PERIOD OF THE CHARGED FRAUD.
JUDGE DAVILA: IT SOUNDS LIKE WE'LL GET TO THIS WITNESS TODAY, AND YOU INTEND TO EXAMINE ON THIS TODAY AT SOME TIME?
MR. BOSTIC: WE WILL GET TO THIS WITNESS TODAY. I'M NOT SURE WHETHER WE'LL GET TO THIS TOPIC TODAY.
JUDGE DAVILA: OKAY.
MR. BOSTIC: AND WE WON'T GET TO THIS TOPIC BEFORE A BREAK TODAY, IF THE COURT INTENDS TO TAKE A BREAK.
JUDGE DAVILA: I THINK WE WILL TAKE A BREAK AT 11:00 AND IT PROBABLY WILL BE A 30 MINUTE BREAK OR SOMETHING LIKE THAT AS I UNDERSTAND IT.
MR. DOWNEY: YOUR HONOR, JUST TO HELP THE COURT, TO THE EXTENT THAT IT IS HELPFUL, THIS WAS THE SUBJECT OF TWO OR THREE PAGES OF BRIEFING BY BOTH SIDES AT 1000 AND 1004 OF THE DOCKET. AND JUST SO THE COURT HAS IT HANDY, I COULD HAND THOSE PLEADINGS UP.
JUDGE DAVILA: I DO RECALL THE COLLOQUY ON THAT. I'M HAPPY TO RECEIVE THEM. YOU'VE BEEN IN MY OFFICE. YOU'VE SEEN THE BOXES, SO I'M SURE WE COULD FIND IT.
MR. DOWNEY: WELL, I'M HAPPY TO KEEP THEM, TOO. IF IT'S GOOD FOR THE COURT. BUT IF I MAY, I'LL PASS IT UP THROUGH MS. KRATZMANN IF IT'S HANDY.
JUDGE DAVILA: SURE.
MR. DOWNEY: I HAVE TO SAY I'M ALSO A LITTLE UNCERTAIN AS TO WHAT MR. BOSTIC IS DESCRIBING AS FALSE STATEMENTS, SO I CAN'T REALLY RESPOND TO HIS ARGUMENT. BUT I CAN TELL YOU HIS CHARACTERIZATION OF WHAT IS IN THE INDICTMENT IS AN OVERSTATEMENT OF THE CHARGE. THERE'S NOT SOME GENERAL ALLEGATION THAT THERE ARE MISREPRESENTATIONS ABOUT DOD. IT'S VERY FOCUSSED ON REVENUE AS YOU WOULD EXPECT.
JUDGE DAVILA: WELL, THAT WAS PART OF OUR -- THERE WAS A BILL OF PARTICULARS, THERE WAS A MOTION TO DISMISS, AND IT DID TOUCH ON JUST WHAT WAS THE MILITARY REPRESENTATION, THE REPRESENTATION TO THE MILITARY, WHAT WAS THAT ALLEGATION ABOUT, AND I RECALL US TALKING AT LENGTH ABOUT THE REPRESENTATION ABOUT THE MONETARY INVESTMENT AND WHETHER OR NOT THERE WERE -- THE CONTRACT WAS AS LARGE AS IT WAS REPRESENTED. ALL RIGHT. WELL, THANK YOU FOR BRINGING THIS TO MY ATTENTION. I'M GOING TO NEED TO LOOK AT IT, AND THANK YOU FOR LETTING ME KNOW THAT. WE MAY OR MAY NOT GET TO THAT, BUT I'LL LOOK TO IT DURING OUR BREAK TODAY. WE'RE ONLY GOING UNTIL 1:00 TODAY AS YOU KNOW.
MR. DOWNEY: ONE OTHER ISSUE, YOUR HONOR.
JUDGE DAVILA: YES.
MR. DOWNEY: IT MAY OR MAY NOT BE PART OF TODAY'S PRESENTATION. THERE'S A DOCUMENT THAT THE GOVERNMENT SENT US LAST NIGHT AS A POTENTIAL EXHIBIT, WHICH IS EXHIBIT 1496, 1496, WHICH CONTAINS A REPORT WHICH WAS PREPARED BY MR. EDLIN AND SENT TO MS. HOLMES, WHICH IS THE COMMENTARY OF A NUMBER OF INDIVIDUALS, A COMPTROLLER IN THE MILITARY, UNIDENTIFIED OTHER PERSONNEL, WHICH ARE IN THE NATURE OF SPECULATING CRITICISM OF THERANOS. I THINK THAT THAT EVIDENCE, IF YOU JUST TAKE A LOOK AT THE EXHIBIT, YOU'LL SEE THAT THERE'S NO FOUNDATION FOR THE HEARSAY COMMENTS THAT ARE CONTAINED IN THE DOCUMENT, AND I THINK IT IS -- EVEN IF A FOUNDATION WERE LAID, I THINK IT'S 403 EVIDENCE WITH HIGHLY INFLAMMATORY, NOT TO MENTION UNINFORMED, COMMENTS.
MR. BOSTIC: SO, YOUR HONOR, THIS IS AN EMAIL FROM THE WITNESS, DANIEL EDLIN, TO MS. HOLMES AND HER BROTHER, CHRISTIAN HOLMES, REPORTING ON A MEETING THAT HE HAD JUST HAD WITH REPRESENTATIVES FROM THE MILITARY. THIS IS IN JANUARY OF 2014. AS REPORTED BY MR. EDLIN DIRECTLY TO THE DEFENDANT, THE MILITARY WAS SKEPTICAL AND CRITICAL OF THE INFORMATION THAT IT HAD RECEIVED FROM THERANOS AT THAT POINT. THIS IS RELEVANT. IT GOES TO THE DEFENDANT'S STATE OF MIND AND HER KNOWLEDGE REGARDING THE STATUS OF THE RELATIONSHIP WITH THE MILITARY AND THE HEALTH OF THAT RELATIONSHIP, THE INTEREST OF THE MILITARY IN THE THERANOS DEVICE. THE WITNESS IS EXPECTED TO TESTIFY ABOUT THE SUBSTANCE OF THIS CONVERSATION. THE EMAIL CONSTITUTES HIS NOTES FROM THAT CONVERSATION AND SHOWS THAT THE SUBSTANCE WAS REPORTED DIRECTLY TO THE DEFENDANT. IT'S RELEVANT AS TO ANY SUBSEQUENT, FOR EXAMPLE, ANY SUBSEQUENT STATEMENTS THAT SHE MADE ABOUT THE STATUS OF THINGS WITH THE MILITARY.
MR. DOWNEY: WELL, AGAIN, YOUR HONOR, THESE ARE NOT COMMENTS ABOUT THE VIEWS OF THE, QUOTE-UNQUOTE, MILITARY. THIS IS A DISCUSSION OF ONE MEETING IN WHICH PEOPLE WITH NO EXPERTISE IN THE TECHNOLOGY MAKE SPECULATIVE COMMENTS ABOUT THE TECHNOLOGY. IT'S NOT AN ELEMENT OF THE MILITARY THAT IS ANY KIND OF A BASIS FOR MS. HOLMES'S CLAIMS ABOUT REVENUE FROM DOD. SO IT'S A LITTLE BIT LIKE ADMITTING IN A CASE EVIDENCE ABOUT A CUSTOMER WHO DECLINES TO BUY A PRODUCT AND CLAIMING THAT THAT POTENTIAL CUSTOMER IS, YOU KNOW, THE VICTIM OF EITHER A FRAUD OR SOME KIND OF DEFECTIVE PRODUCT. THIS IS AMONGST MANY ELEMENTS OF THE MILITARY WITH WHICH THERANOS DEALT AND IT HAS REALLY NOTHING TO DO WITH THE CLAIMS MADE OR THE CLAIMS ALLEGED TO BE FALSE.
JUDGE DAVILA: SO ARE THESE -- THIS IS MR. EDLIN'S INTERPRETATION, OR HIS NOTES OF COMMENTS AT A MEETING WHERE IT SOUNDS LIKE THE TECHNOLOGY WAS PRESENTED.
MR. DOWNEY: WELL, I THINK ACTUALLY IN GENERAL TERMS THAT'S CORRECT. BUT ACTUALLY WHAT MS. HOLMES ASKED MR. EDLIN TO DO WAS TO SEND THE MOST EGREGIOUS COMMENTS THAT HAD BEEN MADE, NOT ALL OF THE COMMENTS THAT TOOK PLACE IN A MEETING. SHE WANTED TO KNOW, WHAT ARE THE CRITICISMS OF US BY THESE PARTICULAR PEOPLE IN THE MEETING SO I CAN KNOW WHAT THEY ARE?
JUDGE DAVILA: DOESN'T THAT GO TO MR. BOSTIC'S POINT IS HER STATE OF MIND?
MR. DOWNEY: IT WOULD ONLY GO THERE IF THE CLAIM WAS THAT SHE WAS MAKING REPRESENTATIONS ABOUT THIS ELEMENT OF THE MILITARY AND SAYING THIS ELEMENT OF THE MILITARY HAS NEVER BEEN CRITICAL OF US. THAT'S NOT THE ISSUE IN THE CASE. THE ISSUE IS, WHAT IS THE REVENUE ASSOCIATED WITH ANY ELEMENT OF DOD? AND I THINK WHEN YOUR HONOR HEARS THE EVIDENCE, THE PERSONNEL REFERENCED HERE HAVE NOTHING TO DO WITH ANY ELEMENT OF THE MILITARY THAT WAS RELEVANT ULTIMATELY TO THERANOS OR ITS PROGRAMS.
MR. BOSTIC: YOUR HONOR, IT'S SIMPLY NOT TRUE THAT THE ISSUE IS LIMITED TO THE AMOUNT OF REVENUE DERIVED FROM THE CONTACTS WITH THE MILITARY. ALSO AT THE ISSUE IS STATEMENTS THAT MS. HOLMES MADE ABOUT THE MILITARY'S USE OF THE PRODUCT, THE MILITARY'S INTEREST IN THE PRODUCT. MS. HOLMES'S STATEMENTS WERE NOT SPECIFIC TO INDIVIDUAL COMPONENTS OF THE MILITARY. THEY TENDED TO BE MORE VAGUE THAN THAT. SHE SPOKE ABOUT THE MILITARY AND THE DEPARTMENT OF DEFENSE IN GENERAL. GIVEN THAT, INPUT FROM INDIVIDUALS ASSOCIATED WITH THE MILITARY ABOUT THEIR INTEREST IN THE THERANOS DEVICE, ABOUT INFORMATION THAT THEY HADN'T RECEIVED FROM THERANOS, INFORMATION THAT THEY WOULD NEED TO BE ABLE TO MOVE FORWARD, THESE THINGS ARE CLEARLY RELEVANT TO HER MENTAL STATE AND HER KNOWLEDGE OF WHERE THINGS STOOD ON THAT FRONT. THE FACT THAT THIS IS A SELECTION OF COMMENTS FROM THAT MEETING ISN'T RELEVANT. THE DEFENSE CAN CERTAINLY COVER THAT ON CROSS IF THEY NEED TO. IT'S ALSO EVIDENT FROM THE DOCUMENT ITSELF AND THAT'S WHAT THE WITNESS WILL TESTIFY TO. THE DEFENSE CAN ASK THE WITNESS ABOUT ANYTHING ELSE THAT HE REMEMBERS FROM THAT MEETING. AND AS TO COUNSEL'S COMMENT THAT THESE ARE UNINFORMED COMMENTS, THEY'RE NOT BEING OFFERED FOR THE TRUTH TO THE EXTENT THAT THEY CHARACTERIZE THE THERANOS TECHNOLOGY. THE CRITICAL FACT HERE IS THAT THIS WAS THE MILITARY'S VIEW, THESE REPRESENTATIVES' VIEW OF THE INFORMATION THAT THEY RECEIVED FROM THERANOS AT THE TIME, AND IT GOES TO WHAT THEY'RE TELLING THERANOS ABOUT THE LIKELIHOOD OF THINGS MOVING FORWARD AND THEIR CONTINUED INTEREST, OR LACK THEREOF, IN THE THERANOS TECHNOLOGY.
JUDGE DAVILA: SO DO WE NEED TO KNOW WHAT THE CONTEXT OF THIS CONVERSATION WAS? AND IT SEEMS LIKE THAT IS SOMETHING THAT WOULD BE APPROPRIATE, THAT IS, WHAT IS THE FLOW OF THIS CONVERSATION, MR. EDLIN? DID MS. HOLMES ASK HIM TO SEEK OUT INFORMATION? WAS HE UNDER INSTRUCTIONS FROM HIS EMPLOYER TO COLLECT THIS INFORMATION AND REPORT BACK? THAT'S A DIFFERENT SCENARIO, I THINK, AND IT MIGHT HAVE SOME STRONGER RELEVANCE PERHAPS IF HE WAS OPERATING UNDER THOSE INSTRUCTIONS AND WAS REPORTING BACK AS REQUESTED FOR WHATEVER REASON. I JUST DON'T KNOW WHAT THE FOUNDATION IS AND HOW IT'S GOING TO COME IN. I APPRECIATE YOU TELLING ME THAT THIS DOCUMENT EXISTS, BUT I THINK CONTEXTUALLY IT WOULD BE HELPFUL, AND I'M SURE YOU'LL LAY A FOUNDATION FOR THIS. I THINK I UNDERSTAND, MR. DOWNEY, WHAT YOU'RE TALKING ABOUT, BUT --
MR. DOWNEY: YOUR HONOR, I ACTUALLY AGREE. I THINK IT'S DIFFICULT TO PARSE WHAT EACH OF US IS SAYING, SO I THINK THE FOUNDATION THAT WOULD NEED TO BE ESTABLISHED TO ADMIT THIS DOCUMENT IS THAT SOMEHOW THESE INDIVIDUALS WITHIN ONE ELEMENT OF DOD HAVE SOME RELATIONSHIP TO THE REPRESENTATIONS THAT MS. HOLMES WAS MAKING. I THINK YOU'LL SEE WHEN THE EVIDENCE COMES IN THESE INDIVIDUALS DO NOT REPRESENT AN ELEMENT OF THE MILITARY WITH WHICH THERANOS DEVELOPED OR SOUGHT TO DEVELOP A RELATIONSHIP.
MR. BOSTIC: AND, YOUR HONOR, I WOULD JUST DISAGREE THERE. I THINK TO THE EXTENT THAT THIS DOCUMENT, FOR EXAMPLE, REFLECTS COMMENTS FROM A CERTAIN LIEUTENANT COLONEL, IT'S NOT THE CASE THAT THIS IS ONLY RELEVANT IF MS. HOLMES LATER MADE FALSE STATEMENTS ABOUT WHAT THAT LIEUTENANT COLONEL THOUGHT OF THE THERANOS TECHNOLOGY, THAT KIND OF ONE-TO-ONE RELATIONSHIP IS TOO HIGH A BAR FOR RELEVANCE.
JUDGE DAVILA: I DON'T KNOW WHAT THE CONTEXT IS. IF MR. EDLIN WAS SENT OUT TO COLLECT INFORMATION FROM DOD REPRESENTATIVES, MILITARY, WHOEVER IT MIGHT BE, AND IF IT'S A GENERAL LARGE, BROAD CAST NET THAT WAS CAST, AND IF THESE ARE REPRESENTATIVES OF, THAT'S ONE THING. IF IT WAS SPECIFIC, I WANT YOU TO TALK TO THE AIR FORCE AND ALL OF THAT, THAT'S A DIFFERENT CONTEXT, I THINK.
MR. DOWNEY: AND I THINK WHAT YOUR HONOR WILL SEE, BUT I AGREE WITH YOUR HONOR THE CONTEXT WILL BE IMPORTANT, I THINK WHAT YOU'LL SEE IS THAT THIS IS A MEETING IN CONNECTION WITH ADVANCING A PROGRAM IN CONNECTION WITH ONE ELEMENT OF THE MILITARY. A LOT OF THE CONTRACTING PERSONNEL I THINK HAD FRUSTRATION WITH THERANOS. ONE OF THE COMMENTS RELATES TO THE EXPRESSION OF FRUSTRATION BECAUSE THEY HAVEN'T HIRED A MILITARY VETERAN TO HELP WITH FACILITATING THE CONTRACTING PROCESSES, NOT SOMEONE WHO HAD THE RELEVANT EXPERTISE OR THE NATURE OF THE MEETING IS THAT, NOT SOMETHING BROADER THAN THAT. I THINK ONE OF THE SPEAKERS IS IDENTIFIED AS A COMPTROLLER.
JUDGE DAVILA: WELL, I THINK YOU HAVE EXPERIENCE WITH THE GOVERNMENT, MR. DOWNEY, IN CASES AND YOU KNOW HOW THE GOVERNMENT BUREAUCRACY WORKS WITH MEETINGS AND HOW DIFFERENT INDIVIDUALS -- AND I KNOW MR. BOSTIC IS INTIMATE WITH GOVERNMENT BUREAUCRACY -- WE KNOW HOW THOSE MEETINGS SOMETIMES ARE STAFFED, THEY'RE CALLED, ET CETERA, AND THAT'S PART OF THE CONTEXT I'M SURE WILL BE DEVELOPED BY BOTH SIDES. BUT THANKS FOR IDENTIFYING THIS EARLY. I'VE JUST BEEN HANDED -- OH, ANYTHING ELSE FROM ON THIS?
MR. DOWNEY: NO, NOT FROM US.
MR. BOSTIC: NO, YOUR HONOR.
JUDGE DAVILA: I'VE JUST BEEN HANDED AN EMAIL FROM ONE OF OUR JURORS WHO -- HE OVERSLEPT AND HE'S ON HIS WAY. HIS GOOGLE MAP TELLS HIM HE'LL BE HERE BY 9:30. I PRESUME THAT ASSUMES HE OBEYS ALL OF THE BASIC SPEED LAWS, WHICH WE HOPE HE DOES, AND SO THAT'S -- IT SOUNDS LIKE WE WON'T START UNTIL 9:30 AT LEAST UNTIL HE GETS HERE. PERHAPS HE WAS WATCHING SOME TERRIBLE T.V. SHOW LAST NIGHT THAT CAUSED HIS DISMAY.
(LAUGHTER.)
MR. DOWNEY: CONDOLENCES, YOUR HONOR.
JUDGE DAVILA: THERE'S NO JOY IN MUDVILLE.
MR. BOSTIC: EVEN I HEARD ABOUT THAT, YOUR HONOR.
(LAUGHTER.)
JUDGE DAVILA: ALL RIGHT. THANKS VERY MUCH. THANKS FOR THIS. THAT GIVES US SOME TIME. THANK YOU.
COURT CLERK: COURT WILL BE IN RECESS.
(RECESS FROM 8:55 A.M. UNTIL 9:47 A.M.)
(JURY IN AT 9:47 A.M.)
JUDGE DAVILA: ALL RIGHT. GOOD MORNING. LET'S GO ON THE RECORD IN THE HOLMES MATTER. ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. OUR JURY IS PRESENT. GOOD MORNING, LADIES AND GENTLEMEN. WE'LL CALL OUR WITNESS IN IN JUST A MOMENT. LET ME JUST ASK THE JURY, OVER THE RECESS, DID ANY OF YOU HAVE OCCASION TO COME ACROSS ANY INFORMATION, READ ANYTHING, OR HAVE COMMUNICATION FROM ANYONE ABOUT ANYTHING TO DO WITH THIS CASE? IF SO, PLEASE SHOW ME YOUR HAND IF YOU WOULD. I SEE NO HANDS. THANK YOU VERY MUCH. THANK YOU. DO WE HAVE THE WITNESS HERE? LET'S HAVE OUR WITNESS RETURN. MR. WADE, I THINK YOU WERE EXAMINING.
JUDGE DAVILA: THANK YOU. GOOD MORNING, SIR. IF YOU COULD TAKE THE STAND AGAIN, DOCTOR, WE'LL RESUME YOUR EXAMINATION. MAKE YOURSELF COMFORTABLE. ADJUST THE CHAIR AND MICROPHONE AS YOU NEED. I THINK YOU INFORMED ME YESTERDAY THAT YOU HAD BEEN VACCINATED.
SUNIL DHAWAN: YES, SIR.
JUDGE DAVILA: AND IF YOU WISH TO TAKE YOUR MASK OFF, YOU MAY. THANK YOU. IF YOU COULD STATE YOUR NAME AGAIN, PLEASE.
SUNIL DHAWAN: SUNIL DHAWAN.
JUDGE DAVILA: THANK YOU. I'LL ENCOURAGE YOU TO SPEAK DIRECTLY INTO THE MICROPHONE. I THINK THIS YOUNG MAN HAS SOME MORE QUESTIONS FOR YOU.