Daniel Edlin — Direct/Cross (Continued)
2,090 linesMR. DOWNEY: THIS IS NOT A NEW ISSUE TO THE COURT, BUT TO US IT WAS A SURPRISING ONE. MR. BOSTIC DISCLOSED TO US THIS MORNING THAT HE WANTS TO SEEK TO INTRODUCE THROUGH THIS WITNESS THE CUSTOMER SPREADSHEETS THAT WERE THE SUBJECT OF PRETRIAL LITIGATION, OR THE SUBJECT OF THE COURT'S MOTION IN LIMINE ORDER. THE -- APPARENTLY HE INTENDS TO INTRODUCE THE ENTIRE EXHIBIT. AS THE COURT KNOWS, THE COURT HAS ALREADY RULED THAT THE CONTENTS OF THAT SPREADSHEET ARE INADMISSIBLE UNDER 403 AND FOR OTHER REASONS AS CONFUSING, UNDULY PREJUDICIAL, NOT RELEVANT. THE COURT DID RULE THAT THE EXISTENCE OF THAT KIND OF LOG MIGHT BE SOMETHING THAT COULD BE EXPLORED AT TRIAL. THIS WITNESS WAS ASKED LAST WEEK IF HE HAD EVER SEEN THIS. HE SAID THAT HE HAD NOT. THERE'S NOTHING IN MANY, MANY INTERVIEWS, I THINK EIGHT OR NINE JENCKS INTERVIEWS, THAT REFLECTS ANY KNOWLEDGE OR ANY CONVEYING OF THIS TO MS. HOLMES. I'M AT A LOSS TO UNDERSTAND WHY WE'RE IN THIS LITIGATION HAVING SPENT A LOT OF TIME ON IT PRETRIAL.
JUDGE DAVILA: MR. BOSTIC?
MR. BOSTIC: YOUR HONOR, FIRST, I HAVE A COPY OF THE EXHIBIT AND REPORT THAT I'M HANDING UP A COPY OF NOW (HANDING).
JUDGE DAVILA: SURE. THANK YOU. -
MR. BOSTIC: SO, YOUR HONOR, THIS IS EXHIBIT 5439, WHICH IS AN EMAIL FROM A THERANOS EMPLOYEE TO SUNNY BALWANI ATTACHING A LOG OF COMPLAINTS AS OF SEPTEMBER 2013. THE COMPLAINT LOG CONTAINS I THINK SOMEWHERE NORTH OF 150 PATIENT COMPLAINT ENTRIES. IN PRETRIAL LITIGATION IN THE MOTION IN LIMINE STAGE, MY UNDERSTANDING WAS THAT THE COURT DEFERRED RULING ON THE ADMISSIBILITY OF THE COMPLAINT LOGS. THE COURT RECOGNIZED THAT THERE WAS CASE LAW SUBMITTED BY THE GOVERNMENT SHOWING THAT THOSE COMPLAINT LOGS CAN BE ADMISSIBLE AT LEAST FOR NOTICE, SOMETIMES FOR THE TRUTH OF THE MATTER DEPENDING ON THE FOUNDATION LAID. THE GOVERNMENT HELD -- EXCUSE ME. THE COURT HELD THAT IF A BUSINESS RECORDS FOUNDATION CAN BE LAID, THEN SUCH A LOG MIGHT COME IN FOR THE TRUTH. IF NOT, THEN THE LOG MAY BE ADMITTED FOR NOTICE.
IN THIS CASE, I'M NOT SURE HOW MUCH FOUNDATION THIS WITNESS WILL BE ABLE TO LAY FOR THIS PARTICULAR COMPLAINT LOG, BUT THE WITNESS MAY BE ABLE TO LAY A FOUNDATION FOR EMAIL USE AT THERANOS GENERALLY SPEAKING, AND THE USE OF EMAILS TO CONVEY INFORMATION ABOUT COMPLAINTS. THAT MAY BE SUFFICIENT TO BRING THIS IN AS A BUSINESS RECORD. I ALSO WANT TO POINT OUT THAT IN THE TRIAL TO DATE, THE DEFENSE HAS ON SEVERAL OCCASIONS PUBLISHED TO THE JURY FAVORABLE CUSTOMER FEEDBACK FROM THERANOS. IN THE OPENING, DEFENSE COUNSEL SAID, I BELIEVE THIS IS PAGE 562 OF THE TRANSCRIPT, THAT "THERANOS RECEIVED FAVORABLE CUSTOMER REVIEWS FROM DOCTORS AND PATIENTS LIKE THIS PHYSICIAN WHO TOLD THE COMPANY THAT," AND THEN WENT ON TO DISPLAY AND QUOTE A FAVORABLE ACCOUNT FROM A DOCTOR ABOUT THE EXPERIENCE AND THE ACCURACY OF THERANOS RESULTS. SINCE THEN, IN THE CROSS OF DR. ROSENDORFF WITH EXHIBIT 13809 AND IN THE CROSS-EXAMINATION OF MR.
JHAVERI WITH EXHIBIT 2394, THE DEFENSE AGAIN PUBLISHED TO THE JURY THE SUBSTANCE OF FAVORABLE PATIENT FEEDBACK ASKING THE WITNESSES ABOUT THE LACK OF NEGATIVE FEEDBACK. IN SO DOING, THE DEFENSE ACTUALLY INJECTED INTO THE CASE THE QUESTION OF WHETHER THERANOS RECEIVED COMPLAINTS, HOW MANY, AND WHAT THE SUBSTANCE WAS. SO ON THAT BASIS ALSO THE GOVERNMENT WOULD SEEK TO ADMIT AT LEAST PORTIONS OF THE EXHIBIT IN FRONT OF THE COURT. AND WE WOULD, I THINK, BE SEEKING TO ADMIT IT TODAY IF WE CAN LAY A FOUNDATION, AND THEN PUBLISH IT AT ANOTHER TIME AFTER DISCUSSING SOME REDACTION ISSUES WITH THE DEFENSE AND THE COURT.
JUDGE DAVILA: WOULD YOU -- THANK YOU. WOULD YOU SEEK TO INTRODUCE THE TOTALITY OF THIS -- THE DOCUMENT ITSELF OR PARSE IT OUT OR -- I DON'T KNOW WHAT THE TIMEFRAME IS OR OTHER QUESTIONS ABOUT THE COMPLAINTS.
MR. BOSTIC: I WOULD SEEK TO ADMIT THE ENTIRE THING, YOUR HONOR, I THINK SUBJECT TO REDACTING SENSITIVE INFORMATION AND SUBJECT TO OTHER THOUGHTS THAT THE COURT MIGHT HAVE ON PORTIONS THAT COULD NOT COME IN. BUT, YES.
JUDGE DAVILA: AND IT REMAINS TO BE SEEN WHETHER THE WITNESS CAN LAY THE FOUNDATION IN ANY EVENT.
MR. BOSTIC: THAT'S RIGHT, YOUR HONOR. I THINK THIS WITNESS IS NOT FAMILIAR WITH THIS PARTICULAR COMPILATION OF COMPLAINTS, BUT CERTAINLY CAN TESTIFY TO, LIKE I SAID, THE USE OF EMAILS AT THERANOS AND IN CONNECTION WITH COMPLAINTS GENERALLY.
JUDGE DAVILA: OKAY. MR. DOWNEY?
MR. DOWNEY: YOUR HONOR, JUST TO SORT OF LAY OUT THE ISSUES THAT I THINK WILL PRESENT. THIS WILL NOT BE QUALIFIED AS A BUSINESS RECORD BY THIS WITNESS, OR BY ANY OTHER, BECAUSE, FIRST OF ALL, THIS IS NOT SOMETHING THAT IS A RECORD OF DETAILS OR COMPLAINTS THAT WAS MADE AT OR NEAR THE TIME THAT THOSE COMPLAINTS WERE RECEIVED. THIS IS A COMPILATION EXHIBIT OF INFORMATION FROM MANY DIFFERENT SOURCES THAT WAS PREPARED IN THE SECOND HALF OF 2015 APPARENTLY. IT'S NOT A BUSINESS RECORD THAT WAS BEING KEPT IN REAL TIME, OR THE EVENTS THAT IT DESCRIBES ARE BEING DISCUSSED AND RECORDED IN THE MANNER OF A BUSINESS RECORD. MANY OF THE ENTRIES, I THINK, IF THE COURT HAS THE TIME TO LOOK AT THEM, THE COURT WOULD RECOGNIZE THAT THE NATURE OF THE SPREADSHEET IS NOT THAT. THAT'S APPARENT FROM MANY OF THE ENTRIES. ALSO, THIS IS NOT A RECORD OF THERANOS INFORMATION. THIS IS A RECORD OF HEARSAY STATEMENTS, OFTEN MADE MANY MONTHS BEFORE, BY DOCTORS, CUSTOMERS, OTHER PROVIDERS.
THE CONTENT OF THE STATEMENTS WITHIN THIS RECORD ARE CLEARLY HEARSAY AND WOULD THEMSELVES BE PRECLUDED. SO THERE'S A SECOND LEVEL OF HEARSAY THAT I THINK WOULD BE INADMISSIBLE. AND THE BUSINESS RECORDS ISSUE, EVEN IF SOMEHOW OVERCOME AT THE FIRST LEVEL, WOULD NOT BE OVERCOME AT THE SECOND LEVEL. THAT'S A LOT OF THE CONVERSATION THAT WE HAD WITH YOUR HONOR IN THE PRETRIAL PERIOD. ALSO, YOUR HONOR, I THINK IF THE PURPOSE OF THE ADMISSION OF THIS DOCUMENT IS TO SHOW THAT THERE WERE PROBLEMS OR INACCURACY IN THE TECHNOLOGY, I THINK THAT IS WHAT YOUR HONOR'S ORDER PRECLUDED DURING THE PRETRIAL PHASE. AND I DON'T MEAN TO SPEAK OR CONSTRUE YOUR HONOR'S ORDER. YOU CAN CERTAINLY DO THAT. BUT THAT'S AT 798 OF THE DOCKET. SO I DON'T SEE ANY SCENARIO UNDER WHICH THIS CAN BE QUALIFIED AS A BUSINESS RECORD, AND I THINK TALKING IN FRONT OF THE JURY ABOUT THIS DOCUMENT IN AND OF ITSELF RUNS THE RISK OF PREJUDICE.
AS TO THE ISSUE OF WHAT WE HAVE TALKED ABOUT BEFORE, I'M HAPPY TO TALK ABOUT THOSE OTHER INSTANCES. BUT, FOR EXAMPLE, WITH MR. JHAVERI, MR. JHAVERI CLAIMED THAT BECAUSE OF VARIOUS ISSUES OF PERFORMANCE, THE WALGREENS-THERANOS RELATIONSHIP WAS FALLING APART. THIS WAS USED TO CAST DOUBT ON THAT GIVEN THAT THE FEEDBACK THAT THEY WERE GETTING ALL EXCEEDED THE METRICS THAT THEY HAD MADE. THAT WAS REFLECTED IN A WALGREENS BUSINESS RECORD, NOT IN A THERANOS BUSINESS RECORD, AND WASN'T INTRODUCED FOR ANY PURPOSE OTHER THAN TO CAST DOUBT ON WHAT MR. JHAVERI WAS SAYING. SO I THINK THIS IS -- WE RAISE THIS BECAUSE THIS IS A BIG ISSUE, AND I THINK TO BE TALKING ABOUT IT IN FRONT OF THE JURY WITHOUT A REAL PROFFER AS TO WHAT THIS WITNESS KNOWS WHEN WE KNOW HE SAID HE DIDN'T KNOW ABOUT IT IS NOT PROPER.
JUDGE DAVILA: I GUESS WE'LL JUST SEE WHAT THE WITNESS SAYS AND WHETHER OR NOT -- THANK YOU FOR THE HEADS UP. AND I APPRECIATE YOUR CANDOR THAT HE MAY NOT BE ABLE TO ESTABLISH IT FOR THIS, AND YOU MIGHT HAVE TO FIND ANOTHER PURPOSE. BUT WHAT MR. MR. BOSTIC'S POINT THAT YOUR TEAM HAS RAISED, ON A COUPLE OF OCCASIONS, NOTICES FROM DOCTORS, COMMENTS FROM DOCTORS THAT HAVE BEEN APPROVING OF THE TECHNOLOGY? AND MR. BOSTIC, I HEAR HIM SAYING, WE SHOULD BE ABLE TO COUNTER THAT WITH THE FACT THAT ACTUALLY THERE WERE COMPLAINTS RECEIVED.
MR. DOWNEY: YEAH, THERE'S A SIGNIFICANT DIFFERENCE BETWEEN THOSE TWO CATEGORIES. I WILL TELL THE COURT THAT I CAN SHOW AS SOON AS TODAY THAT THE COMMENTS THAT WE'RE REFERRING TO WERE CONVEYED TO MS. HOLMES. WE KNOW THAT THE GOVERNMENT HAS NO PROFFER, NO PROOF IN THE RECORD FROM THEIR EXTENSIVE PRETRIAL INVESTIGATION THAT THESE LOGS, ANY CONTENTS OF THESE LOGS WERE CONVEYED TO MS. HOLMES. THAT'S CRITICAL, YOUR HONOR, AS TO THE ISSUE. WHAT WE HAVE BEEN INTRODUCING EITHER IS FOR A DIFFERENT PURPOSE OR WILL BE INTRODUCED BECAUSE IT RELATES TO ACTUAL FACTS KNOWN BY THE DEFENDANT.
MR. BOSTIC: AND, YOUR HONOR, ON THAT POINT, ONE REASON THAT THE GOVERNMENT IS SEEKING TO INTRODUCE THIS PARTICULAR EXHIBIT, AS OPPOSED TO OTHER COMPLAINT LOGS, IS THAT THIS ONE ACTUALLY WAS SENT DIRECTLY TO MR. BALWANI. MR. BALWANI IS THE INDICTED COCONSPIRATOR IN THIS CASE. THERE HAS ALREADY BEEN EVIDENCE, AND THERE WILL CONTINUE TO BE MORE EVIDENCE IN THE TRIAL, ABOUT THE CLOSE WORKING AND/OR PERSONAL RELATIONSHIP THAT MS. HOLMES AND MR. BALWANI HAD. MR. BALWANI'S KNOWLEDGE OF SOMETHING LIKE THIS IS PROBATIVE AS TO WHETHER MS. HOLMES HAD KNOWLEDGE OR NOT.
JUDGE DAVILA: THAT'S A DIFFERENT ISSUE ALSO, MR. DOWNEY, ISN'T IT?
MR. DOWNEY: WELL, THAT'S A DIFFERENT ISSUE, BUT I THINK MR. BOSTIC HAS STATED THE PRECISE REASON THAT IT IS PROHIBITED TO INTRODUCE IT. IT'S NINTH CIRCUIT LAW THAT KNOWLEDGE TO A COCONSPIRATOR CANNOT BE CONTRIBUTED TO THE DEFENDANT. I CAN GIVE THE COURT A CITE TO THAT. IT'S PHILLIPS VERSUS UNITED STATES, 356 F.2D 297 AT 306.
JUDGE DAVILA: I THINK MR. WADE INFORMED US OF THAT CASE SOME TIME AGO.
MR. DOWNEY: YEAH, IT'S ONE OF HIS FAVORITES.
(LAUGHTER.)
MR. DOWNEY: BUT I THINK THAT THE STATEMENT THAT MR. BOSTIC MAKES AS TO WHY AND HOW HE WANTS TO INTRODUCE IT SHOWS IT RUNS INTO THE PROHIBITED PURPOSE.
JUDGE DAVILA: WELL, FOR THAT REASON.
MR. DOWNEY: YES.
JUDGE DAVILA: UNDER A COCONSPIRATOR.
MR. DOWNEY: RIGHT.
JUDGE DAVILA: RIGHT. UNDERSTOOD. ALL RIGHT. WELL, THIS IS A GREAT WAY TO START THE MORNING.
MR. DOWNEY: I APOLOGIZE, YOUR HONOR. I STARTED THE MORNING THE SAME WAY.
JUDGE DAVILA: WELL, GREAT. THANK YOU. I'LL STEP DOWN AND WE'LL BRING OUR JURY OUT AND AT LEAST START SOME EVIDENCE NOW. THANK YOU FOR THE CONVERSATIONS. ANYTHING ELSE BEFORE I STEP DOWN?
MR. DOWNEY: NO, YOUR HONOR.
MR. BOSTIC: NO, YOUR HONOR. JUST ON THE MILITARY EXHIBITS, THE GOVERNMENT DOES INTEND TO COVER THOSE WITH MR. EDLIN. I'M NOT SURE WHETHER IT WILL HAPPEN BEFORE OUR FIRST BREAK, BUT I CERTAINLY WON'T DO SO WITHOUT FURTHER GUIDANCE FROM THE COURT.
JUDGE DAVILA: THANK YOU. I APPRECIATE THAT. SHOULD OUR BREAK BE -- DO YOU KNOW, MR. DOWNEY, WHAT TIME THAT SHOULD BE?
MR. DOWNEY: I THINK IN THAT 11:00 O'CLOCK WINDOW, BUT I'D LEAVE IT TO MR. BOSTIC TO IDENTIFY WHEN HE'S AT A LOGICAL POINT.
JUDGE DAVILA: OKAY. SO WE'LL LOOK AT 11:00, 11:15, SOMETHING LIKE THAT. ALL RIGHT. CLOSER TO 11:00. OKAY. THANK YOU.
MR. DOWNEY: THANK YOU, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT.
COURT CLERK: COURT IS IN RECESS.
(RECESS FROM 9:18 A.M. UNTIL 9:30 A.M.)
(JURY IN AT 9:30 A.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. GOOD MORNING. WE ARE BACK ON THE RECORD IN THE HOLMES MATTER. ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. OUR JURY AND ALTERNATES ARE PRESENT. GOOD MORNING, LADIES AND GENTLEMEN. I HOPE YOU HAD A PLEASANT WEEKEND. LET ME FIRST ASK YOU THAT QUESTION THAT I ASK YOU EVERY DAY IN THE MORNING. DURING OUR BREAK, YOUR BREAK, HAVE ANY OF YOU HAD OCCASION TO DO ANY INVESTIGATION, HAVE COMMUNICATIONS WITH OR SEE ANYTHING ABOUT THIS CASE OR ANYTHING TO DO WITH IT OVER YOUR BREAK? IF SO, PLEASE RAISE YOUR HAND IF YOU WOULD. I SEE NO HANDS. THANK YOU. I DO WANT TO TELL YOU ABOUT A CHANGE IN OUR SCHEDULE. WE WILL NOT BE IN SESSION ON FRIDAY, OCTOBER 29TH. SO WE'LL -- WE WILL NOT BE IN SESSION THAT DAY. WE WILL BE IN SESSION THE FOLLOWING TUESDAY, THE 2ND, BUT WE'LL NOT BE IN SESSION -- THIS IS NEXT WEEK, I BELIEVE. MY GOODNESS, THE MONTH IS FLYING. THE WEEK OF THE 26TH, 25TH, WE'LL BE IN SESSION THAT TUESDAY AND WEDNESDAY ONLY, AND THEN NOT THAT FRIDAY, JUST FOR YOUR SCHEDULING PURPOSES. GREAT. THANK YOU. MR. BOSTIC, ARE YOU READY TO CONTINUE?
MR. BOSTIC: YES, YOUR HONOR.
JUDGE DAVILA: GREAT. MR. EDLIN, COULD YOU PLEASE STATE YOUR NAME AGAIN FOR THE RECORD.
DANIEL EDLIN: YES, YOUR HONOR. DANIEL EDLIN.
JUDGE DAVILA: THANK YOU. AND I'LL REMIND YOU, SIR, YOU ARE STILL UNDER OATH.
(GOVERNMENT'S WITNESS, DANIEL EDLIN, WAS PREVIOUSLY SWORN.)
JUDGE DAVILA: MR. BOSTIC.
MR. BOSTIC: THANK YOU, YOUR HONOR.
DIRECT EXAMINATION (RESUMED) BY MR. BOSTIC:
MR. BOSTIC: MR. EDLIN, IF YOU ARE STILL COMFORTABLE TESTIFYING WITHOUT A MASK, I UNDERSTAND THE COURT WILL PERMIT YOU TO REMOVE YOURS. WELCOME BACK, MR. EDLIN.
DANIEL EDLIN: THANK YOU.
MR. BOSTIC: LAST WEEK WE TALKED ABOUT TECHNOLOGY DEMONSTRATIONS AT THERANOS. DO YOU RECALL THAT TESTIMONY?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THESE DEMONSTRATIONS WERE FOR VIP VISITORS AT THERANOS; IS THAT CORRECT?
DANIEL EDLIN: PREDOMINANTLY, YES.
MR. BOSTIC: DO YOU RECALL TESTIFYING ABOUT SOMETHING CALLED THE NULL PROTOCOL AND SOMETHING ELSE CALLED THE DEMO APP BEING USED IN CONNECTION WITH THOSE DEMONSTRATIONS?
DANIEL EDLIN: YES, I DO.
MR. BOSTIC: AND CAN YOU REMIND US WHAT THOSE WERE, STARTING WITH THE NULL PROTOCOL, JUST IN YOUR OWN WORDS?
DANIEL EDLIN: THE NULL PROTOCOL WAS A PART OF THE DEMO APPLICATION. DEMO APPLICATION WAS SET UP ON DEVICES FOR TECHNOLOGY DEMONSTRATIONS, AND PER SOME OF THE EMAILS WE'VE REVIEWED LAST WEEK, IN THE DEMO APPLICATION IT SHIELDED DEVICE ERRORS FROM VIEW. AND THE NULL PROTOCOL WAS USED FOR -- WAS NOT INTENDED FOR THE SAMPLES TO BE TESTED FOR USE.
MR. BOSTIC: WHEN THE NULL PROTOCOL WAS ACTIVE, IS IT CORRECT THAT THE MACHINE MADE NO ATTEMPT TO ACTUALLY ANALYZE THE SAMPLE IN THE DEVICE?
DANIEL EDLIN: I BELIEVE SO, YES.
MR. BOSTIC: IN CONTRAST WITH JUST THE DEMO APP ALONE, THE DEVICE WOULD ATTEMPT TO RETURN A RESULT IF POSSIBLE?
DANIEL EDLIN: YES.
MR. BOSTIC: BUT WHEN THE DEMO APP WAS FUNCTIONING, IF THE DEVICE TRIED TO RETURN A RESULT AND ENCOUNTERED AN ERROR, WOULD THAT ERROR APPEAR ON THE SCREEN?
DANIEL EDLIN: I DON'T BELIEVE SO.
MR. BOSTIC: IF I COULD ASK YOU TO TURN IN THE BINDER IN FRONT OF YOU TO EXHIBIT 860. AND DO YOU HAVE 860 IN FRONT OF YOU?
DANIEL EDLIN: YES.
MR. BOSTIC: IS THIS AN EMAIL CHAIN BETWEEN EMPLOYEES AT THERANOS, INCLUDING YOURSELF, ELIZABETH HOLMES, AND SUNNY BALWANI?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DOES THIS RELATE TO THE PROCESSING OF ONE OF THE DEMONSTRATION SAMPLES WE'VE BEEN TALKING ABOUT?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT OFFERS EXHIBIT 860.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 860 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: MS. HOLLIMAN, IF WE CAN START ON PAGE 12. AND IF WE CAN JUST ZOOM IN ON THE BOTTOM OF PAGE 12 TO GET THE HEADER INFORMATION.
MR. BOSTIC: MR. EDLIN, DO YOU SEE WE'RE ABOUT TO LOOK AT AN EMAIL FROM YOU ON MAY 31ST, 2013?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THE SUBJECT LINE IS "SAMPLE RUNNING RIGHT NOW." DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND LET'S GO TO THE NEXT PAGE, PAGE 13. AND LET'S ZOOM IN ON THE TOP OF THE PAGE. MR. EDLIN, YOU WRITE, "WHAT IS THE STATUS? IT'S ALREADY BEEN RUNNING FOR 1 HOUR AND 15 MINUTES AND HAS BEEN STUCK ON 99 PERCENT FOR ABOUT 8 MINUTES." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: IS THIS RELATING TO AN ONGOING DEMONSTRATION TEST THAT WAS HAPPENING AT THE TIME?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WHAT WAS THE PURPOSE OF THIS EMAIL THAT YOU SENT?
DANIEL EDLIN: THIS -- I RECALL THAT WE HAD A MEETING, AND IN THE MEETING A DEMO TEST WAS RUN ON AN EDISON DEVICE, AND THE SAMPLE WAS PROCESSING AS THE MEETING CONTINUED, AND I WAS JUST KEEPING TABS OF HOW LONG IT HAD BEEN RUNNING AND THE STATUS, AND I'M SENDING AN EMAIL BACK TO SOME OF THE SOFTWARE DEVELOPERS AND ENGINEERS TO CHECK WHAT WAS THE STATUS OF THE TEST.
MR. BOSTIC: OKAY. LET'S MOVE FORWARD IN TIME AND WE'LL MOVE PAST SOME MORE DISCUSSION ABOUT THAT TIMING. LET'S GO TO PAGE 10 OF THIS EXHIBIT. MR. EDLIN, DO YOU SEE AT THE BOTTOM OF THE PAGE THERE IS THE DATA THAT RESULTED FROM THAT DEMONSTRATION RUN?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S GO UP FROM THERE AND LET'S ZOOM IN ON THE TEXT OF THE EMAIL IN THE MIDDLE OF THE PAGE THAT READS "HI DANIEL." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WHO IS THIS EMAIL MESSAGE FROM?
DANIEL EDLIN: THIS MESSAGE IS FROM ME TO DANIEL YOUNG.
MR. BOSTIC: OKAY. AND WHAT WAS DANIEL YOUNG'S ROLE IN CONNECTION WITH TECHNOLOGY DEMONSTRATIONS LIKE THIS?
DANIEL EDLIN: DANIEL WAS, I BELIEVE, AT SOME POINT A VICE PRESIDENT OF THERANOS SYSTEMS, AND DANIEL WOULD REVIEW AND APPROVE ALL DEMO REPORTS AND RESULTS BEFORE THEY WERE SENT OUT TO THE RESPECTIVE PATIENT.
MR. BOSTIC: AT THE BOTTOM OF YOUR EMAIL YOU SAY THAT YOU'LL BASE YOUR SCHEDULE ON DANIEL YOUNG'S AVAILABILITY SO THAT WE CAN FINALIZE THE REPORTS AND GET THEM TO EAH FOR APPROVAL AS SOON AS POSSIBLE. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WHO WAS EAH?
DANIEL EDLIN: ELIZABETH.
MR. BOSTIC: AND WHAT DID THAT MEAN, GETTING THE REPORTS TO HER FOR APPROVAL?
DANIEL EDLIN: I THINK IN THIS CASE ELIZABETH WANTED TO REVIEW THE REPORTS BEFORE THEY WERE SENT OUT.
MR. BOSTIC: AND WAS THAT SOMETHING THAT HAPPENED AT OTHER TIMES IN CONNECTION WITH THESE TECHNOLOGY DEMONSTRATIONS?
DANIEL EDLIN: THERE WERE OTHER TIMES WHEN THAT HAPPENED, YES.
MR. BOSTIC: LET'S LOOK AT THE BOTTOM HALF OF PAGE 8. APOLOGIES FOR THE FORMATTING HERE. DO YOU SEE AN EMAIL FROM YOU LATER ON IN THIS CHAIN?
DANIEL EDLIN: YES.
MR. BOSTIC: AND YOU ARE WRITING TO DANIEL YOUNG AND CC'ING ELIZABETH HOLMES AND SUNNY BALWANI; IS THAT CORRECT?
DANIEL EDLIN: YES.
MR. BOSTIC: STARTING IN THE SECOND PARAGRAPH OF YOUR EMAIL, AND IT STARTS AT THE VERY BOTTOM OF THE PAGE, IT SAYS, "IT LOOKS" -- AND THEN LET'S GO ON TO PAGE 9. IF WE CAN ZOOM IN ON THE TOP OF PAGE 9. YOU SAY, "IT LOOKS LIKE THERE IS SOME DISCREPANCY BETWEEN THE TWO INFECTIOUS PANEL RUNS. "- ANY THOUGHTS ON WHY THIS IS THE CASE?" DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DO YOU RECALL WHY THERE WERE TWO DIFFERENT RUNS IN CONNECTION WITH THIS TECHNOLOGY DEMONSTRATION?
DANIEL EDLIN: ONE OF THE RUNS TOOK PLACE IN THE MEETING, WHICH WAS IN NEW YORK, AND THEN ANOTHER RUN TOOK PLACE IN PALO ALTO.
MR. BOSTIC: AND DO YOU RECALL WHETHER THOSE TWO RUNS WERE TAKEN FROM THE SAME PATIENTS OR DIFFERENT PATIENTS?
DANIEL EDLIN: I BELIEVE THEY WERE TAKEN FROM THE SAME PATIENT.
MR. BOSTIC: AND HOW ABOUT WHETHER THEY WERE TESTED ON TWO DIFFERENT DEVICES OR THE SAME DEVICE?
DANIEL EDLIN: I DON'T RECALL THAT SPECIFICALLY.
MR. BOSTIC: OKAY. LET'S LOOK AT THE TOP OF -- LET'S GO TO PAGE 7 ACTUALLY AND LOOK AT THE BOTTOM HALF OF THAT. AND DO YOU SEE ANOTHER EMAIL FROM YOU IN THE BOTTOM HALF OF PAGE 7?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IN THAT EMAIL YOU TALK ABOUT HOW ONE SAMPLE WAS DEPOSITED INTO A CARTRIDGE AND RUN ONSITE AND THAT IT HAD BEEN SHIPPED TO NEW YORK CITY IN STANDARD PACKAGING. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND LET'S FLIP THE PAGE AND GO TO PAGE 8, THE TOP OF PAGE 8. AND IT TALKS ABOUT SOME OTHER PROCESSING DETAILS. AND THEN YOU SAY, "BOTH CARTRIDGES WERE RUN ON THE SAME READER." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND SO THIS IS A SITUATION WHERE THE TWO RUNS INVOLVE THE SAME PATIENT AND THE SAME ANALYZER; CORRECT?
DANIEL EDLIN: CORRECT.
MR. BOSTIC: LET'S GO BACK TO PAGE 7, AND ZOOM IN ON MS. HOLMES'S EMAIL AT THE TOP OF THAT PAGE. MS. HOLMES SAYS, "THE DISCREPANCY WILL BE A PROBLEM. WE NEED TO SEE IF WE CAN CORRECT FOR IT." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S GO TO -- FIRST, IF YOU WOULD JUST LOOK AT PAGE 5 IN FRONT OF YOU. DO YOU SEE THAT AT THE BOTTOM THERE'S AN EMAIL FROM DANIEL YOUNG FURTHER ON IN THIS CHAIN?
DANIEL EDLIN: YES.
MR. BOSTIC: OKAY. LET'S LOOK AT THE BODY OF THAT MESSAGE ON PAGE 6. AND IF WE CAN ZOOM IN ON THE MIDDLE PARAGRAPH. DR. YOUNG SAYS, "FOR MUMPS, I AM INCLINED TO BELIEVE THAT THE RUN IN P.A. IS CORRECT." IS THAT PALO ALTO?
DANIEL EDLIN: THAT'S CORRECT.
MR. BOSTIC: AND HE HAVE SAYS FOR A NUMBER OF REASONS. HE EXPLAINS HIS THINKING. AND THEN HE SAYS IN THE BOTTOM OF THAT PARAGRAPH, "ALL TESTS RAN HIGHER IN THE SECOND RUN IN PALO ALTO, SUGGESTING TO ME, THAT THE ASSAY RUNS WERE A LITTLE LOW IN THE RUN IN NEW YORK CITY (NOT SURE WHY)." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND HE SAYS, "THERE COULD HAVE BEEN TOO LITTLE SAMPLE IN THE FIRST RUN, A PROBLEM IN THE DILUTION, OR AN ISSUE WITH THE CARTRIDGE." IN OTHER WORDS, DR. YOUNG DOESN'T HAVE A SOLID EXPLANATION FOR WHAT MIGHT BE GOING ON HERE; IS THAT RIGHT?
DANIEL EDLIN: I THINK THAT'S FAIR.
MR. BOSTIC: LET'S GO TO PAGE 5 AND LOOK AT THE MIDDLE. ACTUALLY, IF YOU COULD JUST CAPTURE THE TOP HALF OF THAT PAGE. LET'S START A LITTLE FURTHER DOWN. IF WE CAN CAPTURE JUST THE, JUST THE MIDDLE MESSAGE FOR NOW. IN THIS EMAIL YOU WRITE TO MS. HOLMES, DO YOU SEE THAT, HER ADDRESS IN THE SECOND PARAGRAPH? YOU SAY "ELIZABETH -- PLEASE ADVISE ON HOW TO REPORT THE INFECTIOUS PANEL RESULTS." WAS IT MS. HOLMES'S FINAL DECISION AS TO HOW THIS DISCREPANCY WAS GOING TO BE RESOLVED?
DANIEL EDLIN: IN THIS CASE. I THINK THERE WAS --
MR. BOSTIC: GO AHEAD.
DANIEL EDLIN: -- CONVERSATION BETWEEN HER AND DANIEL ON THIS AND TOGETHER THEY DECIDED, RIGHT.
MR. BOSTIC: OKAY. LET'S LOOK AT THE FINAL OUTCOME, AND THAT'S ON PAGE 4, AND IF WE CAN ZOOM IN ON THE TOP HALF OF PAGE 4. DO YOU SEE THERE MS. HOLMES RESPONDING TO THE INPUT FROM DR. YOUNG SAYS, "AGREE ON THE PALO ALTO MEASLES RESULT. WE'LL ONLY INCLUDE THAT ONE FROM PALO ALTO. I WOULD INTEGRATE THE PALO ALTO ONLY INFECTIOUS RESULTS WITH THE REST OF THE REPORT RESULTS AND THEN ONLY CALL OUT AS INFECTIOUS THE ONES WE KNOW --" I'M SORRY, "THE ONES WE SHOW FOR BOTH PALO ALTO AND NEW YORK." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S LOOK BRIEFLY AT PAGE 3 IN THIS EXHIBIT. AND IF WE CAN ZOOM IN ON THE MIDDLE MESSAGE THERE FROM DANIEL YOUNG. IN THIS EMAIL DANIEL YOUNG BEGINS A PARAGRAPH "DAN, FOR BILIRUBIN, TOTAL." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: ARE YOU THE DAN THAT HE'S ADDRESSING THERE?
DANIEL EDLIN: YES.
MR. BOSTIC: AND HE SAYS, "CAN YOU CHANGE THE REFERENCE RANGE TO .1 TO 1.0 AND REMOVE THE L INDICATOR, PLEASE?" CAN YOU EXPLAIN WHAT THAT MEANS?
DANIEL EDLIN: IN THE TEST RESULTS REPORT, THERE WERE A NUMBER OF PIECES OF INFORMATION. THERE WAS THE RESULT AND THEN ALSO A REFERENCE RANGE. AND IF A RESULT WAS OUT OF THE REFERENCE RANGE, A HIGH OR LOW, REPRESENTED BY AN H OR L, WAS INCLUDED IN THE REPORT. AND IN THIS INSTRUCTION HE ASKED ME TO CHANGE THE REFERENCE RANGE TO .1 TO 1.0 AND REMOVE THE L INDICATOR, WHICH STANDS FOR LOW.
MR. BOSTIC: SO WOULD THE EFFECT OF THIS CHANGE BE TO CONVERT WHAT WAS GOING TO BE A LOW RESULT INTO A NORMAL RESULT?
DANIEL EDLIN: I THINK THAT WOULD BE THE OUTCOME OF THIS CHANGE, BUT I'M NOT SURE IF THAT WAS THE INTENT TO CHANGE THE REFERENCE RANGE.
MR. BOSTIC: UNDERSTOOD. LOOKING AT THE PARAGRAPH JUST BELOW THAT ONE, THERE'S SOME TALK ABOUT CALCIUM. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DR. YOUNG SAYS, "DAN, CAN YOU CHANGE THE RANGE TO 8.4 TO 10.7? IT DOES NOT CHANGE THE OUTCOME, BUT SHOWS THE RESULT TO BE CLOSER TO THE REFERENCE RANGE." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THE REFERENCE RANGE DEFINES WHAT THE NORMAL RESULT IS FOR A BLOOD TEST; IS THAT ACCURATE?
DANIEL EDLIN: RIGHT. I BELIEVE WITHIN THAT RANGE IS, QUOTE-UNQUOTE, HEALTHY OR NORMAL.
MR. BOSTIC: OKAY. IF I COULD ASK YOU TO LOOK IN YOUR BINDER AT EXHIBIT 871. THAT SHOULD BE THE NEXT ONE IN ORDER. AND LET ME KNOW WHEN YOU HAVE IT IN FRONT OF YOU.
DANIEL EDLIN: I DO.
MR. BOSTIC: IS THIS AN EMAIL CHAIN INCLUDING YOU, IF YOU LOOK AT THE SECOND PAGE, AND THEN PROGRESSING TO AN EMAIL FROM SUNNY BALWANI TO ELIZABETH HOLMES ABOUT ANOTHER DEMO?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT OFFERS EXHIBIT 871.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 871 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: AND LET'S START WITH PAGE 2 OF 871. AND IF WE COULD ZOOM IN ON THE BOTTOM HALF.
MR. BOSTIC: DO YOU SEE THAT THIS STARTS WITH AN EMAIL FROM CHRISTIAN HOLMES TO YOU, DANIEL YOUNG, AND SAMARTHA ANEKAL ABOUT A DEMO NEXT TUESDAY?
DANIEL EDLIN: YES, I'M COPIED ON THAT FIRST EMAIL.
MR. BOSTIC: AND CHRISTIAN HOLMES SAYS, SUNNY MENTIONED HE'D LIKE TO RUN A DEMO DURING AN EXEC MEETING NEXT TUESDAY, RUNS FROM 12:00 TO 2:00 P.M. IN OUR OFFICE HERE. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S LOOK AT THE TOP HALF OF THIS PAGE. THERE'S AN EMAIL FROM YOU IN THAT SELECTION THAT SAYS, "JUST CAUGHT UP WITH SUNNY. HE DEFINITELY WANTS TO HAVE A MINILAB, AND THEN EITHER A 4S OR MONO BAY (WHICHEVER IS WORKING BETTER)." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THOSE THREE DEVICES, THE 4S, THE MINILAB, AND THE MONOBAY, CAN YOU REMIND US WHICH CATEGORY THOSE DEVICES FELL INTO? WERE THEY KIND OF CURRENT GEN THERANOS TECHNOLOGY OR NEXT GENERATION THERANOS TECHNOLOGY?
DANIEL EDLIN: THOSE DEVICES WERE PART OF THE NEXT GENERATION, WHICH WAS THE 4.0 SYSTEM.
MR. BOSTIC: TO YOUR KNOWLEDGE, WERE THESE NEXT GEN DEVICES EVER USED BY THERANOS IN ACTUAL CLINICAL PATIENT TESTING?
DANIEL EDLIN: NOT TO MY KNOWLEDGE.
MR. BOSTIC: AS PART OF YOUR ROLE IN CONNECTION WITH THESE DEMONSTRATIONS, WERE YOU IN CHARGE OF MAKING SURE THAT THE REQUESTED DEVICES WERE ACTUALLY PLACED IN THE CONFERENCE ROOMS?
DANIEL EDLIN: I WOULD COMMUNICATE THE NEED TO CERTAIN PERSONNEL, LIKE ENGINEERS, WHO WOULD OFTENTIMES ACTUALLY PUT THE DEVICES IN THE ROOMS.
MR. BOSTIC: AND SO YOU COORDINATED IT, BUT YOU WEREN'T NECESSARILY THE ONE PHYSICALLY PUTTING THE DEVICES IN PLACE?
DANIEL EDLIN: CORRECT.
MR. BOSTIC: WHOSE DECISION WAS IT WHICH DEVICES ACTUALLY ENDED UP IN THE CONFERENCE ROOMS WHERE THE VIP'S MET?
DANIEL EDLIN: THE DECISION ON THE TYPES OF DEVICES WAS USUALLY DIRECTED BY ELIZABETH AND/OR SUNNY, AND THEN THE ENGINEERS WOULD DECIDE WHICH OF THOSE DEVICES WERE WORKING IN THE RIGHT WAY AND THEY WOULD PUT THEM IN THERE.
MR. BOSTIC: OKAY. LET'S LOOK AT PAGE 1 OF THIS EXHIBIT, AND LET'S ZOOM IN ON THE MIDDLE OF THIS PAGE. WE TALKED ABOUT THE DESIRE TO HAVE A MINILAB IN THIS ROOM; IS THAT CORRECT?
DANIEL EDLIN: THAT'S CORRECT.
MR. BOSTIC: AND THERE'S A MESSAGE FROM SUNNY BALWANI IN THE MIDDLE OF THE PAGE SAYING, "GIVEN ML DOESN'T HAVE CYTO, WHAT ARE WE PLANNING ON RUNNING ON ML? " DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IS ML SHORT FOR MINILAB?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DO YOU HAVE AN UNDERSTANDING AS TO WHAT CYTO REFERS TO?
DANIEL EDLIN: I BELIEVE IT REFERS TO CYTOMETRY.
MR. BOSTIC: AND WOULD THAT INCLUDE TESTS LIKE A CBC, COMPLETE BLOOD COUNT?
DANIEL EDLIN: THAT'S MY UNDERSTANDING.
MR. BOSTIC: LET'S LOOK AT THE TOP PART OF THE PAGE ABOVE THAT. AND DO YOU SEE THAT DANIEL YOUNG RESPONDS TO MR. BALWANI, "RIGHT NOW, WE ARE NOT PLANNING ON RUNNING ANYTHING ON THE ML, UNFORTUNATELY. THE GENERAL CHEMISTRY AND ELISA ASSAYS ARE NOT PERFORMING ADEQUATELY FOR A DEMO AT THE MOMENT." DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND AT THE TOP OF THE PAGE, DO YOU SEE THAT MR. BALWANI FORWARDS THAT MESSAGE TO MS. HOLMES WITH "VERY FRUSTRATING"?
DANIEL EDLIN: YES.
MR. BOSTIC: OKAY. WE CAN PUT THAT ONE ASIDE. LET'S TURN NEXT TO EXHIBIT 905. LOOKING AT 905, WAS THIS ANOTHER EMAIL CHAIN RELATING TO A DEMONSTRATION AND PROCESSING THOSE RESULTS AT THERANOS?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, MOVE EXHIBIT 905 INTO EVIDENCE.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 905 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: AND IF WE CAN START, MS. HOLLIMAN, ON PAGE 5. AND IF WE CAN ZOOM IN ON THE BOTTOM TWO-THIRDS OF THE PAGE.
MR. BOSTIC: MR. EDLIN, DO YOU SEE AN EMAIL FROM YOU TO DANIEL YOUNG AND ELIZABETH HOLMES WITH THE SUBJECT OF DEMO RESULTS FOR 7/11?
DANIEL EDLIN: YES.
MR. BOSTIC: AND YOU SAY, "ATTACHED PLEASE FIND THE 6 DEMO REPORTS FOR TODAY." IS THAT CORRECT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THEN YOU SAY, "PLEASE NOTE THE FOLLOWING:" YOU SAY, "CREATINE HAS BEEN REMOVED FOR ALL REPORTS AS PER PAUL'S SUGGESTION." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND YOU ASK WHETHER THAT SECTION NEEDS TO CHANGE ITS NAME TO JUST METABOLIC PANEL. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND YOU THEN NOTE THAT VITAMIN D HAS BEEN REMOVED FOR ALL MALE HEALTH PANELS. IS THAT RIGHT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THEN YOU NOTE THAT TT4 AND TT3 HAS BEEN REMOVED FROM ALL THYROID PANELS. IS THAT RIGHT?
DANIEL EDLIN: YES, PER DANIEL'S SUGGESTION.
MR. BOSTIC: AND THEN YOU ALSO SAY FT4 HAS ALSO BEEN REMOVED FROM THE THYROID PANEL IN F2. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DO YOU HAVE AN UNDERSTANDING AS TO WHY THESE RESULTS WERE BEING REMOVED FROM THE DEMONSTRATION REPORTS?
DANIEL EDLIN: THEY WERE REMOVED BECAUSE THAT'S WHAT DANIEL AND THE SCIENTISTS RECOMMENDED THAT I DO.
MR. BOSTIC: AND BASED ON YOUR TIME AT THERANOS AND YOUR EXPERIENCE WITH THESE DEMONSTRATIONS, WHAT WERE THE REASONS WHY INDIVIDUAL RESULTS MIGHT BE TAKEN OUT OF REPORTS BEFORE THEY WERE SENT TO VIP'S?
DANIEL EDLIN: THEY MIGHT BE TAKEN OUT IF WHOEVER REVIEWED IT DIDN'T THINK THAT THEY WERE VALID OR THAT THEY HAD PERFORMED ADEQUATELY.
MR. BOSTIC: AND LET'S LOOK JUST AT THE TOP OF PAGE 5 WHILE WE ARE HERE. AND DO YOU SEE THE TAIL END OF AN EMAIL FROM DANIEL YOUNG THERE ON YOUR SCREEN?
DANIEL EDLIN: YES.
MR. BOSTIC: AND HE SAYS, "I AM CONCERNED ABOUT THE TSH VALUES F2, M5 AND M6" -- WERE THOSE DIFFERENT INDIVIDUALS WHO HAD THEIR BLOOD TEST THE?
DANIEL EDLIN: YES. I THINK THEY STAND FOR MALE AND FEMALE.
MR. BOSTIC: -- "WHICH WERE ALL DONE ON THE THYROID PANEL. I DO THINK THAT THESE ARE ALL RUNNING LOW, POSSIBLY ABNORMALLY. TO BE CONSERVATIVE, I WOULD REMOVE ALL OF THESE THREE RESULTS." IS THAT THE REASON WHY YOU WERE SAYING THAT THE RESULTS MIGHT BE TAKEN OUT?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S LOOK AT PAGE 4 BRIEFLY. AND IF WE CAN ZOOM IN ON THE BOTTOM HALF OF THAT PAGE. OKAY. UNDER M4 FOR THAT INDIVIDUAL, DO YOU SEE DANIEL YOUNG SAYS, "I THINK THIS RESULT OF LESS THAN 3.2 DOES NOT SEEM RIGHT. I WOULD JUST REMOVE THIS RESULT COMPLETELY"?
DANIEL EDLIN: YES.
MR. BOSTIC: AND AT THE BOTTOM OF THE PAGE HE SAYS, "FOR M5, I WOULD REMOVE THE OUT OF RANGE RESULTS FOR ALKALINE PHOSPHATASE AND CHLORIDE." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DID YOU HAVE A BASIS AT THE TIME TO JUDGE THE REASONS FOR REMOVING THESE INDIVIDUAL RESULTS?
DANIEL EDLIN: I DID NOT.
MR. BOSTIC: AND THEN FINALLY, LET'S GO TO PAGE 1 OF THIS EXHIBIT. AND IF WE CAN ZOOM IN ON THE BOTTOM PORTION OF THE PAGE, THE BOTTOM HALF. DO YOU SEE AT THE TOP OF THAT SELECTION AN EMAIL FROM DANIEL YOUNG TO YOU, CC'ING ELIZABETH HOLMES?
DANIEL EDLIN: YES.
MR. BOSTIC: AND HE SAYS, FOR SUBJECT F2, "PLEASE CHANGE BUN TO 6-21 MILLIGRAMS PER DECILITER." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: HE SAYS, "THIS BRINGS THE RESULTS IN THE REFERENCE RANGE." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IS THIS ANOTHER CHANGE OF THE RANGE THAT BRINGS A DEMONSTRATION RESULT WITHIN THAT RANGE OR HEALTHY RANGE?
DANIEL EDLIN: THAT'S WHAT THIS MESSAGE INDICATES.
MR. BOSTIC: YOU CAN PUT THAT ONE ASIDE. LET'S LOOK NEXT AT EXHIBIT 966, PLEASE. AND, MR. EDLIN, DO YOU SEE THAT THIS EMAIL RELATES TO ANOTHER SERIES OF DEMONSTRATION RESULTS FROM AUGUST OF 2013?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, I OFFER EXHIBIT 966.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 966 WAS RECEIVED IN EVIDENCE.)
BY MR. BOSTIC:
MR. BOSTIC: AND, MR. EDLIN, DO YOU SEE THAT THIS IS AN EMAIL THAT ATTACHES SOME LAB REPORTS?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WE'RE NOT GOING TO PUBLISH THE LAB REPORTS THEMSELVES, BUT DO YOU RECALL A TIME IN AUGUST OF 2013 WHEN A GROUP OF INDIVIDUALS FROM WALGREENS VISITED THERANOS?
DANIEL EDLIN: YES.
MR. BOSTIC: DO YOU SEE THAT THE ATTACHED LAB REPORTS INCLUDE THE INITIALS N.J.?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DO YOU RECALL MEETING AN INDIVIDUAL FROM WALGREENS NAMED NIMESH JHAVERI?
DANIEL EDLIN: I DON'T RECALL.
MR. BOSTIC: OKAY. DO YOU SEE THAT THERE'S ANOTHER REPORT FOR THE INITIALS B.W.?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DO YOU RECALL HAVING ANY CONTACT WITH AN INDIVIDUAL FROM WALGREENS NAMED BRADLEY WASSON?
DANIEL EDLIN: I DON'T RECALL SPECIFICALLY.
MR. BOSTIC: OKAY. IN THIS EMAIL -- FIRST OF ALL, THIS IS AN EMAIL FROM DANIEL YOUNG TO YOU, CHRISTIAN HOLMES, ELIZABETH HOLMES, AND SUNNY BALWANI AMONG OTHERS; CORRECT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IN THAT EMAIL, DANIEL YOUNG SAYS IN THE SECOND PARAGRAPH -- LET'S ZOOM IN ON THE TEXT. HE SAYS, "I 'CORRECTED,'" AND HE PUTS THAT IN QUOTES, "I 'CORRECTED' ASSAY RESULTS THAT I ATTRIBUTED TO BCD COLLECTION PROBLEMS." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WHAT DOES BCD STAND FOR?
DANIEL EDLIN: BCD STANDS FOR BLOOD COLLECTION DEVICE. IT WAS THE TOOL USED TO COLLECT FINGERSTICK BLOOD FROM A PATIENT.
MR. BOSTIC: AND WAS THAT A THERANOS SPECIFIC DEVICE?
DANIEL EDLIN: YES. IT WOULD COLLECT BLOOD AND THEN TRANSFER IT INTO A NANOTAINER.
MR. BOSTIC: DR. YOUNG SAYS, "THE GC RESULTS LOOK GOOD AFTER SUCH CLEANUP." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND TWO PARAGRAPHS DOWN HE SAYS, "EACH SUBJECT HAD THE THYROID PANEL PERFORMED. I REMOVED THE THYROID RESULTS THAT I FELT WERE QUESTIONABLE." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND HE SAYS, "THERE ARE A FEW OUT OF RANGE RESULTS LEFT IN THE REPORT, BUT THEY ARE VERY CLOSE TO THE REFERENCE RANGE." AND HE SAYS, "(NOTE THAT I THINK THERE IS SOMETHING WRONG WITH THE TT3 ASSAY/REAGENTS, AND AM FOLLOWING UP WITH SHARADA. I REMOVED ALL TT3 RESULTS.)" DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: DO YOU KNOW WHETHER THE INDIVIDUALS FROM WALGREENS WERE TOLD ABOUT THE ERRORS ENCOUNTERED IN CONNECTION WITH THEIR DEMO TESTS?
DANIEL EDLIN: I DON'T KNOW.
MR. BOSTIC: YOU CAN PUT THAT ASIDE. LET'S LOOK AT EXHIBIT 957, PLEASE. DO YOU HAVE 957?
DANIEL EDLIN: YES. YES.
MR. BOSTIC: IS THIS ANOTHER EMAIL EXCHANGE RELATING TO THAT SAME GROUP OF SIX SAMPLES FOR DEMONSTRATION?
DANIEL EDLIN: I BELIEVE SO. IT WAS ON THE SAME DAY.
MR. BOSTIC: YOUR HONOR, I OFFER EXHIBIT 957.
MR. DOWNEY: YOUR HONOR, I DON'T KNOW IF HE'S OFFERING THE ENTIRE EXHIBIT OR SOMETHING LESS THAN THE ENTIRE EXHIBIT.
JUDGE DAVILA: MR. BOSTIC?
MR. BOSTIC: YOUR HONOR, I HAVE THIS AS A FIVE PAGE EXHIBIT, AND MY INTENTION IS TO OFFER THE ENTIRE THING.
MR. DOWNEY: WOULD YOU GIVE ME A MOMENT, YOUR HONOR?
JUDGE DAVILA: SURE.
(PAUSE IN PROCEEDINGS.)
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 957 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: AND IF WE CAN START WITH PAGE 2 OF EXHIBIT 957, MS. HOLLIMAN. AND LET'S ZOOM IN ON THE MIDDLE OF THIS PAGE. IF WE CAN CAPTURE THE MIDDLE TWO MESSAGES.
MR. BOSTIC: MR. EDLIN, DO YOU SEE THAT YOU'RE LOOKING AT TWO EMAILS FROM YOU ON AUGUST 13TH, 2013?
DANIEL EDLIN: YES.
MR. BOSTIC: CAN YOU EMAIL THIS GROUP TO SAY, "HI ALL - WE WILL BE COLLECTING THE FINGERSTICK SAMPLES VERY SOON." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND YOUR NEXT EMAIL SAYS, "WE HAVE SIX SAMPLES; PLEASE MEET IN THE LAB FOR THE HANDOFF." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND CAN YOU REMIND US HOW THIS WORKFLOW WORKED? WHERE WERE THE SAMPLES COLLECTED, AND THEN WHAT HAPPENED NEXT TO GET THEM ACTUALLY PROCESSED?
DANIEL EDLIN: IN THIS CASE, SAMPLES WERE COLLECTED IN A MEETING ROOM. I BELIEVE THAT THERE WERE PHLEBOTOMISTS COLLECTING FINGERSTICK SAMPLES AND THEY WERE PUT INTO A SHIPPING CONTAINER. IN THIS EMAIL -- THIS IS AN EMAIL TO ALL OF THE SCIENTISTS AND -- WHO WOULD BE PERFORMING THE TESTS. SO I'M NOTIFYING THEM THAT THE SAMPLES WILL BE COLLECTED SOON, AND THEN I MET THEM IN THE LAB AND GAVE THEM THE SAMPLES FOR THEM TO PROCESS.
MR. BOSTIC: OKAY. LET'S LOOK AT PAGE 1 OF EXHIBIT 957. AND LET'S ZOOM IN ON THE BOTTOM PORTION OF THE PAGE. THERE'S AN EMAIL FROM SOMEONE NAMED NICHOLAS HAASE. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WHO WAS HE AT THERANOS?
DANIEL EDLIN: I BELIEVE HE WAS ONE OF THE SCIENTISTS.
MR. BOSTIC: HIS EMAIL SAYS, "UPDATE: WE JUST STARTED THE ADVIA RUN OF ALL SAMPLES." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND FOR THIS DEMONSTRATION, WAS ALL THE TESTING TAKING PLACE ON A THERANOS MANUFACTURED ANALYZER?
DANIEL EDLIN: I DON'T KNOW.
MR. BOSTIC: DO YOU KNOW WHAT ADVIA REFERS TO IN THAT EMAIL?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND WHAT IS THAT?
DANIEL EDLIN: ADVIA IS A THIRD PARTY DEVICE.
MR. BOSTIC: OKAY. WERE YOU PRESENT FOR ANY PORTION OF THE MEETING WITH THE WALGREENS INDIVIDUALS, OTHER THAN THE DRAW OF THE FINGERSTICK SAMPLES?
DANIEL EDLIN: I BELIEVE SO.
MR. BOSTIC: DO YOU KNOW WHETHER ANY OF THE INDIVIDUALS FROM WALGREENS WERE TOLD THAT THEIR SAMPLES WERE GOING TO BE RUN ON THIRD PARTY DEVICES AS OPPOSED TO THERANOS DEVICES?
DANIEL EDLIN: I DON'T KNOW.
MR. BOSTIC: LET'S LOOK NOW AT EXHIBIT 1014. IF YOU COULD TURN TO THAT ONE IN YOUR BINDER. LET ME KNOW WHEN YOU HAVE 1014.
DANIEL EDLIN: I DO.
MR. BOSTIC: AND IS EXHIBIT 1014 ANOTHER EMAIL CHAIN RELATING TO PLANNING AND RESULTS FOR A TECHNOLOGY DEMONSTRATION AT THERANOS?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, MOVE TO ADMIT EXHIBIT 1014.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 1014 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: AND IF WE CAN START WITH PAGE 4.
MR. BOSTIC: MR. EDLIN, DO YOU RECALL ARRANGING A DEMONSTRATION FOR A JOURNALIST WITH "THE WALL STREET JOURNAL" NAMED JOSEPH RAGO?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WAS IT IN APPROXIMATELY AUGUST OF 2013 THAT THAT HAPPENED?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S ZOOM IN ON THE BOTTOM PORTION OF PAGE 4, PLEASE. OKAY. MR. EDLIN, DO YOU SEE AN EMAIL FROM YOU TO A GROUP OF INDIVIDUALS AT THERANOS?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THE SUBJECT LINE IS IMPORTANT DEMO THIS THURSDAY, 8/22?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR EMAIL MENTIONS THERE IS GOING TO BE ONE MALE PATIENT, ONE FINGERSTICK DRAW, AND TIMING IS TO BE DECIDED. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND YOU SAY IN THE NEXT SECTION, "PLANNED TESTS WILL CONSIST OF SOME COMBINATION OF THE FOLLOWING: CBC, CHEMICAL 14, LIPIDS, THYROID PANEL OR MALE HEALTH." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND YOU THEN SAY, "FOR THIS DEMO WE WILL NEED TO TURN AROUND RESULTS FASTER THAN EVER BEFORE -- IDEALLY IN 1 HOUR AND NO LONGER THAN 2 HOURS." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND CAN YOU EXPLAIN WHAT YOU MEAN BY "FASTER THAN EVER BEFORE" IN CONNECTION WITH THIS 1 TO 2 HOUR TIME GOAL?
DANIEL EDLIN: TYPICALLY FOR DEMOS, RESULTS WOULD BE RETURNED WITHIN THAT DAY, LIKELY BY THE END OF THE DAY, AND THIS MEETING TOOK PLACE IN THE MIDDLE OF THE DAY AND THE GOAL WAS TO RETURN THOSE RESULTS IN THE MIDDLE OF THE DAY, SO NOT THAT EVENING.
MR. BOSTIC: BELOW THAT SECTION WHERE YOU TALK ABOUT THE EQUIPMENT THAT WILL BE NECESSARY, YOU SAY, "SAM AND MICHAEL - SIMILAR TO LAST WEEK, PLEASE SET UP TWO MINILABS, ONE 4S AND ONE 3.5, IN INTERVIEW ROOM NUMBER 1." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND YOU SAY THAT "THOSE ANALYZERS SHOULD HAVE THE DEMO APP THAT CAN RUN NULL PROTOCOLS." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND I'LL ASK YOU TO LOOK AT PAGE 3 OF EXHIBIT 1014. DO YOU SEE IN FRONT OF YOU THE PROPOSED WORKFLOW FOR THAT UPCOMING DEMO?
DANIEL EDLIN: YES.
MR. BOSTIC: CAN YOU EXPLAIN -- FROM REVIEWING THIS DOCUMENT, CAN YOU TELL WHETHER THIS DEMO WAS GOING TO REQUIRE THE USE OF THIRD PARTY DEVICES OR WHETHER ALL OF THE TESTING COULD BE ACCOMPLISHED USING THERANOS DEVICES?
DANIEL EDLIN: I CAN'T TELL.
MR. BOSTIC: OKAY. LET'S LOOK AT PAGE 2. AND LET'S ZOOM IN ON THE TOP PART OF THAT PAGE. DO YOU SEE AT THE TOP OF THAT PAGE AN EMAIL FROM YOU TO SUNNY BALWANI?
DANIEL EDLIN: YES.
MR. BOSTIC: AND YOU SAY, "SUNNY. "UNFORTUNATELY BY THE LOOKS OF THE THYROID PANEL RESULTS BELOW IT APPEARS TO HAVE HAD MAJOR ISSUES AGAIN. THIS IS AFTER CALIBRATION WAS RE-DONE YESTERDAY, AFTER A CLINICAL CORRECTION WAS PUT IN PLACE FOR TT3, AND AFTER DANIEL REVIEWED RECENT DATA AND SAID HE WAS CONFIDENT THAT AT LEAST 5 OF THESE RESULTS WOULD WORK." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DO YOU RECALL AROUND THIS TIME THE THYROID PANEL RESULTS WERE THROWING UP REPEATED PROBLEMS?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND JUST TO BE CLEAR, THIS IS BEFORE THERANOS BEGAN OFFERING TESTING SERVICES TO THE PUBLIC; IS THAT RIGHT?
DANIEL EDLIN: THAT'S CORRECT.
MR. BOSTIC: APPROXIMATELY HOW MUCH IN ADVANCE OF THE PUBLIC LAUNCH WAS THIS DEMO TAKING PLACE?
DANIEL EDLIN: THIS WAS ABOUT A MONTH BEFORE THE INITIAL LAUNCH WITH WALGREENS.
MR. BOSTIC: OKAY. LET'S LOOK AT PAGE 1 TO SEE MR. BALWANI'S RESPONSE. AND LET'S ZOOM IN ON THE BOTTOM PORTION OF THAT PAGE. MR. BALWANI SAYS, "TO SAY THIS IS DEEPLY DISAPPOINTING WILL BE A GROSS UNDERSTATEMENT. WE HAVE BEEN ASKING TO GET THIS CARTRIDGE BUILT AND QAED AND TESTING FOR MONTHS NOW AND EVERY SINGLE RUN WE HAVE HAD ON THYROID PANEL HAS BEEN A DISASTER." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S LOOK AT THE EMAIL MESSAGE JUST ABOVE THAT ONE FROM SUREKHA GANGAKHEDKAR. AND IN HER EMAIL, SHE MENTIONS THAT THE TG AB ASSAY WAS OORL DUE TO SUBSTRATE EVAPORATION. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WHAT DOES OORL STAND FOR IF YOU RECALL?
DANIEL EDLIN: I BELIEVE IT'S OUT OF RANGE LOW.
MR. BOSTIC: UNDER NUMBER 6 ON THAT LIST, UNDER FT4, IT SAYS "RESULT REPORTED HIGH." THEN IT SAYS, "SINCE WE DO NOT HAVE SAMPLE TO TEST ON THE REFERENCE METHOD, NOT POSSIBLE TO MAKE A CONCLUSION ON THE HIGH RESULTS." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: FINALLY, AT THE TOP OF THIS PAGE, CAN YOU SEE THAT MR. BALWANI FORWARDS THIS EMAIL CHAIN TO MS. HOLMES?
DANIEL EDLIN: YES.
MR. BOSTIC: OKAY. LET'S LOOK AT EXHIBIT 1157 NEXT. ARE YOU LOOKING AT 1157?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IS THIS ANOTHER EMAIL CHAIN BETWEEN YOU AND OTHERS AT THERANOS RELATING TO THE COORDINATION OF A DEMONSTRATION?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, I OFFER EXHIBIT 1157.
MR. DOWNEY: IS THIS OFFERED AS A BUSINESS RECORD, YOUR HONOR? OR ON WHAT BASIS IS IT OFFERED? I WOULD JUST ASK THE COURT TO INQUIRE OF MR. BOSTIC.
JUDGE DAVILA: MR. BOSTIC?
MR. BOSTIC: AS A BUSINESS RECORD, YOUR HONOR, CONSISTENT WITH THE PAST FEW EXHIBITS.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED, AND IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 1157 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: AND, MS. HOLLIMAN, IF WE CAN START ON PAGE 2, PLEASE, AND ZOOM IN ON THE BOTTOM HALF.
MR. BOSTIC: MR. EDLIN, THE DATE THAT THIS WAS HAPPENING IS SEPTEMBER 23RD, 2013, APPROXIMATELY; IS THAT RIGHT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WAS THIS AFTER THE PUBLIC LAUNCH THAT YOU REFERENCED A MINUTE OR TWO AGO?
DANIEL EDLIN: I BELIEVE SO. SHORTLY THEREAFTER.
MR. BOSTIC: IN YOUR MESSAGE, YOU NOTE THAT A PATIENT IS COMING IN THE FOLLOWING MORNING. AND YOU SAY "PLEASE PLAN TO RUN THE SAME TEST THAT WE DID FOR LAST WEEK'S PATIENT." AND YOU LIST THE TEST THERE. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND YOU SAY, "WE WILL ALSO NEED TO SET UP MINILABS AND A 4S IN INTERVIEW ROOM NUMBER 1." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S LOOK AT PAGE 1 BRIEFLY. AND LET'S ZOOM IN ON THE TOP MESSAGE. HERE'S AN EMAIL FROM YOU TO THE GROUP SAYING "PAUL AND TEAM. "PLEASE PLAN ON RUNNING THIS SAMPLE USING THE SAME PROCESSES AS LAST WEEK, IE, THE CURRENT WORKFLOW IN NORMANDY." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WHAT WAS NORMANDY AT THERANOS?
DANIEL EDLIN: NORMANDY WAS ONE OF THE LABS.
MR. BOSTIC: WAS THAT THE CLINICAL LAB WHERE PATIENT SAMPLES WERE TESTED?
DANIEL EDLIN: IT WAS THE NAME OF ANOTHER LAB.
MR. BOSTIC: YOU THEN SAY, "TO ANSWER PAUL'S QUESTION, I BELIEVE THAT ADVIA IS USED FOR THIS FOR GC ASSAYS." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND YOU TESTIFIED BEFORE THAT ADVIA WAS A THIRD PARTY DEVICES, NOT A THERANOS DEVICE?
DANIEL EDLIN: THAT'S MY UNDERSTANDING NOW, YES.
MR. BOSTIC: DID YOU HAVE A DIFFERENT UNDERSTANDING AT THE TIME?
DANIEL EDLIN: I DIDN'T -- THIS ISN'T INFORMATION THAT I WOULD HAVE HAD, AND SO IT'S SOMETHING THAT I WOULD HAVE -- INFORMATION I WOULD HAVE PASSED ALONG.
MR. BOSTIC: DURING THIS TIME PERIOD, WHO DID YOU RELY ON FOR YOUR KNOWLEDGE OF WHAT DEVICES WERE USED FOR WHAT?
DANIEL EDLIN: MAINLY DANIEL YOUNG OR SOME OF THE OTHER SCIENTISTS. BUT LOOKING AT THIS EMAIL, GIVEN THAT THE MESSAGE BEFORE WAS SENT TO DANIEL, IT LOOKS LIKE I WOULD HAVE GOTTEN THAT INFORMATION FROM DANIEL AND PASSED IT BACK TO PAUL.
MR. BOSTIC: SO JUST TO BE CLEAR ABOUT WHAT IS HAPPENING FOR THE DEMO IN THIS EMAIL, YOU SAW THAT IN THE CONFERENCE ROOM WERE MINILABS AND A 4S IN THE INTERVIEW ROOM. DO YOU RECALL THAT?
DANIEL EDLIN: I DON'T RECALL IT SPECIFICALLY, BUT THAT'S WHAT IT SAYS IN THE EMAIL, YEAH.
MR. BOSTIC: OKAY. AND THE TEST ITSELF WAS GOING TO BE RUN PURSUANT TO THE CURRENT WORKFLOW IN NORMANDY, WHICH WOULD INCLUDE THE ADVIA; IS THAT CORRECT?
DANIEL EDLIN: COULD YOU REPEAT THE QUESTION, SIR?
MR. BOSTIC: SURE. WAS THE ACTUAL TEST GOING TO BE RUN BASED ON THE CURRENT WORKFLOW IN NORMANDY AS YOUR EMAIL SAYS, AND WOULD THAT INCLUDE THE ADVIA THIRD PARTY ANALYZER?
DANIEL EDLIN: I DON'T KNOW WHERE THAT, WHERE THAT, WHERE THE ADVIA WAS.
MR. BOSTIC: I SEE. OKAY. LET ME JUST ASK THEN, WAS THIS TEST GOING TO BE RUN, AT LEAST PARTLY, ON THE THIRD PARTY ADVIA BASED ON YOUR UNDERSTANDING?
DANIEL EDLIN: BASED ON MY UNDERSTANDING IN THIS EMAIL. BUT I DON'T REMEMBER SPECIFICALLY.
MR. BOSTIC: OKAY. WERE YOU EVER ASKED TO PLACE A THIRD PARTY ANALYZER IN AN INTERVIEW ROOM FOR A VIP MEETING?
DANIEL EDLIN: NOT THAT I RECALL.
MR. BOSTIC: DO YOU KNOW WHAT THE TECAN DEVICE IS?
DANIEL EDLIN: I'M FAMILIAR WITH THAT NAME.
MR. BOSTIC: AND DID THERANOS HAVE TECAN DEVICES THAT IT WOULD USE TO DILUTE SAMPLES?
DANIEL EDLIN: I LEARNED LATER IN 2016 THAT THAT WAS A TOOL THAT WAS USED TO DILUTE SAMPLES, YES.
MR. BOSTIC: DURING YOUR TIME WHEN YOU WERE WORKING ON THESE TECHNOLOGY DEVICES, WERE YOU EVER ASKED TO PUT A TECAN INTO AN INTERVIEW ROOM FOR A VIP MEETING?
DANIEL EDLIN: I WAS NOT.
MR. BOSTIC: YOU TESTIFIED EARLIER THAT YOU DON'T EVER RECALL GIVING A VIP A TOUR OF THE CLINICAL LABORATORY WHERE THE ANALYZERS WERE; IS THAT CORRECT?
DANIEL EDLIN: THAT'S CORRECT.
MR. BOSTIC: OKAY. WE CAN PUT THAT ONE ASIDE. I'LL ASK YOU TO TURN TO EXHIBIT 2327, PLEASE. LET ME KNOW IF YOU DON'T HAVE THAT ONE. I HAVE A --
DANIEL EDLIN: I HAVE IT.
MR. BOSTIC: AND IS EXHIBIT 2327 AN EMAIL BETWEEN ELIZABETH HOLMES AND RUPERT MURDOCH?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DO YOU RECOGNIZE MS. HOLMES'S EMAIL ADDRESS?
DANIEL EDLIN: I DO.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT OFFERS EXHIBIT 2327.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 2327 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: LET'S ZOOM IN ON THE TOP PORTION TO CAPTURE THOSE TWO EMAIL MESSAGES.
MR. BOSTIC: MR. EDLIN, WHO IS RUPERT MURDOCH?
DANIEL EDLIN: I DON'T KNOW HIS EXACT TITLE, BUT I BELIEVE HE'S THE CHAIRMAN OF FOX.
MR. BOSTIC: DO YOU RECALL A TIME AT THERANOS WHEN HE HAD SOME COMMUNICATIONS OR INVOLVEMENT WITH THE COMPANY?
DANIEL EDLIN: I DO REMEMBER THAT HE CAME FOR A MEETING.
MR. BOSTIC: IN THIS EMAIL MS. HOLMES WRITES TO HIM, "IT WAS WONDERFUL TO HAVE YOU HERE TODAY." THIS IS DATED JANUARY 2015. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND SHE SAYS, "I SO LOOK FORWARD TO THE OPPORTUNITY TO CONTINUE OUR CONVERSATIONS, INCLUDING ONE DAY A MORE DETAILED CONVERSATION ON CHINA... "I WOULD BE AN HONOR TO HAVE YOU AS PART OF OUR COMPANY." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DO YOU RECALL MR. MURDOCH CONSIDERING A POTENTIAL INVESTMENT IN THERANOS AROUND THIS TIME?
DANIEL EDLIN: I DO RECALL THAT INVESTMENT BINDERS WERE SENT TO HIM AT ONE POINT, AND I DO RECALL THAT HE CAME TO THERANOS FOR A MEETING.
MR. BOSTIC: WERE YOU INVOLVED IN THE CREATION OR SENDING OF THOSE INVESTMENT BINDERS?
JUDGE DAVILA: SIR, COULD YOU SPEAK INTO THAT MICROPHONE. PULL THAT A LITTLE CLOSER TO YOU. THAT MIGHT BE HELPFUL. AND IF YOU COULD REPEAT YOUR LAST ANSWER, PLEASE.
MR. BOSTIC: WOULD YOU LIKE THE PREVIOUS QUESTION?
DANIEL EDLIN: YES.
JUDGE DAVILA: WHY DON'T YOU DO THAT? THANK YOU, MR. BOSTIC.
BY MR. BOSTIC:
MR. BOSTIC: THE QUESTION WAS, DO YOU RECALL A TIME WHEN MR. MURDOCH WAS CONSIDERING INVESTING IN THERANOS?
DANIEL EDLIN: I RECALL THAT INVESTMENT BINDERS WERE SENT TO HIM, AND HE DID COME TO THERANOS FOR A MEETING AS WELL.
MR. BOSTIC: AND DID YOU HAVE A ROLE IN PREPARING OR SENDING THOSE INVESTOR BINDERS?
DANIEL EDLIN: I DON'T REMEMBER.
MR. BOSTIC: IN MR. MURDOCH'S RESPONSE TO MS. HOLMES, HE SAYS, "THANKS, ELIZABETH. ENJOYED EVERY MINUTE OF IT. ANY BLOOD RESULTS?" DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S LOOK AT EXHIBIT 4366.
DANIEL EDLIN: OKAY.
MR. BOSTIC: AND LET'S SEE. IS THIS AN EMAIL DISCUSSING DEMONSTRATION RESULTS FOR MR. MURDOCH?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT MOVES TO ADMIT EXHIBIT 4366.
MR. DOWNEY: YOUR HONOR, I DON'T HAVE ANY OBJECTION TO IT. I DON'T KNOW IF THERE'S A PROTOCOL AROUND REDACTION OF ANY INFORMATION. THERE'S A LOT OF DISCUSSION OF HEALTH INFORMATION IN HERE, SO I DON'T KNOW WHAT THE GOVERNMENT'S INTENT IS.
MR. BOSTIC: AND, YOUR HONOR, THE GOVERNMENT'S COPY OF THIS THAT WILL BE PUBLISHED HAS BEEN SIGNIFICANTLY REDACTED.
JUDGE DAVILA: ALL RIGHT. THANK YOU. THANK YOU FOR THE INQUIRY.
MR. DOWNEY: FAIR ENOUGH.
JUDGE DAVILA: IT'S ADMITTED, AND IT MAY BE PUBLISHED IN REDACTED FORM.
(GOVERNMENT'S EXHIBIT 4366 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: LET'S JUST LOOK FIRST AT THE TOP SECTION OF THIS PAGE, PLEASE.
MR. BOSTIC: MR. EDLIN, DO YOU SEE SOME DISCUSSION OF SOME QUESTIONS ABOUT RESULTS THAT WERE RETURNED IN CONNECTION WITH THIS DEMONSTRATION?
DANIEL EDLIN: YES.
MR. BOSTIC: AND ONE NOTE SAYS, "C02 IS RUN WAY EARLIER THAN USUAL, SO IT'S A BIT HIGH." DO YOU HAVE AN UNDERSTANDING OF WHAT THAT WAS REFERRING TO?
DANIEL EDLIN: NO.
MR. BOSTIC: THE NEXT BULLET SAYS, "ISE'S ARE A BIT LOW." WHAT DID ISE STAND FOR?
DANIEL EDLIN: IT WAS A CLASSIFICATION OF CERTAIN TESTS.
MR. BOSTIC: DO YOU RECALL WHETHER THAT CATEGORY OF TESTS WAS RUN ON THE EDISON OR ON A THIRD PARTY DEVIC DEVICE?
DANIEL EDLIN: I DON'T.
MR. BOSTIC: THERE'S ALSO A QUESTION WHETHER THERE'S A WAY FOR US TO VALIDATE LIPIDS IN THE FUTURE VIA SOME SORT OF FORMULA. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THEN FINALLY THERE A NOTE, "WE HAVE NO SAMPLE FOR RERUN SINCE IT WAS A SHORT DRAW." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DO YOU KNOW WHAT "SHORT DRAW" REFERS TO?
DANIEL EDLIN: IT REFERS TO THE AMOUNT OF BLOOD THAT WAS COLLECTED IN THE SAMPLE. SO A SHORT DRAW WOULD BE LESS, LESS BLOOD.
MR. BOSTIC: THIS WAS JANUARY 2015. AT THIS POINT, FOR APPROXIMATELY HOW LONG HAD THERANOS BEEN PERFORMING CLINICAL PATIENT TESTING?
DANIEL EDLIN: SO THERANOS BEGAN TESTING IN WELLNESS CENTERS IN I BELIEVE IT WAS SEPTEMBER OF 2013.
MR. BOSTIC: SO A YEAR AND CHANGE?
DANIEL EDLIN: YES.
MR. BOSTIC: AND YOU CAN PUT THAT ASIDE. LET'S LOOK AT EXHIBIT 3070, PLEASE.
DANIEL EDLIN: CAN YOU REPEAT THE EXHIBIT PLEASE?
MR. BOSTIC: 3070. LET ME KNOW WHEN YOU'RE THERE.
DANIEL EDLIN: I'M THERE.
MR. BOSTIC: ARE YOU LOOKING AT AN EMAIL FROM THE DECEMBER 2015 TIME PERIOD?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IS THIS AN EMAIL CHAIN RELATING TO RESULTS FOR ANOTHER VIP GUEST?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT OFFERS EXHIBIT 3070 IN REDACTED FORM.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED IN REDACTED FORM.
(GOVERNMENT'S EXHIBIT 3070 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: AND IF WE CAN ZOOM IN ON THE BOTTOM MESSAGE.
MR. BOSTIC: MR. EDLIN, DO YOU SEE WE'RE ABOUT TO LOOK AT AN EMAIL FROM YOU TO DANIEL YOUNG AND SOMEONE NAMED BROOKE BUCHANAN AT THERANOS?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THE SUBJECT SAYS MESSAGING FOR VIP GUEST, AND THE NAME REDACTED?
DANIEL EDLIN: YES.
MR. BOSTIC: AND LET'S LOOK AT PAGE 2. AND YOUR EMAIL SAYS AT THE TOP, "YESTERDAY WE SENT THIS INDIVIDUAL HIS RESULTS FROM THE STUDY IN WHICH WE COMPARE FINGERSTICK CTN RESULTS TO VENOUS RESULTS." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: DO YOU RECALL AROUND THIS TIME PERIOD THERE WAS A STUDY COMPARING THERANOS FINGERSTICK RESULTS TO VENOUS RESULTS?
DANIEL EDLIN: YES.
MR. BOSTIC: THE NEXT LINE OF YOUR EMAIL SAYS, "IN CONNECTION WITH THOSE RESULTS, WE WERE UNABLE TO RETURN 5 TEST RESULTS FOR THE CTN FOR THE FOLLOWING REASONS." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND UNDER POTASSIUM, CHLORIDE, AND SODIUM, IT SAYS, "SAMPLE BECAME CONTAMINATED UNDER CENTRIFUGATION." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND UNDER ROOT CAUSE, IT SAYS, "THE CONTAMINATION OF THE CTN IS NOT DUE TO ANY HUMAN ERROR." DO YOU SEE THAT?
DANIEL EDLIN: YES. THAT'S WHAT TINA, A SCIENTIST, TOLD ME.
MR. BOSTIC: AND IT LOOKS LIKE SHE ALSO TOLD YOU, WE DON'T KNOW WHY OR HOW THIS HAPPENED. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: SHE SAYS, OR YOU REPORT, "WHEN WE DID REVIEWS OF THESE FAILED SAMPLES IN THE PAST, WE SAW A THINNER GEL LAYER THAN USUAL, BUT IT WASN'T THE CASE FOR THIS SAMPLE." SO, IN OTHER WORDS, THIS WAS A MYSTERY; IS THAT RIGHT?
DANIEL EDLIN: YES. I TOOK THIS PARAGRAPH DIRECTLY FROM TINA AND THIS IS WHAT SHE INDICATED, SO SHE DIDN'T KNOW WHY.
MR. BOSTIC: MOVING DOWN TO CALCIUM AND TOTAL PROTEIN, YOU REPORT, "THESE TWO RESULTS WERE STATISTICALLY SIGNIFICANTLY TOO HIGH RELATIVE TO THE VENOUS REPORT, AND THEREFORE DANIEL RECOMMENDED WE DID NOT REPORT THESE." IN OTHER WORDS, WAS THERE TOO GREAT OF A DIFFERENCE OR A DISAGREEMENT BETWEEN THE THERANOS FINGERSTICK RESULTS AND THE VENOUS RESULTS?
DANIEL EDLIN: THAT'S RIGHT.
MR. BOSTIC: AND UNDER B THERE, AGAIN, IT SAYS "ROOT CAUSE - UNKNOWN." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND LET'S GO TO PAGE 1 OF THIS EXHIBIT AND LET'S ZOOM IN ON THE BOTTOM HALF. AND DO YOU SEE A MESSAGE FROM CHRISTIAN HOLMES TO ELIZABETH HOLMES AND SUNNY BALWANI ON DECEMBER 27TH ON THIS TOPIC?
DANIEL EDLIN: YES.
MR. BOSTIC: CHRISTIAN HOLMES SAYS "FYI - THIS IS THE DOC EAH" -- IS THAT ELIZABETH HOLMES?
DANIEL EDLIN: YES.
MR. BOSTIC: "THIS IS THE DOC ELIZABETH HOLMES MET AT FORBES CONFERENCE AND INVITED TO DO COMPARISON. HE WAS VERY PLEASANT IN PERSON BUT NOTED HE INTENDS TO WRITE ABOUT HIS EXPERIENCE AND RESULTS." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND LET'S LOOK AT MS. HOLMES'S RESPONSE JUST ABOVE THAT. AND MS. HOLMES WRITES, CC'ING YOU HERE; IS THAT RIGHT?
DANIEL EDLIN: YES.
MR. BOSTIC: SHE SAYS, "YOU CAN SAY WE DO RUN THOSE ASSAYS, BUT WE'RE NOT ABLE TO RUN THEM ON THIS SAMPLE, APPARENTLY DUE TO A HUMAN ERROR IN SAMPLE HANDLING." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: DO YOU RECALL THAT WE JUST READ A PORTION OF THE EMAIL WHERE TINA REPORTED THAT THE CONTAMINATION OF THE CTN WAS NOT DUE TO ANY HUMAN ERROR?
DANIEL EDLIN: I DO RECALL THAT.
MR. BOSTIC: AND MS. HOLMES WAS SAYING THAT WE WERE NOT ABLE TO RUN THOSE ASSAYS ON THE SAMPLE, BUT, IN FACT, DIDN'T THE EARLIER PORTION OF THE EMAIL INDICATE THAT THOSE ASSAYS HAD BEEN RUN ON THE SAMPLE, THEY JUST PRODUCED QUESTIONABLE RESULTS?
DANIEL EDLIN: THAT'S RIGHT.
MR. DOWNEY: I'M SORRY TO INTERRUPT. I'M SORRY, MR. BOSTIC. ON THE ISSUE THAT I HAD ON THE REDACTIONS, I JUST WANT TO MAKE SURE WE HAVE A CONSISTENT APPROACH. THE NAME OF THIS PATIENT HAS BEEN REDACTED THROUGHOUT, WHICH SEEMS CORRECT BECAUSE THERE'S A DISCUSSION OF HOW WE'VE ADMITTED A FEW AND PUBLISHED A FEW EXHIBITS WHERE THE SAME KIND OF INFORMATION HAS BEEN ASSOCIATED WITH PARTICULAR INDIVIDUALS. WE'LL FOLLOW WHATEVER PROTOCOL THE COURT WISHES, AND I'M SURE MR. BOSTIC WILL, TOO. I JUST WANT TO BE CLEAR SO AS TO NOT INADVERTENTLY HAVE A PUBLICATION OF PERSONAL HEALTH INFORMATION.
JUDGE DAVILA: WELL, THANK YOU FOR THAT. I THINK NONE OF US WANT THAT TO HAPPEN. OUR BINDERS, THAT IS, YOURS AND MINE, MAY HAVE EXHIBITS THAT ARE DIFFERENT THAN WHAT IS IN YOUR BINDER, MR. BOSTIC, THAT ULTIMATELY WOULD BE PUBLISHED, OR AT LEAST THE EXHIBITS THAT HAVE BEEN SUBMITTED TO THE COURT FOR PUBLICATION. IS THAT RIGHT?
MR. BOSTIC: THAT'S CORRECT, YOUR HONOR. AND DEPENDING ON THE EXHIBIT, SOMETIMES THE NAME WILL BE REDACTED OR THE RESULTS, THE PRIVATE INFORMATION WILL BE REDACTED.
JUDGE DAVILA: OKAY. ALL RIGHT. THANK YOU.
BY MR. BOSTIC:
MR. BOSTIC: MR. EDLIN, YOU TESTIFIED BEFORE THAT THIS WAS ALL IN CONNECTION WITH A STUDY THAT WAS MEANT TO COMPARE THE THERANOS FINGERSTICK RESULTS TO VENOUS DRAW; IS THAT CORRECT?
DANIEL EDLIN: THAT'S RIGHT.
MR. BOSTIC: AND IS THAT THE SAME THING, OR IS THAT A WAY TO TEST THE ACCURACY OF THE THERANOS RESULTS?
DANIEL EDLIN: THE INTENT WAS TO ASSESS HOW THOSE FINGERSTICK RESULTS COMPARE TO THE VENOUS RESULTS.
MR. BOSTIC: OKAY. WE CAN PUT THAT ONE ASIDE. LET'S TALK ABOUT THERANOS'S INVOLVEMENT WITH PHARMACEUTICAL COMPANIES. DID YOU HAVE ANY ROLE THERE IN THERANOS'S PARTNERSHIPS AND WORK WITH PHARMACEUTICAL COMPANIES?
DANIEL EDLIN: I DID HAVE A SMALL ROLE.
MR. BOSTIC: CAN YOU GIVE US AN OVERVIEW OF WHAT THAT ROLE WAS?
DANIEL EDLIN: I BELIEVE THERE WERE A COUPLE DIFFERENT EXISTING RELATIONSHIPS WITH PHARMACEUTICAL COMPANIES, AND AT ONE POINT ELIZABETH ASKED ME TO FACILITATE INFORMATION SHARING AND COMMUNICATION WITH THOSE COMPANIES.
MR. BOSTIC: AND DO YOU RECALL APPROXIMATELY WHEN IN YOUR TIME AT THERANOS YOU STARTED TO WORK ON THOSE PROJECTS?
DANIEL EDLIN: THIS WAS PROBABLY IN THE FIRST SIX MONTHS OR SO.
MR. BOSTIC: AND AROUND THAT TIME, WAS THERE SIGNIFICANT WORK HAPPENING WITH PHARMACEUTICAL COMPANIES AT THERANOS AS FAR AS YOU SAW?
DANIEL EDLIN: I PERSONALLY DIDN'T SEE SIGNIFICANT WORK HAPPENING, BUT THAT'S NOT SOMETHING THAT I HAD MUCH INSIGHT INTO.
MR. BOSTIC: I'LL ASK YOU TO LOOK AT EXHIBIT 528 IN YOUR BINDER.
DANIEL EDLIN: 528?
MR. BOSTIC: 528, UH-HUH.
DANIEL EDLIN: OKAY.
MR. BOSTIC: AND IS THIS AN EMAIL CHAIN INCLUDING YOU, ELIZABETH HOLMES, AND OTHERS AT THERANOS ABOUT WORK WITH CELGENE?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT OFFERS EXHIBIT 528.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 528 WAS RECEIVED IN EVIDENCE.)
BY MR. BOSTIC:
MR. BOSTIC: AND AROUND THIS TIME, MR. EDLIN, DO YOU REMEMBER THERANOS HAVING A CONTRACT TO PERFORM SOME TESTING FOR A PHARMACEUTICAL COMPANY CALLED CELGENE?
DANIEL EDLIN: I DON'T REMEMBER THE NATURE OF THAT CONTRACT.
MR. BOSTIC: LET'S LOOK AT THIS EMAIL CHAIN. LET'S GO TO PAGE 8 FIRST, AND IF WE CAN ZOOM IN ON THE TOP PART OF THE PAGE, THE TOP HALF. MR. EDLIN, DO YOU SEE THAT YOU'RE LOOKING AT AN EMAIL FROM DANIEL YOUNG ON THIS TOPIC?
DANIEL EDLIN: YES.
MR. BOSTIC: HE SAYS, "BASED ON THE LATEST INFO, I THINK WE MAY BE ABLE TO PERFORM THE FOLLOWING TESTS AT THERANOS WITH 1 MILLILITER OF WHOLE BLOOD, BUT SOME QUESTIONS STILL REMAIN." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THEN HE PROVIDES TWO LISTS. ONE IS TITLED "ASSAYS ON THERANOS DEVICES," AND THE OTHER SAYS, "KITS." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND CAN YOU EXPLAIN WHAT WE'RE LOOKING AT HERE? WHAT ARE THESE TWO LISTS?
DANIEL EDLIN: I CAN'T GIVE MUCH DETAIL BEYOND WHAT IS ON HERE. IT LOOKS LIKE THE TOP ARE TESTS THAT CAN BE RUN ON A THERANOS DEVICE, AND I THINK A KIT REFERS TO A THIRD PARTY DEVICE.
MR. BOSTIC: IN OTHER WORDS, THE ASSAYS RUN ON KITS WOULD NOT BE RUN ON A THERANOS MANUFACTURED DEVICE?
DANIEL EDLIN: I DON'T KNOW. I DON'T KNOW DEFINITIVELY WHETHER OR NOT THEY COULD.
MR. BOSTIC: IN THE PARAGRAPH -- ACTUALLY, MS. HOLLIMAN, IF WE CAN SCROLL DOWN A LITTLE BIT TO CAPTURE THE REST OF THAT PARAGRAPH AT THE BOTTOM. PERFECT. THANK YOU. DO YOU SEE, MR. EDLIN, UNDER HEPCIDIN, THERE'S SOME REFERENCE TO DRG'S KIT. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THEN THERE'S A REFERENCE TO INTRINSIC LIFESCIENCES. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: THERE'S ANOTHER REFERENCE TO MY BIOSOURCE?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WERE ANY OF THOSE COMPANIES AFFILIATED WITH OR PART OF THERANOS IN ANY WAY?
DANIEL EDLIN: I DIDN'T HAVE -- NOT TO MY KNOWLEDGE.
MR. BOSTIC: LET'S LOOK AT PAGE 5, PLEASE. AND AT THE BOTTOM OF THAT PAGE, IF WE CAN ZOOM IN ON THE MESSAGE FROM MS. HOLMES. MS. HOLMES WRITES TO DANIEL YOUNG, YOU, AND SUREKHA GANGADKHEDKAR. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: SHE SAYS, "OK - DAN, IN PARALLEL WITH THIS FOLLOW UP WITH SUREKHA, PLEASE PREPARE A DRAFT TO VICKI TO SEND OUT AS EARLY AS POSSIBLE TOMORROW MORNING AFTER WE'VE REVIEWED AND SIGNED OFF ON IT." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WAS SHE GIVING THIS DIRECTION TO DANIEL YOUNG OR TO YOU? WHAT WAS YOUR UNDERSTANDING?
DANIEL EDLIN: MY UNDERSTANDING IS THAT SHE GAVE THIS DIRECTION TO ME.
MR. BOSTIC: AND IS THAT CONSISTENT WITH YOUR ROLE AS BEING INVOLVED IN THE PHARMACEUTICAL COMPANY BUSINESS WITH THERANOS?
DANIEL EDLIN: THAT'S CONSISTENT WITH MY ROLE, YES.
MR. BOSTIC: SHE SAYS IN HER EMAIL, "THE DRAFT SHOULD CONFIRM THE SAMPLE VOLUME AND LIST OF ASSAYS THAT WILL BE AVAILABLE, INCLUDING THE BREAKDOWN OF WHICH ONES WILL BE DONE THROUGH THE CLIA LAB." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S LOOK AT PAGE 4, AND IF WE CAN ZOOM IN ON THE DRAFT EMAIL THAT YOU PREPARED. AND HERE'S YOUR DRAFT EMAIL; IS THAT CORRECT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IF WE SCROLL DOWN A LITTLE BIT, WE SEE THAT YOU INCLUDE THOSE LISTS. ONE LIST THAT SAYS ASSAYS DEVELOPED ON THERANOS DEVICES. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THE BOTTOM PORTION OF THIS PAGE. AND THEN IF WE JUST GLANCE QUICKLY AT PAGE 5, AT THE TOP THERE'S A SECTION WHERE YOU LIST "ASSAYS USING THIRD PARTY KIT THROUGH THERANOS'S CLIA LAB." DO YOU SEE THAT?
DANIEL EDLIN: YES. I'M TAKING JUST WHAT DANIEL YOUNG HAD SAID IN THE PREVIOUS EMAIL AND PUTTING THAT INTO AN EMAIL DRAFT.
MR. BOSTIC: SHOWING THE BREAKDOWN BETWEEN WHAT THERANOS COULD DO AND WHAT IT NEEDED TO RELY ON KITS FOR; CORRECT?
DANIEL EDLIN: CORRECT.
MR. BOSTIC: AND LET'S LOOK AT PAGE 3 OF THIS EXHIBIT, AND LET'S ZOOM IN ON THE TOP HALF OF THE PAGE. DANIEL YOUNG SAYS HERE, "COMMENTS ON THE DRAFT." HIS FIRST BULLET POINT SAYS, "WE SHOULD NOT DISTINGUISH IF WE ARE USING THERANOS DEVICES/CHEMISTRY OR KITS. WE CAN JUST STAR SOME ASSAYS AS ONES THAT WILL BE RUN IN THE THERANOS CLIA LAB (AND POSSIBLY NOTE THAT THE OTHERS WILL BE TRANSITIONED INTO THE CLIA LAB OVER TIME)." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND HE ALSO SAYS, FOR LANGUAGE READING, "PLEASE SEE BELOW FOR OUR LIST OF ASSAYS THAT WE PLAN TO DEVELOP BY MARCH. WE SHOULD NOT MENTION THIS HERE, BUT JUST SAY THAT WE AIM TO DEPLOY IN THEIR TRIAL." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S LOOK AT PAGE 2 OF THIS EXHIBIT AND SEE YOUR REVISED DRAFT. AND IF WE CAN ZOOM IN ON THE TOP PORTION. AND LET'S CAPTURE A LITTLE BIT MORE SO WE CAN GET THE TEXT OF THE ASTERISK COMMENT. PERFECT. THANK YOU. MR. EDLIN, IS THIS THE REVISED DRAFT THAT YOU PREPARED IN RESPONSE TO MR. YOUNG'S COMMENTS, OR DR. YOUNG'S COMMENTS?
DANIEL EDLIN: YES.
MR. BOSTIC: YOU SAY "HI VICKI. "PLEASE SEE BELOW FOR OUR LIST OF ASSAYS WHICH WE AIM TO DEPLOY IN YOUR TRIAL." AND NOW INSTEAD OF TWO LISTS, THERE'S ONE LIST; IS THAT CORRECT?
DANIEL EDLIN: THAT'S RIGHT.
MR. BOSTIC: AND THE LIST INCLUDES THE ASSAYS THAT WE PREVIOUSLY SAW COULD BE DONE ON THERANOS DEVICES AND THE ONES THAT NEEDED KITS; IS THAT CORRECT?
DANIEL EDLIN: CORRECT.
MR. BOSTIC: AND THIS REVISED DRAFT EMAIL MAKES NO MENTION OF THIRD PARTY KITS, THOUGH; IS THAT CORRECT?
DANIEL EDLIN: NO. PER DANIEL YOUNG'S COMMENTS, IT SAYS BELOW THAT OTHERS MAY BE TRANSITIONED INTO THE CLIA LAB OVER TIME.
MR. BOSTIC: LET'S LOOK AT THE TOP OF PAGE 1 OF THIS EXHIBIT. AND THE FINAL EMAIL IN THIS CHAIN IS FROM ELIZABETH HOLMES AND SHE SAYS, IN CONNECTION WITH THESE CELGENE ASSAYS AND THE DRAFT MESSAGE, "I AM ON BOARD WITH THIS. "OK TO SEND OUT WITH DANIEL'S COMMENTS BELOW." DO YOU SEE THAT?
DANIEL EDLIN: I DO. AND THERE WAS ONE ADDITIONAL SUGGESTION FROM THE DRAFT THAT WE JUST REVIEWED.
MR. BOSTIC: CORRECT. THAT'S MENTIONED BELOW?
DANIEL EDLIN: RIGHT.
MR. BOSTIC: IN THE MIDDLE OF PAGE 1?
DANIEL EDLIN: RIGHT.
MR. BOSTIC: LET'S TAKE A QUICK LOOK AT THAT. SO IN ADDITION TO DR. YOUNG'S PREVIOUS COMMENTS, HE MAKES ANOTHER SUGGESTION ABOUT THE CONTENT OF YOUR DRAFT EMAIL; CORRECT?
DANIEL EDLIN: CORRECT.
MR. BOSTIC: AND MS. HOLMES SIGNS OFF ON THE DRAFT EMAIL AND GIVES YOU THE OKAY TO SEND IT?
DANIEL EDLIN: YES.
MR. BOSTIC: OKAY. WE CAN PUT THAT ASIDE. DURING YOUR TIME AT THERANOS, DID YOU HAVE A ROLE IN CONNECTION WITH THE MARKETING OF THE COMPANY'S SERVICES?
DANIEL EDLIN: I DID.
MR. BOSTIC: DID THAT ROLE INCLUDE ANY INPUT OR WORK ON THE PUBLIC WEBSITE OF THE COMPANY?
DANIEL EDLIN: YES.
MR. BOSTIC: AND CAN YOU GIVE US AN OVERVIEW OF THAT WORK?
DANIEL EDLIN: SO THE COMPANY -- THERANOS WORKED WITH A NUMBER OF DIFFERENT MARKETING AND/OR COMMUNICATIONS OR PUBLIC RELATIONS COMPANIES IN THE LEAD UP TO THE COMMERCIAL LAUNCH WITH WALGREENS AND THEREAFTER, AND I WORKED WITH THOSE COMPANIES ALONGSIDE SOME OF THE MEMBERS OF THE PROJECT MANAGEMENT TEAM TO INTERFACE WITH THEM, TRACK DELIVERABLES, MAKE SURE THAT THINGS GOT COMPLETED.
MR. BOSTIC: DID YOU -- DID THAT WORK INCLUDE WORKING WITH MS. HOLMES ON MARKETING FOR THE COMPANY?
DANIEL EDLIN: YES. YEP.
MR. BOSTIC: GO AHEAD. HOW DID, HOW DID YOU AND MS. HOLMES WORK OR COLLABORATE IN CONNECTION WITH THAT TOPIC?
DANIEL EDLIN: ELIZABETH WORKED CLOSELY WITH THE MARKETING AGENCIES AND THE PERSONNEL TO DISCUSS THE VISION AND ALSO STRATEGY FOR THE CONTENT.
MR. BOSTIC: AND WHEN IT CAME TO THE WEBSITE SPECIFICALLY, WAS MS. HOLMES INVOLVED IN CREATING, REVIEWING, AND APPROVING THE CONTENT?
DANIEL EDLIN: SHE WAS INVOLVED IN REVIEWING AND APPROVING. AS FOR THE CREATING, USUALLY THE MARKETING AGENCIES WOULD CREATE CONTENT BASED ON DISCUSSIONS THAT THEY DID HAVE WITH ELIZABETH AND A GROUP OF PEOPLE.
MR. BOSTIC: FROM YOUR TIME AT THE COMPANY AND YOUR WORK ON THAT PROJECT, HOW WOULD YOU CHARACTERIZE MS. HOLMES'S LEVEL OF INVOLVEMENT IN REVIEWING AND APPROVING THAT CONTENT? WAS SHE VERY INVOLVED? DETAIL ORIENTED? WAS SHE KIND OF CHECKED OUT? WHAT WAS YOUR EXPERIENCE?
DANIEL EDLIN: VERY INVOLVED AND DETAIL ORIENTED. THERE WERE STEPS ALONG THE WAY IN TERMS OF DEVELOPMENT THAT PROBABLY DIDN'T REACH HER REVIEW EVERY TIME. BUT FOR THE END PRODUCT AND WHAT ACTUALLY WENT ONTO THE WEBSITE, SHE DID HAVE A HAND -- SHE DID REVIEW THAT.
MR. BOSTIC: I'LL ASK YOU TO LOOK AT EXHIBIT 3965 IN YOUR BINDER. LET ME KNOW ONCE YOU GET THERE.
DANIEL EDLIN: OKAY, I'M THERE.
MR. BOSTIC: AND DO YOU SEE AN EMAIL FROM JEFFREY BLICKMAN TO MS. HOLMES, CC'ING SUNNY BALWANI AND YOU, ADDRESSING THE CONTENT OF THE DRAFT THERANOS WEBSITE?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT OFFERS EXHIBIT 3965.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 3965 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: IF WE COULD -- LET'S START WITH WHO IS ON THIS EMAIL.
MR. BOSTIC: FIRST, WHO WAS JEFF BLICKMAN ON THIS EMAIL?
DANIEL EDLIN: JEFF BLICKMAN WAS A PROJECT MANAGER AND WE WERE ON THE SAME TEAM.
MR. BOSTIC: IN HIS EMAIL, HE WRITES TO ELIZABETH SAYING, "HERE'S THE PDF SCREENSHOT OF LATEST DOT COM" -- WAS THAT THE DRAFT WEBSITE?
DANIEL EDLIN: YES.
MR. BOSTIC: -- "TO SEND TO COUNSEL, ALONG WITH JIM'S (ABRIDGED) FEEDBACK FROM TODAY, REMOVED ANYTHING BASED ON PERSONAL OPINION." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THIS EMAIL WAS DATED SEPTEMBER 4TH, 2013; IS THAT RIGHT?
DANIEL EDLIN: THAT'S RIGHT.
MR. BOSTIC: AND WHEN WAS THE WEBSITE GOING TO GO PUBLIC? OR WHEN WERE THOSE CHANGES GOING TO TAKE EFFECT, IF YOU KNOW?
DANIEL EDLIN: THESE CHANGES WERE INTENDED TO GO PUBLIC AT THE SAME TIME, OR THE NIGHT BEFORE THE WALGREENS, THE FIRST WALGREENS STORED OPENED.
MR. BOSTIC: SO WITHIN A WEEK OR SO OF THE DATE OF THE EMAIL THAT WE'RE LOOKING AT, APPROXIMATELY?
DANIEL EDLIN: I'M NOT SURE OF THE EXACT DATE, SO IT COULD BE NINE DAYS OR TEN DAYS. BUT IN THAT GENERAL TIMEFRAME.
MR. BOSTIC: IN THESE COMMENTS THAT ARE BEING PASSED ON TO MS. HOLMES, QUESTION 1 SAYS, "WHAT IS THE SOURCE/BACKUP DATA FOR 'AT THERANOS, WE CAN PERFORM ALL LAB TESTS ON A SAMPLE 1/1,000TH THE SIZE OF A TYPICAL BLOOD DRAW.'" DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: POINT NUMBER 2 SAYS, FOR THE CONTENT, "OUR REVOLUTION/OUR TECHNOLOGY," AND THE QUOTE, "A TINY DROP IS ALL IT TAKES. WE OFTEN USE MORE THAN ONE DROP, SO WE SHOULD SAY," AND THEN THERE ARE SOME ALTERNATIVES INCLUDED. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DO YOU KNOW WHETHER THESE CHANGES WERE IMPLEMENTED ON THE THERANOS PUBLIC WEBSITE?
DANIEL EDLIN: I DON'T RECALL SPECIFICALLY.
MR. BOSTIC: LET'S LOOK AT PAGE 4 OF THIS EXHIBIT. LET'S ZOOM IN ON THE TOP PORTION AND SEE IF WE CAN GET THE TEXT TO SHOW UP. IS THIS A PAGE FROM THE DRAFT THERANOS WEBSITE AS IT EXISTED AT THE TIME OF THE EMAIL THAT WE'VE BEEN LOOKING AT?
DANIEL EDLIN: YES, I BELIEVE SO.
MR. BOSTIC: HERE UNDER THE GRAPHIC AND THE TEXT, THE LAB TESTS REINVENTED, DO YOU SEE THERE'S TEXT THAT SAYS, "AT THERANOS WE CAN PERFORM ALL LAB TESTS ON A SAMPLE 1/1,000TH THE SIZE OF A TYPICAL BLOOD DRAW."
DANIEL EDLIN: YES.
MR. BOSTIC: IS THAT THE TEXT THAT WAS BEING ADDRESSED IN THE COMMENT THAT WE JUST LOOKED AT?
DANIEL EDLIN: YES.
MR. BOSTIC: I JUST WANT TO POINT OUT TO YOU A COUPLE OF OTHER THINGS ON THIS PAGE. FIRST, JUST BELOW THAT, DO YOU SEE SOME TEXT READING, "A TINY DROP IS ALL IT TAKES"?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THEN IF WE ZOOM OUT. AND ZOOM IN ON THE PORTION READING 10 PERCENT. SORRY, A LITTLE HIGHER TO THE LEFT WHERE IT SAYS, "HIGHEST LEVELS OF ACCURACY." DO YOU SEE THAT PORTION?
DANIEL EDLIN: YES.
MR. BOSTIC: IF I COULD ASK YOU NOW TO TURN TO EXHIBIT 3981.
DANIEL EDLIN: OKAY.
MR. BOSTIC: AND ARE WE LOOKING NOW AT AN EMAIL CHAIN INCLUDING YOU AND OTHER INDIVIDUALS AT THERANOS ALSO ON THE TOPIC OF WEBSITE COMMENTS?
DANIEL EDLIN: YES. I'M ON THE LAST EMAIL OF THIS CHAIN.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT OFFERS EXHIBIT 3981.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 3981 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: LET'S ZOOM IN ON THE BOTTOM HALF OF THIS PAGE.
MR. BOSTIC: MR. EDLIN, DO YOU SEE AN EMAIL FROM KATE BEARDSLEY TO ELIZABETH HOLMES?
DANIEL EDLIN: YES.
MR. BOSTIC: AND MS. BEARDSLEY'S EMAIL ADDRESS IS @BEARDSLEYLAWPLLC. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WHO WAS KATE BEARDSLEY?
DANIEL EDLIN: I DON'T BELIEVE I KNEW HER.
MR. BOSTIC: AND SHE WROTE IN HER EMAIL, "I AM FORWARDING THE HYMAN, PHELPS COMMENTS." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DO YOU KNOW WHAT HYMAN, PHELPS WAS?
DANIEL EDLIN: I DON'T RECALL.
MR. BOSTIC: I'LL DRAW YOUR ATTENTION TO AN EMAIL BELOW THAT FROM SOMEONE NAMED JAMIE WOLSZON. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DO YOU REMEMBER WHO THAT WAS?
DANIEL EDLIN: NO.
MR. BOSTIC: IN JAMIE'S EMAIL, WE SEE, "PLEASE FIND BELOW MY COMMENTS TO THE THERANOS WEBSITE. SEVERAL OF THESE COMMENTS REPEAT THROUGHOUT THE WEBSITE SO I DO NOT NECESSARILY MENTION EACH INSTANCE. AS DISCUSSED, THEY FALL WITHIN THE CATEGORIES OF SUBSTANTIATION FOR SUPERLATIVE OR COMPARATIVE PERFORMANCE CLAIMS," AND OTHER TOPICS. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S TURN THE PAGE AND GO TO PAGE 2. IF WE CAN ZOOM IN ON THE TOP PORTION. DO YOU SEE NOW WE'RE LOOKING AT BULLET COMMENTS GIVING FEEDBACK TO THE DRAFT BEFORE IT IS LAUNCHED?
DANIEL EDLIN: YES.
MR. BOSTIC: AND LET'S LOOK AT SOME OF THESE POINTS OF FEEDBACK. THE TOP ONE SAYS, "PLEASE REMOVE REFERENCES TO 'ALL' TESTS AND REPLACE WITH STATEMENTS SUCH AS 'MULTIPLE' OR 'SEVERAL.' IT IS HIGHLY UNLIKELY THAT THE LABORATORY CAN PERFORM EVERY CONCEIVABLE TEST BOTH FROM A LOGISTICAL STANDPOINT AND BECAUSE THE CLIA CERTIFICATION DESIGNATES SPECIFIC SPECIALTIES OF TESTS THE LAB PERFORMS." DO YOU SEE THAT COMMENT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND JUST BELOW THAT THERE ANOTHER COMMENT THAT SAYS, "FOR A SIMILAR REASON, REPLACE 'FULL RANGE' WITH 'BROAD RANGE.'" DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DO YOU KNOW WHETHER THESE COMMENTS WERE IMPLEMENTED ON THE THERANOS WEBSITE?
DANIEL EDLIN: I DON'T RECALL SPECIFICALLY.
MR. BOSTIC: AND DO YOU RECALL A DISCUSSION WITH MS. HOLMES ABOUT THIS FEEDBACK?
DANIEL EDLIN: NO.
MR. BOSTIC: LET'S GO DOWN A LITTLE BIT. THERE'S A BULLET THAT SAYS REPLACE, AND IT SAYS, "REPLACE 'FASTER AND EASIER' WITH 'FAST AND EASY.'" DO YOU SEE THAT CHANGE?
DANIEL EDLIN: YES:
MR. BOSTIC: THERE'S A SUGGESTION BELOW IT, OR A REQUEST TO REPLACE THE, QUOTE, "'HIGHEST QUALITY' WITH 'HIGH QUALITY.'" DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND LET'S ZOOM BACK OUT AND ZOOM BACK IN ON THE BOTTOM HALF OF THIS PAGE. AND DO YOU SEE THERE IS A QUESTION THAT SAYS, "WHAT SUBSTANTIATION DO YOU HAVE FOR 'HAVE RESULTS TO YOU AND YOUR DOCTOR FASTER THAN PREVIOUSLY POSSIBLE?'"
DANIEL EDLIN: YES.
MR. BOSTIC: AND THERE'S ALSO ANOTHER COMMENT SIMILAR TO WHAT WE SAW BEFORE, THIRD FROM THE BOTTOM, THAT SAYS, "REPLACE 'HIGHEST LEVELS OF ACCURACY' WITH 'HIGH LEVELS OF ACCURACY.'" DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S GO TO THE NEXT PAGE, PAGE 3, AND WE'LL JUST HIGHLIGHT A FEW MORE POINTS OF FEEDBACK HERE. DO YOU SEE THE THIRD ONE DOWN SAYS, "CHANGE 'MORE PRECISE' TO 'PRECISE'"?
DANIEL EDLIN: YES.
MR. BOSTIC: AND LET'S ZOOM IN ON THE BOTTOM HALF OF THIS PAGE. DO YOU SEE, THIRD FROM THE BOTTOM, THERE'S A REQUEST TO "REMOVE REFERENCES TO ONCOLOGY AND PEDIATRICS - THIS INCREASES RISK." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND FINALLY, LET'S GO TO PAGE 4 OF THIS EXHIBIT. AT THE TOP THERE IT SAYS, "ENSURE SUBSTANTIATION FOR 'UNPRECEDENTED SPEED AND ACCURACY.'" DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IS THIS A REQUEST, IN OTHER WORDS, TO MAKE SURE THERE'S BACKUP FOR THAT CLAIM?
DANIEL EDLIN: I THINK SUBSTANTIATION AND BACKUP ARE PROBABLY SYNONYMS HERE.
MR. BOSTIC: AND FINALLY, LET'S LOOK AT THE BOTTOM OF THIS LIST, AND THE SECOND BULLET FROM THE BOTTOM, WHICH SAYS, "REMOVE 'UNRIVALLED ACCURACY.'" DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND LET'S LOOK AT A SIMILAR EMAIL FROM A LITTLE BIT EARLIER. LET'S LOOK AT 5438. FOR THE COURT'S REFERENCE AND COUNSEL'S REFERENCE, THIS MIGHT BE INSIDE THE RED WELD INSIDE OF THE BINDER?
JUDGE DAVILA: THANK YOU.
DANIEL EDLIN: I SEE THAT.
BY MR. BOSTIC:
MR. BOSTIC: IS EXHIBIT 5438 AN EMAIL CHAIN INCLUDING YOU, MS. HOLMES, AND OTHERS AT THERANOS ABOUT THE WEBSITE CONTENT?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, I OFFER EXHIBIT 5438.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED, AND IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 5438 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: AND LET'S START BY ZOOMING IN ON THE BOTTOM HALF OF THE PAGE.
MR. BOSTIC: MR. EDLIN, DO YOU SEE THAT AT THE BOTTOM OF THE PAGE THERE'S AN EMAIL FROM YOU TO MS. HOLMES ABOUT WEBSITE CONTENT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND AT THE TOP OF THE SELECTION SHE SAYS, "THEY SHOULD NOT USE THE WORLD UNRIVALLED IN ACCURACY AS WE'VE DISCUSSED MANY TIMES." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THEN LET'S LOOK AT YOUR EMAIL IN RESPONSE IN THE TOP PORTION OF THE PAGE. AND YOU RESPOND WITH WHAT YOU SAY ARE SOME SUGGESTIONS INSTEAD OF UNRIVALLED ACCURACY. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND ONE SAYS UNRIVALLED QUALITY?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WHAT WAS THE THINKING IN SUGGESTING "QUALITY" INSTEAD OF "ACCURACY," IF YOU RECALL?
DANIEL EDLIN: I DON'T RECALL.
MR. BOSTIC: AND DID YOU VIEW THOSE TERMS AS SYNONYMOUS?
DANIEL EDLIN: YES.
MR. BOSTIC: AND LET'S GO BACK TO MS. HOLMES'S EMAIL IN THE MIDDLE OF THE PAGE. SHE SAYS AT THE BOTTOM OF THAT SELECTION, "IN AUTO REFLEX TESTING, WE SHOULD ADD A LINE ABOUT BECAUSE WE CAN RUN THE FULL RANGE OF ASSAYS FROM A SINGLE MICRO-SAMPLE." DO YOU SEE THAT CLAIM?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND WE CAN PUT THAT ONE ASIDE. YOUR HONOR, IF THE COURT WANTED TO BREAK AT 11:00, I'M ABOUT TO MOVE TO A DIFFERENT TOPIC.
JUDGE DAVILA: LET'S DO THAT NOW. LET'S TAKE OUR BREAK. IT WILL BE ABOUT 30 MINUTES, 30 MINUTES. AND, LADIES AND GENTLEMEN, I THOUGHT WE WOULD GO UNTIL 3:00 TODAY. IS THAT ALL RIGHT? ANY ONE IN THE JURY WITH AN OBJECTION TO THAT? I SEE NO HANDS. THANK YOU. WE'LL GO UNTIL 3:00 TODAY, MAYBE 4:00 TOMORROW. IF YOU COULD CHECK WITH YOUR NEEDS AND I'LL ASK YOU AT THE END OF TODAY WHETHER OR NOT WE CAN DO THAT. LET'S TAKE OUR BREAK NOW. THANKS VERY MUCH.
(JURY OUT AT 10:58 A.M.)
JUDGE DAVILA: PLEASE BE SEATED. THANK YOU. THE RECORD SHOULD REFLECT -- AND YOU CAN STAND DOWN, SIR.
DANIEL EDLIN: THANK YOU.
JUDGE DAVILA: THANK YOU. OUR JURY HAS LEFT. ALL COUNSEL AND MS. HOLMES ARE PRESENT, AND THE WITNESS HAS LEFT THE COURTROOM. MR. EDLIN HAS LEFT. ANYTHING FURTHER, MR. BOSTIC, BEFORE WE BREAK?
MR. BOSTIC: NO, YOUR HONOR. THANK YOU.
JUDGE DAVILA: MR. DOWNEY?
MR. DOWNEY: NO, YOUR HONOR. JUST OUTSIDE OF THE PRESENCE OF THE JURY, ON THE ISSUE I RAISED, THE ISSUE RELATED TO PERSONAL HEALTH INFORMATION, IT'S COMPLEX WITH THESE EXHIBITS. SO THERE WERE TWO INDIVIDUALS WITH WHOM MR. BOSTIC IN HIS QUESTIONING ASSOCIATED RESULTS WHICH WERE THEN DISCUSSED IN THE EMAILS THAT HE WAS MENTIONING. YOU KNOW, IT MAY NOT BE A SUFFICIENT CONNECTION, BUT THE APPROACH WITH A DIFFERENT EMAIL WAS TO TAKE THE SAME KIND OF INFORMATION AND MAKE ALL OF THE DOCUMENTS THEN CONSISTENT WITH ANY FORM OF DISCLOSURE AND HE DIDN'T USE THE PATIENT'S NAME. WE SHOULD JUST HAVE A CONSISTENT APPROACH, AND WHATEVER APPROACH THE COURT PREFERS IS FINE WITH ME.
JUDGE DAVILA: MR. BOSTIC?
MR. BOSTIC: SO, YOUR HONOR, I'M NOT SURE -- I APPRECIATE WHERE COUNSEL IS COMING FROM, AND THIS IS AN ISSUE THAT IS VERY IMPORTANT TO THE COURT AND BOTH PARTIES. A CONSISTENT APPROACH ISN'T POSSIBLE HERE, OR NOT THE BEST WAY TO GO BECAUSE DIFFERENT EXHIBITS ARE OFFERED FOR DIFFERENT PURPOSES. SOMETIMES IT'S IMPORTANT TO KNOW THAT A CERTAIN INDIVIDUAL WHO ENDED UP INVESTING IN THE COMPANY CAME IN FOR A DEMONSTRATION, AND THAT DEMONSTRATION WAS RUN ON NON-THERANOS EQUIPMENT. AT OTHER TIMES THE IDENTITY OF THE PERSON MIGHT BE BESIDE THE POINT AND THE RESULTS MIGHT BE MORE IMPORTANT BECAUSE THEY HIGHLIGHT ISSUES THAT THERANOS WAS HAVING WITH THE EQUIPMENT THAT WERE ELEVATED OR KNOWN BY MS. HOLMES. SO IN THOSE TWO SITUATIONS, DIFFERENT PORTIONS OF THE DOCUMENTS WOULD BE REDACTED. IT'S THE GOVERNMENT'S APPROACH TO TRY TO MAKE SURE THAT AT NO POINT ARE WE PUBLICIZING SOMEONE'S IDENTITY ALONG WITH SENSITIVE HEALTH INFORMATION, BUT BECAUSE OF THE NATURE OF THIS CASE --
JUDGE DAVILA: RIGHT. I CAPTURE THAT DISTINCTION, AND I THINK YOU DO, TOO, MR. DOWNEY. DIFFERENT PURPOSES COMING IN. BUT I DO APPRECIATE THAT WE SHOULD HAVE SOME PROPHYLACTIC MEASURES FOR RELEASE OF PII AND HEALTH INFORMATION. THAT'S CRITICAL. WE DON'T WANT TO HAVE A MISTAKE ON THAT. AND SOMETIMES, AS WE NOTED, YOU AND I, MR. DOWNEY, HAVE BINDERS THAT HAVE UNREDACTED, I THINK, INFORMATION, AND THE GOVERNMENT IS, IN THEIR EXAMINATION, USING PERHAPS THE SAME DOCUMENTS. BUT THE ONES THAT ACTUALLY GET ADMITTED AND PUBLISHED WILL HAVE REDACTIONS. I'M TAKING IT ON GOOD FAITH FROM BOTH SIDES THAT THAT IS GOING TO OCCUR.
MR. BOSTIC: THAT'S CORRECT, YOUR HONOR. AND JUST TO BE CLEAR, THE VERSION APPEARING ON THE COURT'S SCREEN IS THE SAME VERSION THAT IS BEING SHOWN TO THE JURY AND THE VERSION THAT SHOULD CONTAIN THE REDACTIONS THAT WE'VE PUT IN PLACE.
JUDGE DAVILA: RIGHT. THAT'S HOW I THINK WE HAVE BEEN PROCEEDING.
MR. DOWNEY: TO BE SURE, THE EXHIBITS ARE REDACTED, AND TO BE SURE, MR. BOSTIC IS DOING THE BEST HE CAN, AS WE ARE, AND NO ONE --
JUDGE DAVILA: SURE.
MR. DOWNEY: -- IS PERFECT WITH THIS. THE ISSUE, THOUGH, IS A LITTLE DIFFERENT. THE ISSUE IS THERE WAS A NAME IN THE QUESTIONING ABOUT WALGREENS, FOR EXAMPLE. ONE COULD PUT TOGETHER THE DISCUSSION OF THE TEST RESULTS IN THE EMAIL AND ASSOCIATE IT WITH THAT NAME AND KNOW WHAT RESULTS WERE. NOW, I SHOULD SAY THAT THESE DEMONSTRATIONS AREN'T DONE FOR CLINICAL PURPOSES AND SO IN A SENSE THEY MAY NOT -- THE ISSUE MAY NOT MATTER. BUT, FOR EXAMPLE, WITH ANOTHER OF THE INDIVIDUALS WITH THE LATE DECEMBER 2015 EMAIL, I DON'T HAVE THE NUMBER, THAT -- THE NAME WAS REMOVED AND THE RESULT -- IN ALL RELEVANT PLACES, SO IT WAS JUST A DIFFERENT APPROACH. I THINK WE SHOULD JUST DO THE BEST WE CAN, AND I'M NOT, CERTAINLY NOT CRITICIZING --
JUDGE DAVILA: RIGHT.
MR. DOWNEY: -- MR. BOSTIC IN ANY WAY. I JUST WANT TO BE CAUTIOUS BECAUSE OF THE OBVIOUS ISSUES.
JUDGE DAVILA: RIGHT. THANK YOU FOR THAT. AND THE COURT NEEDS TO BE COGNIZANT OF THAT AS WELL. I DO UNDERSTAND THAT THE DOCUMENTS SOMETIMES ARE USED FOR DIFFERENT PURPOSES, AND THAT'S WHERE THERE -- WE HAVE TO TRACK THAT. IT SOUNDS LIKE BOTH OF YOU HAVE RECOGNIZED THAT AND THE EXHIBITS THAT YOU INTEND TO OFFER, THE PURPOSES THAT THEY'RE BEING OFFERED FOR AND THE NEEDS OF REDACTION, OR NOT, AS TO THOSE DOCUMENTS. I'M SURE YOU HAVE THE SAME ISSUES, BUT I APPRECIATE BOTH SIDES' ATTENTION TO THIS.
MR. DOWNEY: THERE'S NO QUESTION IT'S A DIFFICULT ISSUE.
JUDGE DAVILA: RIGHT. IT IS INDEED. ALL RIGHT. THANK YOU.
MR. DOWNEY: THANK YOU, YOUR HONOR.
COURT CLERK: COURT IS IN RECESS.
(RECESS FROM 11:03 A.M. UNTIL 11:37 A.M.)
(JURY IN AT 11:37 A.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. THANK YOU FOR YOUR PATIENCE. WE'RE BACK ON THE RECORD. ALL PARTIES PREVIOUSLY PRESENT ARE PRESENT ONCE AGAIN. MR. BOSTIC.
MR. BOSTIC: THANK YOU, YOUR HONOR.
MR. BOSTIC: MR. EDLIN, DURING YOUR TIME WORKING AT THERANOS, DID YOU HAVE ANY CONTACT WITH JOURNALISTS WHO WERE COVERING THE COMPANY?
DANIEL EDLIN: YES.
MR. BOSTIC: AND HOW DID THAT COME TO BE? WHAT WAS YOUR ROLE IN CONNECTION WITH DEALING WITH JOURNALISTS?
DANIEL EDLIN: INITIALLY JOURNALISTS WOULD SEND EMAILS TO THE COMPANY REQUESTING MEETINGS OR THAT THEY WERE INTERESTED IN DOING A PIECE, AND I WOULD INTERFACE AND OFTEN HELP COORDINATE THEIR VISITS.
MR. BOSTIC: IN THAT ROLE, DID YOU COME TO HAVE ANY CONTACT WITH A REPORTER NAMED JOSEPH RAGO FROM "THE WALL STREET JOURNAL"?
DANIEL EDLIN: I DO RECALL THAT HE, THAT HE DID VISIT. I DON'T BELIEVE THAT I COMMUNICATED WITH HIM FOR THAT VISIT.
MR. BOSTIC: YOU RECALL HIM VISITING THERANOS?
DANIEL EDLIN: YES.
MR. BOSTIC: DO YOU RECALL HIM INTERVIEWING MS. HOLMES?
DANIEL EDLIN: YES.
MR. BOSTIC: I'LL ASK YOU --
DANIEL EDLIN: I WASN'T PRESENT FOR THE INTERVIEW, BUT I DO RECALL THAT HE DID THAT.
MR. BOSTIC: OKAY. UNDERSTOOD. DO YOU RECALL APPROXIMATELY WHEN HE WAS WORKING ON A STORY REGARDING THERANOS?
DANIEL EDLIN: IT WAS, I BELIEVE, WITHIN TWO TO THREE WEEKS OF THE WALGREENS LAUNCH.
MR. BOSTIC: SO APPROXIMATELY SEPTEMBER OF 2013?
DANIEL EDLIN: YES.
MR. BOSTIC: I'LL ASK YOU TO LOOK AT EXHIBIT 1090 IN THE BINDER IN FRONT OF YOU. AND FOR THE COURT AND THE DEFENSE, THIS MIGHT BE IN THE RED WELD.
JUDGE DAVILA: THANK YOU.
DANIEL EDLIN: OKAY. I SEE IT.
BY MR. BOSTIC:
MR. BOSTIC: YOU'RE LOOKING AT EXHIBIT 1090?
DANIEL EDLIN: YES.
MR. BOSTIC: IS IT AN EMAIL CHAIN INCLUDING YOU, ELIZABETH HOLMES, SUNNY BALWANI, AND OTHERS AT THERANOS REGARDING THE CONTENT OF THAT JOSEPH RAGO ARTICLE?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT OFFERS EXHIBIT 1090.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: DO YOU HAVE IT, MR. DOWNEY?
MR. DOWNEY: I HAVE IT.
JUDGE DAVILA: OKAY.
MR. DOWNEY: YOUR HONOR, MAY I JUST DOUBLE-CHECK WITH MR. BOSTIC?
JUDGE DAVILA: SURE.
(DISCUSSION OFF THE RECORD.)
JUDGE DAVILA: I THINK I DO. IT WILL BE ADMITTED. IT MAY BE PUBLISHED. I DON'T THINK I HAVE A COPY IN THE BINDER OR THE RED WELD, BUT IT MAY HAVE BEEN --
COURT CLERK: (HANDING.)
MR. BOSTIC: APOLOGIES FOR THAT, YOUR HONOR.
JUDGE DAVILA: THANK YOU. IT'S ADMITTED, AND IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 1090 WAS RECEIVED IN EVIDENCE.)
BY MR. BOSTIC:
MR. BOSTIC: MR. EDLIN, I'D DIRECT YOUR ATTENTION TO THE BOTTOM HALF, IF WE CAN ZOOM IN, THE BOTTOM HALF OF PAGE 1. AND DO YOU SEE AN EMAIL FROM JOSEPH RAGO TO ELIZABETH HOLMES AND JEFFREY BLICKMAN?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IS THE SUBJECT LINE READ BACK?
DANIEL EDLIN: YES.
MR. BOSTIC: AND LET'S LOOK AT PAGE 2 OF THIS EXHIBIT. AND IF WE CAN ZOOM IN ON THE TOP HALF OF THE PAGE. SO, MR. EDLIN, WHAT WE'RE LOOKING AT NOW, IS THIS THE TEXT OF THE DRAFT ARTICLE THAT HAD NOT YET BEEN PUBLISHED?
DANIEL EDLIN: I BELIEVE SO.
MR. BOSTIC: THIS EMAIL WAS SENT ON SEPTEMBER 6TH, 2013. WAS THIS BEFORE THE WALGREENS LAUNCH AND BEFORE THE PUBLICATION OF THIS ARTICLE?
DANIEL EDLIN: YES.
MR. BOSTIC: SO WHAT WE'RE LOOKING AT IS THE JOURNALIST SENDING A DRAFT OF THE ARTICLE TO MS. HOLMES IN ADVANCE OF THE PUBLICATION?
DANIEL EDLIN: EITHER THE ARTICLE OR PARTS OF THE ARTICLE.
MR. BOSTIC: OKAY. LET'S LOOK AT THE TOP HALF OF PAGE 1. WHILE WE'RE ZOOMING IN THERE, DO YOU HAVE AN UNDERSTANDING AS TO WHAT THE PURPOSE WAS OF PROVIDING MS. HOLMES WITH A DRAFT OF THE ARTICLE IN ADVANCE, OR PORTIONS OF IT?
DANIEL EDLIN: AS I'M LOOKING AT HIS EMAIL BELOW, HE ASKED IF ANY POINTS NEED TO BE CLARIFIED OR IF HE HAS EXPLAINED SOMETHING INCOMPLETELY OR LEFT SOMETHING OUT, THAT OFFERED THE OPPORTUNITY FOR ELIZABETH AND JEFF TO CORRECT IT IN THIS CASE.
MR. BOSTIC: OKAY. AND SO, IN OTHER WORDS, IF THERE WAS SOMETHING THAT NEEDED TO BE CHANGED OR SOMETHING CLARIFIED, THIS WOULD BE THE CHANCE TO DO IT BEFORE THE PUBLICATION OF THE ARTICLE?
DANIEL EDLIN: THAT'S RIGHT.
MR. BOSTIC: LOOKING AT THE TOP PORTION OF PAGE 1, DO YOU SEE AN EMAIL FROM JEFF BLICKMAN TO ELIZABETH HOLMES AND OTHERS AT THERANOS?
DANIEL EDLIN: YES.
MR. BOSTIC: HE SAYS, "WENT THROUGH THIS AND HIGHLIGHTED A FEW THINGS IN YELLOW DIRECTLY IN HIS EMAIL, AND SUMMARIZED BELOW. THERE ARE A FAIR AMOUNT OF ISSUES THAT I'VE NOTED, SOME MORE CONCERNING THAN OTHERS, PLEASE TAKE A LOOK." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND I NOTES A FEW ITEMS. FIRST, FOR EXAMPLE, UNDER QUOTE NUMBER 2, MR. BLICKMAN NOTES THAT THE ARTICLE CALLED MS. HOLMES A 30-SOMETHING CHEMICAL ENGINEER, AND HE SAID THAT WAS INACCURATE. DO YOU SEE THAT?
DANIEL EDLIN: RIGHT.
MR. BOSTIC: QUOTE NUMBER 3, HE NOTICED A, QUOTE, "GROUP COLLEGE-KID HOUSE." HE THOUGHT THAT WAS POORLY WORDED. DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND THE SECTION LABELLED MAIN COPY, THE FIRST BULLET POINT SAYS THAT NEARLY 500 EMPLOYEES WOULD BE AN OVERSTATEMENT. DO YOU SEE THAT COMMENT?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND A FEW DOWN FROM THERE, THERE'S A BULLET POINT THAT SAYS "HE CALLS OUT QUOTE 'IMPROVED ACCURACY' WHEN TALKING ABOUT REDUCTION OF HUMAN ERROR THRU AUTOMATION." DO YOU SAY THAT? OR DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DO YOU HAVE AN UNDERSTANDING AS TO WHY MR. BLICKMAN WAS INCLUDING THIS MENTION OF IMPROVED ACCURACY IN THIS LIST OF THINGS THAT NEEDED TO BE FIXED ABOUT THE DRAFT ARTICLE?
DANIEL EDLIN: I DON'T KNOW WHY SPECIFICALLY HE CALLED IT OUT, BUT THERE WAS AN ONGOING DISCUSSION ABOUT WORDING AROUND ACCURACY AND HOW THAT WOULD BE REPRESENTED ON THE WEBSITE.
MR. BOSTIC: AND WAS THAT ONGOING DISCUSSION PART OF WHAT WE SAW IN PREVIOUS EXHIBITS ABOUT THE WEBSITE CONTENT?
DANIEL EDLIN: YES.
MR. BOSTIC: DO YOU RECALL THAT DISCUSSION ABOUT ACCURACY CLAIMS IN ANY OTHER CONTEXTS BESIDES THE WEBSITE CONTENT AND THE CONTENT OF THIS ARTICLE?
DANIEL EDLIN: NOTHING ELSE IS COMING TO MIND RIGHT NOW.
MR. BOSTIC: DO YOU RECALL -- LET ME ASK, WERE YOU PART OF ANY DISCUSSIONS FOLLOWING UP ON THIS EMAIL ABOUT WHETHER THAT IMPROVED ACCURACY CLAIM NEEDED TO BE CLARIFIED IN THE DRAFT ARTICLE?
DANIEL EDLIN: NOT THAT I RECALL.
MR. BOSTIC: LET'S LOOK AT THE ARTICLE ITSELF, WHICH IS ALREADY IN EVIDENCE. IF I COULD PUBLISH EXHIBIT 1106. MR. EDLIN, DO YOU SEE THAT THIS IS THE PUBLISHED "WALL STREET JOURNAL" ARTICLE TITLED "ELIZABETH HOLMES: THE BREAKTHROUGH OF INSTANT DIAGNOSIS"? SORRY. I DON'T THINK THIS IS IN YOUR BINDER, BUT IT'S ON THE SCREEN IN FRONT OF YOU.
DANIEL EDLIN: OKAY. I SEE THIS ARTICLE.
MR. BOSTIC: AND DO YOU SEE THIS IS BY JOSEPH RAGO AND PUBLISHED SEPTEMBER 8TH, 2013?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THAT'S APPROXIMATELY TWO DAYS AFTER THE EMAIL THAT WE WERE JUST LOOKING AT?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S ZOOM OUT AND ZOOM BACK IN ON THE FIRST INDENTED PARAGRAPH, ABOUT HALFWAY DOWN THAT PAGE. DO YOU SEE THIS PARAGRAPH IN THE FINAL ARTICLE READS, "THE SECRET THAT HUNDREDS OF EMPLOYEES ARE NOW REFINING INVOLVES DEVICES THAT AUTOMATE AND MINIATURIZE MORE THAN 1,000 LABORATORY TESTS." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IT THEN SAYS, "THERANOS'S PROCESSES ARE FASTER, CHEAPER AND MORE ACCURATE THAN THE CONVENTIONAL METHODS AND REQUIRE ONLY MICROSCOPIC BLOOD VOLUMES." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: THE FINAL ARTICLE THEN DOES CONTAIN CLAIMS ABOUT THERANOS'S PROCESSES BEING MORE ACCURATE?
DANIEL EDLIN: YEAH, I'M LOOKING AT JEFF'S EMAIL, AND THE QUOTE THERE WAS IMPROVED ACCURACY.
MR. BOSTIC: LET'S LOOK AT PAGE 2 OF THIS ARTICLE. FROM YOUR PERSPECTIVE, IS THERE A DIFFERENCE BETWEEN A TEST BEING MORE ACCURATE AND HAVING IMPROVED ACCURACY?
DANIEL EDLIN: I THINK THEY'RE SYNONYMOUS.
MR. BOSTIC: ON PAGE 2 THERE'S A PARAGRAPH THAT BEGINS, TOWARD THE BOTTOM OF THE PAGE, IT SAYS, "ANOTHER THERANOS ADVANCE"?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IT SAYS "ANOTHER THERANOS ADVANCE IS ITS TESTING'S ACCURACY. MS. HOLMES BELIEVES THE CHAIN OF CONVENTIONAL LABORATORY CUSTODY INTRODUCES TOO MANY OPPORTUNITIES FOR ERROR, 'WHICH IS BASICALLY WHERE EVER HUMANS ARE INVOLVED.'" AND THEN IT GOES ON TO EXPLAIN A LITTLE MORE ABOUT THAT. SO DO YOU SEE ANOTHER CLAIM ABOUT THERANOS TESTING ACCURACY IN THE FINAL ARTICLE?
DANIEL EDLIN: I DO.
MR. BOSTIC: WE CAN PUT THAT ASIDE. THE ARTICLE THAT WE JUST LOOKED AT, THE JOSEPH RAGO PIECE, WERE YOU PART OF ANY DISCUSSIONS AT THERANOS ABOUT WHETHER THAT ARTICLE SHOULD BE SENT TO INVESTORS OR POTENTIAL INVESTORS IN THERANOS, IF YOU RECALL?
DANIEL EDLIN: I DON'T RECALL.
MR. BOSTIC: I'LL ASK YOU TO LOOK NEXT AT EXHIBIT 1753. AND WHILE YOU'RE TURNING THERE, DO YOU RECALL INTERACTING WITH ANOTHER JOURNALIST NAMED ROGER PARLOFF?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND WHO WAS ROGER PARLOFF?
DANIEL EDLIN: ROGER PARLOFF WAS A REPORTER FOR "FORTUNE" MAGAZINE.
MR. BOSTIC: AND HOW DID YOU COME TO HAVE CONTACT WITH HIM WHEN YOU WERE WORKING AT THERANOS?
DANIEL EDLIN: I BELIEVE THAT ONE OF THE PUBLIC RELATIONS CONSULTANTS WHO WAS WORKING FOR THERANOS SET UP THAT INTERVIEW BETWEEN ELIZABETH AND MR. PARLOFF. IN FOLLOWUP TO THEIR INTERVIEW, THERE WERE A NUMBER OF FOLLOW-UP ITEMS AND REQUESTED INFORMATION THAT ELIZABETH ASKED THAT I HELP COMPILE.
MR. BOSTIC: LOOKING AT EXHIBIT 1753, DO YOU SEE AN EMAIL CHAIN BETWEEN YOU AND MS. HOLMES AND OTHERS DEALING WITH THAT TO DO LIST FOR THE JOURNALIST ROGER PARLOFF?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT OFFERS EXHIBIT 1753.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 1753 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: AND IF WE CAN START ON PAGE 5. AND IF WE CAN ZOOM IN ON THE MIDDLE OF THE PAGE STARTING WITH THAT EMAIL MESSAGE.
MR. BOSTIC: MR. EDLIN, DO YOU SEE AN EMAIL FROM YOU TO MS. HOLMES AND OTHERS ON MAY 21ST, 2014?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WAS THIS DURING THE TIME PERIOD WHERE MR. PARLOFF WAS WORKING ON HIS ARTICLE ON THERANOS?
DANIEL EDLIN: I BELIEVE SO.
MR. BOSTIC: YOU WRITE, "ELIZABETH, PLEASE SEE BELOW FOR THE UPDATED, AGGREGATED LIST OF FOLLOW-UP ITEMS FOR ROGER PARLOFF." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WHAT WAS THIS LIST OF FOLLOW-UP ITEMS?
DANIEL EDLIN: THIS WAS A LIST OF REQUESTED INFORMATION THAT WAS BROKEN DOWN INTO TOPIC AND INFORMATION AREA.
MR. BOSTIC: AND WERE THESE ALL ITEMS THAT WERE INTENDED TO GO TO MR. PARLOFF TO BE INCORPORATED INTO HIS ARTICLE?
DANIEL EDLIN: I DON'T KNOW EXACTLY. THESE WERE, THESE WERE FOLLOW-UP QUESTIONS FROM AN INTERVIEW THAT MR. PARLOFF CONDUCTED WITH ELIZABETH. I DIDN'T KNOW HOW OR WHETHER THEY WOULD BE USED IN THE ARTICLE.
MR. BOSTIC: DID MR. PARLOFF HAVE ANY OTHER DEALINGS WITH THERANOS SEPARATE FROM WORKING ON THE ARTICLE THAT HE INTENDED TO PUBLISH?
DANIEL EDLIN: NOT TO MY KNOWLEDGE.
MR. BOSTIC: I'LL DRAW YOUR ATTENTION TO JUST TO A COUPLE OF ITEMS IN THIS LIST OF ACTION ITEMS. FIRST LET'S ZOOM OUT AND ZOOM BACK IN ON THE BOTTOM HALF OF THE PAGE. FIRST -- SO WE SEE A NUMBERED LIST WITH ACTION ITEMS HERE; CORRECT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THEN IN THE FAR RIGHT COLUMN THERE ARE INITIALS LISTED. DO YOU SEE THOSE?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WHAT DOES THAT TELL US, THE INITIALS THAT MIGHT BE NEXT TO A CERTAIN ACTION ITEM?
DANIEL EDLIN: THAT TELLS US WHO AT THE COMPANY WOULD BE RESPONSIBLE FOR PROVIDING THAT INFORMATION.
MR. BOSTIC: OKAY. SO WHEN WE LOOK AT, FOR EXAMPLE, ITEM NUMBER 12 WHERE IT SAYS "LANGUAGE ON WHAT HE CAN SAY ABOUT OUR HAVING DEVICES, AND HOW MANY DEVICES WE ARE USING IN EACH FACILITY. "HOW MANY ANALYZERS PER SAMPLE HE'S ALLOWED TO TALK ABOUT. "BEING ABLE TO WORK WITHIN A SMALLER SPACE - LANGUAGE ON THIS." WHO WAS RESPONSIBLE FOR HANDLING THAT ACTION ITEM IN CONNECTION WITH MR. PARLOFF'S ARTICLE?
DANIEL EDLIN: ELIZABETH'S NAME IS NEXT TO THAT.
MR. BOSTIC: HOW ABOUT FOR NUMBER 16? THERE'S AN ACTION ITEM REQUESTING, "LANGUAGE ON WHY WE DO SOME VENIPUNCTURE." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND SO, IN OTHER WORDS, THE REASON WHY THERANOS DID SOME VENOUS DRAW SAMPLES?
DANIEL EDLIN: CORRECT.
MR. BOSTIC: AND WHO WAS ASSIGNED TO HANDLE THAT ACTION ITEM FOR MR. PARLOFF?
DANIEL EDLIN: ELIZABETH.
MR. BOSTIC: AND HOW ABOUT NUMBER 17, "LANGUAGE ON THE DEVICE COMPARISON AND LAB COMPARISON BETWEEN THERANOS AND QUEST." WHO WAS RESPONSIBLE FOR THAT ONE?
DANIEL EDLIN: ELIZABETH.
MR. BOSTIC: LET'S GO BACK TO PAGE 1 OF THIS EXHIBIT. AND IF WE LOOK AT THE TOP PORTION OF THE PAGE. LET'S ACTUALLY CAPTURE FROM THE VERY TOP DOWN TO ABOUT A THIRD DOWN. PERFECT. THANK YOU. MR. EDLIN, DO YOU SEE AT THE TOP THERE'S AN EMAIL FROM ELIZABETH HOLMES TO YOU ON JUNE 1ST, 2014?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THIS EMAIL ATTACHES A PDF. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THE PDF IS TITLED PFIZER THERANOS SYSTEM VALIDATION FINAL REPORT. IS THAT RIGHT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND LET'S TAKE A QUICK LOOK AT THAT ATTACHMENT, AND IT'S ON PAGE 7 OF THE EXHIBIT. AND, MS. HOLLIMAN, LET'S ZOOM IN ON THE TOP HALF OF THE PAGE. MR. EDLIN, DO YOU SEE THE REPORT THAT MS. HOLMES ATTACHED IN HER EMAIL TO YOU THAT WE WERE JUST LOOKING AT?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND DO YOU RECOGNIZE THIS DOCUMENT?
DANIEL EDLIN: I, I RECOGNIZE IT, YES.
MR. BOSTIC: WHAT'S YOUR UNDERSTANDING OF WHAT THIS DOCUMENT IS?
DANIEL EDLIN: MY UNDERSTANDING IS THAT THIS REPORT DETAILS A STUDY THAT THERANOS COLLABORATED WITH PFIZER ON.
MR. BOSTIC: DO YOU KNOW HOW THIS REPORT WAS PRODUCED? AND LET ME ASK ACTUALLY, DO YOU KNOW WHO ACTUALLY CREATED THIS REPORT?
DANIEL EDLIN: I DON'T.
MR. BOSTIC: WERE YOU INVOLVED IN THE CREATION OF THIS REPORT?
DANIEL EDLIN: NO.
MR. BOSTIC: HOW ABOUT THE PFIZER LOGO AT THE TOP? DO YOU KNOW HOW THE PFIZER LOGO CAME TO APPEAR AT THE TOP OF THIS REPORT?
DANIEL EDLIN: I DON'T.
MR. BOSTIC: WERE YOU INVOLVED IN THE PLACEMENT OF THE PFIZER LOGO AT THE TOP OF THIS REPORT?
DANIEL EDLIN: NO.
MR. BOSTIC: WERE YOU PART OF ANY DISCUSSIONS AT THERANOS ABOUT THE PLACEMENT OF THE PFIZER LOGO ON THIS REPORT?
DANIEL EDLIN: NO.
MR. BOSTIC: OKAY. WE CAN PUT THAT ASIDE. SO BESIDES JOSEPH RAGO AND ROGER PARLOFF, ARE YOU FAMILIAR WITH A REPORTER NAMED JENNY GOLD WORKING ON A PIECE REGARDING THERANOS?
DANIEL EDLIN: I DON'T KNOW IF SHE EVER WROTE A PIECE. I DO REMEMBER THAT SHE WAS INTERESTED IN WRITING A PIECE.
MR. BOSTIC: DO YOU REMEMBER GETTING A QUESTION OR QUESTIONS FROM HER ABOUT THERANOS IN CONNECTION WITH HER REPORTING?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WHAT QUESTION OR QUESTIONS DO YOU REMEMBER GETTING FROM MS. GOLD?
DANIEL EDLIN: I REMEMBER SHE WAS PREDOMINANTLY INTERESTED IN A PERCENTAGE OF WHICH THERANOS TEST COULD BE RUN ON A FINGERSTICK COMPARED TO A VENOUS DRAW.
MR. BOSTIC: WHEN WE LOOKED AT THE LIST OF ACTION ITEMS FOR ROGER PARLOFF, USE OF VENOUS DRAWS WAS AN ITEM ASSIGNED TO MS. HOLMES; IS THAT CORRECT?
DANIEL EDLIN: YES.
MR. BOSTIC: WHEN YOU WERE ASKED THIS QUESTION BY MS. GOLD, DID YOU SEEK ANY GUIDANCE FROM MS. HOLMES ON HOW TO RESPOND?
DANIEL EDLIN: I DID.
MR. BOSTIC: AND DID YOU GET GUIDANCE?
DANIEL EDLIN: I DID.
MR. BOSTIC: WHAT DID MS. HOLMES TELL YOU?
DANIEL EDLIN: THE GUIDANCE WAS ESSENTIALLY TO NOT PROVIDE AN EXACT PERCENTAGE BECAUSE THAT PERCENTAGE WAS ALWAYS CHANGING WEEK BY WEEK BASED ON WHAT WAS ACTUALLY BEING ORDERED IN THE LAB.
MR. BOSTIC: ALL RIGHT. LET'S SHIFT TOPICS AND TALK ABOUT CONTACT WITH INVESTORS. AS PART OF YOUR KIND OF MULTIFACETED ROLE AT THE COMPANY, DID YOU HAVE ANY CONTACT WITH POTENTIAL OR ACTUAL INVESTORS WITH THERANOS?
DANIEL EDLIN: I DID.
MR. BOSTIC: AND WHAT WAS THE NATURE OF THAT CONTACT?
DANIEL EDLIN: ON OCCASION -- THIS WAS RARE -- AN INVESTOR OR A POTENTIAL INVESTOR WOULD COME TO THERANOS OFFICES, AND I THINK WE DISCUSSED EARLIER ON SIMILAR OCCASIONS, I WOULD GIVE A TOUR IF ELIZABETH COULDN'T GIVE THE TOUR OR DID NOT GIVE THE TOUR. I WAS ALSO ASKED AT TIMES TO PREPARE BINDERS AND SEND BINDERS TO THE INVESTORS BASED ON AN APPROVED CHECKLIST OF ITEMS, AND I WOULD -- ONCE I COMPILED THOSE BINDERS, I WOULD HAVE -- OR ELIZABETH ASKED TO REVIEW THEM, AND ONCE THEY WERE REVIEWED AND APPROVED, ON SOME OCCASIONS I WOULD SEND THOSE OUT TO INVESTORS.
MR. BOSTIC: AND THESE WERE BINDERS OF INFORMATION ABOUT THERANOS TO GO TO INVESTORS?
DANIEL EDLIN: YES.
MR. BOSTIC: YOU SAID THAT THE MATERIALS FOR THOSE BINDERS CAME FROM A PREAPPROVED LIST OF MATERIALS; IS THAT RIGHT?
DANIEL EDLIN: YES.
MR. BOSTIC: WHO APPROVED THE LIST OF PREAPPROVED MATERIALS?
DANIEL EDLIN: ELIZABETH.
MR. BOSTIC: OKAY. LET'S LOOK AT EXHIBIT 1940. DO YOU HAVE 1940 IN FRONT OF YOU?
DANIEL EDLIN: YES. YES.
MR. BOSTIC: IS THIS AN EMAIL FROM YOU TO MS. HOLMES IN SEPTEMBER OF 2014 ABOUT ASSEMBLING INVESTMENT MATERIALS BINDERS?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT OFFERS EXHIBIT 1940.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED, AND IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 1940 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: AND LET'S LOOK FIRST AT PAGE 2. ZOOM IN AT THE TOP.
MR. BOSTIC: MR. EDLIN, DO YOU SEE AN EMAIL FROM MS. HOLMES TO YOU AND JEFF BLICKMAN ON SEPTEMBER 15TH, 2014 ASKING FOR THE CONTENTS OF THE TWO BINDERS AND WHAT'S NOT IN THEM THAT WAS IN OTHERS?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND THEN LET'S GO TO PAGE 1. AND LET'S ZOOM IN ON THE TOP HALF OF PAGE 1. CAN YOU EXPLAIN WHAT INFORMATION YOU'RE PROVIDING IN THE EMAIL ON THE SCREEN?
DANIEL EDLIN: THIS INFORMATION RELATES TO THE CONTENT THAT WAS IN EACH OF THE INVESTMENT BINDERS.
MR. BOSTIC: AND IS THIS THE LIST OF EXACTLY WHAT WAS IN THOSE BINDERS THAT MS. HOLMES WAS JUST ASKING FOR IN THE EMAIL THAT WE LOOKED AT?
DANIEL EDLIN: YES, THESE ARE THE DIFFERENT DOCUMENTS THAT EACH HAD THEIR OWN LABEL IN THE BINDER.
MR. BOSTIC: OKAY. AND WAS EACH OF THESE ITEMS PART OF THAT LIST OF PREAPPROVED ITEMS THAT YOU WERE JUST REFERENCING?
DANIEL EDLIN: YES.
MR. BOSTIC: AND ARE THESE THE KINDS OF ITEMS THAT WERE ROUTINELY SENT TO POTENTIAL INVESTORS IN THE COMPANY?
DANIEL EDLIN: AS IT RELATES TO WHAT I HELPED TO PREPARE, YES.
MR. BOSTIC: OKAY. YOU CAN PUT THAT ONE ASIDE. MAY I APPROACH, YOUR HONOR?
JUDGE DAVILA: YES.
MR. BOSTIC: (HANDING.) MS. KRATZMANN, THANK YOU.
BY MR. BOSTIC:
MR. BOSTIC: (HANDING.) MR. EDLIN, I'VE PUT IN FRONT OF YOU WHAT HAS BEEN MARKED AS EXHIBIT 4869. DO YOU HAVE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND I'LL POINT OUT THAT THERE'S A COVER PAGE AND THEN EXCERPTED MATERIALS BEHIND IT. I'LL ASK YOU IF YOU, GENERALLY SPEAKING, CAN TELL US WHAT EXHIBIT 4869 IS?
DANIEL EDLIN: I BELIEVE THIS REFERS TO NUMBER 7, CONFIDENTIAL THERANOS BRIEFING.
MR. BOSTIC: SO IS THIS A PORTION OF AN INVESTOR BINDER?
DANIEL EDLIN: YES, I BELIEVE SO.
MR. BOSTIC: AND IS THIS THE KIND OF ITEM THAT YOU WOULD HAVE INCLUDED IN THE PACKAGES THAT YOU SENT OUT AT MS. HOLMES'S REQUEST?
DANIEL EDLIN: THIS WOULD HAVE BEEN INCLUDED IN A TYPICAL INVESTMENT RELATED BINDER.
MR. BOSTIC: OKAY. AND CAN YOU TELL FROM THIS SPECIFIC EXHIBIT WHICH INVESTOR THIS PRESENTATION WENT TO?
DANIEL EDLIN: I CAN.
MR. BOSTIC: I'M SORRY?
DANIEL EDLIN: I CAN.
MR. BOSTIC: AND WHO WAS THAT?
DANIEL EDLIN: RUPERT MURDOCH.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT MOVES TO ADMIT EXHIBIT 4869.
MR. DOWNEY: YOUR HONOR, I HAVE NO OBJECTION TO THE ADMISSION OF 4869. THERE'S AN ATTACHED 4869A, WHICH I'M SURE I WILL NOT HAVE AN OBJECTION TO. THERE'S A LOT OF MATERIAL IN BETWEEN THAT IS MISSING, AND I AGREE WITH MR. BOSTIC THAT I WOULD REVIEW THAT FOR COMPLETENESS, AND IF THERE IS ANY NEED TO SUPPLEMENT THIS WITH A 4869B, I'LL DO THAT DURING MY EXAMINATION.
JUDGE DAVILA: THANK YOU. MR. BOSTIC, YOU'RE FINE WITH THAT?
MR. BOSTIC: YES. THANK YOU.
JUDGE DAVILA: ALL RIGHT. THIS WILL BE ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 4869 WAS RECEIVED IN EVIDENCE.)
BY MR. BOSTIC:
MR. BOSTIC: AND, MR. EDLIN, WHILE WE'RE ON THAT TOPIC, THE INVESTOR BINDERS, AS WE JUST SAW FROM THE EMAIL, WOULD INCLUDE MANY COMPONENTS; IS THAT CORRECT?
DANIEL EDLIN: THAT IS CORRECT.
MR. BOSTIC: THE PRESENTATION THAT WE'RE ABOUT TO LOOK AT WOULD JUST BE ONE COMPONENT OF MANY THAT WOULD BE INCLUDED IN A TYPICAL INVESTMENT BINDER?
DANIEL EDLIN: THAT'S CORRECT.
MR. BOSTIC: I'D LIKE TO JUST SHOW YOU SOME OF THE CONTENT OF THIS PRESENTATION. FIRST, LET'S START WITH PAGE 3. AND DO YOU SEE THERE A SLIDE ENTITLED THERANOS INCORPORATED?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DO YOU SEE THAT UNDER THE LINE THAT SAYS THAT THERANOS IS HEADQUARTERED IN PALO ALTO, CALIFORNIA AND IS A SILICON VALLEY-BASED COMPANY FOUNDED IN 2003, THERE'S A PARAGRAPH THAT SAYS, "THERANOS'S PROPRIETARY, PATENTED TECHNOLOGY RUNS COMPREHENSIVE BLOOD TESTS FROM A FINGERSTICK." DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND IT ALSO SAYS THAT THE TECHNOLOGY TESTS FROM MICRO-SAMPLES OF OTHER MATRICES. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IT SAYS "IT GENERATES SIGNIFICANTLY HIGHER INTEGRITY DATA THAN CURRENTLY POSSIBLE." DID I READ THAT CORRECTLY?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S LOOK AT SLIDE 15 OF THIS EXHIBIT. AND DO YOU SEE A SLIDE ENTITLED COST SAVINGS?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IN THE SECOND BULLET POINT FROM THE BOTTOM, THE PRESENTATION SAYS, "THE UNPRECEDENTED LACK OF VARIATION FROM SYSTEM TO SYSTEM YIELDS HIGHER INTEGRITY DATA AND LONGITUDINAL TRENDING, ENABLING EARLIER INSIGHT INTO THE ONSET/PROGRESSION OF DISEASE AND REDUCING UNNECESSARY SECONDARY PROCEDURES FROM RESULTS WHICH CURRENTLY SHOW UP AS FALSE POSITIVE RESULTS." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IS THIS ANOTHER CLAIM ABOUT THE ACCURACY OF THERANOS TESTS?
DANIEL EDLIN: MY UNDERSTANDING IS THAT VARIATION AND COEFFICIENT OF VARIATION DOES RELATE TO ACCURACY, SO YES.
MR. BOSTIC: LET'S LOOK NEXT AT PAGE 28 OF THIS PRESENTATION. DO YOU SEE A SLIDE THAT SAYS, SAME TESTS, A WHOLE NEW APPROACH?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND BENEATH THAT IT READS, "THE ACTIONABLE INFORMATION YOU NEED 1/1000TH THE SIZE OF A TYPICAL BLOOD DRAW." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THAT 1/1000TH LANGUAGE, DO YOU RECALL THAT BEING HIGHLIGHTED AS SOMETHING THAT THERE WAS SOME QUESTION ABOUT IN CONNECTION WITH THE WEBSITE CONTENT?
DANIEL EDLIN: I DO, NOT SPECIFICALLY WHAT IT WAS, BUT I DO REMEMBER THAT IT WAS CALLED OUT.
MR. BOSTIC: ON THAT SAME PAGE THERE'S A LINE THAT SAYS, "THERANOS RUNS ANY TEST AVAILABLE IN CENTRAL LABORATORIES, AND PROCESSES ALL SAMPLE TYPES," BENEATH A PHOTO OF THE FINGERSTICK METHOD. DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND THE BOTTOM PARAGRAPH, "THE THERANOS PROVIDES THE HIGHEST LEVEL OF OVERSIGHT, AUTOMATION, AND STANDARDIZATION IN OUR PRE AND POST ANALYTICAL PROCESSES, ENSURING THE HIGHEST LEVELS OF ACCURACY AND PRECISION." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THAT KIND OF LANGUAGE ABOUT THE HIGHEST LEVELS OF ACCURACY AND PRECISION, IS THAT THE KIND OF LANGUAGE THAT WE READ A FEW EXHIBITS AGO WHERE THERE WERE SOME CONCERNS ABOUT INCLUDING THAT KIND OF LANGUAGE ON THE WEBSITE?
DANIEL EDLIN: YES.
MR. BOSTIC: WERE YOU PART OF ANY DISCUSSIONS WITH MS. HOLMES ABOUT WHETHER THAT KIND OF LANGUAGE SHOULD BE INCLUDED IN INVESTOR PRESENTATIONS?
DANIEL EDLIN: NOT THAT I RECALL.
MR. BOSTIC: DO YOU RECALL EVER RECEIVING ANY DIRECTION FROM MS. HOLMES TO REMOVE ANY LANGUAGE LIKE THAT ABOUT ACCURACY FROM THE INVESTOR PRESENTATIONS?
MR. BOSTIC: FINALLY, LET'S TAKE A LOOK AT PAGE 30 AND LET'S ZOOM IN ON THE CONTENT THERE. BENEATH THE GRAPHIC ABOUT -- ACTUALLY ABOVE THE GRAPHIC ABOUT A 10 PERCENT COEFFICIENT OF VARIATION, THERE'S LANGUAGE THAT READS, "THE HIGHEST LEVELS OF ACCURACY." DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND BENEATH THAT GRAPHIC THE TEXT READS, "BY SYSTEMATICALLY CONTROLLING AND STANDARDIZING OUR PROCESSES, THERANOS OFFERS TESTS WITH THE HIGHEST LEVELS OF ACCURACY." DID I READ THAT CORRECTLY?
DANIEL EDLIN: YES.
MR. BOSTIC: THIS PRESENTATION, WAS IT CREATED SPECIFICALLY FOR CONSIDERATION BY RUPERT MURDOCH?
DANIEL EDLIN: I THINK MOST OF, OR AT LEAST A PART OF THIS PRESENTATION ALREADY EXISTED AND IT WAS PART OF A GROUP OF DOCUMENTS, RIGHT, THAT WERE INCLUDED IN THE BINDERS. SO I'M NOT SURE IF ANYTHING CHANGED BETWEEN THIS BINDER AND A DIFFERENT BINDER. BUT THIS PRESENTATION OF ITSELF, THE CONFIDENTIAL THERANOS BRIEFING, THAT WAS INCLUDED IN ALL OF THE INVESTMENT BINDERS TO MY KNOWLEDGE.
MR. BOSTIC: THANK YOU. SORRY TO INTERRUPT. SO YOU RECALL AT LEAST VERSIONS OF THE SAME PRESENTATION BEING SENT TO OTHER POTENTIAL INVESTORS IN THE COMPANY?
DANIEL EDLIN: YES.
MR. BOSTIC: OKAY. WE CAN PUT THAT ASIDE. LET'S SWITCH TOPICS. LET ME ASK, WERE YOU GENERALLY AWARE OF CALLS OR COMMUNICATIONS THAT THERANOS WOULD GET FROM PATIENTS OR DOCTORS ABOUT QUESTIONABLE OR INACCURATE TEST RESULTS?
DANIEL EDLIN: I'M AWARE THAT THERE WAS A CUSTOMER SERVICE GROUP THAT FIELDED CUSTOMER COMPLAINTS, BUT THAT REALLY WASN'T PART OF MY JOB RESPONSIBILITIES.
MR. BOSTIC: THE PEOPLE WHO WORKED IN THAT CUSTOMER SERVICE GROUP, WHERE DID THEY SIT, IF YOU RECALL?
DANIEL EDLIN: WE WERE IN A COUPLE OF DIFFERENT BUILDINGS. I REMEMBER IN THE 1601 BUILDING THEY SAT IN A ROOM AT THE THERANOS HEADQUARTERS.
MR. BOSTIC: AND THAT WAS IN PALO ALTO?
DANIEL EDLIN: THAT'S RIGHT.
MR. BOSTIC: I'LL ASK YOU TO LOOK AT EXHIBIT 5413 IN YOUR BINDER.
DANIEL EDLIN: OKAY.
MR. BOSTIC: AND IS EXHIBIT 5413 AN EMAIL CHAIN IN JULY 2014 INCLUDING YOU AND MS. HOLMES ABOUT A PATIENT CALL?
DANIEL EDLIN: I'M COPIED ON THE EMAIL. THERE ARE A NUMBER OF OTHER PEOPLE ON THE EMAIL AS WELL.
MR. BOSTIC: OTHERWISE DID I ACCURATELY DESCRIBE EXHIBIT 5413?
DANIEL EDLIN: YES.
MR. BOSTIC: AND AS PART OF THERANOS'S BUSINESS, WERE THERE SOMETIMES EMAIL COMMUNICATIONS RELATING TO PATIENT CALLS OR TESTING ISSUES THAT AROSE AT THE COMPANY?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT MOVES TO ADMIT 5413.
MR. DOWNEY: NO OBJECTION TO 5413, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 5413 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: AND IF WE CAN START ON PAGE 2 AT THE BOTTOM. AND IF WE CAN ZOOM IN THERE.
MR. BOSTIC: MR. EDLIN, DO YOU RECALL -- DO YOU SEE THAT THIS BEGINS WITH AN EMAIL FROM SOMEONE NAMED AMELIA AGUIRRE TO CHRISTIAN HOLMES AND YOURSELF?
DANIEL EDLIN: YES.
MR. BOSTIC: AND MS. AGUIRRE WRITES, "I RECEIVED A CALL FROM PATIENT," AND WE REDACTED THE NAME. "HE EXPRESSED THAT HE DOES NOT BELIEVE THAT OUR RESULTS WERE NOT ACCURATE FROM HIS LAST VISIT AND HIS PHYSICIAN AGREES (NOT CONSISTENT WITH HISTORY)." LET'S CONTINUE READING ON THE FOLLOWING PAGE, PAGE 3. AND THE EMAIL GOES ON TO SAY, "THE PATIENT CAME TO THERANOS MOST RECENTLY ON 7/22 AND THE RESULTS FOR INR WERE .9. HIS PHYSICIAN SENT HIM TO LAB CORP. TWO DAYS LATER BECAUSE HE BELIEVED THE LAB RESULTS WERE LOW AND HIS RESULT AT LAB CORP. FOR INR WAS 3.1 (WHICH PATIENT SAYS IS MORE CONSISTENT WITH HIS HISTORY, WHICH IS USUALLY 2.0 AND 3.0.)" DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: IT GOES ON TO SAY, "HE CURRENTLY HAS STANDING IN ORDER FOR PT/INR FROM HIS DOCTOR, HOWEVER, HE DOES NOT WANT TO CONTINUE TO COME TO THERANOS EVEN THOUGH HE HAS A STANDING ORDER UNTIL WE VERIFY THAT OUR RESULTS ARE ACCURATE." DO YOU SEE THAT?
DANIEL EDLIN: YES, I DO.
MR. BOSTIC: LET'S LOOK BACK AT PAGE 2 OF THIS EXHIBIT AND ZOOM IN ON THE MIDDLE OF THE PAGE. DO YOU SEE AN EMAIL THERE FROM CHRISTIAN HOLMES IN RESPONSE FORWARDING THIS TO SOMEONE NAMED MAX FOSQUE.
DANIEL EDLIN: YES.
MR. BOSTIC: AND CHRISTIAN SAYS, "MAX - WITH DAN AND ME OUT, CAN YOU PULL THE RESULTS HISTORY FOR THIS PATIENT ON THE INR HE'S ASKING ABOUT? ELIZABETH WANTS TO REVIEW THEN HAVE SOMEONE CALL THE PATIENT/DOC BACK." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: FROM YOUR EXPERIENCE AT THE COMPANY AND WORKING WITH MS. HOLMES, DO YOU HAVE AN UNDERSTANDING WHAT HER ROLE WAS IN THESE SITUATIONS REVIEWING INSTANCES WHERE PATIENTS CALLED?
DANIEL EDLIN: I THINK SOMETIMES SHE WOULD BE INVOLVED AND SOMETIMES SHE WOULD NOT BE INVOLVED.
MR. BOSTIC: WHEN SHE WAS INVOLVED, DO YOU HAVE AN UNDERSTANDING OF WHAT SHE WOULD DO, WHAT HER FUNCTION WAS?
DANIEL EDLIN: I BELIEVE SHE DISCUSSED MESSAGING WITH WHOEVER WAS INTERFACING OR INTERACTING WITH THE CUSTOMER OR THE PHYSICIAN.
MR. BOSTIC: LET'S LOOK AT PAGE 1 OF THIS EXHIBIT, AND LET'S ZOOM IN ON THE TOP MESSAGE. ACTUALLY, LET'S SEE IF WE CAN CAPTURE THE TOP HALF OF THE PAGE DOWN THROUGH THAT MESSAGE. PERFECT. MR. EDLIN, DO YOU SEE AN EMAIL FROM MS. HOLMES TO MAX FOSQUE, CHRISTIAN HOLMES, YOU, AND SUNNY BALWANI AT THE BOTTOM THERE?
DANIEL EDLIN: YES.
MR. BOSTIC: SHE SAYS, "MAX - NEED YOU TO TRIAGE THIS, THEN COME BRIEF ME ON WHAT HAPPENED. FROM THERE WE'LL DECIDE WHO WILL CALL." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND ON THE TOP EMAIL, CHRISTIAN HOLMES SAYS, "BASICALLY HAVE NISHIT LOOK AT THE DATA AND SEE IF ANYTHING WENT WRONG (IDENTIFY THE ISSUE) THEN WORK WITH ELIZABETH ON SCRIPTING WHILE SUNNY ADDRESSES ROOT CAUSE OF ANY ISSUE INTERNALLY." DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND WHAT IS YOUR UNDERSTANDING OF WHAT "SCRIPTING" MEANT IN THIS CONTEXT?
DANIEL EDLIN: I DON'T RECALL THIS SPECIFIC ISSUE, BUT WHAT THIS SEEMS TO ME IS THAT IT'S REFERRING TO TALKING POINTS OR MESSAGING.
MR. BOSTIC: YOU CAN PUT THAT ONE ASIDE, AND I'LL ASK YOU TO TURN TO EXHIBIT 4237. LET ME KNOW ONCE YOU'RE THERE.
DANIEL EDLIN: OKAY.
MR. BOSTIC: AND I'LL ASK YOU TO LOOK AT PAGE 4 OF EXHIBIT 4237. AND ON THAT PAGE, DO YOU SEE AN EMAIL FROM SOMEONE NAMED ELENA SCHEER TO YOU AND CHRISTIAN HOLMES AND OTHERS?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IS THIS RELATED TO ANOTHER PATIENT CALL OR PATIENT COMPLAINT?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT OFFERS 4237.
MR. DOWNEY: I'M NOT CERTAIN WHAT THE BASIS IS FOR ADMISSION, SO I WOULD OBJECT ON 801 GROUNDS.
MR. BOSTIC: YOUR HONOR, I BELIEVE THIS SHOULD COME IN AS A BUSINESS RECORD.
JUDGE DAVILA: DO YOU WANT HIM TO LAY A FOUNDATION IF HE CAN, MR. DOWNEY?
MR. DOWNEY: MAY I JUST TAKE A MOMENT?
JUDGE DAVILA: SURE. OF COURSE.
(PAUSE IN PROCEEDINGS.)
MR. DOWNEY: NO, YOUR HONOR. WITH THE OPPORTUNITY TO REVIEW, I DON'T THINK IT'S NECESSARY.
JUDGE DAVILA: THANK YOU. IT IS ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 4237 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: THANK YOU, YOUR HONOR.
MR. BOSTIC: MR. EDLIN, LET'S GO BACK TO PAGE 4 AND READ THAT ORIGINAL EMAIL. AT THE BOTTOM THERE, DO YOU SEE THIS IS AN EMAIL FROM ELENA SCHEER TO YOU, CHRISTIAN HOLMES, AND MAX FOSQUE?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THE SUBJECT LINE IS PHYSICIAN AND PATIENT CALL NEEDED -- HCG RESULTS. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DO YOU RECALL WHO ELENA SCHEER WAS AT THE COMPANY?
DANIEL EDLIN: SHE WAS A CUSTOMER SERVICE ASSOCIATE.
MR. BOSTIC: SHE WAS ONE OF THE STAFF MEMBERS WHO DEALT WITH INCOMING CALLS AND COMPLAINTS FROM PATIENTS?
DANIEL EDLIN: THAT'S RIGHT.
MR. BOSTIC: LET'S LOOK AT THE TEXT OF HER EMAIL AND TURN TO PAGE 5 OF THIS EXHIBIT. AND HER EMAIL READS, "I JUST SPOKE TO," AND THEN PATIENT NAME, "SHE IS A WAG TECH." IS "WAG" SHORT FOR WALGREENS?
DANIEL EDLIN: YES.
MR. BOSTIC: "SHE IS A WALGREENS TECH AND TOLD HER DOCTOR SHE WANTED TO USE OUR SERVICES FOR HER HCG QUANT TEST. SHE CAME IN TWICE - ONCE ON THE 24TH (RESULT 120.20 MILLIUNITS PER MILLILITER) AND ONCE ON THE 26TH, (LESS THAN 7.82 MILLIUNITS PER MILLILITER)." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: SHE WRITES, "DOCTOR WAS UNSURE ABOUT THE RESULTS SO HAD HER GO TO QUEST WHERE HER RESULT WAS MUCH, MUCH HIGHER." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND SHE SAYS, "NOW THEY ARE WONDERING ABOUT ACCURACY OR IF HER SAMPLE WAS SWITCHED." IS THAT CORRECT?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S GO FORWARD IN TIME IN THIS EMAIL CHAIN TO PAGE 1, AND LET'S ZOOM IN ON THE TOP PORTION OF THE PAGE. FIRST, DO YOU HAVE AN UNDERSTANDING OF WHAT THE HCG TEST WAS AND HOW IT WAS USED?
DANIEL EDLIN: I BELIEVE IT WAS A PREGNANCY TEST.
MR. BOSTIC: DO YOU SEE ON YOUR SCREEN AN EMAIL FROM CHINMAY PANGARKAR TO MAX FOSQUE, DANIEL YOUNG, AND CHRISTIAN HOLMES?
DANIEL EDLIN: YES.
MR. BOSTIC: AND RESPONDING ON THIS TOPIC, CHINMAY PANGARKAR SAYS, "IT IS POSSIBLE THAT THE SAMPLE GOT SWITCHED? OTHERWISE, THIS ONE SEEMS LIKE ANOTHER ONE OF THESE OUTLIERS. WE ARE GETTING MORE OF THESE. THE HCG FOR THIS PATIENT (ASSUMING IT IS NORMAL PREGNANCY) SHOULD BE MORE THAN 240." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: DO YOU HAVE IN FRONT OF YOU AN EXHIBIT MARKED 5439? I THINK YOU MIGHT NOT. MAY I APPROACH, YOUR HONOR?
JUDGE DAVILA: YES.
DANIEL EDLIN: I DON'T.
BY MR. BOSTIC:
MR. BOSTIC: (HANDING.) MR. EDLIN, DO YOU HAVE EXHIBIT 5439 IN FRONT OF YOU?
DANIEL EDLIN: YES.
MR. BOSTIC: THIS IS AN EMAIL THAT YOU'RE NOT ON; IS THAT CORRECT?
DANIEL EDLIN: YES.
MR. BOSTIC: CAN YOU TELL US WHO THE EMAIL IS FROM AND TO?
DANIEL EDLIN: THE EMAIL IS FROM MAX FOSQUE TO SUNNY BALWANI.
MR. BOSTIC: AND I'LL ASK YOU TO JUST FLIP THROUGH THE ATTACHED PAGES IF YOU WOULDN'T MIND. I'LL ASK YOU ALSO TO JUST TAKE A QUICK LOOK AT THE NAMES OF THE ATTACHMENTS ON THE FIRST PAGE AND FAMILIARIZE YOURSELF WITH THAT.
DANIEL EDLIN: OKAY.
MR. BOSTIC: YOU PREVIOUSLY TESTIFIED THAT YOU WERE AWARE THAT THERE WERE INDIVIDUALS AT THERANOS WHO KIND OF HELMED THE PHONE LINES SO THAT WHEN CALLS FROM PATIENTS OR DOCTORS CAME IN, THERE WOULD BE SOMEONE TO ANSWER?
DANIEL EDLIN: THAT'S RIGHT.
MR. BOSTIC: DID YOU HAVE AN UNDERSTANDING OF WHAT HAPPENED WHEN THOSE CALLS CAME IN? OBVIOUSLY THE THERANOS EMPLOYEE WOULD SPEAK TO THE PATIENT OR DOCTOR; IS THAT RIGHT?
DANIEL EDLIN: A CUSTOMER SERVICE REPRESENTATIVE.
MR. BOSTIC: RIGHT. WHAT WAS THE PROCESS AFTER THAT? FOR EXAMPLE, WAS INFORMATION GAINED DURING THOSE CALLS PRESERVED AT THERANOS? DO YOU KNOW?
DANIEL EDLIN: WELL, THIS EXHIBIT LOOKS LIKE SOME TYPE OF LOG, BUT THIS IS THE FIRST TIME THAT I'M SEEING THIS.
MR. BOSTIC: THIS IS THE FIRST TIME THAT YOU'RE SEEING THIS TYPE OF DOCUMENT?
DANIEL EDLIN: RIGHT.
MR. DOWNEY: OBJECTION, YOUR HONOR, TO FURTHER DISCUSSION OF THE EMAIL FOR THE REASONS THAT WE DISCUSSED.
JUDGE DAVILA: WELL, LET'S SEE YOUR NEXT QUESTION, WHAT THE NEXT QUESTION IS.
BY MR. BOSTIC:
MR. BOSTIC: DURING YOUR TIME AT THERANOS, WERE YOU AWARE THAT THE COMPANY PRESERVED RECORDS OF CALLS AND COMPLAINTS THAT CAME IN FROM DOCTORS OR PATIENTS?
DANIEL EDLIN: I WAS NOT AWARE OF THAT.
MR. BOSTIC: WERE YOU HAVE GENERALLY AWARE THAT THE COMPANY -- THAT INDIVIDUALS AT THE COMPANY USED EMAIL TO COMMUNICATE ABOUT CALLS AND COMPLAINTS THAT CAME IN FROM DOCTORS AND PATIENTS?
DANIEL EDLIN: I WOULDN'T SAY I HAD SPECIFIC KNOWLEDGE OF THAT, OF HOW EMAIL WAS USED FOR THAT. EMAIL WAS USED AS THE PRIMARY METHOD OF COMMUNICATION AT THE COMPANY I WOULD SAY.
MR. BOSTIC: AND WOULD THAT HAVE INCLUDED ISSUES THAT CAME UP THAT WERE RAISED BY DOCTORS AND PATIENTS, FOR EXAMPLE?
DANIEL EDLIN: IT LIKELY COULD HAVE.
MR. BOSTIC: AND DO YOU HAVE AN UNDERSTANDING, BASED ON YOUR TIME AT THE COMPANY, OF THE ROLE THAT MR. BALWANI PLAYED WHEN IT CAME TO THE TESTING SERVICES OF THE COMPANY?
DANIEL EDLIN: SUNNY WAS THE PRESIDENT AND CHIEF OPERATING OFFICER, AND MY UNDERSTANDING WAS THAT HE OVERSAW THE CLINICAL LAB OPERATION.
MR. BOSTIC: WHEN ISSUES CAME UP RELATING TO PATIENT TESTS, WERE THOSE ISSUES ROUTINELY RAISED TO MR. BALWANI AS PART OF THE NORMAL OPERATION OF THE COMPANY?
DANIEL EDLIN: I DON'T KNOW. I WASN'T REALLY A PART OF THAT PROCESS.
MR. BOSTIC: DO YOU RECALL WHETHER MR. BALWANI HAD ANY RESPONSIBILITIES IN CONNECTION WITH THE OPERATION OF THE CLINICAL LAB AT THERANOS?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WHAT WERE HIS RESPONSIBILITIES?
DANIEL EDLIN: AS THE CHIEF OPERATING OFFICER, I BELIEVE HE OVERSAW THE CLINICAL LAB OPERATION AND WAS IN.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT MOVES TO ADMIT 5439.
MR. DOWNEY: OBJECTION UNDER 403, 404(A), 801, AND THE REASONS WE DISCUSSED THIS MORNING.
JUDGE DAVILA: MR. BOSTIC, I'M GOING TO HAVE TO SUSTAIN THE OBJECTION.
MR. BOSTIC: OKAY. ALL RIGHT. I CAN MOVE ON FOR NOW.
MR. BOSTIC: MR. EDLIN, YOU CAN PUT THAT ASIDE. THANK YOU. LET'S SHIFT GEARS AND TALK ABOUT THERANOS'S DEALINGS WITH THE MILITARY IF WE COULD. FIRST, ARE YOU AWARE, DURING YOUR TIME AT THE COMPANY, OF ANY COMMUNICATIONS THAT THERANOS HAD WITH REPRESENTATIVES OF THE U.S. ARMED FORCES?
DANIEL EDLIN: I AM.
MR. BOSTIC: DID YOU HAVE A ROLE IN THOSE COMMUNICATIONS?
DANIEL EDLIN: I DID.
MR. BOSTIC: AND WHAT WAS YOUR ROLE GENERAL SPEAKING?
DANIEL EDLIN: I HELPED TO SUPPORT RELATIONSHIPS WITH DIFFERENT PARTS OF THE MILITARY AND WITH THE DEPARTMENT OF DEFENSE, AND I WORKED DIRECTLY WITH ELIZABETH TO SUPPORT THOSE RELATIONSHIPS AND COMMUNICATE WITH REPRESENTATIVE FROM EACH DEPARTMENT.
MR. BOSTIC: AND WHEN YOU TALK ABOUT "RELATIONSHIPS," WHAT DO YOU MEAN? WHAT WAS THE END GOAL OF THESE COMMUNICATIONS?
DANIEL EDLIN: THE END GOAL WAS TO SET UP A RESEARCH PROGRAM THAT WOULD COMPARE THERANOS TESTING TO THE TESTING AVAILABLE AT THE MILITARY AT THAT TIME, OR AVAILABLE TO THE MILITARY AT THAT TIME.
MR. BOSTIC: UNDERSTOOD. SO THE GOAL WAS TO HAVE THAT COMPARISON WHERE THE THERANOS TECHNOLOGY COULD BE PUT UP AGAINST WHAT WAS CURRENTLY BEING USED BY THE MILITARY?
DANIEL EDLIN: THAT'S RIGHT, IN COMPARISON. AND THE STUDIES WERE SET UP IN A SET OF SORT OF PHASED APPROACH WHERE CERTAIN COMPARATIVE TESTING WAS DONE FIRST, AND THEN THERE WERE OTHER SERIES OF TESTING AFTERWARD IF THOSE PRECEDING PHASES WERE ACCEPTABLE.
MR. BOSTIC: AND WHAT ABOUT THE PLAN FOR AFTER THAT TESTING PHASE? WHAT WAS THE POINT OF HAVING THIS KIND OF AN EVALUATION DONE?
DANIEL EDLIN: THE POINT WAS TO DETERMINE WHETHER OR NOT THERANOS TESTING DEVICES AND THE SYSTEMS COULD BE USED FOR SOLDIERS AND PERSONNEL IN THE MILITARY IN THE FIELD.
MR. BOSTIC: FROM THERANOS'S PERSPECTIVE, DID YOU UNDERSTAND THAT THE COMPANY WAS INTERESTED IN PURSUING THAT KIND OF POTENTIAL USE BY THE MILITARY?
DANIEL EDLIN: I THINK THERE WAS MUTUAL INTEREST IN PURSUING THAT APPROACH.
MR. BOSTIC: I'LL ASK YOU TO LOOK IN YOUR BINDER AT EXHIBIT 504, PLEASE. FIRST, LET ME JUST ASK YOU, TO YOUR KNOWLEDGE, DID THE MILITARY EVER END UP USING THERANOS TECHNOLOGY IN THE CLINICAL TREATMENT OF SOLDIERS?
DANIEL EDLIN: NOT TO MY KNOWLEDGE.
MR. BOSTIC: DO YOU HAVE EXHIBIT 504 IN FRONT OF YOU?
DANIEL EDLIN: I DO.
MR. BOSTIC: IS IT AN EMAIL CHAIN INCLUDING YOU, MS. HOLMES, AND SOMEONE NAMED STEPHEN COOK?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WHO WAS STEPHEN COOK?
DANIEL EDLIN: STEPHEN COOK, STEPHEN COOK WAS A PART OF SPECIAL OPERATIONS COMMAND AND MY POINT OF CONTACT FOR -- REGARDING THIS PROPOSED RESEARCH STUDY.
MR. BOSTIC: AND WAS THIS EMAIL COMMUNICATION IN FURTHERANCE OF EXPLORING THAT RELATIONSHIP BETWEEN THERANOS AND THE MILITARY?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT MOVES TO ADMIT EXHIBIT 504.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 504 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: AND IF WE CAN ZOOM IN ON -- ACTUALLY, LET'S START ON PAGE 4 OF THE EXHIBIT. AND IF WE CAN ZOOM IN ON THE TOP HALF OF THE PAGE.
MR. BOSTIC: MR. EDLIN, DO YOU SEE AN EMAIL SENT ON DECEMBER 15TH, 2011?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THE EMAIL IS FROM MAJOR STEPHEN COOK. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IT'S ADDRESSED TO MS. HOLMES. AND IN THE MIDDLE OF THE EMAIL IT MENTIONS "MORE EXTENSIVE ENVIRONMENTAL TESTING - AND DEVICE FUNCTION ON BOARD EVACUATION PLATFORMS." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND CAN YOU EXPLAIN WHAT YOU UNDERSTOOD THAT TO MEAN AT THE TIME IN CONNECTION WITH MILITARY INVOLVEMENT?
DANIEL EDLIN: AT THE TIME OF THIS EMAIL, I HAD BEEN AT THE COMPANY FOR ABOUT THREE MONTHS SO I'M NOT SURE IF I HAD THAT UNDERSTANDING AT THAT POINT IN TIME, BUT I BELIEVE AN ONBOARD EVACUATION PLATFORM REFERS TO A MEDEVAC.
MR. BOSTIC: AND IS A MEDEVAC A KIND OF MILITARY VEHICLE?
DANIEL EDLIN: YES, A HELICOPTER, I BELIEVE.
MR. BOSTIC: AND LOOKING AT THE PARAGRAPH ABOVE THAT, THERE'S INTEREST EXPRESSED IN RECEIVING A SUMMARY OF THE EXISTING TECHNOLOGY AND THERANOS'S IMPRESSION OF WHERE SOMEONE NAMED KYLE SIMS WOULD LIKE TO TAKE THE TECHNOLOGY. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S TURN THE PAGE TO LOOK AT PAGE 3 OF THIS EXHIBIT. LET'S ZOOM IN ON THE MIDDLE OF THE PAGE. AND DO YOU SEE A FOLLOW-UP EMAIL FROM MAJOR COOK?
DANIEL EDLIN: YES.
MR. BOSTIC: HE SAYS TO YOU AND MS. HOLMES, "STILL WAITING FOR FEEDBACK ON THE BELOW INQUIRY." AND THEN HE SAYS HE'S "TRYING TO DETERMINE IF OUR ASSESSMENT WILL BE IN THE FORM OF APPROXIMATELY 3 EACH DEVICES OVER A TRIAL OF 12-MONTH SERVICE CONTRACT." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IS IT YOUR UNDERSTANDING THAT THIS TRIAL PERIOD WOULD INVOLVE ACTUAL CLINICAL USE OF THE DEVICE, OR IS IT EVALUATION OF THE DEVICE FOR POTENTIAL USE?
DANIEL EDLIN: EVALUATION OF THE DEVICE FOR POTENTIAL USE.
MR. BOSTIC: LET'S LOOK AT PAGE 2 OF THIS EMAIL. ZOOM IN ON THE MIDDLE OF THE PAGE HERE. AND WE SEE AN EMAIL FROM YOU TO MAJOR COOK IN JANUARY OF 2012; IS THAT CORRECT?
DANIEL EDLIN: CORRECT.
MR. BOSTIC: AND IN THE MIDDLE OF THE FIRST FULL PARAGRAPH THERE, YOU SAY, "WITH REGARD TO THE ROUGH ORDER OF MAGNITUDE THAT WOULD SUPPORT A 12-MONTH EVALUATION PERIOD, WE KINDLY ASK THAT YOU SEND A TOTAL LIST OF ASSAYS YOU WOULD LIKE TO TEST." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AT THIS TIME IN EARLY 2012, DID YOU PERSONALLY HAVE AN UNDERSTANDING OF WHAT ASSAYS THE THERANOS-BUILT ANALYZER COULD ACTUALLY RUN?
MR. BOSTIC: DID YOU UNDERSTAND AT THIS TIME THAT THERE WERE SOME ASSAYS THE THERANOS DEVICE COULD PERFORM AND OTHERS IT COULD NOT?
DANIEL EDLIN: I'M NOT SURE. I DIDN'T KNOW WHICH TESTS COULD BE PERFORMED AND WHICH COULDN'T.
MR. BOSTIC: DID YOU LATER COME TO HAVE A BETTER UNDERSTANDING THAT THERE WERE SOME TESTS THE DEVICE COULD DO AND OTHERS THAT IT COULD NOT?
DANIEL EDLIN: I DID COME TO THAT UNDERSTANDING.
MR. BOSTIC: LET'S LOOK AT PAGE 1 OF THIS EXHIBIT. ZOOM IN ON THE BOTTOM HALF. IN THIS EMAIL FROM MAJOR COOK, HE SAYS, "ACTUALLY MY VERBAL REQUESTS OF LAST WEEK CHANGED FROM MY WRITTEN INQUIRY THAT YOU ANSWERED BELOW. AS YOU KNOW, WE'RE LOOKING TO EVALUATE YOUR SYSTEM TO DETERMINE ITS UTILITY ACROSS THE OPERATIONS AND ENVIRONMENTS IN WHICH WE'D LIKE TO DEPLOY IT." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND A COUPLE OF PARAGRAPHS DOWN HE TALKS ABOUT 3 DEVICES (GPS DISABLED) - RUNNING UP TO 400 ASSAYS EACH PER MONTH, INCLUDING ASSAYS LIKE COMPLETE BLOOD COUNT AND CHEM 7. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S LOOK AT THE TOP MESSAGE IN THIS EMAIL CHAIN. THIS IS A MESSAGE FROM YOU BACK TO MAJOR COOK; IS THAT RIGHT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND YOU THANK HIM FOR THE INFORMATION THAT HE PROVIDED, AND YOU ATTACH WHAT YOU CALL AN OVERVIEW OF THE THERANOS U.S.A. SOC PROJECT. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S LOOK AT THAT ATTACHMENT ON PAGE 5 OF THAT EXHIBIT. AND IF WE CAN ZOOM IN ON THE TOP HALF OF THE PAGE. FIRST OF ALL, MR. EDLIN, ARE YOU GENERALLY FAMILIAR WITH THE DOCUMENT THAT WE'RE LOOKING AT?
DANIEL EDLIN: YES.
MR. BOSTIC: WHO CREATED THIS DOCUMENT?
DANIEL EDLIN: I DON'T REMEMBER SPECIFICALLY.
MR. BOSTIC: DO YOU RECALL WHETHER YOU MADE ANY CHANGES TO THIS DOCUMENT BEFORE SENDING IT TO MAJOR COOK ON THIS DATE?
DANIEL EDLIN: I BELIEVE THAT I DID MAKE CHANGES, YES.
MR. BOSTIC: WAS MS. HOLMES INVOLVED AT ALL IN FINALIZING OR APPROVING THE CONTENT OF THIS DOCUMENT BEFORE YOU SENT IT TO MAJOR COOK?
DANIEL EDLIN: YES, EVERY -- EVERYTHING IN THIS DOCUMENT WAS REVIEWED AND APPROVED BY ELIZABETH.
MR. BOSTIC: TELL ME ABOUT HOW THAT WORKED IN GENERAL WHEN IT CAME TO YOUR COMMUNICATIONS WITH THE MILITARY. WHAT WAS MS. HOLMES'S LEVEL OF INVOLVEMENT THERE?
DANIEL EDLIN: SHE WAS HIGHLY INVOLVED. I WOULD SAY ANY SUBSTANTIVE COMMUNICATION THAT I HAD WITH THE MILITARY I EITHER DISCUSSED WITH HER AHEAD OF TIME, OUR DISCUSSIONS INFORMED EMAIL DRAFTS THAT I WOULD THEN SEND BACK TO HER TO REVIEW AND APPROVE BEFORE I SENT THEM BACK OUT. I ALSO MADE SURE THAT SHE WAS AWARE OF ANY INBOUND COMMUNICATION THAT WE DID GET FROM MEMBERS OF THE MILITARY. AND ASIDE FROM, YOU KNOW, SCHEDULING AND THINGS LIKE THAT, I REVIEWED EVERYTHING WITH HER.
MR. BOSTIC: LET'S LOOK AT THIS MEMORANDUM SPECIFICALLY. AND UNDER BACKGROUND, THIS MEMORANDUM SENT TO THE MILITARY SAYS, "THERANOS HAS CREATED A POINT-OF-SERVICE LABORATORY INFRASTRUCTURE THAT GENERATES REAL-TIME DATA FROM A FINGERSTICK OF BLOOD OR OTHER MICRO-VOLUMES OF DIFFERENT SAMPLE TYPES DELIVERING HIGHER QUALITY DATA THAN PREVIOUSLY POSSIBLE." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IT GOES ON TO SAY, "THIS TECHNOLOGY IS AN INDUSTRY FIRST, WITH PROFOUND EFFECTS ON THE ABILITY TO TRIAGE AND STABILIZE PATIENTS VIA QUANTITATIVE READS FROM MICRO-SAMPLE SIZES IN REAL-TIME IN THE FIELD." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THERE'S A LIST OF BULLET POINTS. THE FIRST ONE READS, "EACH THERANOS DEVICE CAN RUN EVERY TEST CURRENTLY AVAILABLE THROUGH THE TRADITIONAL CENTRALIZED OR HOSPITAL LABORATORY INFRASTRUCTURE." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AT THE TIME THAT YOU SENT THIS PRESENTATION TO THE MILITARY, DID YOU KNOW WHETHER THAT PARTICULAR STATEMENT WAS TRUE?
DANIEL EDLIN: I DID NOT.
MR. BOSTIC: DID YOU ASSUME IT WAS TRUE?
DANIEL EDLIN: I ASSUMED IT WAS TRUE. I HAD NO REASON TO THINK IT WASN'T TRUE.
MR. BOSTIC: WHEN IT SAYS, "EACH THERANOS DEVICE CAN RUN EVERY TEST CURRENTLY AVAILABLE THROUGH THE TRADITIONAL CENTRALIZED OR HOSPITAL LABORATORY INFRASTRUCTURE," WHAT WAS YOUR SENSE AS TO WHY THAT FACT WOULD MATTER TO THE MILITARY?
DANIEL EDLIN: CAN YOU REPEAT WHICH FACT THAT WAS?
MR. BOSTIC: SURE.
DANIEL EDLIN: THE HIGHLIGHTED?
MR. BOSTIC: IT'S THE FIRST BULLET POINT --
DANIEL EDLIN: UH-HUH.
MR. BOSTIC: -- ABOUT EACH DEVICE BEING ABLE TO RUN EVERY TEST.
DANIEL EDLIN: I'M SORRY. CAN YOU REPEAT THE QUESTION?
MR. BOSTIC: SURE. THE QUESTION IS, WHAT WAS YOUR SENSE AS TO WHY SOMETHING LIKE THAT WOULD MATTER TO THE MILITARY?
DANIEL EDLIN: WELL, THE MILITARY DID EXPRESS INTEREST IN, IN ONE DEVICE THAT COULD DO ALL OF ITS DESIRED TESTING, AND I WAS TOLD THAT THIS DEVICE WAS SMALLER, MORE PORTABLE THAN THE EXISTING EQUIPMENT THAT THEY DID HAVE, AND THAT HAD A NUMBER OF DIFFERENT BENEFITS.
MR. BOSTIC: A FEW BULLET POINTS DOWN, THE SECOND TO THE BOTTOM BULLET POINT SAYS, "THERANOS MANUFACTURES ALL OF ITS TECHNOLOGIES AND SYSTEMS WITHIN THE UNITED STATES." DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: AT THIS TIME DO YOU KNOW WHETHER THE COMPANY OWNED ANY THIRD PARTY ANALYZERS?
DANIEL EDLIN: I BELIEVE IT DID.
MR. BOSTIC: LET'S LOOK AT THE NEXT PAGE. THAT'S PAGE 6 OF THIS DOCUMENT. AND UNDER PROJECT SCOPE, DO YOU SEE THERE'S A SECTION TITLED THERE MEDEVAC?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IN THIS THERANOS MEMO IT SAYS, "MEDEVAC: THE ABILITY TO TEST AND TRIAGE WOUNDED SOLDIERS AT THE TIME OF IMPACT AND DURING EVACUATION (E.G. IN A HELICOPTER) AND AVOID DELAYED CARE DUE TO UNAVAILABLE MEDICAL INFORMATION WHILE THE SOLDIER IS IN TRANSIT." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND UNDER TELECOMMUNICATIONS, THE END OF THAT PARAGRAPH TALKS ABOUT "THERANOS FIELD SYSTEM'S RUGGED, MODULAR DESIGN WITH INTEGRATED COMMUNICATIONS CAPABILITY AND GPS ENABLE FULL OPERABILITY IN THE FIELD." DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND BASED ON YOUR KNOWLEDGE AT THE TIME, DID YOU HAVE A BASIS TO KNOW WHETHER THOSE STATEMENTS WERE TRUE OR FALSE?
DANIEL EDLIN: I DIDN'T HAVE THAT BASIS.
MR. BOSTIC: THIS PRESENTATION AT THE TOP SAYS U.S.A. SOC AND THERANOS; IS THAT RIGHT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WHAT DID U.S.A. SOC STAND FOR?
DANIEL EDLIN: UNITED STATES OF AMERICA SPECIAL OPERATIONS COMMAND.
MR. BOSTIC: WHAT DO YOU RECALL ABOUT FUTURE DEVELOPMENTS BETWEEN THERANOS AND U.S. SPECIAL OPERATIONS COMMAND? FOR EXAMPLE, DID SPECIAL OPERATIONS COMMAND EVER RECEIVE DEVICES FROM THERANOS?
DANIEL EDLIN: YES, I BELIEVE THEY RECEIVED THREE DEVICES.
MR. BOSTIC: AND TELL ME ABOUT WHAT. WHAT DO YOU RECALL?
DANIEL EDLIN: I RECALL THAT WE HAD SPENT MONTHS, IF NOT YEARS, DISCUSSING A POTENTIAL RESEARCH PROGRAM WITH SPECIAL OPERATIONS COMMAND, AND AT ONE POINT I THINK THERE WAS AN AGREEMENT OR A CONTRACT IN PLACE, AND TOWARDS THE END OF THAT RELATIONSHIP THERANOS SENT THREE DEVICES TO A WAREHOUSE IN KENTUCKY, I BELIEVE, TO SPECIAL OPERATIONS COMMAND.
MR. BOSTIC: AND THOSE DEVICES, AGAIN, WERE THEY FOR THE PURPOSE OF USE IN CLINICAL TESTING TO TREAT SOLDIERS, OR WERE THEY FOR EVALUATION PURPOSES?
DANIEL EDLIN: THEY WERE FOR EVALUATION PURPOSES.
MR. BOSTIC: DO YOU RECALL ANYTHING ABOUT THE CAPABILITY OF THOSE DEVICES, WHAT THEY COULD DO, WHAT THEY COULD NOT DO?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND WHAT DO YOU REMEMBER ABOUT THAT?
DANIEL EDLIN: I REMEMBER THAT THE DEVICES COULD DO A CERTAIN SUBSET. I WAS TOLD THAT THE DEVICES COULD DO A CERTAIN SUBSET OF TESTING, BUT NOT ALL TESTING.
MR. BOSTIC: DO YOU RECALL WHETHER THE DEVICES THAT WERE SENT TO SPECIAL OPERATIONS COMMAND COULD DO A CBC, FOR EXAMPLE?
DANIEL EDLIN: I RECALL BEING TOLD THAT THEY COULD NOT.
MR. BOSTIC: HOW ABOUT KIND OF WHAT BECAME OF THOSE DEVICES? ARE YOU AWARE OF SPECIAL OPERATIONS COMMAND EVER ACTUALLY USING THOSE DEVICES AS PART OF THE EVALUATION THAT WE'VE BEEN TALKING ABOUT?
DANIEL EDLIN: I'M NOT AWARE THAT THAT HAPPENED. I RECALL THAT THE DEVICES WERE SENT, RECEIVED, BUT THEN NO ADDITIONAL ACTION WAS TAKEN.
MR. BOSTIC: I'LL ASK YOU NOW TO LOOK AT EXHIBIT 551 IN YOUR BINDER. DO YOU HAVE THAT IN FRONT OF YOU?
DANIEL EDLIN: I DO.
MR. BOSTIC: IS THIS AN EMAIL BETWEEN YOU, MS. HOLMES, AND SOMEONE NAMED KEVIN CHUNG?
DANIEL EDLIN: YES.
MR. BOSTIC: WHO WAS KEVIN CHUNG?
DANIEL EDLIN: KEVIN CHUNG WAS A DOCTOR.
MR. BOSTIC: AND WHO DID HE WORK FOR?
DANIEL EDLIN: JUDGING BY HIS EMAIL, IT WAS THE ARMY, I BELIEVE, AND I THINK HE WAS BASED IN -- AT THE U.S.A. ARMY INSTITUTE OF SURGICAL RESEARCH IN SAN ANTONIO.
MR. BOSTIC: DO YOU RECALL HAVING INTERACTIONS WITH THAT COMPONENT OF THE MILITARY WHEN YOU WERE AT THERANOS?
DANIEL EDLIN: I DO.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT OFFERS EXHIBIT 551.
MR. DOWNEY: OBJECTION FOR THE REASONS THAT WE DISCUSSED EARLIER, YOUR HONOR.
JUDGE DAVILA: IS IT THE ENTIRE CONTENT OF 551, INCLUDING THE EXHIBIT IN THE BACK?
MR. BOSTIC: YES, YOUR HONOR.
JUDGE DAVILA: AND I'D LIKE TO TALK TO COUNSEL ABOUT THIS. MAYBE WE SHOULD HAVE A SIDE-BAR. MS. RODRIGUEZ, SHOULD WE DO THAT IN THE BACK? LET'S DO THAT. SO, MR. DOWNEY, WOULD YOU JOIN MR. BOSTIC AND MYSELF? LADIES AND GENTLEMEN, I JUST NEED TO TALK TO THESE LAWYERS ABOUT SOMETHING. WE'RE GOING TO STEP -- OUR PROTOCOL FOR THIS IS WE'RE GOING TO STEP INTO THE ROOM JUST BEHIND US HERE TO DO THIS. I'M GOING TO TAKE OUR COURT REPORTER WITH US. WHILE I'M GONE, YOU ARE NOT TO DISCUSS ANYTHING ABOUT THIS CASE AT ALL, YOU'RE NOT TO FORM ANY OPINIONS, YOU'RE NOT TO IN ANY WAY REACH ANY CONCLUSION ABOUT ANYTHING ABOUT THE CASE. WHAT YOU MAY DO WHILE I'M GONE IS STAND AND STRETCH. I DON'T THINK THIS WILL BE LONG AT ALL. AND, SIR, MR. EDLIN, SAME WITH YOU, SIR. YOU CAN STAY IN PLACE AND STAND DOWN AND STRETCH IF YOU WOULD LIKE, BUT THERE WILL BE NO TALKING IF YOU WOULD LIKE.
JUROR: CAN I USE THE RESTROOM FACILITIES?
JUDGE DAVILA: SHOULD WE TAKE A BREAK? WHY DON'T WE DO THAT? WE'LL TAKE A 10 MINUTE BREAK, OR A 12 MINUTE BREAK. MY THOUGHT WAS WE WOULD TAKE A BREAK AT 1:30 FOR ABOUT 30 MINUTES, BUT LET'S TAKE A 10 MINUTE BREAK NOW. FOLKS, I THINK YOU CAN STAY. YOU CAN STAND DOWN, SIR, IF YOU WOULD, AND I'LL ASK YOU TO STEP OUT INTO THE HALLWAY IF YOU WOULD, SIR.
DANIEL EDLIN: THANK YOU, YOUR HONOR.
(JURY OUT AT 12:47 P.M.)
JUDGE DAVILA: THANK YOU. PLEASE BE SEATED. THE RECORD SHOULD REFLECT THAT OUR JURY HAS LEFT. ALL COUNSEL AND MS. HOLMES REMAIN. MR. DOWNEY, WHY DON'T YOU COME FORWARD. THANK YOU. OKAY. SO NOW WE'RE AT 551. WE TALKED ABOUT THIS A LITTLE THIS MORNING. AND, MR. BOSTIC, TELL ME AGAIN, YOU SEEK TO INTRODUCE NOT JUST THE EMAILS, WHICH ARE PREFATORY TO THE EXHIBIT, BUT THE EXHIBIT ITSELF IN TOTO. AND I THINK WE HAD SOME DISCUSSION THIS MORNING ABOUT WERE YOU GOING TO LOOK THROUGH THE EXHIBIT TO SEE IF THERE WAS ANYTHING THAT YOU WANTED TO CALL OR PULL FROM IT, OR HAVE YOU DECIDED YOU SEEK TO ADMIT THE ENTIRETY OF THE EXHIBIT?
MR. BOSTIC: SO, YOUR HONOR, I'M VERY OPEN TO THE COURT'S THOUGHTS ON THAT, AND I'M SENSITIVE TO THE DEFENSE'S CONCERNS, ALTHOUGH I DISAGREE WITH THEM. I -- AT THIS TIME I WOULD SEEK TO ADMIT THE ENTIRE PRESENTATION, THE PRESENTATION AS A WHOLE, AND IN PART IT CONSTITUTES STATEMENTS MADE BY MS. HOLMES, THROUGH MR. EDLIN AS AN AGENT, TO THE MILITARY. TO THE EXTENT THAT THERE ARE FALSE STATEMENTS, THEY ARE RELEVANT FOR THE REASONS DISCUSSED PREVIOUSLY.
JUDGE DAVILA: OKAY. THANK YOU. MR. DOWNEY?
MR. DOWNEY: YOUR HONOR, I DON'T HAVE TO ADD REALLY TO WHAT WE DISCUSSED THIS MORNING. I HAVE THE CONCERNS UNDER -- FOR VARIOUS REASONS ABOUT THIS EXHIBIT, SO WE OBJECT TO THE ADMISSION AT LEAST OF THE ATTACHMENT TO THE EXHIBIT.
JUDGE DAVILA: WELL, WHAT WE HAVE NOW, I THINK WHAT'S DIFFERENT NOW, MR. DOWNEY, IS THIS WITNESS INDICATING THAT IN ALL OF HIS, I'LL CALL IT INTERFACE COMMUNICATIONS WITH THE MILITARY, HE RAN THOSE THROUGH YOUR CLIENT AND BY YOUR CLIENT FOR HER AFFIRMATION, AND SHE, PER HIS TESTIMONY, APPROVED THOSE COMMUNICATIONS. IT WOULD SEEM THEN THAT THERE IS AT LEAST A PERSONAL RATIFICATION THROUGH AGENCY OR OTHERWISE FOR THE DOCUMENT TO COME IN.
MR. DOWNEY: WELL, THE ISSUE, YOUR HONOR, THE REASON WE WERE OBJECTING WAS NOT AS TO THAT. THE REASON WE ARE OBJECTING IS THAT THIS IS IN THE NATURE OF PROPENSITY EVIDENCE. IT'S ALSO NOT RELEVANT TO THE CONSPIRACY THAT IS ALLEGED IN THE INDICTMENT WHICH RELATES TO THE STATUS AT A LATER POINT. SO I, I ACKNOWLEDGE THE TESTIMONY OF THE WITNESS, BUT THAT FUNDAMENTALLY WAS NOT OUR -- THE BASIS ON WHICH WE OBJECT.
JUDGE DAVILA: SURE. SO I'M JUST KIND OF GOING THROUGH THIS STEP BY STEP. FOUNDATIONALLY AT LEAST, IT WOULD SEEM TO BE ADMISSIBLE FOR THAT -- ON THOSE GROUNDS. BUT LET ME MOVE TO YOUR OBJECTION, WHICH IS YOU THINK IT'S DISCONNECTED FROM THE CHARGES THAT ARE IN THE INDICTMENT. AND LET ME JUST ASK THIS QUESTION, MR. BOSTIC. AGAIN, GOING OVER OUR CONVERSATION THIS MORNING, IT WOULD SEEM THAT IF THE GOVERNMENT HAD A WITNESS WHO WOULD TESTIFY OR HAD TESTIFIED PRIOR TO MR. EDLIN THAT HE OR SHE INVESTED IN RELIANCE ON A REPRESENTATION THAT THERE WAS A RELATIONSHIP, BUSINESS RELATIONSHIP WITH THE MILITARY, THAT WOULD SUPPORT THE RELIANCE OF THAT INVESTOR, AND THEN PERHAPS COULD BE SEEN, AS YOU REPRESENTED THIS MORNING -- AND I THINK IT MOVES AWAY FROM A 404 OR ANY OF THAT OTHER ANALYSIS -- I THINK THEN IT MOVES MORE TOWARDS THE INEXTRICABLY INTERTWINED THAT MR. BOSTIC WAS TALKING ABOUT, MR. DOWNEY. IT WOULD SEEM THAT THAT WOULD BE THE PATH, OR AT LEAST A LOGICAL PATH TO PURSUE UNDER THE INEXTRICABLY INTERTWINED AS PART OF THE OVERALL SCHEME, PLAN, M.O., ET CETERA. I THINK MR. BOSTIC, BY INTRODUCING THIS NOW, I SUPPOSE I WOULD ASK YOU, DO YOU HAVE A WITNESS THAT IS GOING TO SO TESTIFY OR LAY THAT -- SOME TYPE OF FOUNDATION FOR THAT?
MR. BOSTIC: SO JUST TWO THINGS I WOULD NOTE ON THAT, YOUR HONOR. THE FIRST IS JUST TO POINT OUT, AS THE COURT, OF COURSE, KNOWS, RELIANCE IS NOT AN ELEMENT HERE.
JUDGE DAVILA: RIGHT.
MR. BOSTIC: INSTEAD, THE FOCUS IS ON THE DEFENDANT'S MENTAL STATE AND WHETHER SHE INTENDED TO DECEIVE WITH THE STATEMENTS SHE WAS MAKING. AND, OF COURSE, THAT INCORPORATES THE CONCEPT OF MATERIALITY. I THINK THE MATERIALITY OF THESE FALSE STATEMENTS IS SELF-EVIDENT. IT'S EASY TO UNDERSTAND WHY A -- SOMEONE SEEKING INVESTMENT FOR HER COMPANY MIGHT WANT TO EXAGGERATE OR MISREPRESENT THE EXTENT OF A RELATIONSHIP WITH THE MILITARY. THE MILITARY BRINGS PRESTIGE. IT SENDS A SIGNAL THAT A PIECE OF TECHNOLOGY OR A PIECE OF EQUIPMENT HAS REACHED A CERTAIN LEVEL THAT IS GOOD ENOUGH FOR THE STRONGEST MILITARY FORCE IN THE WORLD. SO I THINK FOR THOSE REASONS MATERIALITY IS SELF-EVIDENT REGARDLESS OF WHAT A WITNESS SAYS. THAT SAID, I DO EXPECT UPCOMING WITNESSES TO TESTIFY THAT THAT WAS A MATERIAL FACT TO THEM. I DON'T THINK THEY'LL FRAME IT IN TERMS OF RELIANCE I THINK FOR THE REASON I JUST DISCUSSED.
JUDGE DAVILA: AND I USED THE WORD "RELIANCE" AND I MEANT TO SAY "MATERIAL," I BEG YOUR PARDON, THANK YOU FOR CORRECTING ME, BECAUSE YOU'RE ABSOLUTELY RIGHT, RELIANCE DOESN'T HAVE THAT. AT LEAST FOR THIS PURPOSE, IT DOESN'T. THE WITNESS MAY HAVE A DIFFERENT VIEW OF IT. SO THAT'S WHAT I WAS LOOKING AT, MR. DOWNEY, AND IT WOULD SEEM THAT THAT IS A STRONGER STATEMENT FOR ADMISSION AS PART OF THE INEXTRICABLY INTERTWINED SCOPE OF THE SCHEME, I'LL CALL IT SCHEME, I'LL JUST USE THAT FOR OUR CONVERSATION, THE PLAN.
MR. DOWNEY: WELL, NONE OF WHAT MR. BOSTIC JUST SAID RELATES TO WHAT WAS REPRESENTED TO THE DEPARTMENT OF DEFENSE. IT RELATES TO, WHAT IS THE STATUS OF THAT RELATIONSHIP? WHAT IS THE NATURE OF THAT RELATIONSHIP? ET CETERA. THE REPRESENTATIONS THAT WERE MADE TO INITIATE THE RELATIONSHIP -- WHICH BY THE WAY, THIS POWERPOINT IS NOT -- ISN'T RELEVANT TO THAT. SHE'S NOT CLAIMING TO THE INVESTORS, I SAID SOMETHING DIFFERENT THAN WHAT IS IN THIS POWERPOINT. I DON'T SEE THE RELATIONSHIP BETWEEN, YOU KNOW, A SERIES OF REPRESENTATIONS MADE WITH ONE ASPECT OF THE MILITARY AT SOME POINT DURING THEIR RELATIONSHIP TO WHAT AN INVESTOR BELIEVES LATER ABOUT THE STATUS OF THE RELATIONSHIP OR THE CHARACTER OF THE RELATIONSHIP, OR AS THE INDICTMENT IS ACTUALLY ABOUT, WHETHER THERE'S REVENUE OR NOT.
MR. BOSTIC: SO I'M TRYING TO FIND A DIFFERENT WAY TO SAY IT. EVERY COMMUNICATION WITH THE MILITARY WOULD NECESSARILY AFFECT THE ONGOING STATUS AND HEALTH OF THE RELATIONSHIP BETWEEN THERANOS AND THE MILITARY. SO THE FACT THAT THIS WASN'T THE FIRST COMMUNICATION DOESN'T MEAN THAT THIS WASN'T PART OF WHAT WENT INTO THE MILITARY'S THINKING WHEN IT DECIDED TO CONTINUE ITS RELATIONSHIP AND ITS DISCUSSIONS WITH THERANOS. SO EVERYTHING SAID BY HOLMES TO THE MILITARY IS RELEVANT TO THE ONGOING STATUS OF THAT RELATIONSHIP GOING FORWARD IN TIME. MORE IMPORTANTLY, THOUGH, IT'S HOLMES'S KNOWLEDGE THAT IS IMPORTANT HERE. THE FACT THAT HOLMES MADE DELIBERATE MISREPRESENTATIONS TO THE MILITARY BEFORE THAN MAKING MISREPRESENTATIONS ABOUT THE STATUS OF THE RELATIONSHIP WITH THE MILITARY IS RELEVANT BECAUSE ONE SHOWS HER KNOWLEDGE OF THE OTHER. BECAUSE HOLMES KNEW THAT THE RELATIONSHIP WITH THE MILITARY, THE MILITARY'S INTEREST IN THE THERANOS DEVICE WAS PREMISED ON FALSEHOODS, THAT THE MILITARY WAS INTERESTED IN A VERSION OF THE DEVICE THAT DIDN'T ACTUALLY EXIST, BECAUSE SHE KNEW THAT, SHE KNEW THAT THE DEVICE WAS UNLIKELY OR COULD NEVER BE USED BY THE MILITARY IN ITS CURRENT FORM. AND THAT MEANS THAT WHEN SHE REPRESENTED TO OTHERS THAT IT WAS DEPLOYED, THAT IT WAS BEING USED TO TREAT SOLDIERS, THAT IT HAD BEEN ON A HELICOPTER, THERE'S NO WAY THAT SHE COULD HAVE BEEN MISTAKEN ABOUT THAT BECAUSE IN HER MIND SHE WOULD REMEMBER THAT MONTHS EARLIER, A YEAR EARLIER, SHE HAD TOLD THE MILITARY THAT THE DEVICE COULD DO SOMETHING THAT IT COULD NOT DO. AND SHE WOULD KNOW THAT UNLESS SHE MADE THAT FALSEHOOD TRUE, THAT THE RELATIONSHIP WITH THE MILITARY COULD NOT HAVE PROGRESSED TO THE POINT THAT SHE WAS REPRESENTING IT TO BE AT. THAT'S WHY IT MATTERS.
JUDGE DAVILA: THANK YOU, MR. BOSTIC. IS IT PREDICATED ON ANOTHER WITNESS COMING FORWARD AND INDICATING THAT THE REPRESENTATION WAS MADE?
MR. BOSTIC: YOUR HONOR, I THINK THE COURT HAS ALREADY HEARD AND THE JURY HAS ALREADY HEARD FROM WITNESSES WHO TESTIFIED ABOUT REPRESENTATIONS THAT THEY HEARD FROM MS. HOLMES ABOUT THE STATUS OF THINGS WITH THE MILITARY. MORE OF THAT IS COMING. IF THE COURT VIEWS THE ADMISSIBILITY OF THIS DOCUMENT AS CONTINGENT ON THAT, I WOULD ASK THAT IT BE CONDITIONALLY ADMITTED TODAY SUBJECT TO A MOTION TO STRIKE IF THAT FOUNDATION ISN'T LAID, BUT IT WILL BE.
MR. DOWNEY: YOUR HONOR, EVEN IF SUCH A WITNESS WERE TO BE PRODUCED, THERE ARE ABOUT 20 LAYERS OF IMPLICATION OR INFERENCE BETWEEN THESE REPRESENTATIONS IN JANUARY OF 2012 AND WHAT MS. HOLMES WAS THINKING IN SEPTEMBER OF 2013 OR THEREAFTER, OR MUCH LESS WHAT SHE WAS THINKING TWO YEARS BEFORE. AND I DON'T THINK THERE IS ANY KIND OF A FOUNDATION THAT HAS BEEN LAID FOR THAT, NOR DO I THINK THAT THEY COULD PROMISE A WITNESS TO SHOW IT. I HAVE NO ISSUE, YOUR HONOR, WITH THE TYPES OF DISCUSSIONS OF THE RELATIONSHIP THAT MR. BOSTIC HAS BEEN ELICITING. IT'S TO TRY TO PUT A POWERPOINT IN AND THEN ESSENTIALLY INTRODUCE A NEW THEORY OF CRIMINAL LIABILITY, WHICH IS THAT MS. HOLMES DEFRAUDED THE DEPARTMENT OF DEFENSE AFTER WE'VE HAD, YOU KNOW, A GREAT DEAL OF PRETRIAL PRACTICE AND NO NOTICE AS TO THE THEORY THAT MR. BOSTIC HAS ARTICULATED.
JUDGE DAVILA: WELL, LET'S ASK MR. BOSTIC IF THAT'S WHAT HIS INTENT IS.
MR. BOSTIC: NO, YOUR HONOR, AND THE GOVERNMENT WON'T ARGUE TO THE CONTRARY AT ANY POINT TO THE JURY.
JUDGE DAVILA: SO LET ME ASK YOU, MR. BOSTIC, THERE'S -- THE REPORT IS, WHAT IS IT, 80-SOME PAGES, 75 PAGES, 76 PAGES LONG SOME OF THIS INFORMATION -- AND THANK YOU, MR. DOWNEY, FOR -- I THINK WHAT I HEAR YOU SAYING IS THAT I DON'T HAVE ANY PROBLEM WITH HIM TALKING ABOUT THESE DOCUMENTS. SOME OF THEM, THE INTRODUCTION IS WHAT IT SOUNDS LIKE WHAT YOU OBJECT TO AS TO SOME OF THOSE SLIDES HERE. FOLLICLE STIMULATING HORMONE, IS THAT IMPORTANT FOR THE PURPOSE THAT YOU ARE SEEKING TO INTRODUCE THIS? THAT'S ON PAGE 54. CLINICAL SAMPLES OF COUMADIN. I DON'T WANT TO GO THROUGH THOSE. THE CARBON DIOXIDE, ALL OF THE TESTING AND ASSAYS, IS THAT SOMETHING THAT YOU NEED TO GET INTO? IS THE PURPOSE TO SHOW THAT MR. HOLMES REACHED OUT THROUGH MR. EDLIN TO FURTHER A RELATIONSHIP WITH THE MILITARY? IS THAT REALLY THE PURPOSE AT THIS POINT IN TIME?
MR. BOSTIC: IT IS, YOUR HONOR, AND TO SHOW THE REPRESENTATIONS THAT WERE MADE ABOUT WHAT THE THERANOS TECHNOLOGY COULD DO.
JUDGE DAVILA: RIGHT.
MR. BOSTIC: AND I THINK, TO THE COURT'S QUESTION, THE IMPORTANT PARTS OF THE PRESENTATION FOR THAT PURPOSE GO UP THROUGH APPROXIMATELY PAGE 26. AND I THINK AS TO THE PORTIONS AFTERWARDS THAT DELVE MORE INTO TECHNICAL DETAILS, I WOULD BE HAPPY TO FOREGO ADMITTING THAT IF THAT WOULD ADDRESS THE COURT'S CONCERNS.
JUDGE DAVILA: I LOOK AT -- MAYBE I'M -- I LOOK AT PAGE 29 AS PROBABLY THE PAGE THAT CONCLUDES THE CONVERSATION. PAGE 30 IS THE PRICING. I DON'T KNOW IF --
MR. DOWNEY: WELL, YOUR HONOR, BEFORE YOU LABOR THROUGH THE DOCUMENT, I BELIEVE IT'S A BINARY CHOICE BETWEEN --
JUDGE DAVILA: RIGHT.
MR. DOWNEY: -- EITHER THE EMAIL AND THE PRESENTATION. I ACTUALLY WOULDN'T WANT TO OMIT THE BALANCE OF THE DATA HERE BECAUSE THIS IS A PRESENTATION BEING SENT TO A PHYSICIAN TO BE REVIEWED BY OTHER PHYSICIANS AND PEOPLE WITH EXPERTISE ON THE SUBJECT. AND THE DATA REFLECTS WHAT STAGE THE DEVELOPMENT OF THE ASSAYS ARE AT, WHAT THE VARIATION IS, ET CETERA. SO THEY'RE NOT RECEIVING THIS AND HEARING THIS AS MR. BOSTIC IS EXPRESSING IT OR TRYING TO CHARACTERIZE THE FIRST 26 PAGES. I THINK ACTUALLY THE BALANCE OF THE EXHIBIT IS QUITE IMPORTANT IF IT COMES IN AT ALL.
JUDGE DAVILA: WELL, THANK YOU FOR THAT. IT SEEMS TO ME, I THINK WHAT WE HEARD MR. EDLIN SAY, IS THAT THERE WERE PHASES OF THIS RELATIONSHIP, AND THIS MAY OR MAY NOT HAVE BEEN THE INITIAL START OF THE RELATIONSHIP. IT JUST SEEMED TO ME THAT THE OTHER INFORMATION, THE ASSAYS AND ALL OF THE TESTINGS, MIGHT BE A LITTLE TECHNICAL FOR THE PURPOSE SOUGHT. IF YOU WANT ALL OF IT IN SO YOU CAN EXAMINE, I'M CERTAINLY GOING TO ALLOW THAT TO COME IN. I WAS CERTAINLY TRYING TO MAKE IT SOMEWHAT ACCESSIBLE FOR ALL OF YOU, AND PARTICULARLY FOR THE JURY. WELL, THANK YOU FOR THE CONVERSATION. I AM GOING TO RECOGNIZE YOUR OBJECTIONS AND OVERRULE THE OBJECTIONS AND ALLOW THIS TO BE ADMITTED FOR THE REASONS STATED. I DO THINK, AT LEAST PRESENTLY, THE EVIDENCE HAS SHOWN THAT THIS IS MATERIAL. IT IS, AT LEAST AS SHOWN TO DATE NOW, THIS COULD BE ARGUED AS INEXTRICABLY INTERTWINED WITH THE SCOPE OF THE SCHEME/PLAN. YOU INDICATE THAT YOU HAVE A WITNESS THAT IS GOING TO TESTIFY ABOUT THE MATERIALITY. THAT WOULD BE HELPFUL. I DON'T LIKE TO PROVISIONALLY ADMIT THINGS. I THINK I HAVE DONE THAT ON TWO PIECES OF EVIDENCE NOW, AND AT THE TIME WHEN WE COME TO OUR CHARGING CONFERENCE, WE'LL HAVE TO ALL REMEMBER WHAT THOSE WERE AGAIN AND SEE IF THE FOUNDATION HAS BEEN LAID. BUT I DO THINK, JUST BASED ON THE EVIDENCE NOW, THAT THE COURT CAN FIND IT'S NOT 404(B), IT'S NOT INTRODUCED FOR THAT PURPOSE, BUT RATHER IT CAN BE SEEN AND WOULD BE INTRODUCED AS EVIDENCE THAT IS INEXTRICABLY INTERTWINED WITH THE PLAN. SO I'LL OVERRULE YOUR OBJECTIONS AS YOU'VE STATED THEM AND WE'LL ADMIT THE DOCUMENT IN TOTO BASED ON YOUR COMMENTS. THANK YOU, MR. DOWNEY. SHOULD WE BRING OUR JURY IN? SHOULD WE BREAK AGAIN AT 1:30?
MS. TREFZ: YES, PLEASE.
JUDGE DAVILA: LET'S BRING OUR JURY IN AND THEN WE'LL GO --
MR. DOWNEY: THANK YOU, YOUR HONOR.
JUDGE DAVILA: THANK YOU.
(JURY IN AT 1:03 P.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. PLEASE BE SEATED. WE'RE BACK ON THE RECORD. OUR JURY IS PRESENT. ALL PARTIES PREVIOUSLY PRESENT ARE PRESENT ONCE AGAIN. MR. EDLIN HAS RETURNED TO THE STAND. THANK YOU, LADIES AND GENTLEMEN, FOR THE BREAK. I DO WANT TO TELL YOU, I DO NEED TO TAKE A BREAK AT 1:30, 1:35 AGAIN, AND IT WILL BE OUR 30 MINUTE BREAK, AND THEN WE'LL GO UNTIL 3:00 TODAY. AND THEN I'LL ASK YOU, WHEN WE FINISH TODAY, IF WE CAN GO UNTIL 4:00 TOMORROW. THANK YOU. MR. BOSTIC.
MR. BOSTIC: THANK YOU, YOUR HONOR.
MR. BOSTIC: MR. EDLIN, WHEN WE STARTED OUR BREAK WE WERE LOOKING AT EXHIBIT 551 IN OUR BINDER. DO YOU HAVE THAT IN FRONT OF YOU?
DANIEL EDLIN: I DO.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT MOVES TO ADMIT EXHIBIT 551.
JUDGE DAVILA: I'LL ADMIT IT, NOTING MY COMMENTS EARLIER. THANK YOU.
(GOVERNMENT'S EXHIBIT 551 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: MAY I PUBLISH IT, YOUR HONOR?
JUDGE DAVILA: YES.
MR. BOSTIC: MS. HOLLIMAN, IF WE CAN ZOOM IN ON THE TOP HALF OF THIS PAGE. MR. EDLIN, WE WERE TALKING ABOUT KEVIN CHUNG AND THE SURGICAL INSTITUTE COMPONENT. DO YOU RECALL THAT? A. YES.
MR. BOSTIC: WAS THIS ANOTHER INTERACTION THAT THERANOS HAD WITH A COMPONENT OF THE U.S. MILITARY?
DANIEL EDLIN: YES.
MR. BOSTIC: AND GIVE US A PREVIEW, WHAT WAS THE CULMINATION OF THIS INTERACTION WITH THE MILITARY?
DANIEL EDLIN: KEVIN CHUNG -- WELL, FOR THIS SPECIFIC EMAIL OR WITH DR. CHUNG?
MR. BOSTIC: I MEAN WITH DR. CHUNG IN GENERAL. FOR EXAMPLE, DID THIS INTERACTION EVENTUALLY RESULT IN THERANOS DEVICES BEING USED FOR A STUDY?
DANIEL EDLIN: YES. SO DR. CHUNG WAS THE LEAD INVESTIGATOR FOR A RESEARCH STUDY, ALONG WITH THE AMERICAN BURN ASSOCIATION, AND IN THAT STUDY THERANOS DEVICES WERE USED IN A NUMBER OF DIFFERENT ACADEMIC RESEARCH INSTITUTIONS AND HOSPITALS IN THE U.S. FOR TECH -- FOR RESEARCH PURPOSES FOR CERTAIN BIOMARKERS.
MR. BOSTIC: AND THAT USE IN THOSE INSTITUTIONS, WAS THAT CLINICAL USE OF THE DEVICE? AND WHAT I MEAN WAS, WERE DOCTORS USING THE RESULTS GENERATED BY THE THERANOS ANALYZERS TO MAKE TREATMENT DECISIONS ABOUT PATIENTS?
DANIEL EDLIN: I DON'T BELIEVE SO, NO.
MR. BOSTIC: AND WAS ALL OF THE USE IN CONNECTION WITH THAT -- WITH THIS STUDY ON U.S. SOIL AS FAR AS YOU KNOW?
DANIEL EDLIN: AS FAR AS I KNOW, ALL OF THE DIFFERENT HOSPITALS THAT WERE A PART OF THE STUDY WERE IN THE U.S.
MR. BOSTIC: SO THIS STUDY DIDN'T INVOLVE THE USE OF THERANOS TECHNOLOGY IN WAR ZONES OVERSEAS, FOR EXAMPLE?
DANIEL EDLIN: THAT'S CORRECT.
MR. BOSTIC: LET'S TURN TO PAGE 7 OF THIS EXHIBIT. AND ARE WE LOOKING AT AN ATTACHMENT, OR A PORTION OF AN ATTACHMENT THAT YOU SENT TO DR. CHUNG ATTACHED TO THE EMAIL THAT WE JUST SAW?
DANIEL EDLIN: YES.
MR. BOSTIC: AND LIKE I ASKED YOU FOR THE LAST ATTACHMENT, DID MS. HOLMES REVIEW AND APPROVE THIS IN PARTICULAR BEFORE YOU SENT IT TO DR. CHUNG?
DANIEL EDLIN: I BELIEVE SHE DID, YES.
MR. BOSTIC: AND WAS HER INVOLVEMENT WITH THIS INTERACTION WITH THE MILITARY ON THE SAME LEVEL AS WHAT YOU PREVIOUSLY DISCUSSED?
DANIEL EDLIN: YES.
MR. BOSTIC: LOOKING AT THE TEXT ON THE SCREEN, I JUST WANT TO POINT YOU TO A FEW PORTIONS. FIRST, UNDER THAT FIRST BULLET POINT, DO YOU SEE WHERE IT SAYS, "THERANOS'S PROPRIETARY, PATENTED TECHNOLOGY RUNS COMPREHENSIVE BLOOD TESTS FROM A FINGERSTICK"?
DANIEL EDLIN: YES.
MR. BOSTIC: IT ALSO SAYS, "TESTS FOR MICRO-SAMPLES OF OTHER MATRICES IN REAL-TIME OUTSIDE OF TRADITIONAL LAB SETTINGS AND GENERATES SIGNIFICANTLY HIGHER INTEGRITY DATA THAN CURRENTLY POSSIBLE." DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: LET'S TURN TO PAGE 15 IN THIS PRESENTATION. DO YOU SEE A SLIDE TITLED OVERVIEW: THERANOS SYSTEMS?
DANIEL EDLIN: I DO.
MR. BOSTIC: DO YOU RECOGNIZE THE DEVICES THAT ARE PICTURED IN THE UPPER LEFT HAND OF THAT PAGE?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND WHAT ARE THOSE DEVICES?
DANIEL EDLIN: THE MULTICOLORED DEVICE ON THE LEFT IS AN EDISON 3 SERIES OR 3.0. THE PICTURE ON THE RIGHT IS OF THE MINILAB TOWER, AND THAT'S NOT TO SCALE.
MR. BOSTIC: OKAY. HOW MUCH BIGGER WAS THE MINILAB TOWER THAN THE EDISON?
DANIEL EDLIN: THE EDISON -- IT WAS SIGNIFICANTLY BIGGER OR TALLER. I THINK THE MINILAB TOWER WAS SOMEWHERE BETWEEN FOUR TO FIVE FEET. I DON'T REMEMBER EXACTLY. THE EDISON WAS SOMEWHERE BETWEEN ONE AND TWO FEET TALL.
MR. BOSTIC: AND BASED ON YOUR EARLIER TESTIMONY, WAS THE EDISON 3 SERIES USED BY THERANOS IN ACTUAL PATIENT TESTING?
DANIEL EDLIN: I HAVE -- I LEARNED THAT IT WAS, YES.
MR. BOSTIC: WAS THE MINILAB TOWER USED BY THERANOS IN ACTUAL CLINICAL PATIENT TESTING?
DANIEL EDLIN: NOT TO MY KNOWLEDGE.
MR. BOSTIC: LET'S TURN THE PAGE TO PAGE 16. ZOOM IN ON THE TOP OF PAGE 16. AND DO YOU SEE WHERE IT SAYS, "UNLIKE EXISTING POINT OF CARE TECHNOLOGIES, THERANOS ANALYZERS RUN ANY TEST AVAILABLE IN CENTRAL LABORATORIES"?
DANIEL EDLIN: I DO SEE THAT.
MR. BOSTIC: AT THE TIME THIS WAS SENT IN MARCH OF 2012, DID YOU HAVE A BASIS TO UNDERSTAND WHETHER THAT STATEMENT WAS TRUE OR NOT?
DANIEL EDLIN: I DIDN'T HAVE THE BASIS TO UNDERSTAND WHETHER IT WAS TRUE OR NOT, BUT I HAD NO REASON TO BELIEVE THAT IT WASN'T TRUE.
MR. BOSTIC: HOW ABOUT THE SECOND BULLET POINT THERE? IT SAYS, "THERANOS IS CAPABLE OF RUNNING ANY COMBINATION OF TEST WITHIN THE SAME CARTRIDGE FOOTPRINT." WOULD IT BE THE SAME ANSWER FOR THAT, THAT YOU DIDN'T HAVE A BASIS TO KNOW, BUT YOU HAD NO REASON TO DOUBT IT?
DANIEL EDLIN: THAT'S CORRECT.
MR. BOSTIC: LET'S LOOK AT PAGE 23, PLEASE. AND ON PAGE 23, DO YOU SEE THERE'S A SECTION ADDRESSING ACCURACY?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THE TEXT TO THE RIGHT OF THAT SAYS, "THE LESS THAN 5 PERCENT CV YIELDED IN THERANOS'S ANALYSIS RESULTS FROM ELIMINATION OF PRE-ANALYTIC ERRORS, AND PROVIDES FOR PRECISE AND ACTIONABLE INFORMATION THAT WAS PREVIOUSLY INACCESSIBLE." DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND AT THE BOTTOM THERE IS A LINE THAT SAYS, "THERANOS HAS QUICKER TEST RUN TIMES AND COMMUNICATES MOST RESULTS IN LESS THAN 20 MINUTES." DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: THE TIMING CLAIM, WAS THAT YOUR EXPERIENCE WHEN IT CAME TO YOUR WORK WITH THE DEMOS OF THERANOS TECHNOLOGY?
DANIEL EDLIN: THAT WAS NOT MY EXPERIENCE.
MR. BOSTIC: HOW WAS IT DIFFERENT FROM YOUR EXPERIENCE?
DANIEL EDLIN: THE RUN TIMES IN DEMOS WERE USUALLY LONGER THAN 20 MINUTES.
MR. BOSTIC: LET'S LOOK AT PAGE 24. AND ON PAGE 24, DO YOU SEE THE SLIDE IS TITLED FINGERSTICK-BASED TESTING?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THERE'S A BULLET POINT ON THE LEFT SIDE THAT SAYS, "ALL 2000 PLUS CURRENTLY RUN TESTS/CPT CODES ARE AVAILABLE THROUGH THERANOS." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IT SAYS BELOW THAT, "THERANOS RUNS ANY TEST AVAILABLE IN CENTRAL LABORATORIES."
DANIEL EDLIN: I SEE THAT.
MR. BOSTIC: AND IN MARCH OF 2012, DID YOU KNOW WHETHER THE THERANOS ANALYZERS THAT WE JUST LOOKED AT WERE CAPABLE OF RUNNING THIS WIDE RANGE OF TESTS?
DANIEL EDLIN: IN MARCH OF 2012, I DID NOT HAVE THAT KNOWLEDGE.
MR. BOSTIC: ON THE RIGHT SIDE OF THE PAGE, UNDER HIGHER QUALITY DATA, THERE'S A BULLET POINT THAT SAYS, "THE UNPRECEDENTED LACK OF VARIATION WITH THERANOS YIELDS HIGHER INTEGRITY DATA AND LONGITUDINAL TRENDING." DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND WE CAN PUT THAT ASIDE. I'LL ASK YOU TO LOOK AT EXHIBIT 588, PLEASE. DO YOU HAVE 588 IN FRONT OF YOU?
DANIEL EDLIN: I DO.
MR. BOSTIC: IS THIS AN EMAIL CHAIN BETWEEN MS. HOLMES AND SOMEONE NAMED ERIN EDGAR?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, I MOVE TO ADMIT EXHIBIT 588.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED, AND IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 588 WAS RECEIVED IN EVIDENCE.)
BY MR. BOSTIC:
MR. BOSTIC: AND MR. EDLIN, CAN YOU TELL US WHO ERIN EDGAR WAS?
DANIEL EDLIN: COLONEL EDGAR WAS IN U.S. CENTRAL COMMAND.
MR. BOSTIC: AND WHAT IS U.S. CENTRAL COMMAND?
DANIEL EDLIN: A DIVISION OF THE DEPARTMENT OF DEFENSE.
MR. BOSTIC: AND IS THERE A PARTICULAR GEOGRAPHICAL AREA THAT U.S. CENTRAL COMMAND OVERSEES?
DANIEL EDLIN: I BELIEVE IT'S THE MIDDLE EAST.
MR. BOSTIC: DO YOU RECALL HAVING CONVERSATIONS WITH ERIN EDGAR IN CONNECTION WITH POTENTIAL USE OF THERANOS TECHNOLOGY?
DANIEL EDLIN: I'M NOT SURE IF I COMMUNICATED WITH HIM DIRECTLY, BUT I DO RECALL SEEING AND BEING ON EMAILS WHERE -- WITH HIM.
MR. BOSTIC: LOOKING AT THE BOTTOM EMAIL IN THIS CHAIN, COLONEL EDGAR EMAILS MS. HOLMES AND SAYS, "ELIZABETH. "I'VE GOTTA UPDATE THE BOSS ON WEDNESDAY ON OUR EFFORT TO GET THE ANALYZERS INTO THE THEATRE." AND THE SUBJECT LINE SAYS THERANOS UPDATE TO GENERAL MATTIS. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WHAT DO YOU RECALL AROUND THIS TIME ABOUT ONGOING EFFORTS TO GET THE ANALYZERS INTO THEATRE WITH CENTCOM?
DANIEL EDLIN: SIMILAR TO THE WORK THAT WAS DONE WITH SPECIAL OPERATIONS COMMAND, THERE WAS A SET OF EVALUATIVE STEPS THAT THERANOS AND U.S. CENTRAL COMMAND WERE TRYING TO PLAN WITH THE GOAL OF HAVING THERANOS TESTING, YOU KNOW, ULTIMATELY AVAILABLE IN HOSPITALS, I BELIEVE IT WAS IN AFGHANISTAN. BUT FIRST THE RESEARCH PROCESS REQUIRED EVALUATIVE STEPS AND COMPARATIVE STUDIES BETWEEN THERANOS TESTING AND AVAILABLE TESTING AT THE MILITARY.
MR. BOSTIC: WAS THAT EVALUATION A PREREQUISITE TO ACTUAL CLINICAL USE BY THE MILITARY BASED ON YOUR UNDERSTANDING?
DANIEL EDLIN: YES. THERE WAS ALSO SOME SECURITY RELATED TESTING THAT WAS ALSO A PREREQUISITE.
MR. BOSTIC: LET'S LOOK AT EXHIBIT 1027, AND WE'RE MOVING FROM APRIL AHEAD A FEW MONTHS. LET ME KNOW WHEN YOU HAVE 1027 IN FRONT OF YOU.
DANIEL EDLIN: I DO.
MR. BOSTIC: AND IS 1027 AN EMAIL BETWEEN YOU, REPRESENTATIVES OF CENTCOM, AND THEN INCLUDING ELIZABETH HOLMES AT THE TOP?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, I OFFER 1027.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 1027 WAS RECEIVED IN EVIDENCE.) BY MR. BOSTIC: AND IF WE CAN START ON PAGE 5 OF THIS EXHIBIT. AND IF WE CAN ZOOM IN ON THE MESSAGE IN THE MIDDLE OF THE PAGE.
MR. BOSTIC: MR. EDLIN, IS THIS FURTHER COMMUNICATION IN ATTEMPTS TO TRY TO GET THE THERANOS ANALYZERS IN CENTCOM'S HANDS FOR EVALUATION?
DANIEL EDLIN: YES.
MR. BOSTIC: AND SOMEONE NAMED MARTIN DRAKE WITH CENTCOM EMAILS MS. HOLMES AND IDENTIFIES HIMSELF AS THE SCIENCE ADVISOR WITH U.S. CENTRAL COMMAND. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: HE SAYS, "GENERAL MATTIS CHARGED OUR COMMAND SURGEON AND ME TO CONDUCT INVESTIGATION INTO THE COMPARATIVE BENEFITS OF YOUR TECHNOLOGY." DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: A COUPLE LINES DOWN, HE SAYS, "REGRETTABLY THE WINDOW OF OPPORTUNITY IS CLOSING FOR ME TO BE ABLE TO CONTINUE TO DEDICATE RESOURCES TO THIS EXPERIMENT. FUNDING IS EXPIRING AND PERSONNEL ARE BEING RE-DIRECTED TO OTHER ONGOING PROJECTS." HAD THIS PROJECT BEEN IN THE WORKS FOR SOME TIME AT THIS POINT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WHAT WAS YOUR SENSE AT THIS TIME AS TO WHY THERE HAD BEEN DELAYS, OR WHAT THE REASON WAS THAT IT HADN'T MOVED PAST THE POINT OF WHERE IT WAS AT?
DANIEL EDLIN: I'M NOT SURE IF I KNOW EXACTLY WHY OR IF I COULD PINPOINT EXACTLY WHY, BUT THERE WAS THIS FUNDING OPPORTUNITY THAT WAS CLOSING AND THE PERSONNEL WERE GOING ON TO OTHER PROJECTS, SO WE JUST DIDN'T HAVE ENOUGH TIME TO COMPLETE, TO COMPLETE THE STUDY.
MR. BOSTIC: LET'S LOOK AT PAGE 1 OF THIS EXHIBIT, AND LET'S ZOOM IN ON THE MESSAGE IN THE MIDDLE OF THE PAGE. HERE'S ANOTHER MESSAGE FROM MARTIN DRAKE. DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IN THE SECOND FULL PARAGRAPH OF HIS MESSAGE, HE SAYS, "IN ORDER FOR US TO REQUEST RESOURCES IN FINANCIAL YEAR '14 TO CONDUCT THIS LOE, WE WILL REQUIRE A FIRM COMMITMENT FROM YOU WHEN THERANOS WILL BE AVAILABLE, IN THEATRE, AND READY FOR TEST." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND THAT ABBREVIATION HE USES LOE. DO YOU RECALL WHAT THAT STANDS FOR?
DANIEL EDLIN: IT STANDS FOR LIMITED OBJECTIVE EXPERIMENT.
MR. BOSTIC: AND WOULD THIS LIMITED OBJECTIVE EXPERIMENT BE ACTUAL CLINICAL USE OF THE THERANOS ANALYZER IN THE TREATMENT OF SOLDIERS, OR MERELY EVALUATION?
DANIEL EDLIN: EVALUATION.
MR. BOSTIC: HIS EMAIL GOES ON TO SAY, "PLEASE PICK A DATE IN CALENDAR YEAR 2014 WHEN YOU KNOW BEYOND DOUBT YOU WILL BE READY TO TEST." DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: DID YOU HAVE A CONVERSATION WITH MS. HOLMES ABOUT HOW TO RESPOND TO THIS REQUEST FROM THE MILITARY FOR A DATE CERTAIN?
DANIEL EDLIN: I DID, YES.
MR. BOSTIC: AND WHAT DIRECTION DID YOU GET FROM MS. HOLMES?
DANIEL EDLIN: THE DIRECTION I GOT WAS FIRST TO I THINK CONSULT WITH AND SPEAK TO ONE OF THE -- I DON'T KNOW IF I SPOKE TO HIM DIRECTLY OR IF HE SPOKE TO ELIZABETH, BUT HE WAS ONE OF THE SYSTEMS ENGINEERING LEADS, SAM ANEKAL, AND HE WAS NOTIFIED OF THIS PLAN, AND I WAS DIRECTED TO PROVIDE A DATE OF I BELIEVE IT WAS A YEAR LATER, AUGUST OF 2014.
MR. BOSTIC: THANK YOU. SORRY TO TALK OVER YOU. LET'S LOOK AT THAT.
DANIEL EDLIN: OKAY.
MR. BOSTIC: IN THE TOP EMAIL ON THIS PAGE. LOOKING AT THE PARAGRAPH THAT SAYS, "LOOKING AHEAD TO 2014." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. BOSTIC: IT SAYS, "WE WOULD BE ABLE TO DELIVER ALL OF OUR EQUIPMENT TO THEATRE AND BEGIN TESTING BY AUGUST 1ST." DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: WAS IT MS. HOLMES'S DIRECTION TO YOU THAT YOU SHOULD PROPOSE A DATE ONE YEAR OUT FOR THE DATE WHEN THERANOS COULD BE READY FOR THE TEST?
DANIEL EDLIN: YES.
MR. BOSTIC: WHEN IT CAME TO THE CENTCOM RELATIONSHIP AND THOSE CONTACTS, WAS THERE A POINT AT WHICH A THERANOS DEVICE ACTUALLY WENT TO A MILITARY BASE?
DANIEL EDLIN: NOT TO MY KNOWLEDGE.
MR. BOSTIC: WAS THERE A POINT WHERE THE THERANOS DEVICE WAS BROUGHT TO A MILITARY FACILITY FOR CYBER TESTING?
DANIEL EDLIN: YES.
MR. BOSTIC: WHAT DO YOU RECALL ABOUT THAT?
DANIEL EDLIN: I RECALL VISITING THE MACDILL AIR FORCE BASE IN TAMPA, FLORIDA. CHRISTIAN HOLMES AND I WENT DOWN TO WORK WITH CYBER SECURITY TESTING TEAM THERE. I BELIEVE WE TRAVELED WITH TWO THERANOS DEVICES, AND THEY WERE BROUGHT TO A TESTING FACILITY, AND SECURITY TESTING, AND THEY UNDERWENT SECURITY TESTING.
MR. BOSTIC: DID THAT TESTING HAVE ANYTHING TO DO WITH THE CLINICAL PERFORMANCE OF THE ANALYZER?
DANIEL EDLIN: NO. IT WAS MORE -- I THINK THE GOAL OF THAT TESTING WAS TO MAKE SURE THAT IF A THERANOS DEVICE WENT ON TO THE MILITARY SERVER, THAT IT WOULD BE SECURE AND WOULDN'T HAVE SECURITY VULNERABILITIES.
MR. BOSTIC: AS PART OF THAT TESTING, WERE THERE ANY BLOOD SAMPLES OR ACTUAL ANALYSES PERFORMED BY THE DEVICE?
MR. BOSTIC: AS PART OF THE CONVERSATIONS WITH CENTCOM, TO YOUR KNOWLEDGE, WAS A DEVICE EVER SENT TO A MILITARY BASE IN THE MIDDLE EAST?
DANIEL EDLIN: NOT TO MY KNOWLEDGE.
MR. BOSTIC: DO YOU RECALL SEPARATE DEALINGS BETWEEN THERANOS AND A COMPONENT OF THE MILITARY CALLED AFRICOM?
DANIEL EDLIN: YES, I DO.
MR. BOSTIC: AND WHAT WAS AFRICOM?
DANIEL EDLIN: AFRICOM WAS A COMPONENT OF THE DEPARTMENT OF DEFENSE IN AFRICA, SO AFRICA COMMAND.
MR. BOSTIC: AND SO WAS THERE A POINT AT WHICH THERANOS DEVICES WERE GIVEN TO REPRESENTATIVES FROM AFRICOM?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WHAT DO YOU REMEMBER ABOUT THAT?
DANIEL EDLIN: I RECALL THAT AFTER AN IN-PERSON MEETING WITH LIEUTENANT COLONEL IN AFRICA COMMAND, THERE WAS INTEREST IN PURSUING A RESEARCH STUDY WITH THERANOS, AND FOLLOWING THAT MEETING, WE DID ENGAGE IN A PROOF OF CONCEPT STUDY FOR THE LIEUTENANT COLONEL TO GET EXPERIENCE USING THERANOS DEVICES AT A TRAINING SITE IN AFRICA.
MR. BOSTIC: AND DID THE DEVICE ACTUALLY TRAVEL TO AFRICA FOR USE AT THAT TRAINING SITE?
DANIEL EDLIN: IT DID.
MR. BOSTIC: DID THAT USE INVOLVE THE ACTUAL CLINICAL TESTING OF PATIENT SAMPLES BY THE MILITARY?
DANIEL EDLIN: THAT'S NOT MY UNDERSTANDING OF IT.
MR. BOSTIC: AND DID THAT USE INVOLVE ANY CLINICAL USE OF THE DEVICE? IN OTHER WORDS, DID DOCTORS LOOK AT THE RESULTS AND RELY ON THEM TO MAKE TREATMENT DECISIONS FOR PATIENTS?
MR. BOSTIC: I'LL ASK YOU TO TURN IN YOUR BINDER TO EXHIBIT 5435. AND FOR THE COURT AND THE DEFENSE, THIS MAY BE IN THE RED WELD. MR. EDLIN, DO YOU HAVE EXHIBIT 5435 IN FRONT OF YOU?
DANIEL EDLIN: YES.
MR. BOSTIC: AND IS THIS AN EMAIL CHAIN INCLUDING YOU, MS. HOLMES -- ACTUALLY JUST BETWEEN YOU AND MS. HOLMES RELATING TO THAT AFRICOM CONTACT?
DANIEL EDLIN: YES.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT OFFERS EXHIBIT 5435.
MR. DOWNEY: NO OBJECTION, YOUR HONOR.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 5435 WAS RECEIVED IN EVIDENCE.)
BY MR. BOSTIC:
MR. BOSTIC: AFTER THE AFRICOM USE, DO YOU RECALL SOME DISCUSSION WITHIN THERANOS ABOUT THE EDISON'S TEMPERATURE MEASUREMENT?
DANIEL EDLIN: YES.
MR. BOSTIC: AND HOW DID THAT TOPIC COME UP?
DANIEL EDLIN: WELL, THE TEMPERATURE CONDITIONS IN AFRICA AND AT THE TRAINING SITES INCLUDED HIGH TEMPERATURES, AND THE LIEUTENANT COLONEL WAS INTERESTED IN DATA TO REPRESENT HOW THE THERANOS DEVICES PERFORMED IN THOSE HIGH TEMPERATURES. AND AT ONE POINT I COMMUNICATED WITH VARIOUS DEPARTMENT HEADS IN THERANOS TO UNDERSTAND WHETHER THAT DATA HAD BEEN GENERATED OR IF IT EXISTED.
MR. BOSTIC: AND WERE YOU ABLE TO FIND DATA TO RESPOND TO THE INQUIRY FROM THE MILITARY WHEN IT CAME TO THAT TEMPERATURE ISSUE?
DANIEL EDLIN: I WAS, I WAS SENT SUMMARIES OF THE DATA, BUT I DON'T BELIEVE THAT IT WAS ACTUALLY SENT TO THE MILITARY.
MR. BOSTIC: LET'S LOOK AT PAGE 4 OF THIS EXHIBIT. MR. EDLIN, DO YOU SEE AN EMAIL FROM YOU TO ELIZABETH HOLMES ON MARCH 28TH, 2013?
DANIEL EDLIN: YES.
MR. BOSTIC: AND DOES THIS RELATE TO THE TOPIC THAT WE'VE BEEN DISCUSSING?
DANIEL EDLIN: YES.
MR. BOSTIC: THIS EMAIL CONTAINS INFORMATION ABOUT THE EDISON'S TEMPERATURE MANAGEMENT CAPABILITIES; IS THAT RIGHT?
DANIEL EDLIN: THAT'S RIGHT.
MR. BOSTIC: AT THE BOTTOM OF THE SELECTION HERE, THERE'S INFORMATION AND IT LOOKS LIKE IT CAME FROM GARY. DO YOU RECALL WHO GARY WAS AT THERANOS?
DANIEL EDLIN: GARY WAS A SCIENTIST, AND HE HAD BEEN WITH THE COMPANY FOR A NUMBER OF YEARS.
MR. BOSTIC: THERE'S A QUOTE BELOW HIS NAME THAT SAYS, "NOPE, THE EDISON DID NOT HAVE A WAY TO COOL DOWN. THEY WOULD HAVE SHUT DOWN." DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: IS THAT INFORMATION THAT YOU GOT ABOUT THE EDISON'S CAPABILITIES?
DANIEL EDLIN: YES.
MR. BOSTIC: LET'S LOOK BELOW THAT AT THE NEXT SET OF BULLET POINTS. BELOW THE NAME TONY, THERE'S A QUOTE THAT SAYS, "THE EDISON 3.0 FOR VARIOUS REASONS OPERATES IN A FAIRLY NARROW INDOOR AMBIENT TEMPERATURE RANGE OF 22 TO 28 DEGREES CELSIUS. 72 TO 82 DEGREES FAHRENHEIT." DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: AND BELOW THAT IT SAYS, "LOWER THAN THIS REQUIRED TOO LONG TO REACH INTERNAL OPERATING TEMPERATURE. "HIGHER THAN THIS, WE HAVE NO WAY TO COOL THE DEVICE." DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. BOSTIC: IS THIS INDICATING THAT THE EDISON NEEDS TO BE KEPT IN A TEMPERATURE RANGE OF 72 TO 82 DEGREES TO FUNCTION PROPERLY?
DANIEL EDLIN: THAT SEEMS TO BE WHAT THIS DESCRIPTION INDICATES, YES.
MR. BOSTIC: AND DOES THE MILITARY IN THE MIDDLE EAST AND IN AFRICA OPERATE IN SOME AREAS WHERE IT GETS MUCH COLDER THAN 72 DEGREES AND MUCH HOTTER THAN 82 DEGREES, IF YOU KNOW?
DANIEL EDLIN: I KNOW THAT IT GETS MUCH HOTTER.
MR. BOSTIC: DID THE CONVERSATIONS WITH AFRICOM EVER RESULT IN CLINICAL USE ON PATIENTS OF THE THERANOS ANALYZER?
DANIEL EDLIN: NOT TO MY KNOWLEDGE.
MR. BOSTIC: THINKING OF ALL OF YOUR CONTACTS WITH THE MILITARY DURING YOUR TIME AT THERANOS AND ALL OF YOUR KNOWLEDGE, TO YOUR KNOWLEDGE, WAS THE THERANOS ANALYZER EVER USED BY THE MILITARY CLINICALLY IN THE TREATMENT OF DEPLOYED SOLDIERS?
DANIEL EDLIN: NOT TO MY KNOWLEDGE.
MR. BOSTIC: TO YOUR KNOWLEDGE, WAS THE THERANOS ANALYZER EVER DEPLOYED TO A BATTLEFIELD OR A WAR ZONE FOR CLINICAL USE?
DANIEL EDLIN: NOT TO MY KNOWLEDGE.
MR. BOSTIC: TO YOUR KNOWLEDGE, WAS THE THERANOS ANALYZER EVER SENT TO THE MIDDLE EAST BY THE MILITARY AT ALL?
DANIEL EDLIN: NOT TO MY KNOWLEDGE.
MR. BOSTIC: AND TO YOUR KNOWLEDGE, DID THE MILITARY EVER INSTALL A THERANOS ANALYZER ON A MEDEVAC OR OTHER MILITARY HELICOPTER?
DANIEL EDLIN: NOT TO MY KNOWLEDGE.
MR. BOSTIC: YOUR HONOR, THIS MIGHT BE A GOOD TIME FOR A BREAK.
JUDGE DAVILA: YOU HAVE ADDITIONAL EXAMINATION?
MR. BOSTIC: I DO. NOT MUCH, BUT SOME.
JUDGE DAVILA: OKAY. LET'S TAKE OUR AFTERNOON RECESS, LADIES AND GENTLEMEN. WE'LL TAKE 30 MINUTES, AND WE'LL BE BACK. YOU CAN STAND DOWN, SIR.
(RECESS TAKEN AT 1:33 P.M.) AFTERNOON SESSION
(JURY IN AT 2:03 P.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU VERY MUCH. PLEASE BE SEATED. WE'RE BACK ON THE RECORD. THE JURY IS PRESENT. COUNSEL AND MS. HOLMES ARE PRESENT. MR. BOSTIC.
MR. BOSTIC: THANK YOU, YOUR HONOR.
MR. BOSTIC: MR. EDLIN, WHEN WE STOPPED FOR THE BREAK, WE WERE DISCUSSING THE VARIOUS CONTACTS THAT THERANOS HAD HAD WITH THE MILITARY. DO YOU RECALL THAT TESTIMONY?
DANIEL EDLIN: YES.
MR. BOSTIC: AND WE TALKED ABOUT HOW NONE OF THOSE CONTACTS RESULTED IN ACTUAL CLINICAL USE OF THE ANALYZER; IS THAT CORRECT?
DANIEL EDLIN: YES.
MR. BOSTIC: DID YOU EVER DISCUSS WITH MS. HOLMES THE REASON WHY NONE OF THOSE ENGAGEMENTS WENT BEYOND THE POINTS THAT THEY DID?
DANIEL EDLIN: THERE WAS A DISCUSSION DURING THE PROCESS OF WHY CERTAIN THINGS COULD NOT GET INITIATED AT THAT TIME, AT THOSE TIMES.
MR. BOSTIC: SORRY. AND WHAT, IF ANYTHING, DO YOU RECALL MS. HOLMES TELLING YOU ABOUT THAT?
DANIEL EDLIN: IT WAS MY UNDERSTANDING, BASED ON CONVERSATIONS WITH ELIZABETH, THAT THE RESOURCES REQUIRED TO SUPPORT THOSE PROGRAMS WERE DIRECTED IN SUPPORT OF THE CLINICAL LAUNCH WITH WALGREENS AND THE RETAIL LAUNCH.
MR. BOSTIC: IN OTHER WORDS, THERANOS COULDN'T DO BOTH THINGS AT ONCE, PROCEED WITH THE COMMERCIAL LAUNCH AND MOVE FORWARD WITH THE MILITARY PROJECT?
DANIEL EDLIN: WELL, THE MILITARY PROJECTS WOULD HAVE REQUIRED CERTAIN RESOURCES BEING ALLOCATED THERE AND THEY NEVER WERE IN A WAY THAT WOULD SUPPORT THOSE PROGRAMS.
MR. BOSTIC: DID MS. HOLMES EVER TELL YOU THAT PART OF THE REASON WHY THOSE PROJECTS NEVER GOT OFF THE GROUND HAD SOMETHING TO DO WITH LIMITATIONS IN THE CAPABILITIES OF THE THERANOS ANALYZER?
DANIEL EDLIN: SHE DID NOT TELL ME THAT.
MR. BOSTIC: AS PART OF YOUR EMPLOYMENT AT THERANOS, DID YOU HAVE OPPORTUNITIES TO OBSERVE MS. HOLMES AND MR. BALWANI WORKING TOGETHER?
DANIEL EDLIN: I DID.
MR. BOSTIC: HOW DID YOU HAVE THOSE OPPORTUNITIES?
DANIEL EDLIN: ON SEVERAL OCCASIONS I WAS IN MEETINGS WITH THE TWO OF THEM AND OBSERVED THEM WORKING AND INTERACTING.
MR. BOSTIC: AND WHERE WAS YOUR DESK OR OFFICE LOCATED IN RELATION TO MR. BALWANI'S AND MS. HOLMES'S OFFICES?
DANIEL EDLIN: SO IN MY TIME AT THERANOS I WAS IN THREE DIFFERENT OFFICES, AND IN THE FIRST TWO OFFICES MY DESK WAS IN A POD OF OTHER DESKS THAT WERE OUTSIDE OF THEIR TWO OFFICES. I THINK IN ALL THREE BUILDINGS BOTH ELIZABETH AND SUNNY'S OFFICE WERE NEXT DOOR TO EACH OTHER AND THEY HAD GLASS DOORS, THEY COULD -- OR GLASS WALLS SO YOU COULD SEE INSIDE. AND IN THE THIRD BUILDING I WAS IN, I WAS DOWN THE HALL FROM THEIR OFFICES.
MR. BOSTIC: AND DID THAT PROXIMITY GIVE YOU MORE OPPORTUNITIES TO SEE HOW THEY WORKED TOGETHER?
DANIEL EDLIN: IT GAVE ME OPPORTUNITIES TO SEE WHAT WAS HAPPENING IN THEIR OFFICES AND THEY OFTENTIMES, YOU KNOW, ATE LUNCH TOGETHER AND WERE IN DISCUSSION WITH ONE ANOTHER.
MR. BOSTIC: SO BESIDES THEM, YOU SAID, EATING LUNCH TOGETHER AND BEING IN DISCUSSION WITH EACH OTHER, WAS THERE ANYTHING ELSE THAT STANDS OUT TO YOU ABOUT THEIR WORKING RELATIONSHIP AND THE WAY THEY WORKED TOGETHER AT THE COMPANY?
DANIEL EDLIN: NOTHING REALLY STANDS OUT.
MR. BOSTIC: HOW ABOUT THE DYNAMIC BETWEEN THEM? DID THEY OPERATE, FROM WHAT YOU SAW, AS CO-EQUALS IN THE COMPANY WITH THE SAME LEVEL OF AUTHORITY OR WAS ONE IN CHARGE COMPARED TO THE OTHER?
DANIEL EDLIN: I WAS IN MEETINGS WHERE SUNNY, SUNNY SAID THAT HE WOULD DEFER TO ELIZABETH ON CERTAIN THINGS AND GENERALLY, YOU KNOW, ELIZABETH WAS THE CEO, AND I THINK SHE HAD KIND OF THE FINAL DECISION MAKING AUTHORITY. BUT I WAS ONLY PRESENT WITH THE TWO OF THEM IN KIND OF A SUBSET OF THEIR INTERACTIONS.
MR. BOSTIC: DURING THOSE INTERACTIONS, DO YOU RECALL EVER SEEING THEM DISAGREE ABOUT ANYTHING WHEN IT CAME TO OPERATION OF THE COMPANY?
DANIEL EDLIN: I DID SEE THEM DISAGREE ABOUT, I'M NOT SURE IF I COULD CONSIDER IT THE OPERATION, BUT ABOUT CERTAIN TOPICS.
MR. BOSTIC: OKAY. AND TOPICS RELATED TO THERANOS?
DANIEL EDLIN: RIGHT.
MR. BOSTIC: AND WHEN THERE WERE DISAGREEMENTS BETWEEN THE TWO OF THEM, WHEN THEY SAW THINGS DIFFERENTLY, WHICH ONE OF THEM WAS IN CHARGE? WHICH ONE OF THEM MADE THE FINAL DECISION IF YOU RECALL?
DANIEL EDLIN: I DON'T RECALL THAT THERE WAS ALWAYS NECESSARILY A DECISION THAT WAS MADE. SOMETIMES THERE WAS A DISCUSSION THAT WAS LEFT UNRESOLVED, BUT I DID HEAR TIMES WHEN SUNNY WOULD DEFER TO ELIZABETH.
MR. BOSTIC: DID YOU EVER SEE MR. BALWANI OVERRULE MS. HOLMES WHEN IT CAME TO SOMETHING ABOUT WHAT WOULD HAPPEN AT THERANOS?
DANIEL EDLIN: I THINK THERE WERE CERTAIN SUBJECTS WHERE HE HAD MORE OF AN EXPERTISE BUT -- I'M SORRY, WHAT WAS THE QUESTION THERE?
MR. BOSTIC: THE QUESTION WAS WHETHER YOU EVER SAW HIM OVERRULE HER, OVERRULE A DECISION THAT SHE HAD MADE AT THERANOS?
DANIEL EDLIN: I CAN'T RECALL A SPECIFIC MOMENT, BUT I AM -- YEAH, I CAN'T THINK OF ONE THAT I CAN REMEMBER OFF THE TOP OF MY HEAD.
MR. BOSTIC: HOW ABOUT THEIR PERSONAL RELATIONSHIP. WHEN YOU WERE WORKING AT THE COMPANY, WERE YOU AWARE THAT THEY WERE ROMANTICALLY INVOLVED?
DANIEL EDLIN: I WAS.
MR. BOSTIC: AND HOW DID YOU KNOW THAT?
DANIEL EDLIN: WHEN I WAS FIRST INTRODUCED TO SUNNY WHILE I WAS IN COLLEGE HE WAS INTRODUCED TO ME AS ELIZABETH'S BOYFRIEND.
MR. BOSTIC: AND APPROXIMATELY WHAT YEAR WOULD THAT HAVE BEEN?
DANIEL EDLIN: AROUND 2004, 2005.
MR. BOSTIC: AND WHEN YOU WERE WORKING AT THE COMPANY, WERE YOU AWARE THAT THEY WERE IN A RELATIONSHIP?
DANIEL EDLIN: YES.
MR. BOSTIC: DID YOU EVER HAVE THE OPPORTUNITY TO SPEND TIME WITH THEM SOCIALLY OUTSIDE OF THE OFFICE?
DANIEL EDLIN: YES.
MR. BOSTIC: HOW DID THAT HAPPEN?
DANIEL EDLIN: ON SOME OCCASIONS ELIZABETH INVITED CHRISTIAN AND MYSELF AND OTHER MEMBERS OF THE PROJECT MANAGEMENT TEAM OUT TO DINNER OR TO SUNNY'S HOUSE FOR DINNER.
MR. BOSTIC: AND WAS MS. HOLMES LIVING WITH MR. BALWANI AT THE TIME?
DANIEL EDLIN: YES.
MR. BOSTIC: DURING THOSE INTERACTIONS, WAS THERE ANYTHING THAT STOOD OUT IN YOUR MIND ABOUT THE WAY THAT MS. HOLMES AND MR. BALWANI ACTED TOGETHER?
DANIEL EDLIN: NOT IN PARTICULAR. IT WAS ALWAYS MORE OF A RELAXED, YOU KNOW, SETTING OUTSIDE OF WORK. WE DIDN'T REALLY DISCUSS WORK. IT WAS MUCH MORE RELAXED. SOCIAL.
MR. BOSTIC: MAY I HAVE A MOMENT, YOUR HONOR?
JUDGE DAVILA: YES.
(DISCUSSION AMONGST GOVERNMENT COUNSEL OFF THE RECORD.)
MR. BOSTIC: THANK YOU, YOUR HONOR. NO FURTHER QUESTIONS AT THIS TIME.
JUDGE DAVILA: ALL RIGHT. THANK YOU. CROSS-EXAMINATION?
MR. DOWNEY: YOUR HONOR, MAY I JUST TAKE A MOMENT TO GET SET UP?
JUDGE DAVILA: YES.
(PAUSE IN PROCEEDINGS.)
MR. DOWNEY: MAY I APPROACH THE WITNESS, YOUR HONOR?
JUDGE DAVILA: YES. THANK YOU.
MR. DOWNEY: (HANDING.)
CROSS-EXAMINATION BY MR. DOWNEY:
MR. DOWNEY: GOOD AFTERNOON, MR. EDLIN. MY NAME IS KEVIN DOWNEY, AND I REPRESENT MS. HOLMES. I WANT TO START --
DANIEL EDLIN: HELLO.
MR. DOWNEY: THANK YOU. I WANT TO START BY ASKING YOU ABOUT THE TECHNOLOGY AT THERANOS AND TRYING TO GET THE VARIOUS FORMS OF TECHNOLOGY STRAIGHT SO IT'S CLEAR. FIRST OF ALL, YOU REMEMBER THAT THERE WAS A -- WELL, I SHOULD START BY SAYING YOU YOURSELF WERE NOT AN EXPERT IN THE TECHNOLOGY; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: YOU WERE A RELATIVELY RECENT COLLEGE GRADUATE WHEN YOU STARTED AT THERANOS?
DANIEL EDLIN: THAT'S RIGHT.
MR. DOWNEY: AND YOU -- I THINK YOUR MAJOR WAS IN PUBLIC POLICY?
DANIEL EDLIN: THAT'S RIGHT.
MR. DOWNEY: BUT YOU CAME TO BE FAMILIAR WITH THE TECHNOLOGY DURING THE COURSE OF YOUR TIME AT THE COMPANY; IS THAT RIGHT?
DANIEL EDLIN: THAT'S RIGHT.
MR. DOWNEY: I WANT TO SHOW YOU SOME PICTURES OF VARIOUS FORMS OF THE TECHNOLOGY AND ASK IF YOU CAN IDENTIFY THEM. FIRST OF ALL, I WANT TO SHOW YOU AN EXHIBIT THAT HAS BEEN PREVIOUSLY ADMITTED AS EXHIBIT 5388. AND THIS IS IN EVIDENCE, YOUR HONOR.
JUDGE DAVILA: THANK YOU.
BY MR. DOWNEY:
MR. DOWNEY: IT SHOULD BE ON THE SCREEN. IT'S ALREADY IN EVIDENCE.
DANIEL EDLIN: OKAY.
MR. DOWNEY: DO YOU RECOGNIZE THAT AS A SERIES 3 THERANOS DEVICE?
DANIEL EDLIN: YES, I DO.
MR. DOWNEY: AND THIS DEVICE IS A 3.0 DEVICE; CORRECT?
DANIEL EDLIN: I THINK IT COULD BE A 3.0 OR A 3.5.
MR. DOWNEY: OKAY. THE INTERNAL WORKINGS MIGHT BE DIFFERENT, BUT THE EXTERNAL APPEARANCE IS THE SAME BETWEEN A 3.0 AND A 3.5; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND YOU UNDERSTOOD THAT THE 3.0 HAD THE ABILITY TO PROCESS CERTAIN CLASSES OF ASSAYS; CORRECT?
DANIEL EDLIN: THERE BECAME A TIME WHEN I LEARNED WHAT IT COULD DO, THAT'S RIGHT.
MR. DOWNEY: AND YOU UNDERSTOOD THAT THE 3.5 HAD THE CAPACITY TO PROCESS SOME ADDITIONAL ASSAYS; IS THAT RIGHT?
DANIEL EDLIN: I'M NOT SURE I HAD THAT UNDERSTANDING.
MR. DOWNEY: OKAY.
DANIEL EDLIN: I KNOW THAT THE INTERNAL COMPONENTS WERE DIFFERENT, WERE UPDATED.
MR. DOWNEY: OKAY. BUT YOU DIDN'T HAVE EXPERTISE IN WHAT ASSAY IS ASSOCIATED WITH WHICH DEVICE OR HOW THEY WORK FROM AN INTERNAL PERSPECTIVE; IS THAT FAIR?
DANIEL EDLIN: I DIDN'T HAVE AN EXPERTISE.
MR. DOWNEY: YOU WERE FAMILIAR WITH THE 3.0, BECAUSE IT WAS INVOLVED IN SOME OF THE PROJECTS THAT YOU WERE INVOLVED WITH; CORRECT?
DANIEL EDLIN: IT WAS INVOLVED IN SOME OF THE PROJECTS AND IN MEETINGS AND DEMONSTRATIONS.
MR. DOWNEY: OKAY. FOR EXAMPLE, THE 3.0 WAS INVOLVED IN THE BURN STUDY THAT YOU DISCUSSED WITH MR. BOSTIC; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: OKAY. I'D LIKE YOU TO LOOK IN YOUR NOTEBOOK AT EXHIBIT 7747.
DANIEL EDLIN: I SEE IT.
MR. DOWNEY: DO YOU RECOGNIZE THIS DEVICE AS A 4. -- A 4S DEVICE OF THERANOS?
DANIEL EDLIN: YES.
MR. DOWNEY: OKAY. YOUR HONOR, I MOVE THE ADMISSION OF EXHIBIT 7747.
MR. BOSTIC: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(DEFENDANT'S EXHIBIT 7747 WAS RECEIVED IN EVIDENCE.)
BY MR. DOWNEY:
MR. DOWNEY: AND IS THIS A DEVICE, A DEVICE THAT WAS DEVELOPED SPECIFICALLY IN CONNECTION WITH THERANOS'S WORK WITH THE MILITARY?
DANIEL EDLIN: YES.
MR. DOWNEY: LET ME ASK YOU TO LOOK IN YOUR BINDER AT EXHIBIT 13982.
DANIEL EDLIN: JUST A MOMENT.
MR. DOWNEY: I CAN GIVE YOU A COPY IF YOU HAVE TROUBLE LOCATING IT.
DANIEL EDLIN: OKAY. I'VE GOT IT.
MR. DOWNEY: IS THIS A SERIES 4.0 DEVICE OF THERANOS?
DANIEL EDLIN: I BELIEVE IT IS, YES.
MR. DOWNEY: YOUR HONOR, I MOVE TO ADMIT EXHIBIT 13982.
MR. BOSTIC: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(DEFENDANT'S EXHIBIT 13982 WAS RECEIVED IN EVIDENCE.)
BY MR. DOWNEY:
MR. DOWNEY: AND THIS 4.0 DEVICE IS CAPABLE OF RUNNING ONE TEST AT A TIME; IS THAT CORRECT?
DANIEL EDLIN: I'M NOT SURE.
MR. DOWNEY: YOU CAME TO LEARN THAT THERE WAS A DIFFERENT VERSION IN THE 4 SERIES CALLED A MINILAB; CORRECT?
DANIEL EDLIN: SO THE MINILAB REFERRED TO TWO DIFFERENT VERSIONS OF THE 4 SERIES WHILE I WAS AT THE COMPANY. INITIALLY THE MINILAB REFERRED TO A STACKED TOWER, AND THEN LATER ON THE MINILAB REFERRED TO THE 4S DEVICE.
MR. DOWNEY: WHAT WAS THE DIFFERENCE BETWEEN THE MINILAB AND THIS 4.0 DEVICE?
DANIEL EDLIN: BETWEEN THE MINILAB ALSO KNOWN AS THE 4S AND THIS 4.0 DEVICE; RIGHT?
MR. DOWNEY: THAT'S FAIR, YES.
DANIEL EDLIN: THE 4S WAS SMALLER IN SIZE.
MR. DOWNEY: I'M SORRY. I WAS ASKING YOU WHAT'S THE DIFFERENCE BETWEEN THE 4.0 DEVICE THAT IS ON THE SCREEN.
DANIEL EDLIN: AND THE 4S MINILAB?
MR. DOWNEY: LET'S TAKE THEM ONE AT A TIME.
DANIEL EDLIN: OKAY.
MR. DOWNEY: WHAT IS THE DIFFERENCE BETWEEN THE 4S AND THE 4.0 DEVICE?
DANIEL EDLIN: THE 4.0 DEVICE WAS ALSO REFERRED TO AS A MONOBAY, AND THE MONOBAY 4.0 WAS LARGER IN SIZE THAN THE 4S.
MR. DOWNEY: OKAY. AND DID THEY HAVE DIFFERENT INTENDED USES?
DANIEL EDLIN: MY UNDERSTANDING WAS THAT THE 4S WAS DEVELOPED BECAUSE IT WAS SMALLER, LIGHTER, AND MORE PORTABLE THAN THE MONOBAY, THAN THIS 4.0.
MR. DOWNEY: OKAY. AND WHAT IS THE DIFFERENCE BETWEEN THE 4.0 AND THE MINILAB TOWER THAT YOU MENTIONED?
DANIEL EDLIN: THE MINILAB TOWER, MY UNDERSTANDING, IS ESSENTIALLY THE SAME COMPONENTS THAT YOU HAVE IN THIS 4.0 STACKED ON TOP OF EACH OTHER. SO THERE'S ESSENTIALLY FOUR OR FIVE OF THESE STACKED ON ONE ANOTHER.
MR. DOWNEY: OKAY. SO INSTEAD OF RUNNING ONE SAMPLE AT A TIME, THEY HAVE THE CAPACITY TO RUN MULTIPLE SAMPLES AT A TIME?
DANIEL EDLIN: THAT WAS WHAT I WAS TOLD THAT DEVICE WAS DESIGNED TO DO.
MR. DOWNEY: OKAY. LET ME ASK YOU TO LOOK AT EXHIBIT 9790.
DANIEL EDLIN: OKAY.
MR. DOWNEY: ARE THE TWO LARGE DEVICES IN THIS PHOTOGRAPH THERANOS MINILABS?
DANIEL EDLIN: THEY APPEAR TO BE.
MR. DOWNEY: YOUR HONOR, I MOVE THE ADMISSION OF 9790.
MR. BOSTIC: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(DEFENDANT'S EXHIBIT 9790 WAS RECEIVED IN EVIDENCE.)
BY MR. DOWNEY:
MR. DOWNEY: AND IF YOU LOOK AT THIS PHOTOGRAPH YOU SEE THE TWO DEVICES SET UP NEXT TO EACH OTHER. GIVE US A SENSE OF HOW LARGE THOSE DEVICES ARE?
DANIEL EDLIN: I DON'T RECALL SPECIFICALLY, BUT I THINK THEY WERE IN THE FOUR TO FIVE FEET RANGE.
MR. DOWNEY: OKAY. AND IS THE DEVICE, THE SMALLER DEVICE, THAT FROM OUR PERSPECTIVE IS ON THE LEFT, IS THAT A DIFFERENT 4 SERIES DEVICE?
DANIEL EDLIN: I DON'T KNOW.
MR. DOWNEY: DO YOU KNOW WHEN WORK ON THE STACKED TOWER MINILAB BEGAN AT THERANOS?
DANIEL EDLIN: I DON'T KNOW SPECIFICALLY.
MR. DOWNEY: BUT ALL OF THESE DEVICES WERE ANALYZERS THAT WERE USED IN CONNECTION WITH ANALYZING BLOOD SAMPLES; CORRECT?
DANIEL EDLIN: ALL OF THESE DEVICES WERE ANALYZERS. THE -- AND I THINK THEY WERE INTENDED TO BE USED TO ANALYZE SAMPLES, RIGHT, BLOOD SAMPLES, YES.
MR. DOWNEY: AND WHAT THEY HAD IN COMMON WAS THAT THE SAMPLES THAT THEY WERE INTENDED TO PROCESS WERE SMALL SAMPLES OF BLOOD; CORRECT?
DANIEL EDLIN: THAT'S MY UNDERSTANDING. MY UNDERSTANDING IS THAT THEY PROCESSED NANOTAINERS WHICH HAD SMALL SAMPLES.
MR. DOWNEY: AND THE NANOTAINERS ARE DEVICES THAT THE BLOOD WAS DEPOSITED INTO AFTER IT WAS DRAWN; CORRECT?
DANIEL EDLIN: RIGHT.
MR. DOWNEY: AND THEN THE NANOTAINER WAS PLACED IN THESE DEVICES AND THE BLOOD TEST WAS RUN; CORRECT?
DANIEL EDLIN: IT WAS PLACED INTO A CARTRIDGE, AND THEN THE CARTRIDGE WAS PLACED INTO THESE DEVICES AND RUN.
MR. DOWNEY: SO THERE ARE FOUR OR FIVE DIFFERENT PIECES OF HARDWARE THAT WERE REFERENCED DURING YOUR TIME AT THERANOS; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND TO USE THOSE ANALYZERS TO ANY EFFECT, YOU HAD TO HAVE AN ASSAY, CORRECT, DEVELOPED TO ACTUALLY RUN THE TEST?
DANIEL EDLIN: CAN YOU REPEAT THE QUESTION.
MR. DOWNEY: LET ME REPHRASE THE QUESTION TO BE BETTER.
DANIEL EDLIN: YEAH.
MR. DOWNEY: AN ASSAY IS THE CHEMISTRY THAT IS USED TO ACTUALLY ANALYZE A SAMPLE OF BLOOD; CORRECT?
DANIEL EDLIN: THAT'S MY UNDERSTANDING.
MR. DOWNEY: AND FOR THESE -- IN CONNECTION WITH THESE DEVICES, THE ASSAY IS ON THE CARTRIDGE; RIGHT? THAT IS DEPOSITED INTO THE DEVICE TO RUN THE TEST; IS THAT CORRECT?
DANIEL EDLIN: MY UNDERSTANDING WAS THAT CERTAIN CHEMICALS WERE ON THE CARTRIDGE, AND THAT ONCE THE CARTRIDGE WAS PLACED INTO THE DEVICE, DIFFERENT COMPONENTS IN THE DEVICE WOULD RUN TESTS USING THOSE MATERIALS.
MR. DOWNEY: OKAY. AND YOU UNDERSTOOD DURING YOUR TIME AT THERANOS THAT DIFFERENT ASSAYS WERE BEING DEVELOPED; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND AT SOME POINT YOU SAW REPORTS ABOUT THE DEVELOPMENT OF ASSAYS; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND IN YOUR RESPONSIBILITIES WORKING WITH MS. HOLMES, YOU WERE SOMETIMES RESPONSIBLE FOR MAKING AVAILABLE CERTAIN MATERIALS THAT BUSINESS PARTNERS MIGHT BE INTERESTED IN; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND SOMETIMES HOSPITALS, FOR EXAMPLE, MIGHT BE INTERESTED IN SEEING THOSE DEVELOPMENT REPORTS; CORRECT?
DANIEL EDLIN: I DON'T RECALL WHETHER A HOSPITAL SAW THE DEVELOPMENT REPORT. THEY DID SEE A PRESENTATION THAT INCLUDED CLINICAL -- IT WAS A CLINICAL OVERVIEW, AND THERE WERE COMPARISONS BETWEEN THERANOS TESTS AND PREDICATE METHODS.
MR. DOWNEY: OKAY. HOW MANY ASSAYS DID YOU SEE DEVELOPMENT REPORTS FOR?
DANIEL EDLIN: I DON'T REMEMBER SPECIFICALLY, BUT IT WAS PROBABLY NORTH OF AT LEAST 40.
MR. DOWNEY: OKAY. AND ANOTHER ELEMENT OF THE TECHNOLOGY THAT YOU UNDERSTOOD THERANOS WAS USING WAS SOFTWARE; CORRECT?
DANIEL EDLIN: YES.
MR. DOWNEY: AND SOFTWARE HAD MANY, MANY DIFFERENT PURPOSES IN CONNECTION WITH THE TECHNOLOGY; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: SOME OF IT WAS JUST USED TO RUN THE DEVICE; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: BUT SOME OF IT WAS USED FOR THINGS LIKE PREDICTIVE MODELING; CORRECT?
DANIEL EDLIN: THAT'S MY UNDERSTANDING, YES.
MR. DOWNEY: AND OVER TIME YOU SAW INSTANCES WHERE SOFTWARE ON THE DEVICE WAS MODIFIED; CORRECT?
DANIEL EDLIN: YES.
MR. DOWNEY: AND IT MIGHT BE MODIFIED DEPENDING ON THE INTENDED USE OF THE DEVICE; CORRECT?
DANIEL EDLIN: THAT'S RIGHT.
MR. DOWNEY: AND ALL OF THE TECHNOLOGIES THAT WE'VE JUST TALKED ABOUT WORKING TOGETHER WERE REFERRED TO IN THERANOS AS THERANOS SYSTEMS; CORRECT?
DANIEL EDLIN: I'M TRYING TO REMEMBER. I BELIEVE THEY WERE REFERRED TO AS THERANOS SYSTEMS, YES.
MR. DOWNEY: OKAY. AND MUCH OF WHAT YOU'RE RECOUNTING NOW ABOUT THE TECHNOLOGY AT THERANOS IS THINGS THAT YOU LEARNED FROM OTHERS AT THERANOS; CORRECT?
DANIEL EDLIN: THAT'S CORRECT.
MR. DOWNEY: AND YOU HAD OCCASION DURING THE COURSE OF YOUR SERVICE AT THERANOS TO INTERACT WITH A HARDWARE TEAM, FOR EXAMPLE?
DANIEL EDLIN: I INTERACTED WITH CERTAIN MEMBERS OF THAT TEAM ON OCCASION.
MR. DOWNEY: OKAY. I THINK YOU MENTIONED ON DIRECT AN INTERACTION WITH DR. ANEKAL; IS THAT RIGHT?
DANIEL EDLIN: THAT'S RIGHT.
MR. DOWNEY: AND YOUR INTERACTIONS WITH THEM WOULD LARGELY BE AROUND GATHERING INFORMATION EITHER AT MS. HOLMES'S REQUEST OR IN CONNECTION WITH SOMETHING RELATED TO WHAT SHE WAS DOING; IS THAT RIGHT?
DANIEL EDLIN: YES.
MR. DOWNEY: OKAY. SO, FOR EXAMPLE, YOU TALKED ON YOUR DIRECT EXAMINATION ABOUT THE WEBSITE; CORRECT?
DANIEL EDLIN: THAT'S RIGHT.
MR. DOWNEY: AND DO YOU RECALL THAT YOU WENT TO VARIOUS MEMBERS OF THE VARIOUS SCIENTIFIC TEAMS TO ASK THEM QUESTIONS ABOUT ASPECTS OF THERANOS'S TECHNOLOGY?
DANIEL EDLIN: I REMEMBER FROM WHAT I SAW IN THE MATERIALS IN THE DIRECT THAT I DID COMMUNICATE WITH DR. YOUNG, WITH DANIEL YOUNG. I DON'T RECALL THE EXTENT OF THOSE CONVERSATIONS WITH OTHER MEMBERS OF THE TEAM.
MR. DOWNEY: OKAY. BUT OVER TIME DURING YOUR TIME THERE YOU TALKED TO AT LEAST ONE MEMBER OF THE HARDWARE TEAM; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND YOU TALKED TO THE ASSAY TEAM LEADS ON SOME OCCASIONS; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND YOU ALSO TALKED TO SOME OF THE INDIVIDUALS INVOLVED IN SOFTWARE; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND AS A RESULT OF THAT, YOU BECAME SOMEWHAT FAMILIAR WITH WHAT EACH OF THEIR DUTIES WERE IN THE COMPANY; CORRECT?
DANIEL EDLIN: I'D SAY AT A HIGH LEVEL.
MR. DOWNEY: OKAY. DID YOU INTERACT AT ALL WHILE YOU WERE AT THE COMPANY WITH CHANNING ROBERTSON?
DANIEL EDLIN: YES.
MR. DOWNEY: AND ON WHAT OCCASIONS DID YOU DO THAT?
DANIEL EDLIN: I RECALL CERTAIN OCCASIONS WHERE HE CAME TO THE OFFICE AND HIS WORKSPACE WAS CLOSE TO MY WORKSPACE AND SOMETIMES WE WOULD INTERACT.
MR. DOWNEY: OKAY. AND DR. ROBERTSON HAD BEEN A MENTOR TO MS. HOLMES AT STANFORD; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND HE PLAYED A FORMAL ROLE AT THE COMPANY; CORRECT?
DANIEL EDLIN: WHEN I WAS THERE, I'M NOT SURE WHETHER I WOULD CONSIDER THE ROLE A FORMAL ROLE.
MR. DOWNEY: HOW WOULD YOU DESCRIBE DR. ROBERTSON'S ROLE?
DANIEL EDLIN: I KNEW THAT HE HAD INTERACTIONS WITH ELIZABETH, AND I'M AWARE THAT ON SOME OCCASIONS HE WOULD ATTEND MEETINGS WITH SOME OF THE SCIENTIFIC LEADS AT THE COMPANY, BUT BEYOND THAT, I'M NOT EXACTLY SURE WHAT HIS ROLE WAS IN THE COMPANY.
MR. DOWNEY: AND DR. ROBERTSON IS A PROMINENT CHEMICAL ENGINEER; CORRECT?
DANIEL EDLIN: YES.
MR. DOWNEY: OKAY. AND HE HAS AN EXCELLENT REPUTATION IN THE FIELD OF CHEMICAL ENGINEERING; CORRECT?
DANIEL EDLIN: I BELIEVE SO.
MR. DOWNEY: OKAY. YOU DON'T RECALL PRECISELY YOUR INTERACTIONS WITH HIM, BUT YOU THINK YOU HAD THEM OVER TIME? IS THAT A FAIR SUMMARY OF WHAT YOU RECALL?
DANIEL EDLIN: I RECALL THAT WE HAD SOME INTERACTIONS AFTER THE FIRST ARTICLES CAME OUT IN "THE WALL STREET JOURNAL," WHICH WAS IN OCTOBER OF 2015, AND I THINK HE WAS CONCERNED ABOUT THOSE ARTICLES AND WHAT THE COMPANY WAS DOING TO TRY TO REBUT SOME OF THOSE CLAIMS OR HOW HE WAS WORKING THROUGH THAT. I THINK WE HAD SOME CONVERSATIONS AROUND THAT.
MR. DOWNEY: IS THAT THE FIRST TIME THAT YOU RECALL INTERACTING WITH HIM?
DANIEL EDLIN: WE INTERACTED EARLIER THAN THAT.
MR. DOWNEY: OKAY. ALL RIGHT. BUT UP UNTIL THEN YOU DON'T RECALL WHAT THOSE INTERACTIONS WERE?
DANIEL EDLIN: I DON'T RECALL THAT THEY WERE WORK RELATED.
MR. DOWNEY: OKAY.
DANIEL EDLIN: THEY WERE MORE NON-WORK RELATED.
MR. DOWNEY: OKAY. I WANT TO ASK YOU ABOUT SOME OF THE DOCUMENTS THAT YOU WERE SHOWN ON YOUR DIRECT EXAMINATION, SO I'M GOING TO PUT UP EXHIBIT 5419, WHICH IS A DOCUMENT THAT IS ALREADY IN EVIDENCE THAT YOU WENT THROUGH WITH MR. BOSTIC. I'LL DRAW THIS UP ON THE SCREEN AND JUST TO REMIND YOU. IF YOU GO TO THE SECOND PAGE OF THE DOCUMENT. THIS IS DISCUSSION ABOUT A PATIENT ABOUT HCG. DO YOU REMEMBER THAT DISCUSSION?
DANIEL EDLIN: YES.
MR. DOWNEY: OKAY. NOW, YOU DON'T HAVE ANY RECOLLECTION OF ISSUES RELATED TO THAT OTHER THAN WHAT YOU'VE HEARD ON -- IN -- FROM REVIEWING THE DOCUMENTS TODAY; IS THAT RIGHT?
DANIEL EDLIN: THAT'S RIGHT.
MR. BOSTIC: YOUR HONOR, I'M SORRY. MY APOLOGIES. I DON'T BELIEVE THIS DOCUMENT WAS SHOWN TO THIS WITNESS JUST TO CLARIFY.
JUDGE DAVILA: I'M NOT SURE -- IS THIS IN EVIDENCE? I'M NOT SURE IT IS.
COURT CLERK: YOUR HONOR, HE -- I BELIEVE YOU STATED 5419. 5413 IS IN EVIDENCE, BUT NOT 5419 TODAY.
MR. DOWNEY: LET ME CHECK.
(DISCUSSION AMONGST DEFENSE COUNSEL OFF THE RECORD.)
MR. DOWNEY: YES, I BEG YOUR PARDON, 5413.
MR. DOWNEY: THIS IS THE DOCUMENT RELATED TO PATIENT TESTING ISSUES THAT MR. BOSTIC SHOWED YOU. DO YOU REMEMBER THAT?
DANIEL EDLIN: YES, THIS LOOKS MORE FAMILIAR.
MR. DOWNEY: OKAY. AND THIS RELATES TO A CALL THAT A PATIENT HAD MADE TO THERANOS AND A DISCUSSION OF THE RESPONSE TO THAT CALL; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND YOU RECALL TESTIFYING ON YOUR DIRECT EXAMINATION THAT ON SOME OCCASIONS MS. HOLMES WOULD BE -- BECOME INVOLVED WITH THOSE ISSUES; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: DO YOU KNOW WITH RESPECT TO THE EXAMPLE IN THIS EMAIL WHAT THE RESOLUTION OF IT WAS?
DANIEL EDLIN: I DON'T KNOW.
MR. DOWNEY: CAN I ASK YOU TO LOOK IN YOUR BINDER AT EXHIBIT 12715.
DANIEL EDLIN: I SEE THAT.
MR. DOWNEY: AND IF YOU LOOK AT THIS EMAIL, YOU SEE PART OF IT CONTAINS THE CONVERSATION THAT TAKES PLACE IN EXHIBIT 5413?
DANIEL EDLIN: YES.
MR. DOWNEY: AND THEN YOU SEE THE CONVERSATION CONTINUES THEREAFTER ABOVE ON THE SAME SUBJECT?
DANIEL EDLIN: THAT'S RIGHT.
MR. DOWNEY: CORRECT? YOUR HONOR, I MOVE THE ADMISSION OF 12715.
MR. BOSTIC: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(DEFENDANT'S EXHIBIT 12715 WAS RECEIVED IN EVIDENCE.)
BY MR. DOWNEY:
MR. DOWNEY: IF YOU GO TO THE THIRD PAGE OF THIS EXHIBIT, DO YOU SEE THE EMAIL AT THE BOTTOM IS AN EMAIL BETWEEN MS. HOLMES AND MR. FOSQUE?
DANIEL EDLIN: YES.
MR. DOWNEY: AND DO YOU REMEMBER THIS WAS AN INSTANCE WHERE A COMPLAINT WAS RAISED TO HER AND SHE'S ASKING MR. FOSQUE TO COME TALK AND TO FIGURE OUT WHAT HAPPENED; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND THEN IF YOU MOVE UP THE EXHIBIT AND GO TO THE PRIOR PAGE, YOU SEE THAT MR. FOSQUE PROVIDED SOME DATA AS TO WHAT WAS HAPPENING WITH THAT PATIENT; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND HE PROVIDED SOME DATA ABOUT WHEN THE SAMPLE WAS TAKEN AND ANALYSIS OF QUALITY CONTROL IN CONNECTION WITH THE SAMPLE; CORRECT?
DANIEL EDLIN: I KNOW HE MENTIONS NISHIT IS LOOKING INTO THE QUALITY CONTROL DATA. I'M NOT SURE IF THIS IS THAT OR NOT, BUT --
MR. DOWNEY: OKAY. AND WHO IS NISHIT?
DANIEL EDLIN: I BELIEVE HE WAS A SCIENTIST AT THERANOS.
MR. DOWNEY: OKAY. IF YOU GO TO THE PRIOR PAGE YOU SEE ANOTHER EMAIL FROM MR. FOSQUE IN THE MIDDLE OF THE PAGE, AND HE EXPLAINS FURTHER AN ANALYSIS OF THE PROBLEM THAT IS SHOWN WITH RESPECT TO THAT DATA; CORRECT?
DANIEL EDLIN: RIGHT.
MR. DOWNEY: AND THIS IS NOT I THINK A PORTION THAT YOU TALKED ABOUT THIS MORNING, BUT IF YOU SEE IN THE FIRST PARAGRAPH, IT SEEMS TO INDICATE THAT HE HAD A CONVERSATION WITH ADAM; IS THAT RIGHT?
DANIEL EDLIN: YES.
MR. DOWNEY: AND IS ADAM A REFERENCE TO DR. ROSENDORFF?
DANIEL EDLIN: THAT'S MY INTERPRETATION HERE.
MR. DOWNEY: OKAY. AND HE -- DR. ROSENDORFF, OF COURSE, WAS A CLINICAL LAB DIRECTOR; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: OKAY. YOU CAN GO TO THE TOP OF THE EMAIL AT THE TOP OF THE PAGE. YOU SEE THAT THIS IS AN EMAIL FROM MR. BALWANI TO MR. FOSQUE AND HE SAYS, "ADAM CAN HANDLE THIS." DO YOU SEE THAT?
DANIEL EDLIN: YES.
MR. DOWNEY: AND HE SAYS, "GIVE HIM ALL THE DATA"?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: CORRECT. AND YOU'RE COPIED ON THIS EMAIL; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND IT WOULD HAVE BEEN A SENSIBLE PROCESS FOR THE CLINICAL LAB DIRECTOR TO HAVE A CONVERSATION WITH A PATIENT IN THESE CIRCUMSTANCES; IS THAT CORRECT?
DANIEL EDLIN: I THINK THAT'S SENSIBLE.
MR. DOWNEY: OKAY. DO YOU RECALL THIS SPECIFIC INCIDENT OR NOT?
DANIEL EDLIN: I DON'T.
MR. DOWNEY: OKAY. NOW I'D LIKE TO BRING UP EXHIBIT 4237, WHICH IS ALREADY IN EVIDENCE. IF YOU GO TO THE BOTTOM OF THAT PAGE --
DANIEL EDLIN: IS THIS IN THE BINDER OR ALREADY ON THE SCREEN?
MR. DOWNEY: YOU CAN LOOK AT THE SCREEN. IT'S ALREADY ADMITTED INTO EVIDENCE.
DANIEL EDLIN: OKAY.
MR. DOWNEY: AND IF YOU SEE AT THE TOP THIS IS A DISCUSSION OF A PHYSICIAN AND PATIENT CALL ABOUT HCG RESULTS. DO YOU REMEMBER BEING SHOWN THIS DOCUMENT ON YOUR DIRECT EXAMINATION?
DANIEL EDLIN: YES.
MR. DOWNEY: IF YOU GO TO THE BOTTOM OF PAGE 4 AND YOU CARRY OVER TO THE NEXT PAGE. DO YOU SEE THERE'S AN EMAIL THERE FROM MS. SCHEER TO YOU AND TO MR. FOSQUE AND MS. HOLMES; CORRECT?
DANIEL EDLIN: YES.
MR. DOWNEY: AND SHE RECOUNTS WHAT THE COMPLAINT IS THAT HAD COME IN; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: BUT IF YOU REVIEW THIS EXHIBIT FROM THERE YOU CAN DRAW THAT DOWN AND CONTINUE UP. YOU CAN GO TO THE PRIOR PAGE. YOU CAN GO TO THE PRIOR PAGE FROM THAT. KEEP GOING. ALL RIGHT. DO YOU SEE ON THE BOTTOM EMAIL THAT STARTS ON PAGE 1 AND CARRIES OVER, YOU WERE THEN DROPPED FROM THIS CONVERSATION; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND IT'S NOT SOMETHING THAT WAS FURTHER SOMETHING THAT YOU RECALLED DISCUSSING WITH MS. HOLMES OR ANYONE ELSE; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: LET ME ASK YOU ABOUT YOUR TESTIMONY CONCERNING RELATIONSHIPS WITH PHARMACEUTICAL COMPANIES. I THINK YOU WERE ASKED ABOUT A RELATIONSHIP BETWEEN THERANOS AND CELGENE. DO YOU REMEMBER THAT?
DANIEL EDLIN: I DO.
MR. DOWNEY: AND DID YOU PLAY A LARGE ROLE WITH REGARD TO THAT PROJECT?
MR. DOWNEY: AND DID YOU HAVE A FULL UNDERSTANDING OF ALL OF THE PROGRAMS THAT WERE IN PLACE BETWEEN CELGENE AND THERANOS?
MR. DOWNEY: OKAY. DO YOU ACTUALLY RECALL ANY OF THE PROGRAMS THAT WERE IN PLACE?
DANIEL EDLIN: I ONLY RECALL THE PROGRAM THAT WAS DISCUSSED IN THE EMAIL CHAIN THAT WE REVIEWED EARLIER.
MR. DOWNEY: OKAY. TAKE A LOOK AT EXHIBIT 528. GO TO THE BOTTOM OF THE EMAIL. I'M SORRY, THE VERY BOTTOM. THE LAST PAGE. DO YOU RECALL THAT -- YOU CAN MOVE UP FROM THERE AND GO TO THE PRIOR PAGE. DO YOU RECALL THIS DISCUSSION ABOUT 16 DIFFERENT ASSAYS BEING RUN WITH CELGENE?
DANIEL EDLIN: YES.
MR. DOWNEY: AND IN THIS INSTANCE THERE WAS A DISCUSSION OF SOME ASSAYS BEING RUN WITH THERANOS ASSAYS; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND SOME ASSAYS BEING RUN ON KITS; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: CAN YOU GO TO THE PRIOR PAGE. DID YOU KNOW WHAT A KIT WAS AT THE TIME THAT YOU RECEIVED THIS EMAIL?
DANIEL EDLIN: I DON'T RECALL.
MR. DOWNEY: LET ME ASK YOU ABOUT THE SUBJECT OF TRADE SECRETS. DO YOU REMEMBER YOU TALKED A LITTLE BIT ABOUT CONFIDENTIALITY ON FRIDAY?
DANIEL EDLIN: YES.
MR. DOWNEY: DID YOU HEAR DISCUSSION ABOUT TRADE SECRETS WHEN YOU WERE AT THERANOS?
DANIEL EDLIN: I DID.
MR. DOWNEY: OKAY. DID YOU UNDERSTAND THAT THERANOS WAS CONCERNED ABOUT PROTECTING TRADE SECRETS?
DANIEL EDLIN: YES.
MR. DOWNEY: AND DID YOU HEAR THAT FROM MR. BALWANI, FOR EXAMPLE?
DANIEL EDLIN: I DID.
MR. DOWNEY: AND YOU HEARD THAT FROM OTHERS AT THE COMPANY?
DANIEL EDLIN: YES.
MR. DOWNEY: AND DID YOU UNDERSTAND THAT THE COMPANY THOUGHT THAT IT HAD DEVELOPED VERY VALUABLE TECHNOLOGY; CORRECT?
DANIEL EDLIN: THAT'S RIGHT.
MR. DOWNEY: AND YOU TESTIFIED FRIDAY ABOUT A NUMBER OF PRACTICES RESTRICTING THE FLOW OF INFORMATION AT THE COMPANY. DO YOU REMEMBER THAT?
DANIEL EDLIN: I DO.
MR. DOWNEY: AND DID YOU UNDERSTAND THAT SOME OF THOSE PROCEDURES WERE ASSOCIATED WITH PROTECTING THERANOS'S TRADE SECRETS?
DANIEL EDLIN: YES.
MR. DOWNEY: OKAY. YOU, HOWEVER, WERE ABLE, BECAUSE OF YOUR ROLE AT THE COMPANY, TO INTERACT WITH DIFFERENT TEAMS IN CONNECTION WITH YOUR DUTIES; CORRECT?
DANIEL EDLIN: THAT'S RIGHT.
MR. DOWNEY: SO YOU INTERACTED WITH SCIENTISTS AND GOT SOME INFORMATION FROM THEM; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND YOU WOULD OFTEN RELY ON SCIENTISTS IN CARRYING OUT YOUR DUTIES; CORRECT?
DANIEL EDLIN: I WOULD RELY ON THE INFORMATION THAT THEY GAVE ME, RIGHT.
MR. DOWNEY: OKAY. WELL, YOU MENTIONED DURING THE COURSE OF YOUR TESTIMONY THIS MORNING DR. YOUNG; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND YOU MENTIONED THAT HE WAS THE VICE PRESIDENT OF THE COMPANY; CORRECT?
DANIEL EDLIN: HE WAS A VICE PRESIDENT I BELIEVE, RIGHT.
MR. DOWNEY: AND HE WAS THE SENIOR SCIENTIST AT THE COMPANY; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND YOU FOUND HIM, DURING YOUR TIME AT THE COMPANY, TO BE KNOWLEDGEABLE; CORRECT?
DANIEL EDLIN: YES.
MR. DOWNEY: AND YOU HAD CONFIDENCE IN WHAT HE WAS TELLING YOU?
DANIEL EDLIN: DEFINITELY.
MR. DOWNEY: AND IF ISSUES RELATED TO A QUESTION INVOLVING SCIENCE OR TECHNOLOGY CAME UP, YOU WOULD CERTAINLY DEFER TO HIS JUDGMENT; CORRECT?
DANIEL EDLIN: CERTAINLY.
MR. DOWNEY: AND ON MANY OCCASIONS WHEN YOU HAD TO GET -- PROVIDE INFORMATION TO MS. HOLMES, YOU ACTUALLY GOT THAT INFORMATION FROM DR. YOUNG; CORRECT?
DANIEL EDLIN: THAT DID HAPPEN OFTEN.
MR. DOWNEY: AND ON MANY OCCASIONS WHEN THERE WERE PROGRAMS THAT INVOLVED THE DEVELOPMENT, FURTHER DEVELOPMENT OF ASSAYS AND SO FORTH, DR. YOUNG WOULD BE ONE SOURCE FOR WHOM YOU WOULD GET THE INFORMATION; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND YOU ALSO HAD THE CHANCE TO INTERACT WITH MEMBERS OF THE ASSAY TEAM; CORRECT?
DANIEL EDLIN: CORRECT, THERE WERE A NUMBER OF DIFFERENT TEAMS.
MR. DOWNEY: OKAY. AND IF THEY PROVIDED YOU WITH INFORMATION, YOU RELIED ON IT; CORRECT?
DANIEL EDLIN: YES.
MR. DOWNEY: AND SAME WITH REGARD TO THE SOFTWARE TEAM; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND THE HARDWARE TEAM; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND SO IN CARRYING OUT YOUR DUTIES FROM THE TIME THAT YOU STARTED AT THERANOS UNTIL LATE IN 2015, YOU NEVER TOOK A STEP ON BEHALF OF THE COMPANY WHERE YOU THOUGHT YOU WERE DECEIVING SOMEONE; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: YOU NEVER MADE A STATEMENT TO THE DEPARTMENT OF DEFENSE THAT YOU THOUGHT WAS FALSE; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: YOU NEVER FACILITATED THE DELIVERY OF INFORMATION TO INVESTORS THAT YOU BELIEVED WAS FALSE; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: YOU NEVER HAD ANY INTERACTIONS WITH REPRESENTATIVES OF PHARMACEUTICAL COMPANIES THAT YOU BELIEVED WAS FRAUDULENT; IS THAT RIGHT?
DANIEL EDLIN: THAT'S RIGHT.
MR. DOWNEY: YOU NEVER IN ALL OF YOUR WORK ON MARKETING AND THE WEBSITE OF THE COMPANY, YOU NEVER TOOK STEPS TO PUT FORWARD ANY CLAIM THAT YOU BELIEVED TO BE FALSE; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND THE SAME WOULD BE TRUE THAT -- WITH RESPECT TO JOURNALISTS; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: ALL OF THE INFORMATION THAT YOU PROVIDED TO JOURNALISTS YOU BELIEVED TO BE CORRECT; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND IN PART, THAT INFORMATION WAS OFTEN RELIANT ON INFORMATION THAT YOU HAD GOTTEN FROM THE SCIENTISTS IN THE COMPANY; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: OKAY. ALL RIGHT. LET'S TALK ABOUT THE RELATIONSHIP BETWEEN THERANOS -- WELL, YOUR HONOR, I'M STARTING A NEW TOPIC. SHOULD --
JUDGE DAVILA: YOU WON'T FINISH IT IN 12 MINUTES?
MR. DOWNEY: WELL, IF WE HAVE 12 MINUTES, I THINK I CAN MAKE SOME PROGRESS.
JUDGE DAVILA: SURE. LET'S DO THAT.
MR. DOWNEY: OKAY.
MR. DOWNEY: LET'S TALK ABOUT THE RELATIONSHIP THAT THERANOS HAD WHICH GENERATED THE BURN STUDY.
DANIEL EDLIN: OKAY.
MR. DOWNEY: I THINK YOU MENTIONED THAT DR. CHUNG WAS INVOLVED IN THAT; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND THAT RELATIONSHIP WAS ALREADY IN PLACE AT THE TIME THAT YOU ARRIVED AT THE COMPANY; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND HAD THE STUDY STARTED WHEN YOU CAME TO THE COMPANY?
DANIEL EDLIN: AT LEAST SOME PART OF THE STUDY HAD STARTED, YES.
MR. DOWNEY: OKAY. BUT FROM THE TIME THAT YOU ARRIVED UNTIL REALLY THE TIME THAT YOU LEFT THERANOS, THAT'S AN ISSUE THAT YOU HAD MANAGEMENT RESPONSIBILITY WITH RESPECT TO; CORRECT?
DANIEL EDLIN: MY ROLE IN THAT STUDY WAS AS A CLIENT SOLUTIONS LEAD.
MR. DOWNEY: TELL US WHAT THAT MEANS.
DANIEL EDLIN: SO WHEN I -- AFTER I JOINED THE COMPANY THERE WAS A, A MEMBER OF DANIEL YOUNG'S TEAM WHO HAD BEEN PLAYING A CLIENT SOLUTIONS LEAD, AND HE LEFT THE COMPANY, AND ELIZABETH ASKED ME TO STEP IN HIS PLACE. AND THAT ROLE LARGELY SUPPORTED THE STUDY WHEN IT CAME TO COMMUNICATIONS WITH THE DIFFERENT RESEARCH COORDINATORS AT THE DIFFERENT HOSPITALS.
MR. DOWNEY: UH-HUH.
DANIEL EDLIN: IF THEY HAD ANY ISSUES WITH DEVICES, THEY WOULD CONTACT ME AND I WOULD -- I PERSONALLY WOULD COMMUNICATE WITH THE SOFTWARE ENGINEERS AND HELP TRIAGE THOSE ISSUES, AND IF A DEVICE NEEDED TO BE REPLACED, I WORKED WITH THE RESEARCH COORDINATORS TO DO THAT. AT ONE POINT I ALSO DID A TRAINING AT ONE OR MORE OF THE HOSPITALS WITH THE RESEARCH COORDINATORS, AND THAT WAS PREDOMINANTLY MY ROLE IN THAT PROGRAM.
MR. DOWNEY: WELL, LET'S TAKE A STEP BACK. DR. CHUNG WAS THE LEADING DOCTOR IN CONNECTION WITH THAT PROGRAM; CORRECT?
DANIEL EDLIN: RIGHT.
MR. DOWNEY: AND THE STUDY WAS BEING CONDUCTED OUT OF THE U.S. ARMY INSTITUTE OF SURGICAL RESEARCH; CORRECT?
DANIEL EDLIN: THERE WERE MULTIPLE SITES THAT PARTICIPATED IN THE STUDY, BUT I BELIEVE THAT WAS THE -- I DON'T KNOW HOW I WOULD DESCRIBE IT IN THE CONTEXT OF THE STUDY.
MR. DOWNEY: OKAY. WHEN YOU SAY, "MULTIPLE SITES," YOU MEAN THAT THERANOS DEVICES WERE DEPLOYED AND WERE SENT TO BE LOCATED IN DIFFERENT HOSPITALS ACROSS THE UNITED STATES; IS THAT RIGHT?
DANIEL EDLIN: THAT'S RIGHT.
MR. DOWNEY: AND THE POINT OF THE STUDY WAS TO DO AN EVALUATION OF SEPSIS IN CONNECTION WITH BURN VICTIMS; CORRECT?
DANIEL EDLIN: I BELIEVE SO.
MR. DOWNEY: AND YOU CAME TO LEARN AS A RESULT OF YOUR WORK IN CONNECTION WITH THE BURN STUDY, THAT BURN VICTIMS HAVE A PARTICULAR SUSCEPTIBILITY TO DEVELOPING SEPSIS AND THE INFECTION CONSEQUENCES THAT FOLLOW FROM THAT; CORRECT?
DANIEL EDLIN: I CAME TO THAT UNDERSTANDING, YES.
MR. DOWNEY: OKAY. AND IN CONNECTION WITH THE STUDIES, SOME OF THE PATIENTS WHO WERE UNDER ANALYSIS WERE MILITARY MEMBERS; CORRECT?
DANIEL EDLIN: I DIDN'T KNOW THAT.
MR. DOWNEY: OKAY. DO YOU KNOW THAT THE ARMY INSTITUTE OF SURGICAL RESEARCH, FOR EXAMPLE, TREATS MEMBERS OF THE MILITARY?
DANIEL EDLIN: I'M NOT SURE I KNOW THAT.
MR. DOWNEY: OKAY. YOU MENTIONED THAT YOU BECAME INVOLVED WITH DEVICES AT THE DIFFERENT LOCATIONS; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND YOU'RE REFERRING TO THE LOCATIONS THAT WERE PART OF THE BURN STUDY DURING THE TIME THAT YOU WERE AT THERANOS; CORRECT?
DANIEL EDLIN: THEY WERE PARTICIPATING SITES IN THAT STUDY, RIGHT.
MR. DOWNEY: OKAY. AND THE WAY THAT YOUR INVOLVEMENT REALLY BEGAN IS THAT YOU HELD A TRAINING TO TRAIN PERSONNEL FROM THOSE DIFFERENT HOSPITALS HOW TO USE THE THERANOS DEVICE; CORRECT?
DANIEL EDLIN: I DON'T BELIEVE THAT THAT WAS HOW MY ROLE STARTED, BUT THAT DID HAPPEN AT SOME POINT.
MR. DOWNEY: OKAY. TELL US HOW YOUR ROLE STARTED?
DANIEL EDLIN: WELL, I MENTIONED THAT ONE OF THE MEMBERS OF DANIEL YOUNG'S TEAM WHO HELD HIS CLIENT SOLUTIONS LEAD, HE LEFT THE COMPANY AND ELIZABETH ASKED THAT I STEP IN AND THAT I STEP INTO THAT ROLE. SO THAT'S HOW -- THAT'S WHERE MY INVOLVEMENT IN THAT STUDY STARTED.
MR. DOWNEY: OKAY. AND AFTER THAT POINT YOU BECAME INVOLVED WITH SENDING THE DEVICES TO LOCATIONS ACROSS THE COUNTRY; CORRECT?
DANIEL EDLIN: WHEN I STARTED, DEVICES WERE IN SOME LOCATIONS AND THEN ADDITIONAL HOSPITALS JOINED. SO I DID SEND TO HOSPITALS THAT DID NOT YET HAVE THE DEVICES.
MR. DOWNEY: OKAY. LET'S LOOK AT -- I'M SORRY. DID YOU WANT TO SAY MORE?
DANIEL EDLIN: AND THROUGHOUT THAT PROCESS I PARTNERED WITH SOFTWARE ENGINEERS TO PREPARE THOSE DEVICES AND PACKAGE THEM AND GET THEM SENT OUT.
MR. DOWNEY: OKAY. LET'S LOOK AT EXHIBIT 10462. TAKE A MOMENT TO REVIEW THAT IN YOUR BINDER.
(PAUSE IN PROCEEDINGS.)
DANIEL EDLIN: OKAY.
BY MR. DOWNEY:
MR. DOWNEY: IS THIS AN EMAIL SENT TO YOU BY A REPRESENTATIVE OF U.S.A. MEDCOM IN CONNECTION WITH THE BURN STUDY?
DANIEL EDLIN: YES.
MR. DOWNEY: YOUR HONOR, I MOVE THE ADMISSION OF 10462.
MR. BOSTIC: NO OBJECTION.
JUDGE DAVILA: IT'S ADMITTED. IT MAY BE PUBLISHED.
(DEFENDANT'S EXHIBIT 10462 WAS RECEIVED IN EVIDENCE.)
BY MR. DOWNEY:
MR. DOWNEY: IF YOU GO TO THE BOTTOM EMAIL ON PAGE 2, THIS IS AN EMAIL TO A WOMAN NAMED ELSA COATES TO A LARGE NUMBER OF PEOPLE INCLUDING YOURSELF. DO YOU SEE THAT?
DANIEL EDLIN: I DO.
MR. DOWNEY: AND SHE IS SETTING UP A TRAINING PROGRAM, AMONG OTHER THINGS, ON THERANOS READERS. DO YOU SEE THAT IN THE PARAGRAPH THAT BEGINS, "OUR OBJECTIVE IS TO"?
DANIEL EDLIN: YES.
MR. DOWNEY: OKAY. AND THIS IS THE TRAINING THAT YOU WERE REFERRING TO A MOMENT AGO?
DANIEL EDLIN: THIS WAS ONE OF THE TRAININGS. THERE WERE MULTIPLE.
MR. DOWNEY: OKAY. AND DO YOU SEE THAT THERE'S A LARGE LIST OF ATTENDEES AT THE TOP OF THE EMAIL?
DANIEL EDLIN: I DO.
MR. DOWNEY: AND IS ELSA COATES SOMEONE WHO YOU WORKED WITH TO COORDINATE THE STUDY?
DANIEL EDLIN: YES.
MR. DOWNEY: AND IS SHE AN ARMY NURSE?
DANIEL EDLIN: I THINK IT SAYS THAT SHE'S A CLINICAL RESEARCH NURSE COORDINATOR.
MR. DOWNEY: AND SHE WORKED WITH DR. CHUNG IN CONNECTION WITH THE STUDY; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: SO WHEN YOU PERFORMED THE TRAINING, THE DEVICES WOULD THEN BE LOCATED IN THE HOSPITAL; CORRECT?
DANIEL EDLIN: YES.
MR. DOWNEY: AND YOU WOULD ON OCCASION TALK TO PEOPLE AT THE LOCATIONS ABOUT THEIR USE OF THE THERANOS DEVICE; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: SOMETIMES THERE WOULD BE AN ISSUE WITH THEIR CONNECTIVITY, FOR EXAMPLE?
DANIEL EDLIN: THAT'S RIGHT.
MR. DOWNEY: OR SOMETIMES THEY NEEDED CARTRIDGES TO REPLACE THE CARTRIDGES THAT THEY HAD; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: AND YOU WERE THE PERSON AT THERANOS RESPONSIBLE FOR GETTING THAT TO THEM OR PROVIDING THEM WITH THAT INFORMATION?
DANIEL EDLIN: AS IT RELATED TO THE NURSE COORDINATORS, RIGHT. IF IT RELATED TO GETTING CERTAIN SUPPLIES OR HELPING TO TRIAGE AN ISSUE WITH THE READER, I DID COMMUNICATE WITH THEM, YES.
MR. DOWNEY: AND IN CONNECTION WITH THE STUDY, DATA WAS BEING GENERATED; CORRECT?
DANIEL EDLIN: YES.
MR. DOWNEY: AND THE THERANOS READERS WERE TAKING BLOOD SAMPLES. BLOOD SAMPLES WERE BEING TAKEN FROM PATIENTS AND ANALYZED IN THE THERANOS READERS; CORRECT?
DANIEL EDLIN: YES.
MR. DOWNEY: AND THEN THE RESULTS OF THOSE TESTS WOULD BE SENT BACK DIGITALLY TO THERANOS; CORRECT?
DANIEL EDLIN: YES.
MR. DOWNEY: AND YOU WOULD PROVIDE DATA FROM THAT STUDY TO DR. CHUNG; CORRECT?
DANIEL EDLIN: I'M NOT SURE WHETHER I PROVIDED IT OR DANIEL YOUNG PROVIDED IT BECAUSE I DID PARTNER WITH HIM. HE, HE WAS LEADING THE THERANOS EFFORTS ON THE STUDY BEFORE I JOINED AND BEFORE I BECAME INVOLVED, AND WHEN IT CAME TO DATA, I WOULD CONSULT WITH HIM BECAUSE THAT WAS HIS AREA OF EXPERTISE.
MR. DOWNEY: HOW MANY YEARS DID THE STUDY GO ON FOR?
DANIEL EDLIN: I DON'T REMEMBER EXACTLY, BUT I THINK THREE TO FOUR.
MR. DOWNEY: YOU SAW THE EXHIBIT THAT WE -- YOU SAW THE EXHIBIT DURING YOUR DIRECT EXAMINATION OF MATERIALS BEING SENT TO DR. CHUNG; CORRECT?
DANIEL EDLIN: CORRECT.
MR. DOWNEY: BY THE TIME THAT THAT EMAIL WAS SENT, DID THERANOS ALREADY HAVE A RELATIONSHIP WITH DR. CHUNG?
DANIEL EDLIN: I BELIEVE SO. THERANOS HAD THE RELATIONSHIP BEFORE I EVEN GOT THERE.
MR. DOWNEY: ALL RIGHT. YOUR HONOR, THIS MIGHT BE A GOOD PLACE.
JUDGE DAVILA: SURE. THANK YOU, MR. DOWNEY. LET'S TAKE OUR EVENING BREAK, LADIES AND GENTLEMEN. I UNDERSTAND THAT WE WILL ONLY BE ABLE TO GO UNTIL 3:00 TOMORROW, JUST UNTIL 3:00 TOMORROW. I DON'T KNOW IF FRIDAY WE CAN CAPTURE UNTIL 4:00. I'D LIKE TO DO THAT JUST TO GET SOME TIME. BUT IN THE INTERIM, LADIES AND GENTLEMEN, I REMIND YOU OF THE ADMONITION, PLEASE DO NOT DO ANY INDEPENDENT INVESTIGATION, DO NOT DO ANY RESEARCH INVOLVED IN THIS CASE OR ANYONE INVOLVED WITH IT. PLEASE REFRAIN FROM LOOKING AT SOCIAL MEDIA THAT MIGHT TOUCH ON THIS CASE OR ANY OTHER NEWS MEDIA. IF YOU DO COME ACROSS SOMETHING, PLEASE TURN AWAY AND TURN IT OFF, AND I'LL ASK YOU AGAIN TOMORROW MORNING WHETHER OR NOT ANY OF THOSE CIRCUMSTANCES HAVE OCCURRED. HAVE A GOOD AFTERNOON, GOOD EVENING. WE'LL SEE YOU TOMORROW, PLEASE, AT 9:00 O'CLOCK. 9:00 O'CLOCK, PLEASE, MR. EDLIN.
DANIEL EDLIN: YES, YOUR HONOR. THANK YOU.
(JURY OUT AT 3:01 P.M.)
JUDGE DAVILA: PLEASE BE SEATED. THANK YOU. THE RECORD SHOULD REFLECT THAT OUR JURY HAS LEFT FOR THE EVENING, AND THE WITNESS HAS LEFT THE COURTROOM. AND ALL COUNSEL ARE PRESENT AND MS. HOLMES IS PRESENT. LET ME JUST ASK, JUST TIMING, MR. DOWNEY, WHAT DO YOU THINK? HOW MUCH --
MR. DOWNEY: I THINK IT WILL BE A GOOD CHUNK OF THE DAY TOMORROW.
JUDGE DAVILA: WITH THIS WITNESS?
MR. DOWNEY: WITH THIS WITNESS.
JUDGE DAVILA: OKAY.
MR. DOWNEY: AND SHORTENING OF IT MIGHT EVEN BE THE TOTAL OF THE DAY.
JUDGE DAVILA: GOTCHA. OKAY. I JUST ASK THAT FOR THE GOVERNMENT'S INFORMATION FOR THEIR NEXT WITNESS. MR. LEACH.
MR. LEACH: YES, YOUR HONOR. BRIEFLY, IF I MAY, ON THAT POINT. WE HAVE TWO OUT-OF-TOWN WITNESSES LINED UP: SHANE WEBER, WHO WE TALKED ABOUT EARLIER THIS MORNING; AND LISA PETERSON, WHO IS A REPRESENTATIVE OF ONE OF THE INVESTORS. BASED ON THE REPRESENTATIONS FROM MR. DOWNEY, I DOUBT WE'LL GET TO MS. PETERSON, BUT IF WE DO, SHE'S UNAVAILABLE ON FRIDAY. SO I WOULD ASK THE COURT'S PERMISSION TO, IF WE START, TO BE ABLE TO TAKE OTHER WITNESSES OUT OF ORDER AND CONTINUE WHEN SHE BECOMES AVAILABLE AGAIN.
JUDGE DAVILA: OH, I SEE. AS OPPOSED TO TRYING TO GET HER IN THIS WEEK?
MR. LEACH: CORRECT. I SEE NO PROSPECT OF COMPLETING HER ON WEDNESDAY, AND WE HAVE ADDITIONAL WITNESSES FOR FRIDAY. I SEE SOME POSSIBILITY OF STARTING HER, BUT HER NOT BEING AVAILABLE ON FRIDAY, AND I JUST WANT TO MAKE SURE THAT THAT'S OKAY WITH THE COURT.
JUDGE DAVILA: SURE. THAT'S FINE WITH ME. AND I'M SURE IF YOU MEET AND CONFER WITH DEFENSE COUNSEL, THEY'RE NOT GOING TO OBJECT TO THAT. IT MAKES SENSE NOT TO INTERRUPT A WITNESS'S TESTIMONY BY A DAY OR TWO OR THREE, WHATEVER IT IS. SO THANK YOU FOR LETTING ME KNOW THAT.
MR. LEACH: OKAY.
JUDGE DAVILA: AND I WILL ENDEAVOR TO SEE IF WE CAN INCREASE OUR TIME WITH THE JURY. PLEASE RECALL INITIALLY I SAID 2:00 O'CLOCK, AND THAT WAS IN REGARDS TO OUR COVID SITUATION AND ASSURING THE JURY OF KEEPING THEM FROM BEING IN AN ENCLOSED ENVIRONMENT NOTWITHSTANDING THE MEASURES THAT WE HAVE TAKEN TO ASSIST. I DO THINK AS THE TRIAL HAS GONE ON, THE JURY HAS BECOME A LITTLE MORE COMFORTABLE ABOUT STAYING, AND AT LEAST THAT'S MY SENSE. THERE'S BEEN NO OBJECTIONS, OTHER THAN SOME SCHEDULE CONFLICTS, TO STAYING LATER. SO I'LL CONTINUE TO ADVANCE THAT WITH THEM. ANYTHING FURTHER? MR. DOWNEY, WERE YOU GOING TO --
MR. DOWNEY: YOUR HONOR, I JUST WANT TO SAY, I THINK THIS IS ABUNDANTLY CLEAR, BUT I JUST WANT TO MAKE SURE THE WITNESS, WHILE THE WITNESS IS UNDER CROSS-EXAMINATION HE DOESN'T CONSULT WITH THE GOVERNMENT. HE DID MEET WITH MR. BOSTIC YESTERDAY AFTER HIS TESTIMONY BEGAN, SO I JUST WANT TO MAKE SURE THAT DURING CROSS-EXAMINATION THERE'S NO FURTHER INTERACTION.
JUDGE DAVILA: OKAY.
MR. BOSTIC: WE'LL ABIDE BY THAT, YOUR HONOR.
JUDGE DAVILA: OKAY.
(DISCUSSION OFF THE RECORD.)
JUDGE DAVILA: THANK YOU. LADIES AND GENTLEMEN, I HAVE TO BRING SOMETHING TO -- THIS IS NOT REALLY COUNSEL'S ISSUE, BUT IT DOES AFFECT OUR JURORS. APPARENTLY THERE IS SOMEONE USING A KEYBOARD THAT IS NOT A SILENT KEYBOARD IN THE AUDIENCE, AND I'M GOING TO ASK YOU TO PLEASE, IF WHOEVER YOU ARE, I DON'T KNOW IF YOU ARE OR IF THAT IS HAPPENING, WE'RE GETTING THE REPORTS FROM THE JURORS THAT THEY CAN HEAR SOMEONE OPERATING A KEYBOARD. AS YOU RECALL, I HAD PERMITTED, OF COURSE, THOSE DEVICES, BUT THEY MUST BE SILENT, SILENT KEYBOARDS. IF IT CONTINUES, I THINK I'M GOING TO ASK THE UNITED STATES MARSHAL STAND IN THE COURTROOM AND SHOULD SHE HEAR A KEYBOARD, I'LL ASK HER TO TAKE APPROPRIATE ACTION. THAT'S ABOUT ALL I CAN DO.
COURT CLERK: THEY CAN GO TO THE OVERFLOW ROOM.
JUDGE DAVILA: THAT'S TRUE. AND IF YOU HAVE A KEYBOARD THAT YOU CAN'T DISABLE OR YOU'RE UNABLE TO OBTAIN A SILENT KEYBOARD, I WOULD INVITE YOU TO THE OVERFLOW ROOM THAT WE HAVE. I'M TOLD THAT THERE'S GENEROUS SEATING AVAILABLE THERE. SO IT COULD BE THAT THE MARSHAL WILL ASK THE OFFENDING PARTY, AND I DON'T MEAN TO PUT IT THAT WAY, BUT THE PARTY WITH THE KEYBOARD TO GO TO THE OVERFLOW ROOM SUCH THAT OUR JURORS ARE NOT -- OUR JURY IS NOT DISTRACTED FROM THAT NOISE. SO I JUST WANT TO PUT THAT OUT THERE. MS. VOLKAR, DID YOU HAVE SOMETHING THAT YOU WANTED TO ADDRESS? YES, I SEE YOU NODDING YOUR HEAD. SO WHY DON'T YOU COME FORWARD IF YOU WOULD, PLEASE. OH. NOW I'M REALLY CONFUSED. MS. VOLKAR, NICE TO SEE YOU AGAIN. MS. TREFZ, NICE TO SEE YOU.
MS. VOLKAR: THANK YOU, YOUR HONOR. WE STROVE FOR MAXIMUM CONFUSION IN THAT SETUP. WE REALLY JUST WANTED TO BRING THE TEXT MESSAGES TO A CLOSE. OVER THE PAST SEVERAL WEEKS THE PARTIES HAVE BEEN WORKING TO NARROW ANY DISAGREEMENTS, AND WE HAVE GOTTEN IT DOWN TO ABOUT ONE PAGE YOU'LL BE HAPPY TO HEAR I HOPE. AND WITH THAT WE SUBMITTED THROUGH MS. KRATZMANN THE ONE PAGE WITH BATES ENDING IN 293. THE GOVERNMENT'S POINT HERE -- I'M SORRY, THE GOVERNMENT HAS AGREED TO THE VAST MAJORITY OF DEFENDANT'S RULE 106 COMPLETENESS DESIGNATIONS, AND THIS IS THE SOLE PAGE WHERE WE HAVE A REMAINING OBJECTION. THE OBJECTION IS REALLY THAT THE CHUNK OF PAGES IN THE MIDDLE -- AND I DO HAVE A COPY. I THINK MS. KRATZMANN MAY HAVE JUST PROVIDED ONE, BUT I DO HAVE A COPY TO HAND UP IF THAT'S HELPFUL.
JUDGE DAVILA: IS THIS THE SAME (INDICATING)? YEAH.
MS. VOLKAR: (HANDING.) SO, YOUR HONOR, YOU MAY SEE THAT THE FIRST BATCH OF TEXT MESSAGES ARE SUBMITTED BY DEFENSE COUNSEL FOR RULE 106 ARE ACTUALLY FOR AN ENTIRELY DIFFERENT DAY. THEY OCCUR ON AUGUST 27TH, 2015. THEY REFER TO A CALL OR REFERRING TO DANIEL, I ASSUME DR. YOUNG. THEY DO NOT APPEAR TO HAVE ANY CONNECTION, FROM THE GOVERNMENT'S PERSPECTIVE, WITH THE BOTTOM TWO TEXT MESSAGES WHICH WERE OUR ORIGINAL SUGGESTED ADMISSIONS, AND, THEREFORE, WE REQUEST THAT THE APPROXIMATELY SIX TEXT MESSAGES IN THAT FIRST BATCH BE STRUCK AS INAPPROPRIATE UNDER RULE 106.
JUDGE DAVILA: OKAY. THANK YOU.
MS. TREFZ: YOUR HONOR, THE TEXT MESSAGES FROM AUGUST 27TH ARE RELATED, AS ARE THE ONES FROM AUGUST 28TH, TO THE ONGOING FDA INSPECTION. THE RELEVANT TOPIC WAS ACTUALLY DISCUSSED THE DAY BEFORE IN THE MESSAGES THAT THE GOVERNMENT IS SEEKING TO INTRODUCE AND THE DAY AFTER BECAUSE THE FDA INSPECTION WAS ONGOING. DR. YOUNG AND DR. ANEKAL BOTH HAD ROLES IN RESPONDING TO THAT INVESTIGATION OR INSPECTION INCLUDING RELATED TO CTN'S AND THE NANOTAINERS AND THE 4.1 DEVICE. WE THINK THESE ARE APPROPRIATE UNDER 106 TO, YOU KNOW, IN FAIRNESS BE KIND OF READ AT THE SAME TIME. IT'S OBVIOUSLY A LITTLE BIT HARD WHEN YOU'RE READING SOMEONE ELSE'S TEXT MESSAGES TO UNDERSTAND WHAT THE CONTEXT IS FOR THEM, BUT I'M --
JUDGE DAVILA: WELL, THAT'S THE REAL -- CAN YOU EXPLAIN THAT? I KNOW YOU JUST TOLD ME THAT THEY RELATE TO A TOPIC THAT HAPPENED A DAY BEFORE. SO UNDER THE 106 CONTEXT, HOW DOES THIS FULFILL 106 OBJECTIVE?
MS. TREFZ: RIGHT. SO THE FDA INSPECTION WAS ONGOING BEFORE AND IT WAS ONGOING AFTER THESE MESSAGES. THE TEXT MESSAGES ON AUGUST 28TH THAT FOLLOW THESE ARE ALSO RELATED TO THE FDA INSPECTION AS ARE THE ONES ON PRIOR PAGES FROM PRIOR DAYS. AND SO WE WOULD SUBMIT THAT IF WE'RE GOING TO PUT IN TEXT MESSAGES ABOUT KIND OF SOME OF THESE FDA INSPECTION ISSUES, THEN IT'S RELEVANT AND IMPORTANT TO UNDERSTAND MS. HOLMES'S STATE OF MIND AND HER -- AND THE INFORMATION THAT SHE'S BEING PROVIDED THROUGHOUT THAT INSPECTION. AND THE ONES FROM AUGUST 27TH ARE RELATED TO, YOU KNOW, TO THE FDA INSPECTION AS WELL.
MS. VOLKAR: YOUR HONOR, WHILE IT MAY HAVE OCCURRED DURING THE COURSE OF THE FDA INSPECTION, IT'S HARD TO SEE WHAT "GOOD TIME TO CALL DANIEL OR SAM," "YES WE R DONE," "CALL ME WITH THEM," "MEANING VERY GOOD," HAS ANYTHING TO DO WITH THE POTASSIUM DATA ON 4.1 AND 4.5 IS ON ADVIA. IT'S JUST THAT THE MESSAGES THAT THE DEFENSE COUNSEL IDENTIFIED THESE AS BEING RULE 106 TO ON THEIR FACE DO NOT SEEM TO HAVE ANY REAL CONNECTION. AND I WOULD SAY IF DEFENSE COUNSEL WANTS TO SUBMIT TEXT MESSAGES OF THEIR OWN, OF COURSE WE'LL HAVE TO DEAL WITH ANY HEARSAY PROBLEMS OR DIFFERENT BARRIERS THAT THEY MAY HAVE TO OVERCOME, BUT RULE 106 DOES NOT SEEM TO BE THE APPROPRIATE METHOD TO INTRODUCE THESE TEXT MESSAGES.
JUDGE DAVILA: MS. TREFZ, I'M TRYING TO FIND THE CONNECTION HERE. THERE SEEMS TO BE SOME ATTENUATION BETWEEN THESE TEXTS.
MS. TREFZ: WELL, IT'S HARD TO READ TEXTS OUT OF CONTEXT IF YOU'RE NOT THE PERSON WHO WROTE THEM OR RECEIVED THEM, SO I UNDERSTAND THAT. I THINK WHAT YOU SEE HERE IS MR. BALWANI TELLING MS. HOLMES ON AUGUST 27TH "INCREDIBLE DAY TO BE HONEST," "MEANING VERY GOOD." THE INSPECTION THEN CONTINUES THE NEXT DAY AND HE IS -- YOU KNOW, REPORTS FURTHER INTERACTIONS ABOUT THE INSPECTION. IT'S HARD FOR ME TO -- BECAUSE THE TEXT MESSAGES DON'T LITERALLY SAY THE FDA INSPECTION WAS VERY GOOD, ALL I CAN DO IS REPRESENT TO THE COURT THAT THIS IS WHAT THEY'RE ABOUT. AND, YOU KNOW, I THINK 106'S REQUIREMENT IS THAT IT CAN BE A PART OF THE SAME DOCUMENT OR IT CAN BE A SEPARATE DOCUMENT BUT IN FAIRNESS SHOULD BE PRESENTED AT THE SAME TIME. YOU KNOW, THE GOVERNMENT, I THINK, IN MANY CASES HAS, YOU KNOW, READ PARTS OF TEXT MESSAGES, YOU KNOW, THROUGH WITNESSES AND OTHER ITEMS, AND WE WOULD JUST SUGGEST THAT IT'S APPROPRIATE TO INCLUDE THE TEXT MESSAGES AND THE EXHIBIT, I GUESS, REGARDLESS OF WHETHER WHOEVER IS PRESENTING THEM AND WHATEVER WITNESS IS READING THEM, YOU KNOW, AND ACTUALLY READS THEM OUT LOUD.
JUDGE DAVILA: NO. SURE. AND WE'VE GONE THROUGH THIS WITH OTHER TEXTS, AND I THINK I AGREED WITH MANY OF THE OFFERINGS OF THE DEFENSE THAT THEY WERE 106 CONNECTED. I HAVE TO CONFESS AS I SIT HERE AND LOOK AT THEM, AND AGAIN, I JUST LOOKED AT THIS NOW, AND I JUST SEE THERE'S SOME ATTENUATION. I JUST DON'T SEE THE CONNECTION, THE REAL 106 CONNECTION.
MS. TREFZ: IF I MAY, YOUR HONOR? I THINK MS. VOLKAR PROVIDED YOU ONE PAGE, BUT THE TEXT MESSAGES FROM AUGUST 28TH CONTINUE ON TO THE NEXT COUPLE OF PAGES OF THE EXHIBIT, AND SO I JUST HOPE IF WE DON'T RESOLVE THIS NOW AND YOU WANT TO GO BACK AND TAKE A LOOK AT THEM.
JUDGE DAVILA: WELL, THAT'S A GOOD SUGGESTION. LET ME DO THAT.
MS. TREFZ: I'M SORRY.
MS. VOLKAR: YOUR HONOR, IF I MAY? HOPING THAT WE COULD GET TO A RESOLUTION ON THIS, IF NOT TODAY, SOON, THE GOVERNMENT HAS PREPARED AND WOULD LIKE TO MOVE TO ADMIT IN THE NEAR FUTURE EXHIBIT 5387D, WHICH IS ALL OF THE TEXT MESSAGES THAT THE GOVERNMENT SOUGHT TO ADMIT WITH ALL OF THE RULE 106 COMPLETENESS SUGGESTIONS, INCLUDING THE ONES THAT ARE AT ISSUE RIGHT NOW BECAUSE WE WERE NOT SURE WHETHER -- WHAT THE COURT'S RULING ON THOSE WOULD BE. SO WE WOULD BE HAPPY TO PASS THIS UP AND ALSO EITHER NOW OR IN THE VERY NEAR FUTURE WE WOULD LIKE TO MOVE IT INTO EVIDENCE.
JUDGE DAVILA: SURE. AND THIS, THIS -- WHAT YOU HAVE IN YOUR HAND INCORPORATES WHAT I WAS JUST TALKING WITH MS. TREFZ ABOUT, THE INCLUSION OF 106 THAT THE DEFENSE WANTED.
MS. VOLKAR: THAT'S CORRECT. IT HAS THE TEXTS SEVERAL TIMES AND SO THERE WAS 5387B, WHICH IS ABOUT 30 PAGES YOUR HONOR WENT THROUGH AND ACCEPTED MOST OF THE RULE 106, AND I THINK YOU MAYBE SUSTAINED THE OBJECTION TO THREE OR FOUR OF THOSE HAVE BEEN REDACTED FROM THIS VERSION.
JUDGE DAVILA: RIGHT.
MS. VOLKAR: SO THIS INCORPORATES EVERYTHING TO DATE OF THE COURT'S RULING AND SOME TEXT MESSAGES THAT WE HAD BEEN IN DISCUSSION WITH DEFENSE ABOUT FOR THE LAST SEVERAL WEEKS, BUT WE WANTED ONE HOLISTIC DOCUMENT TO BE ABLE TO PROVIDE TO THE JURY WAS OUR WISH.
JUDGE DAVILA: SURE. OF COURSE.
MS. VOLKAR: AND IT DOES HAVE RIGHT NOW THEIR SUGGESTIONS ON THIS PAGE 293, BECAUSE WE WERE NOT YET SURE WHAT YOUR HONOR'S RULING WOULD BE.
JUDGE DAVILA: DOES IT HAVE THE CONTEXTUAL CONNECTION THAT MS. TREFZ IS SUGGESTING?
MS. VOLKAR: IT DOES, YOUR HONOR, AND I'M HAPPY TO POINT YOU TO THOSE PAGES IF THAT WOULD BE HELPFUL.
JUDGE DAVILA: YES, THAT WOULD BE HELPFUL. I'M GOING TO TAKE MS. TREFZ SUGGESTION AND LOOK AT THIS TONIGHT. DID YOU WANT TO TELL ME WHICH PAGE I SHOULD LOOK AT, MS. VOLKAR?
MS. VOLKAR: I'M HAPPY TO, YOUR HONOR. SO IF YOU LOOK AT THE EXHIBIT NUMBER IN THE BOTTOM MIDDLE.
JUDGE DAVILA: YES.
MS. VOLKAR: THE ONE PAGE I HANDED YOU IS PAGE NUMBER 96 OF THE EXHIBIT.
JUDGE DAVILA: OKAY.
MS. VOLKAR: AND THE PAGE THAT MS. TREFZ WAS REFERRING TO CONTINUES ON TO PAGE 97.
MS. TREFZ: AND THEN I WOULD JUST NOTE THAT IF YOU COULD KIND OF LOOK BACK A DAY AND YOU CAN SEE THE KIND OF -- SOME OF THE BEGINNING OF THE FDA INSPECTION. AND AS WE SAID, IT'S HARD TO UNDERSTAND THE FULL CONTEXT OF THE MESSAGES KIND OF IN A VACUUM, BUT HOPEFULLY THAT WILL HELP.
JUDGE DAVILA: SO IF I LOOK AT IT, MS. TREFZ, IT WILL BE CRYSTAL CLEAR WHAT YOU'RE TELLING ME?
MS. TREFZ: WE'LL SEE, YOUR HONOR. I'M SURE YOU'LL LET ME KNOW.
JUDGE DAVILA: OKAY.
MS. VOLKAR: AND, YOUR HONOR, IF I MAY? I JUST WANT TO POINT OUT THAT EVEN IF THEY'RE MEETING WITH THE FDA OVER A SERIES OF DAYS, A CONVERSATION ABOUT ONE MEETING DOESN'T ALWAYS NECESSARILY BLEED INTO OR RELATE TO THE OTHER MEETING. AND THE GOVERNMENT'S POSITION IS THE ONLY REASON WE RAISED AN OBJECTION TO THIS ONE IS, FROM OUR PERSPECTIVE, EVEN WITH THE BENEFIT OF THE PAGES BEFORE AND AFTER, WE JUST DO NOT SEE ANY CONNECTION BETWEEN THAT DAY, THE AUGUST 27TH MESSAGES, AND THE NEXT DAY WHEN THEY'RE TALKING ABOUT THE NANOTAINER. AND I WILL POINT OUT FOR THE RECORD, WE DID ACCEPT DEFENSE COUNSEL'S SUGGESTED ADDITION OF THE TOP OF THOSE THREE BOTTOM ONES THAT IS ON THE SAME SUBJECT AND ON THE SAME DAY TALKING ABOUT THERE WERE GOOD DATA ON THE NANOTAINERS AND THEN OUR TWO NEXT MESSAGES WERE ALSO ABOUT THE NANOTAINER. SO WE DID IN GOOD FAITH LOOK AT WHAT WAS ON THE SAME TOPIC AND FAIRLY COVERED BY RULE 106.
JUDGE DAVILA: OKAY. GREAT. WELL, THANK YOU. I'LL LOOK AT THESE THIS EVENING AND THEN MAYBE WE CAN TALK ABOUT IT IN THE MORNING. GREAT.
MS. VOLKAR: THANK YOU, YOUR HONOR.
MS. TREFZ: THANK YOU.
JUDGE DAVILA: ANYTHING ELSE FROM EITHER SIDE?
MR. BOSTIC: NO, YOUR HONOR.
MR. DOWNEY: NO, YOUR HONOR.
JUDGE DAVILA: OKAY. THANK YOU.
COURT CLERK: COURT IS ADJOURNED.
(COURT ADJOURNED AT 3:17 P.M.)