Text Messages and Pfizer Report Admissibility
101 linesSAN JOSE, CALIFORNIA OCTOBER 20, 2021 P R O C E E D I N G S
(COURT CONVENED AT 8:37 A.M.)
(JURY OUT AT 8:37 A.M.)
JUDGE DAVILA: WE ARE ON THE RECORD IN THE HOLMES MATTER. ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. GOOD MORNING. WE'RE OUTSIDE THE PRESENCE OF THE JURY. I JUST WANTED TO -- IS MS. VOLKAR HERE? YES. I SEE MS. VOLKAR IS HERE. MS. TREFZ IS HERE. I THOUGHT WE WOULD ADDRESS THE ISSUE OF THE TEXTS, AND I DID REVIEW THE DOCUMENTS AGAIN LAST NIGHT AT MS. TREFZ'S REQUEST AND MS. VOLKAR'S REQUEST. AS I SAID LAST -- YESTERDAY, THE CONNECTION BETWEEN THESE TWO TEXTS FROM THE 27TH AND 28TH, THE SIXTH TEXT -- OH, YOU'RE BACK AGAIN.
MS. TREFZ: YES, JUST FOR MAXIMUM CONFUSION, YOUR HONOR.
(LAUGHTER.)
JUDGE DAVILA: AS I SAID LAST NIGHT, THEY SEEM TO BE ATTENUATED. 106 TALKS ABOUT FAIRNESS AND WHAT IS FAIR FOR COMPLETENESS TO COMPLETE THE CONVERSATION, THE CONTEXTUAL NATURE OF IT. I LOOK AT THESE AND I THINK, WELL, IT IS -- AS I SAID, I SUPPOSE THERE'S A WAY TO READ INTO IT THAT THERE IS SOME CONTEXTUAL CONTACT WITH WHAT WAS OCCURRING ON THE 28TH. IN THE SPIRIT OF THAT AND IN THE SPIRIT OF 106, I WILL ALLOW THOSE TO COME IN, MS. VOLKAR. AND YOU'VE PREPARED, I THINK, THE DOCUMENT ACCORDING WITH THAT, SO I'LL ALLOW -- I DON'T KNOW IF IT WAS A REQUEST FROM MS. TREFZ, BUT I'LL ALLOW THEM IN. AND THEN WOULD YOU SEEK THEN, IS THIS GOING TO BE ADMITTED NOW? WOULD YOU LIKE TO DO THAT NOW?
MS. VOLKAR: YES, YOUR HONOR, THANK YOU. THE UNITED STATES WOULD LIKE TO MOVE TRIAL EXHIBIT 5387D.
JUDGE DAVILA: OKAY.
MS. TREFZ: WE MAY HAVE SPECIFIC OBJECTIONS TO PARTICULAR PARTS SHOULD THEY CHOOSE TO READ THEM, BUT THERE'S NO AUTHENTICATION, AS WE'VE ALREADY DISCUSSED, OBJECTION AND I THINK WE ADDRESSED RULE 106, SO I THINK IT CAN COME IN WITH THE POTENTIAL FOR PARTICULAR SECTIONS TO BE STRICKEN IF THERE'S AN OBJECTION AT THE TIME THAT THEY'RE READ.
JUDGE DAVILA: OKAY. WHAT I HEARD YOU SAY IS NO REAL OBJECTION NOW, JUDGE, BUT IF WE HAVE FURTHER OBJECTIONS, WE'LL RAISE THEM AT THE MOMENT.
MS. TREFZ: CORRECT.
JUDGE DAVILA: GREAT. OKAY. IT'S RECEIVED WITH THAT RECOGNITION. THANK YOU.
MS. VOLKAR: THANK YOU, YOUR HONOR.
(GOVERNMENT'S EXHIBIT 5387D WAS RECEIVED IN EVIDENCE.)
JUDGE DAVILA: ANYTHING ELSE ON THIS?
MS. VOLKAR: NO, YOUR HONOR.
JUDGE DAVILA: LET ME INQUIRE AS TO THE CURRENT WITNESS WE HAVE. MAYBE I'LL TURN TO MR. DOWNEY.
MR. DOWNEY: YOUR HONOR, I THINK MY EXPECTATION IS THAT WE WOULD FINISH HIM TODAY, AND WE HOPEFULLY WILL START THE OTHER WITNESS THAT THE GOVERNMENT HAS HERE, MR. WEBER. I THINK IT SOUNDS LIKE, FROM OUR CONVERSATIONS WITH THE GOVERNMENT, IF MR. WEBER IS -- STARTS AFTER THE SECOND BREAK, HE MIGHT BE FINISHED TODAY. THAT SOUNDS TO BE THE CASE, BUT I'LL LET MR. LEACH SPEAK TO THAT.
JUDGE DAVILA: OKAY. THANK YOU.
MR. LEACH: I ANTICIPATE ABOUT 45 MINUTES OF DIRECT EXAMINATION FOR MR. WEBER, YOUR HONOR.
JUDGE DAVILA: OKAY. SO IT SOUNDS LIKE MR. EDLIN WILL BE ON THROUGH OUR MORNING BREAK AT LEAST.
MR. DOWNEY: YES.
JUDGE DAVILA: AT LEAST WITH YOU.
MR. DOWNEY: YES.
JUDGE DAVILA: MR. DOWNEY, AND THEN I DON'T KNOW IF THERE'S ANY REDIRECT, RECROSS AFTER THAT, BUT WE MAY GET INTO MR. WEBER SOMETIME -- I'M HOPING THAT WE CAN GO UNTIL 4:00 TODAY, AS I SAID, AND WE MAY GET INTO -- YES, I THINK WE'RE GOING UNTIL 4:00.
MR. LEACH: I THOUGHT THE COURT INDICATED 3:00 -- I THOUGHT WE WERE GOING TO ASK THE JURORS, AND THEN AT SOME POINT YESTERDAY IT SEEMED LIKE ONE OF THE JURORS COULD NOT GO UNTIL 4:00, BUT MAYBE I AM, TOO. THE SMARTEST PERSON IN THE ROOM, THE COURT REPORTER, JUST SAID 3:00.
(LAUGHTER.)
JUDGE DAVILA: SO WE'LL GO UNTIL 3:00. IF WE CAN GO TO 4:00, WE WILL DO IT. I HAVE TOMORROW AVAILABLE, AND MS. KRATZMANN EMAILED THE JURORS TO SEE IF THEY COULD COME IN TOMORROW. ONE OF THEM CANNOT, SO THAT ELIMINATES TOMORROW. SO WE WILL NOT BE IN SESSION TOMORROW. AND I THINK I ASKED FOR 4:00 ON FRIDAY. I'M PRETTY CONFIDENT THAT I DID THAT. WE'LL SEE WHAT WE CAN DO. YES, I DID THAT. OKAY. SO BACK TO MR. WEBER. HE PROBABLY WOULD START THEN AT MAYBE 1:00 O'CLOCK OR SOMETHING LIKE THAT? IS THAT AFTER THAT BREAK DO YOU THINK?
MR. LEACH: THAT SOUNDS ABOUT RIGHT.
JUDGE DAVILA: I'M NOT PUTTING TIME CONSTRAINTS.
MR. DOWNEY: I'M NOT TOTALLY CERTAIN. I WAS THINKING MORE AFTER THE SECOND BREAK.
JUDGE DAVILA: OKAY.
MR. DOWNEY: YEAH.
JUDGE DAVILA: AND I THINK WE DO STILL HAVE TO -- THERE'S AN ISSUE AS TO MR. WEBER, STILL, AND THERE'S SOME DOCUMENTS.
MR. DOWNEY: THAT'S RIGHT.
JUDGE DAVILA: WHEN SHOULD WE TALK ABOUT THAT AGAIN?
MR. LEACH: I'M PLEASED TO DO IT NOW, YOUR HONOR, OR AFTER -- DURING THE FIRST BREAK.
JUDGE DAVILA: MR. CLINE IS --
MR. CLINE: WHATEVER YOUR HONOR WOULD LIKE.
JUDGE DAVILA: WELL, LET'S, LET'S CHAT A LITTLE BIT ABOUT IT NOW FOR A COUPLE OF MINUTES. MR. CLINE, WHY DON'T YOU CONTINUE YOUR COMMENTS ABOUT THAT.
MR. CLINE: WELL, WHAT WE'RE TALKING ABOUT IS THIS INTERNAL REPORT THAT DR. WEBER PREPARED AT PFIZER, AND THERE ARE SEVERAL ISSUES WITH IT. ONE IS A 702 ISSUE BECAUSE IT CONTAINS SPECIALIZED KNOWLEDGE FOR SURE THAT WOULD FALL UNDER 702. THE OTHER ISSUE IS A 403 ISSUE BECAUSE IT HAS A VARIETY OF PRETTY PEJORATIVE COMMENTS ABOUT MS. HOLMES, ABOUT THERANOS, WHICH I THINK ARE CERTAINLY UNFAIRLY PREJUDICIAL, AND THE PROBATIVE VALUE PERHAPS IS NOT ZERO, BUT IT'S PRETTY LOW, AND IT'S LOW BECAUSE THIS DOCUMENT WAS NEVER COMMUNICATED TO THERANOS OR TO MS. HOLMES. THERE WAS A PHONE CALL BETWEEN DR. WEBER AND MS. HOLMES WHERE HE CONVEYED THAT PFIZER DID NOT -- WASN'T INTERESTED AT THAT POINT IN DOING FURTHER BUSINESS, AND OF COURSE THAT'S FAIR GAME. I ALSO, AS I THINK WE DISCUSSED YESTERDAY, YOUR HONOR, DON'T HAVE ANY OBJECTION TO DR. WEBER TESTIFYING THAT HE WAS ASKED TO PREPARE AND CONDUCT A REVIEW, THAT HE CONDUCTED THE REVIEW, THAT HE CONCLUDED THAT THERE WAS NO BUSINESS BASIS FOR THERANOS AND PFIZER TO GO FORWARD, THAT HE CONVEYED THAT RECOMMENDATION TO HIS SUPERIORS AT PFIZER, THAT HE THEN TALKED TO MS. HOLMES ABOUT THAT CONCLUSION. THAT'S ALL, AS FAR AS I'M CONCERNED, THAT'S ALL FAIR GAME. BUT TO ALLOW IN THIS QUITE PREJUDICIAL INTERNAL REPORT THAT MS. HOLMES, NEITHER MS. HOLMES NOR ANYONE ELSE AT THERANOS EVER SAW UNTIL THIS CASE BEGAN JUST SEEMS PROFOUNDLY UNFAIR TO ME, AND SO THAT'S WHY WE'VE ASKED TO EXCLUDE IT.
JUDGE DAVILA: MR. LEACH?
MR. LEACH: YOUR HONOR, THE DEFENDANT MADE SWEEPING CLAIMS PURPORTING TO SPEAK ABOUT WHAT PFIZER THOUGHT. SHE CLAIMED TO HAVE THAT KNOWLEDGE. SHE CLAIMED TO KNOW PFIZER VALIDATED THIS TECHNOLOGY. PFIZER DID NOT VALIDATE THIS TECHNOLOGY. MR. WEBER LOOKED AT IT AND IT DETAILED WHAT PFIZER THOUGHT. THIS IS POWERFUL EVIDENCE OF THE FALSITY OF THE DEFENDANT'S STATEMENTS. THE WHY HERE IS VERY IMPORTANT BECAUSE I EXPECT PART OF THE CROSS TO BE, WELL, PFIZER LEFT OPEN THE POSSIBILITY OF RECONNECTING IN SIX MONTHS, THERE WAS -- THE DEFENSE HAS MARKED SOME EXHIBITS AFTER THIS REPORT WHERE MS. HOLMES IS PROPOSING NEW BUSINESS TO PFIZER. AND THIS DOCUMENT SPEAKS TO THE CONVICTION OF THEIR FEELINGS AT THE TIME AND THE DEFINITIVENESS OF THE REVIEW THAT THEY DID. SHE PURPORTED TO SPEAK ABOUT WHAT THEY THOUGHT, AND IT JUST SEEMS THAT THERE'S NO 403 ISSUE WITH THIS WITNESS TELLING THIS JURY WHAT HE THOUGHT AT THE TIME ABOUT WHAT HE WAS ASKED TO REVIEW. AND I ALSO DON'T UNDERSTAND THE DISTINCTION BETWEEN ASKING THIS MAN, WHAT DID YOU DO, WHAT DID YOU CONCLUDE, WHY DID YOU COME TO THAT CONCLUSION, BUT NOT ADMITTING THE BUSINESS RECORD THAT HE PREPARED MEMORIALIZING ALL OF THAT. SO THIS DEFENDANT PURPORTED TO SPEAK FOR PFIZER, PURPORTED TO COMMUNICATE THAT PFIZER VALIDATED THIS TECHNOLOGY. THIS IS EVIDENCE THAT THOSE STATEMENTS ARE FALSE. CROSS-EXAMINATION IS THE CURE FOR THIS, YOU KNOW, WHAT DID YOU DO? WHAT DID YOU MEAN? WHAT WERE THE LIMITS OF YOUR REVIEW? BUT I DON'T THINK THERE'S ANY REASON TO SANITIZE THE CONCLUSIONS THAT THIS PERCIPIENT WITNESS CAME TO.
JUDGE DAVILA: WELL, THAT WAS OUR DISCUSSION YESTERDAY, I THINK. I HAD RAISED -- I THINK I SHARED WITH YOU, AT LEAST MY RECOGNITION, OF SOME OF THE WORDS THAT WERE PEJORATIVE, PERHAPS HIS OPINION, AND WHETHER OR NOT THOSE SHOULD BE REDACTED OR NOT, OR YOUR COMMENTS ON IT. I THINK, MR. CLINE, I THINK THAT'S WHAT YOU FOUND MOST OFFENSIVE.
MR. CLINE: WORDS LIKE "EVASIVE," "DEFLECTIVE," "UNFOUNDED," THERE'S REALLY A WHOLE SERIES OF REALLY PEJORATIVE TERMS THAT HE USED, AND IT'S UNDERSTANDABLE THAT HE WOULD USE THEM IN AN INTERNAL PFIZER DOCUMENT. HE'S COMMUNICATING CANDIDLY WITH HIS COLLEAGUES. BUT NONE OF THAT WAS COMMUNICATED TO MS. HOLMES AND THAT'S THE PROBLEM. WHAT THE JURY WILL END UP WITH IS THIS EXTREMELY PEJORATIVE DOCUMENT AND, YES, WE CAN ALWAYS ARGUE IT DIDN'T GO TO MS. HOLMES. BUT THEY'RE GOING TO HAVE IT THERE AND IT'S GOING TO HAVE A REAL POWERFUL IMPACT. YOU KNOW, I WAS -- WHAT MS. HOLMES ALLEGEDLY SAID FALSELY WAS THAT PFIZER HAD COMPREHENSIVELY VALIDATED THE THERANOS TECHNOLOGY. THAT'S THE FALSITY. I DON'T HAVE ANY PROBLEM WITH DR. WEBER TESTIFYING THAT HE DID NOT COMPREHENSIVELY VALIDATE THE TECHNOLOGY AND, AS FAR AS HE KNOWS, NO ONE AT PFIZER DID EITHER. THAT'S FINE. AND IF I WERE TO ATTACK HIM FOR STATING THAT, THEN I SUPPOSE I MIGHT OPEN THE DOOR SOMEWHERE. P. BUT THIS REPORT IS SO DAMAGING IN ITS TONE AND IN SOME OF THE TERMS THAT IT USES THAT I JUST DON'T THINK THAT IT SHOULD COME IN.
MR. LEACH: YOUR HONOR, RESPECTFULLY, I THINK THAT PROVES THE POWER OF THIS DOCUMENT AND WHY 403 CAN'T POSSIBLY KEEP IT OUT. THE SALIENT ISSUE IS, DID PFIZER VALIDATE THERANOS'S TECHNOLOGY? THE ANSWER IN THIS DOCUMENT IS A DEFINITIVE ABSOLUTELY NOT. AND THE DEFENSE HAS TRIED TO SUGGEST WITH OTHER PHARMA COMPANIES, WELL, THEY PAID FOR IT, THAT'S KIND OF VALIDATION, WELL, THERANOS COMPLETED THIS STUDY, THAT'S KIND OF VALIDATION. THIS IS THE PROOF THAT PFIZER DID NOT VALIDATE THIS, AND THE FORCEFULNESS WITH WHICH THEY DID IT, YOU KNOW, IS RELEVANT. AND YES, THAT BOTTOM LINE TONE IS NOT COMMUNICATED TO THERANOS, BUT THAT SHOULD NOT COME AS A SURPRISE TO ANYBODY. I DON'T THINK PEOPLE IN BUSINESS SAY THINGS LIKE THIS WHEN THEY'RE TRYING TO KEEP OPEN SOME -- YOU KNOW, WHEN THEY'RE TRYING TO KEEP OPEN POSSIBILITIES. SO I JUST THINK THAT EVERYTHING THAT MR. CLINE JUST SAID IS PROOF OF THE PROBATIVE VALUE OF THIS. WE'RE NOT TALKING ABOUT SOME STRAY ISSUES, SOMETHING, YOU KNOW, THAT 403 WOULD TYPICALLY THINK ABOUT, YOU KNOW, NOT RELATING TO AN ELEMENT OF THE OFFENSE. THIS IS THE CORE OF ONE OF HER MAIN CLAIMS AND I THINK THE FORCEFULNESS WITH WHICH PFIZER IS COMING TO ITS CONCLUSIONS IS POWERFUL PROOF THAT THEY DIDN'T VALIDATE THIS AND SOMETHING THAT WE SHOULD BE PERMITTED TO DEMONSTRATE.
JUDGE DAVILA: WELL, I THINK I TALKED YESTERDAY ABOUT THE GENESIS OF THE REPORT, THAT IS, I THINK FROM -- MS. HOLMES REACHED OUT, THERE WAS AN INTERNAL THEN WORK DONE, ANALYSIS DONE OF THE REPORT FROM MS. HOLMES FOR HER COMPANY, AND THEN THIS IS THE WORK PRODUCT.
MR. CLINE: WHAT HAPPENED, YOUR HONOR, IS THERANOS DID A BUNCH OF WORK FOR PFIZER, SUBMITTED A REPORT. PFIZER THEN ASSIGNED DR. WEBER TO EVALUATE IT. HE DID. THAT EVALUATION IS THIS INTERNAL REPORT, AND HE THEN COMMUNICATED WITH MS. HOLMES. IF THE FACT THAT HE DID NOT -- "HE" DR. WEBER -- DID NOT COMPREHENSIVELY VALIDATE THERANOS'S TECHNOLOGY, I DOUBT VERY MUCH THAT I'M GOING TO CHALLENGE THAT ON CROSS. WHETHER OTHERS AT PFIZER LATER TOOK A DIFFERENT VIEW IS SOMETHING THAT HE KNOWS NOTHING ABOUT, AND THAT'S NOT GOING TO BE THE SUBJECT OF MY CROSS. WHAT IS TROUBLING HERE IS, FIRST OF ALL, THERE'S THE 702 ISSUE BECAUSE THERE'S A LOT OF SORT OF DETAILED SCIENCE DOCUMENTS. AND THEN THERE'S THE 403 ISSUE, WHICH REALLY HAS NOTHING TO DO WITH WHETHER PFIZER COMPREHENSIVELY VALIDATED THE TECHNOLOGY. IT'S MORE ABOUT THEY WERE EVASIVE, THEY WERE DEFLECTIVE AND THEY WERE JUST PEJORATIVE KIND OF STUFF THAT GOES TO MS. HOLMES'S HONESTY BASICALLY. AND I DON'T SEE HOW THAT CAN COME IN.
LET ME DRAW A CONTRAST HERE TO SHOW THE DISTINCTION THAT I'M DRAWING. DR. SUNG TESTIFIED, AS YOU RECALL, ABOUT THE CELGENE INTERACTION, THE INTERACTION BETWEEN CELGENE AND THERANOS. AND SHE PRESENTED IN HER TESTIMONY A POWERPOINT THAT SHE AND ONE OF HER COLLEAGUES HAD PREPARED THAT SORT OF ANALYZED THERANOS'S PERFORMANCE VERSUS THE PERFORMANCE OF ANOTHER PLATFORM. WE DIDN'T HAVE ANY OBJECTION TO THAT. IT CAME IN AND WE DISCUSSED IT. THE REASON IS THAT POWERPOINT GOT CONVEYED TO MS. HOLMES. THERE'S NO DISPUTE ABOUT THAT. IF THE REPORT THAT WE HAVE BEEN TALKING ABOUT NOW HAD BEEN CONVEYED TO MS. HOLMES, WE WOULD HAVE A DIFFERENT STORY HERE. BUT IT WASN'T. IT WASN'T. THIS WAS SOMETHING THAT SAT IN THE BOWELS OF PFIZER UNDISCLOSED FOR YEARS AND IT'S NOW SURFACING JUST, IN MY VIEW, TO TAINT THIS CASE. IT SHOULDN'T BE ALLOWED.
JUDGE DAVILA: MR. LEACH, WHAT ABOUT THAT, THE DISTINCTION BETWEEN DR. SUNG'S TESTIMONY AND WHAT THEY DID WITH THE TECHNOLOGY AND THEIR OPINION ON IT?
MR. LEACH: I NOTED WHAT THEY DID WITH DR. SUNG, YOUR HONOR. BUT I DON'T THINK IT MATTERS IN ANY WAY. ONE OF THE THINGS THAT THE GOVERNMENT HAS TO PROVE IS THE FALSITY OF THE STATEMENT, LET ALONE THE INTENT OF MS. HOLMES AND THE KNOWLEDGE OF THE FALSITY. SO, YES, THEY CHOSE THAT TACTIC WITH DR. SUNG, BUT I DON'T THINK IT'S DISPOSITIVE OR ILLUMINATIVE OF WHETHER THIS PARTICULAR DOCUMENT IS ADMISSIBLE. HE HAD A CONVERSATION WITH ELIZABETH HOLMES AND I THINK IT'S COMPLETELY FAIR GAME TO ASK, DID SHE ANSWER YOUR QUESTIONS? WAS SHE RESPONSIVE? WERE YOU PERSUADED BY THAT? AND, YOU KNOW, THE WITNESS -- I DON'T THINK THERE'S A MEANINGFUL DIFFERENCE BETWEEN I WASN'T SATISFIED WITH IT OR I FOUND IT WAS UNRESPONSIVE OR, YOU KNOW, SHE WAS EVADING THE QUESTION OR AVOIDING THE QUESTION. I MEAN, THOSE ARE QUESTIONS THAT WE PUT TO WITNESSES ALL OF THE TIME IN THEIR INTERACTIONS WITH OTHER WITNESSES. AND THEY -- PART OF THE DEFENSE HERE IS THE PHARMA COMPANIES DID VALIDATE THERANOS'S TECHNOLOGY OR THEY DID DO WORK WITH SOME OF THE PHARMA COMPANIES, AND THIS IS THE PROOF THAT IT WAS NOT VALIDATION. AND SO SOME OF THE MATTERS IN THIS MEMO ARE COMMUNICATED TO MS. HOLMES, THE BOTTOM LINE THAT WE DON'T WANT TO CONTINUE BUSINESS. I GRANT MR. CLINE'S POINT BUT NOT EVERY WORD IS USED THERE. BUT THIS IS EVIDENCE OF THE FALSITY OF THE STATEMENT, AND THE FALSITY OF THE STATEMENT IS VERY MUCH AT ISSUE IN THIS CASE. THE PREJUDICE HERE, YOU KNOW, THE TONE THAT HE'S TAKING, THE HARSH WORDS ARE THINGS THAT CAN BE CONVEYED THROUGH CROSS-EXAMINATION THAT THIS DOCUMENT NEVER WENT TO HER. THERE'S NO RISK OF UNFAIR PREJUDICE FROM THAT. SO I JUST DON'T SEE HOW 403 CAN KEEP THIS OUT, AND THIS IS VERY PROBATIVE EVIDENCE OF FALSITY OF THE STATEMENT.
JUDGE DAVILA: SO HE HAD A CONVERSATION WITH MS. HOLMES PRIOR TO THIS REPORT BEING DRAFTED. THIS REPORT --
MR. LEACH: YES.
JUDGE DAVILA: THIS REPORT REFLECTS HIS INVESTIGATION, HIS WORK, AS WELL AS HIS THOUGHTS SUBSEQUENT TO HIS CONVERSATION WITH MS. HOLMES?
MR. LEACH: YES.
MR. CLINE: I'M SORRY, YOUR HONOR. I JUST WANTED TO SAY HE HAD A ONE-HOUR CONFERENCE CALL WITH MS. HOLMES AND VARIOUS OTHER PEOPLE FROM THERANOS. MS. HOLMES APPARENTLY DID THE TALKING ACCORDING TO HIM. BUT I THINK THAT WAS THE EXTENT OF HIS CONTACT WITH MS. HOLMES.
JUDGE DAVILA: I SEE. SO THAT WAS THAT ONE PHONE CALL?
MR. LEACH: THERE WAS ONE PHONE CALL WITH MS. HOLMES AND HER TEAM. I ANTICIPATE THE WITNESS WILL TESTIFY THAT MS. HOLMES DID VIRTUALLY ALL OF THE TALKING DURING THE CALL.
JUDGE DAVILA: AND THEN FOLLOWING THAT PHONE CALL AND HIS RESEARCH, HE THEN DRAFTED THE REPORT THAT WE'RE TALKING ABOUT?
MR. LEACH: YES.
JUDGE DAVILA: AND THE REPORT IN ESSENCE IS THIS THE DOCUMENT THAT SAYS PFIZER IS NOT INTERESTED?
MR. LEACH: YES.
JUDGE DAVILA: AND SOMEHOW THAT WAS CONVEYED TO MS. HOLMES OR HER COMPANY?
MR. LEACH: YES. AND THERE'S THE -- THE REPORT ITSELF IS DATED DECEMBER 31ST, 2008. THERE ARE RECOMMENDATIONS IN IT TO THE EFFECT OF THERANOS DOES NOT HAVE ANY DIAGNOSTIC OR CLINICAL INTEREST TO PFIZER. IT'S RECOMMENDED THAT NO FURTHER INVESTMENT BE MADE. AND THEN AT THE END OF JANUARY THERE'S A CALL BETWEEN THIS WITNESS AND MS. HOLMES WHERE HE CONVEYS THE BOTTOM LINE CONCLUSION THAT WE'RE NOT GOING TO GO FORWARD, THAT WE DON'T HAVE AN INTEREST, YOU KNOW, YOU CAN CALL US IN SIX MONTHS IF YOU WANT. BUT THOSE BOTTOM LINE CONCLUSIONS ARE COMMUNICATED TO MS. HOLMES SUBSEQUENT TO HIS REVIEW, WHICH SHE KNEW HE WAS UNDERTAKING, OR PFIZER WAS UNDERTAKING.
JUDGE DAVILA: AND THAT PHONE CALL, WHEN THAT INFORMATION WAS GIVEN TO MS. HOLMES, WAS THAT THE BOARD CALL, THIS CALL THAT YOU WERE TALKING ABOUT, MR. CLINE?
MR. CLINE: NO. HERE'S THE SEQUENCE, YOUR HONOR. IT GETS A LITTLE CONVOLUTED. DR. WEBER'S FIRST CONTACT WITH THERANOS IS NOVEMBER 2008, THIS IS WHEN HE'S ASKED TO CONDUCT THIS REVIEW. SHORTLY AFTER THAT, I THINK ON THE 13TH, HE HAS A CALL WITH THERANOS, INCLUDING MS. HOLMES, WHERE, ACCORDING TO HIM, MS. HOLMES DOES ALL OF THE TALKING. HE GETS OTHER MATERIALS AND HE PREPARES THIS INTERNAL REPORT WHICH IS NOT COMMUNICATED TO THERANOS. IT'S DATED, AS MR. LEACH SAID, I THINK DECEMBER 30TH OR 31ST, 2008. AT THE END OF JANUARY, LIKE JANUARY 30TH OR SO, 2009, HE HAS A PHONE CALL WITH MS. HOLMES WHERE HE CONVEYS, AS MR. LEACH SAYS, SORT OF THE TOP LINE CONCLUSION. TO BE CLEAR, WE HAVE NO PROBLEM AT ALL IN HIM DESCRIBING THAT PHONE CALL IN AS MUCH DETAIL AS HE WANTS. THERE'S AN EMAIL IN WHICH HE SUMMARIZES IT. ALL OF THAT IS FINE. HE CAN ALSO TESTIFY ABOUT THE PHONE CALL THAT HE HAD WITH MS. HOLMES BEFORE HE PREPARED THE REPORT.
BUT THE REPORT ITSELF WITH ITS PEJORATIVE CHARACTERIZATIONS IS UNFAIRLY PREJUDICIAL AND SHOULD NOT COME IN. I WANT TO ADD ONE OTHER THING. I AM NOT GOING TO SUGGEST FOR A SECOND -- AND I DON'T THINK ANYBODY ON OUR SIDE WILL SUGGEST -- THAT DR. WEBER VALIDATED THE THERANOS TECHNOLOGY. IT IS PERFECTLY CLEAR THAT DR. WEBER DIDN'T LIKE THERANOS'S TECHNOLOGY. WHETHER OTHERS AT PFIZER AT SOME LATER POINT OR, FOR THAT MATTER, AT AN EARLIER POINT HAD A DIFFERENT VIEW IS NOT SOMETHING THAT HE CAN TESTIFY ABOUT. HE WAS INVOLVED IN THIS FOR ABOUT THREE MONTHS, NOVEMBER, DECEMBER, JANUARY, THERE'S AN EMAIL IN FEBRUARY, JUST A STRAY EMAIL. BUT BASICALLY HE HAD ABOUT A THREE MONTH ENGAGEMENT IN A MULTIYEAR RELATIONSHIP. HE DID NOT COMPREHENSIVELY VALIDATE THE THERANOS TECHNOLOGY. THERE'S NO QUESTION ABOUT THAT, AND I'M NOT GOING TO FOR A SECOND SUGGEST OTHERWISE. BUT TO ALLOW IN THIS INTERNAL UNDISCLOSED PEJORATIVE ASSESSMENT, AGAIN, I THINK IS UNFAIRLY PREJUDICIAL.
JUDGE DAVILA: WELL, COULDN'T MR. LEACH IN HIS DIRECT EXAMINATION GO LINE BY LINE, IF HE WANTED TO, WITH THIS REPORT AND ASK THE WITNESS HIS THOUGHTS? WOULDN'T HE BE ABLE TO DO THAT?
MR. CLINE: UP TO A POINT, AND IT WOULD PROBABLY BE POSSIBLE TO REDACT THIS REPORT OR TO HAVE THAT TYPE OF TESTIMONY. WHAT I DON'T THINK HE SHOULD BE PERMITTED TO DO IS HAVE DR. WEBER TESTIFY THAT MS. HOLMES WAS EVASIVE OR DEFLECTIVE. I MEAN, THAT'S IN ESSENCE A COMMENT ON HER CREDIBILITY.
JUDGE DAVILA: NO. I THINK I CAPTURE THAT. BUT IF MR. LEACH WERE TO POSE, WELL, YOU HAD THIS CONVERSATION, YOU PUT THIS FORWARD, WHAT WAS HER RESPONSE? HE'LL SAY WHATEVER IT WAS. AND THEN MR. LEACH, IS HE THEN ABLE TO ASK, WELL, HOW DID YOU FIND HER RESPONSE?
MR. CLINE: AND HE CAN SAY, I FOUND THE RESPONSE UNSATISFACTORY. IT DIDN'T ANSWER MY QUESTION. WHAT HAPPENED --
JUDGE DAVILA: COULD HE SAY, I FOUND HER EVASIVE?
MR. CLINE: I DON'T THINK HE COULD, BECAUSE AGAIN, THEN HE'S COMMENTING ON HER CREDIBILITY AND I DON'T THINK HE CAN DO THAT. WHAT HE CAN -- WHAT HAPPENED AFTER THIS PHONE CALL, THIS WAS SORT OF AN INTRODUCTORY PHONE CALL. THIS WAS ONE WEEK AFTER DR. WEBER GOT INVOLVED. THEN THERE WAS A SERIES OF WRITTEN QUESTIONS THAT HE PUT TO THERANOS. THERANOS RESPONDED, NOT MS. HOLMES, SOMEONE ELSE AT THERANOS RESPONDED TO THESE QUESTIONS. THAT'S A DOCUMENT, AND THAT DOCUMENT CAN COME IN, AND HE CAN SAY, I DIDN'T FIND THESE ANSWERS TO BE SATISFACTORY. I DON'T HAVE, AGAIN, ANY PROBLEM WITH HIS SORT OF BOTTOM LINE CONCLUSION THAT HE WAS NOT SATISFIED WITH -- HE CONCLUDED THAT THERANOS AND PFIZER DID NOT HAVE ANY BASIS FOR A BUSINESS RELATIONSHIP. THAT CLEARLY IS HIS CONCLUSION.
JUDGE DAVILA: IT SOUNDS LIKE WHAT YOU'RE CONCERNED ABOUT, MR. CLINE, IS HIM USING THESE TERMS.
MR. CLINE: I'M CONCERNED, REALLY, ABOUT TWO MAIN THINGS. ONE IS HIM USING THESE TERMS, AND IN PARTICULAR HAVING THIS DOCUMENT COME IN SO IT'S NOT JUST A BIT OF TESTIMONY THAT PASSES AND I'VE CROSS-EXAMINED. THIS IS A DOCUMENT THAT IS GOING TO BE IN FRONT OF THE JURY WHEN IT DELIBERATES, AND CHARACTERIZING MS. HOLMES AS EVASIVE AND DEFLECTIVE AND A SERIES OF OTHER PEJORATIVE --
JUDGE DAVILA: WELL, THAT'S HIS OPINION. IS THAT PROPER OPINION, MR. LEACH? WHY ISN'T THAT COMMENT ON HER CHARACTER?
MR. LEACH: THESE ARE PERCIPIENT OBSERVATIONS OF A WITNESS. I THINK ALL OF THE TIME -- FIRST OF ALL, YOUR HONOR, THIS IS A FRAUD CASE AND THE FACT THAT THE DEFENDANT IS BEING MISLEADING IN THIS INTERACTION, YOU KNOW, ISN'T OUT OF PLACE HERE. BUT I THINK WE ASK WITNESSES ALL OF THE TIME, DID SOMEBODY ANSWER THAT QUESTION? NO. DID YOU THINK THEY WERE BEING EVASIVE WITH YOU? YES. THESE ARE THE CONCLUSIONS HE REACHED IN THE MOMENT. THIS IS WITHIN 701, NOT 702. AND I DON'T UNDERSTAND WHY WE NEED TO SANITIZE THE WORDS IF WE CAN SAY HE WASN'T SATISFIED, AS OPPOSED TO THE CONCLUSION THAT HE ACTUALLY REACHED. I HAVE SOME OTHER COMMENTS WITH RESPECT TO THE CHRONOLOGY, YOUR HONOR. IT'S CORRECT THAT MR. WEBER COMES ON THE SCENE IN 2008 AND HE REVIEWS THE WORK THAT HAPPENS BEFORE THEN. BUT THERE IS ZERO WORK BETWEEN PFIZER AND THERANOS AFTER HIM, AND MR. WEBER IS AT THE COMPANY DURING THIS TIME PERIOD. SO, YOU KNOW, MR. WEBER WAS THE GUY WHO WAS TASKED WITH THIS, WHO WOULD HAVE BEEN CONSULTED IF THERE WAS SOME GREATER RELATIONSHIP DOWN THE LINE. THE QUESTIONS ARE ACTUALLY SENT BEFORE THE MEETING WITH MS. HOLMES, AND I JUST -- SHE SENT A REPORT TO PFIZER, SHE ASKED THEM TO REVIEW IT. THIS IS THE MAN WHO REVIEWED IT. HE SHOULD BE ALLOWED TO TESTIFY TO WHAT HE THOUGHT ABOUT IT.
JUDGE DAVILA: YES, I GET THAT. AND I CAME OUT HERE WITHOUT THE DOCUMENT IN MY HAND. WHAT EXHIBIT NUMBER IS IT AGAIN?
MR. CLINE: 167.
JUDGE DAVILA: THANK YOU. WE'LL TRACK IT DOWN HERE, AND I WANT TO LOOK AT IT AGAIN DURING THE BREAK. I DO WANT TO ASK, I KNOW WE TALKED ABOUT THIS YESTERDAY, TOO -- DO YOU HAVE A COPY FOR ME, MR. CLINE? THANK YOU. THAT'S VERY KIND OF YOU.
MR. CLINE: I BELIEVE I DO.
JUDGE DAVILA: WE WERE TALKING ABOUT SOME OF THE SCIENTIFIC TERMS AND WHETHER OR NOT THAT GETS INTO EITHER 702 TERRITORY, AND IT SOUNDS LIKE, MR. LEACH, I THINK YESTERDAY YOU SAID YOU NEED NOT GO INTO THAT, YOU DON'T INTEND TO.
MR. LEACH: CORRECT, YOUR HONOR.
JUDGE DAVILA: AND HOW WOULD YOU HANDLE THAT, THEN, WITH THIS EXHIBIT?
MR. LEACH: I WOULD BE PREPARED TO REDACT THE QUESTIONS, YOUR HONOR, MENTIONED. I THINK IT STARTED AT QUESTION 17 ON PAGE 5. I DIDN'T INTEND TO ASK HIM QUESTIONS ABOUT THOSE, AND IF WE'RE WORRIED ABOUT THAT GOING INTO THE RECORD, WE'RE PREPARED TO REDACT THOSE.
JUDGE DAVILA: I THINK I MENTIONED SOME NUMBERS YESTERDAY THAT I HAD LOOKED AT.
(PAUSE IN PROCEEDINGS.)
JUDGE DAVILA: ALL RIGHT. ALL RIGHT. WELL, THANK YOU FOR THE HELP. I'M NOT GOING TO -- I'M GOING TO LOOK AT THIS SOME MORE. WE'RE GOING TO HAVE SOME TIME TODAY TO LOOK AT THIS BEFORE WE CALL THE WITNESS. ANYTHING ELSE IN CLOSING, MR. CLINE?
MR. LEACH: NO, YOUR HONOR. THANK YOU.
JUDGE DAVILA: GREAT. THANKS VERY MUCH. GREAT. THANK YOU. ANYTHING ELSE BEFORE WE BRING OUR JURY IS IN?
MR. DOWNEY: NOT FROM US, YOUR HONOR.
JUDGE DAVILA: WE'LL TAKE A BREAK ABOUT 11:00 A.M. MR. DOWNEY, WILL THAT WORK?
MR. DOWNEY: THAT'S FINE.
JUDGE DAVILA: ALL RIGHT. THANK YOU.
(RECESS FROM 9:04 A.M. UNTIL 9:11 A.M.)
(JURY IN AT 9:11 A.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. GOOD MORNING. WE'RE BACK ON THE RECORD. ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. OUR JURY IS PRESENT. WE'LL CALL OUR WITNESS IN IN JUST A MOMENT. BUT, LADIES AND GENTLEMEN, GOOD MORNING. LET ME JUST ASK YOU AGAIN THAT QUESTION. DURING OUR BREAK, DID ANY OF YOU HAVE ANY OCCASION TO COME ACROSS ANY INFORMATION VIA MEDIA OR CONVERSATION WITH A LIVE PERSON OR DO ANY INVESTIGATION ABOUT ANYTHING ABOUT THIS CASE? IF SO, PLEASE RAISE YOUR HAND. AND AGAIN, PLEASE KNOW THAT WE CAN TALK PRIVATELY ABOUT THAT IF THAT OCCURRED. I SEE NO HANDS. THANK YOU VERY MUCH. WE'LL GO UNTIL 3:00 TODAY, LADIES AND GENTLEMEN. AND THEN I'M HOPING THAT WE CAN GO UNTIL 4:00 ON FRIDAY. I SEE NO HANDS TO OBJECT TO THAT. GREAT. THANK YOU VERY MUCH. THANK YOU. AND, MR. EDLIN, THANK YOU. MAKE YOURSELF COMFORTABLE THERE. IT LOOKS LIKE YOU'LL HAVE TO ADJUST THAT MICROPHONE SOMEHOW.
DANIEL EDLIN: THANK YOU.
JUDGE DAVILA: WHEN YOU ARE COMFORTABLE, WOULD YOU PLEASE STATE YOUR NAME AGAIN, PLEASE. AND THEN, MR. DOWNEY, YOU HAVE ADDITIONAL QUESTIONS I THINK.
DANIEL EDLIN: DANIEL EDLIN.
JUDGE DAVILA: THANK YOU. AND YOU'RE STILL UNDER OATH, SIR.
(GOVERNMENT'S WITNESS, DANIEL EDLIN, WAS PREVIOUSLY SWORN.)