Lisa Peterson Video Evidence and Materiality Hearing
200 linesSAN JOSE, CALIFORNIA OCTOBER 26, 2021 P R O C E E D I N G S
(COURT CONVENED AT 8:31 A.M.)
(JURY OUT AT 8:31 A.M.)
JUDGE DAVILA: LET'S GO ON THE RECORD IN THE HOLMES MATTER. ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. WE'RE OUTSIDE OF THE PRESENCE OF THE JURY. I UNDERSTAND THERE'S A FEW THINGS THAT WE SHOULD TAKE UP BEFORE WE BEGIN EVIDENCE. MR. WADE?
MR. WADE: GOOD MORNING, YOUR HONOR. THANK YOU. LANCE WADE FOR MS. HOLMES. WE HAVE TWO WITNESSES THAT WE WOULD LIKE TO RAISE SOME MATTERS WITH THE COURT IN ADVANCE OF TESTIMONY. THE FIRST IS LISA PETERSON, WHO I UNDERSTAND FROM THE GOVERNMENT WILL BE THE FIRST WITNESS TODAY. AND THEN MR. DOWNEY WILL ADDRESS A COUPLE OF ISSUES RELATING TO ALAN EISENMAN, WHO IS AN INVESTOR WHO WE UNDERSTAND MAY TESTIFY LATE IN THE DAY OR TOMORROW DEPENDING ON HOW THE TRIAL PROCEEDS. WITH RESPECT TO MS. PETERSON, THERE ARE, I THINK, THREE ISSUES. ONE RELATES TO THE ADMISSION OF CERTAIN VIDEO EVIDENCE. WE WANTED TO RAISE THESE ISSUES WITH THE COURT TO TRY AND AVOID ISSUES LIKE THE KIND WE HAD LAST WEEK.
JUDGE DAVILA: SURE.
MR. WADE: AND WE'VE BEEN MEETING AND CONFERRING WITH THE GOVERNMENT TO TRY TO GET SOME CLARITY ON THAT. THE SECOND RELATES TO NO NOTES. I THINK I RAISED -- FLAGGED FOR THE COURT THAT WE MAY HAVE CONCERNS ABOUT THE NOTES. I THINK BASED UPON THE EXHIBITS THAT WERE DISCLOSED BY THE GOVERNMENT, I THINK WE PROBABLY ARE OKAY WITH THE NOTES. WE WOULDN'T STIPULATE TO THEM, BUT WE'LL SEE IF THEY LAY A FOUNDATION. THERE MAY BE THE -- THE ONE PAGE THEY INTEND TO OFFER MAY BE APPROPRIATE. AND THEN FINALLY, THERE ARE STATEMENTS CONCERNING MATERIALITY. WITH RESPECT TO THE VIDEOS, THERE ARE THREE VIDEOS THAT I THINK MAY BE AT ISSUE, ALTHOUGH I'M NOT SURE WHAT THE GOVERNMENT'S POSITION IS WITH RESPECT TO THE THIRD. IT'S MY UNDERSTANDING THAT THE GOVERNMENT INTENDS TO OFFER A VIDEO FROM JIM CRAMER'S "MAD MONEY" ON CNBC ON WHICH THE CLIENT APPEARED. IT'S A SEGMENT. I'M NOT SURE HOW LONG, MAYBE EIGHT MINUTES IN TOTAL. IT'S MY UNDERSTANDING THAT THE GOVERNMENT WANTS TO OFFER EXCERPTS OF THAT VIDEO. WE THINK THE VIDEO IN ITS ENTIRETY SHOULD BE OFFERED. INITIALLY WE UNDERSTOOD THAT'S WHAT WAS GOING TO BE OFFERED, AND THEN THEY WOULD JUST PLAY CERTAIN EXCERPTS. I BELIEVE THE GOVERNMENT DOES NOT NOW INTEND TO OFFER THE COMPLETE VIDEO, BUT JUST WANTS TO OFFER THE EXCERPTS. THIS IS A SEGMENT ON A NEWS PROGRAM. I'M SURE THE COURT HAS SEEN A MILLION OF THEM, IF NOT THIS ONE. AND WE JUST THINK THAT THE CONTEXT AND THE TOTALITY IS IMPORTANT. IT'S NOT VERY LONG. WE THINK IT SHOULD BE PLAYED. IF THE GOVERNMENT CHOOSES NOT TO PLAY IT, WE WOULD PROBABLY JUST PLAY THE WHOLE THING ON CROSS. SIMILARLY, THERE'S A "TODAY SHOW" --
JUDGE DAVILA: I'M SORRY. IS THIS AN INTERVIEW OF YOUR CLIENT? OR --
JUDGE DAVILA: I SEE. OKAY.
MR. WADE: SO I ACTUALLY DON'T KNOW THE PURPOSE FOR WHICH THE GOVERNMENT IS OFFERING IT. I'M ASSUMING THERE'S SOME FOUNDATION OF RELEVANCE. I KNOW THE WITNESS HAS SAID -- MS. PETERSON HAS SAID SHE SAW THE TWO VIDEOS. I ACTUALLY DON'T KNOW EXACTLY --
JUDGE DAVILA: OKAY.
MR. WADE: -- WHAT THE BASIS FOR IT BEING OFFERED IS. MR. LEACH MAY BE ABLE TO GIVE US SOME WINDOW INTO THAT. BUT TO THE EXTENT THAT THEY SEEK TO OFFER ANY OF IT, WE THINK THEY SHOULD OFFER ALL OF IT.
JUDGE DAVILA: OKAY.
MR. WADE: OUR ARGUMENT AND POSITION IS ESSENTIALLY THE SAME WITH RESPECT TO A "TODAY SHOW" SEGMENT THAT INCLUDES STATEMENTS FROM OUR CLIENT. SAME ISSUES.
JUDGE DAVILA: OKAY.
MR. WADE: SO WE DON'T KNOW EXACTLY WHAT ABOUT THE VIDEO THE GOVERNMENT -- WHY THE GOVERNMENT THINKS IT'S RELEVANT, WHAT ITS POSITION IS, BUT IF THEY WANT TO OFFER IT, WE THINK THEY SHOULD JUST SHOW THE WHOLE THING. WE THINK IT'S TAKEN OUT OF CONTEXT AND SOME OF THESE STATEMENTS COULD BE CONFUSING.
JUDGE DAVILA: IS THERE -- AND THE "TODAY SHOW" IS AN INTERVIEW OF YOUR CLIENT AS WELL?
JUDGE DAVILA: AND HOW LONG IS THAT, DO YOU KNOW?
MR. LEACH: IT'S ABOUT FOUR MINUTES, YOUR HONOR.
JUDGE DAVILA: OH, OKAY. IN TOTAL. OKAY.
MR. WADE: AND AGAIN, I THINK THE GOVERNMENT IS INTENDING TO OFFER SEGMENTS. I DON'T KNOW THE THEORY OF RELEVANCE OR WHY THEY WANT TO OFFER IT. I CAN IMAGINE A FEW.
JUDGE DAVILA: OKAY. AND THEN WHAT IS YOUR THIRD ISSUE? I'M SORRY.
MR. WADE: THE THIRD ISSUE IS A LONGER VIDEO AND IT RELATES TO A PRESENTATION AT THE AACC, WHICH IS THE AMERICAN ASSOCIATION OF CLINICAL CHEMISTRY, WHICH IS ESSENTIALLY A LAB TRADE ASSOCIATION WHERE ALL OF THE CLINICAL CHEMISTS GATHER AND HAVE AN ANNUAL CONVENTION. OUR CLIENT GAVE A PRESENTATION OF TECHNOLOGY AT THAT MEETING, AND -- A RELATIVELY LENGTHY PRESENTATION OF TECHNOLOGY AT THAT MEETING, WHICH WAS OBSERVED BY A NUMBER OF WITNESSES IN THE CASE, INCLUDING MS. PETERSON, WHO ACTUALLY ATTENDED THE PRESENTATION AND PROVIDED CONTEMPORANEOUS THOUGHTS AND ANALYSIS OF THE PRESENTATION THAT COMPARE THE PRESENTATION BACK TO HER VIEWS OF THE TECHNOLOGY AT THE TIME SHE VISITED THE COMPANY. SO WE THINK, WE THINK EXCERPTS OF THAT ARE RELEVANT. WE WOULD BE HAPPY TO PLAY THE WHOLE THING, BUT FOR --
JUDGE DAVILA: HOW LONG IS THAT?
JUDGE DAVILA: AND IT'S, AND IT'S TECHNOLOGY AND IT SOUNDS LIKE IT'S RATHER DENSE.
JUDGE DAVILA: WHAT DID YOU DO THIS WEEKEND, MR. WADE?
MR. WADE: I VIEWED THIS VIDEO A COUPLE OF TIMES. WELL, THE GIANTS AREN'T IN THE SERIES, SO WHAT ELSE DO WE HAVE TO DO?
(LAUGHTER.)
MR. WADE: WE WOULD INTEND TO OFFER EXCERPTS, I THINK TOTALLING MAYBE 20 MINUTES INTERSPERSED WITH SOME Q AND A. WE DO THAT -- SO THERE ARE TWO PARTS OF THE PRESENTATION. ONE IS A PRESENTATION BY THE CLIENT, IT INVOLVED VIDEO AND IT INVOLVES A POWERPOINT. THAT'S ABOUT AN HOUR. WE WOULD PLAY EXCERPTS OF THAT. WE ACTUALLY, IN ALL SERIOUSNESS, DO THINK IT WOULD BE USEFUL TO THE JURY BECAUSE IT DOES SHOW SOME OF THE TECHNOLOGY THAT HAS BEEN TALKED ABOUT A LOT, WHICH HASN'T REALLY BEEN SEEN ALL THAT MUCH, AND I THINK THE JURY MAY TAKE INTEREST IN SORT OF HOW SOME OF THIS STUFF FUNCTIONS AND IT MAY GIVE THEM IMPORTANT CONTEXTS. THE SECOND PIECE IS A Q AND A WHICH INVOLVES THREE EXPERTS WHO ARE QUESTIONING MS. HOLMES AND THREE SCIENTISTS WHO WORK AT THERANOS. THAT IS 30 MINUTES. WE HAD INTENDED TO PLAY EXCERPTS OF THAT IN THE INTEREST OF TIME. I CERTAINLY DON'T WANT TO BE ACCUSED OF CHERRY PICKING AND HAVE A SITUATION WHERE WE PLAY EXCERPTS IN THE INTEREST OF TIME AND THEN THERE'S A SUGGESTION CREATED THAT WE'RE HIDING OTHER EXCERPTS. WE'RE HAPPY TO PLAY THE ENTIRE 30 MINUTES OF THE Q AND A. BUT WE THINK, WE THINK EITHER WOULD BE APPROPRIATE FOR THE JURY GIVEN ITS RELEVANCE TO SOME OF THE WITNESSES IN THE CASE AND THE FACT THAT THE GOVERNMENT APPEARS TO BE INTERESTED IN GOING BEYOND THE SORT OF INVESTMENT PERIOD INTO "THE WALL STREET JOURNAL" PERIOD AND THE POST "WALL STREET JOURNAL" PERIOD. SO WE WOULD INTEND TO OFFER THOSE EXCERPTS. I ACTUALLY DON'T KNOW WHAT THE GOVERNMENT'S POSITION IS ON THAT. WE HAVEN'T RECEIVED THE GOVERNMENT'S POSITION ON THE ADMISSION OF THAT. SO THAT'S IT FOR THE VIDEOS. AND THEN WE HAVE SOME MATERIALITY CONCERNS, BUT MAYBE I'LL PAUSE THERE.
JUDGE DAVILA: LET'S TALK ABOUT THE VIDEOS. THANK YOU. MR. LEACH?
MR. LEACH: THANK YOU, YOUR HONOR. LET ME TAKE THEM IN ORDER AND GIVE THE COURT A LITTLE MORE CONTEXT. THE FIRST VIDEO IS THE "MAD MONEY" INTERVIEW. IT'S ON THE DAY ON OCTOBER 15TH OR 16TH, 2015, THE DAY "THE WALL STREET JOURNAL" ARTICLE BY JOHN CARREYROU COMES OUT, AND MS. HOLMES IS ASKED ABOUT THE VERACITY OF CERTAIN STATEMENTS IN "THE WALL STREET JOURNAL" ARTICLE. IT'S THE EQUIVALENT OF A POLICE INTERROGATION WHERE SHE'S ASKED, IS THIS TRUE? IS THIS TRUE? AND WE THINK SOME OF HER RESPONSES ARE, AT BEST, MISLEADING AND ARGUABLY FALSE. SO THE RELEVANCE IS THAT SHE'S MAKING FALSE EXCULPATORY STATEMENTS AT THE TIME THAT SHE'S CONFRONTED WITH NEGATIVE INFORMATION. IT'S CLEARLY RELEVANT, AND WHAT THE DEFENSE IS LOOKING OVER IS THE HEARSAY ISSUE THAT IS BAKED INTO ALL OF THIS. HER STATEMENTS, WHEN OFFERED BY THE DEFENSE -- EXCUSE ME -- ARE HEARSAY. WHEN THEY'RE OFFERED BY THE GOVERNMENT, THEY'RE ADMISSIBLE. AND SHE'S ASKED VERY DIRECT QUESTIONS. I DON'T -- I HAVEN'T HEARD AN ARGUMENT ABOUT THE RULE OF COMPLETENESS, BUT THE ANSWER TO WHY ONLY SOME OF THE CLIPS IS HER STATEMENTS ARE HEARSAY WHEN OFFERED BY THE DEFENSE. THEY'RE NOT HEARSAY WHEN OFFERED BY THE GOVERNMENT. WE WANT TO PLAY THE RESPONSE TO TWO QUESTIONS, TWO VERY DIRECT QUESTIONS, AND THE REMAINDER SHOULD NOT COME IN OVER A HEARSAY OBJECTION.
JUDGE DAVILA: ARE THESE STATEMENTS THAT THE WITNESS -- I'M JUST TRYING TO GET FOUNDATIONALLY, IS THIS -- MS. PETERSON IS GOING TO SAY SOMETHING ABOUT THIS?
MR. LEACH: MS. PETERSON IS GOING TO SAY, I WATCHED THE VIDEO.
JUDGE DAVILA: I SEE.
MR. LEACH: I DON'T WANT TO SPEAK FOR HER, BUT IN A SENSE --
JUDGE DAVILA: RIGHT.
MR. LEACH: -- IT WAS A POSITIVE FACT TO SEE HER GO ON T.V. AND DENY SOME VERY SERIOUS ALLEGATIONS, AND THIS STARTED A PROCESS WHERE SHE WANTED TO GET MORE INFORMATION FROM THE DEFENDANT. SO THIS IS -- WE WANT TO GET MS. PETERSON'S RESPONSE TO SOME OF THE THINGS SHE HEARD. BUT PUTTING THAT ASIDE, THESE ARE STATEMENTS BY THE DEFENDANT AT THE TIME THAT NEGATIVE INFORMATION IS PRESENTED. IT COULD NOT BE MORE RELEVANT, AND IT'S SIMPLY THE RULE OF HEARSAY THAT THE DEFENSE DOES NOT GET TO PUT IN SELF-SERVING STATEMENTS THAT THEY WANT TO PUT IN BECAUSE SHE'S NOT UNDER OATH.
JUDGE DAVILA: OKAY.
MR. LEACH: THE "TODAY SHOW" VIDEO IS SLIGHTLY DIFFERENT IN THE SENSE THAT IT'S A COMBINATION OF BOTH STATEMENTS BY A REPORTER, YOU KNOW, SUMMARIZING INFORMATION, AND SEGMENTS OF AN INTERVIEW OF MS. HOLMES. WE PROPOSE PLAYING SOME OF THE STATEMENTS ONLY BY MS. HOLMES IN THAT INTERVIEW. THE REMAINDER, I'M NOT SURE I APPRECIATE THE RELEVANCE OF IT. AND PERHAPS IF THE DEFENSE LAYS MORE FOUNDATION, I, I CAN SEE THE ENTIRETY COMING IN. I'M NOT SURE I HAVE A PROBLEM WITH THAT. BUT THERE'S A HEARSAY ISSUE THERE. AND IT'S NOT JUST AN INTERVIEW. IT'S STATEMENTS BY A REPORTER WHICH, IF OFFERED FOR THE TRUTH, THERE MAY BE HEARSAY ISSUES BEHIND IT. AND I HAVE TRANSCRIPTS OF THE -- OF BOTH THE "MAD MONEY" AND THE "TODAY SHOW" INTERVIEW. WITH RESPECT TO THE THIRD VIDEO --
JUDGE DAVILA: PARDON ME. IS MS. PETERSON ALSO GOING TO SPEAK TO THE "TODAY SHOW" INTERVIEW?
MR. LEACH: YES, YES.
JUDGE DAVILA: SAME?
MR. LEACH: SHE WILL SAY, I VIEWED IT AND I WAS PLEASED TO SEE THE DEFENDANT OUT THERE.
JUDGE DAVILA: OKAY.
MR. LEACH: AND MS. PETERSON HAS A MEETING WITH MS. HOLMES IN PALO ALTO SHORTLY AFTER THAT INTERVIEW, AND I WANT TO ASK HER ABOUT THINGS MS. HOLMES SAID PUBLICLY AND THINGS MS. HOLMES SAID TO MS. PETERSON PRIVATELY.
JUDGE DAVILA: OKAY.
MR. LEACH: AND JUST FOR CONTEXT, YOUR HONOR, THAT "TODAY SHOW" INTERVIEW IS APRIL OF 2016. WITH RESPECT TO THE THIRD VIDEO, THIS IS NOT ONE THAT THE GOVERNMENT INTENDS TO OFFER, IT'S ONE THE DEFENSE INTENDS TO OFFER DURING CROSS-EXAMINATION. I HAVEN'T SEEN WHICH EXCERPTS THEY'RE THINKING OF, BUT THIS IS A PRESENTATION FROM AUGUST OF 2016, SO NEARLY A YEAR AFTER "THE WALL STREET JOURNAL" ARTICLE COMES OUT. IT'S LARGELY STATEMENTS BY MS. HOLMES, WHICH COULD NOT PRESENT A GREATER HEARSAY PROBLEM. I REALLY DON'T UNDERSTAND THE -- YOU KNOW, I DON'T UNDERSTAND THE BASIS FOR ADMITTING MINUTES UPON POSSIBLY HOURS OF THE DEFENDANT'S UNSWORN STATEMENTS ABOUT WHAT HER TECHNOLOGY SUPPOSEDLY CAN OR CAN'T DO. WHAT I HEARD FROM MR. WADE RIGHT NOW IS THAT IT POSSIBLY RELATES TO MS. PETERSON'S STATE OF MIND, MS. PETERSON'S STATE OF MIND IN AUGUST OF 2016. BUT I DON'T THINK MS. PETERSON'S STATE OF MIND IN AUGUST OF 2016 IS REMOTELY RELEVANT. THE INVESTMENT SHE MADE WAS BACK IN 2014 BY -- THIS IS MORE THAN A YEAR AFTER "THE WALL STREET JOURNAL." SO WE DON'T UNDERSTAND THE RELEVANCE OF THE AACC PRESENTATION, AND WE CERTAINLY OBJECT TO WHOLESALE STATEMENTS BY THE DEFENDANT, UNSWORN, ABOUT WHAT HER TECHNOLOGY CAN DO. IF SHE WANTS TO STAND BY THOSE STATEMENTS, SHE SHOULD TAKE THE STAND AND SAY IT UNDER OATH SUBJECT TO CROSS-EXAMINATION. BUT IT'S MASSIVE HEARSAY.
JUDGE DAVILA: SO YOU DON'T, YOU DON'T INTEND TO DO ANYTHING WITH THE THIRD VIDEO? THAT'S NOT YOURS, THAT'S MR. WADE'S?
MR. LEACH: CORRECT.
JUDGE DAVILA: I SEE. OKAY.
MR. WADE: YOUR HONOR, IF I MIGHT ADDRESS THESE ISSUES AND GIVE SOME CONTEXT. OF COURSE YOUR HONOR HEARD DAN EDLIN'S TESTIMONY LAST WEEK IN WHICH THE GOVERNMENT NOT ONCE, BUT TWICE, WENT AND SOLICITED ANSWERS ABOUT THE REASONS HE LEFT THE COMPANY IN DECEMBER OF 2016 RELATING TO THE TECHNOLOGY AND EFFORTS MADE TO REHABILITATE THE TECHNOLOGY THAT HE THOUGHT WERE NOT SUCCESSFUL. THE GOVERNMENT HAS OPENED THE DOOR ON THIS EVIDENCE IN TERMS OF THE TECHNOLOGICAL CAPACITY IN THAT TIME PERIOD THROUGH SOLICITING THAT EVIDENCE WHICH WAS, FRANKLY, VERY PREJUDICIAL, NOT ONCE, BUT TWICE, SO WE SHOULD HAVE THE ABILITY TO REBUT THAT. NUMBER TWO, WE'RE NOT OFFERING ANY OF THESE FOR THE TRUTH OF THE MATTER ASSERTED. WE'RE OFFERING THEM FOR NONHEARSAY PURPOSES. THEY REFLECT OUR CLIENT'S STATE OF MIND AT THE TIME SHE'S MAKING THE STATEMENTS, AND THEY ARE RELEVANT FOR THE EFFECT ON THE LISTENER IN ALL OF THEM. IN FACT, MR.
LEACH JUST SAID HE SOUGHT TO ELICIT THIS EVIDENCE -- THE REACTION OF THE LISTENER TO VIEWING THIS EVIDENCE. MS. PETERSON, AS WE UNDERSTAND IT, NOT ONLY VIEWED THE "MAD MONEY" CLIP, AND HE'S GOING TO ASK QUESTIONS ABOUT THAT, MY UNDERSTANDING IS THAT SHE THEN VIEWED THE "TODAY SHOW" CLIP, AND HE'S GOING TO ASK QUESTIONS ABOUT THAT. SO WE'RE ENTITLED TO GET THE WHOLE PICTURE IN FRONT OF THE JURY AND ASK QUESTIONS ABOUT THE EFFECT OF THE WHOLE SEGMENTS ON MS. PETERSON. HE ALSO SAID THAT THEY'RE GOING TO TALK ABOUT A MEETING THAT HAPPENED IN APRIL OF 2016, WHICH IS ALSO WELL AFTER THE PERIOD BECAUSE HE WANTS -- BECAUSE HE THINKS WHATEVER MS. PETERSON HAS TO SAY ABOUT THAT IS RELEVANT TO THEIR CASE. WELL, I DON'T KNOW WHAT THE DIFFERENCE BETWEEN THAT AND THE STATEMENTS IN AUGUST OF 2016 ARE. IN FACT, THE STATEMENTS IN APRIL OF 2016, IN THE WITNESS'S NOTES THERE ARE STATEMENTS ABOUT THE FACT THAT THEY'RE GOING TO GO TO THE AACC PRESENTATION AND DISPLAY THIS TECHNOLOGY, AND THEY SHOULD ATTEND THE PRESENTATION AND OBSERVE THAT. THAT'S REFERENCED IN THE VERY MEETING THAT MR. LEACH WANTS TO OPEN THE DOOR ON. SO ALL OF THIS STUFF IS RELEVANT BASED UPON WHAT THE GOVERNMENT WANTS TO PUT IN. THEY CAN'T PUT IN THE CRAMER VIDEO AND THE "TODAY SHOW" VIDEO AND THEN SAY THERE IS SOME MAGIC LINE OR MAGIC CURTAIN THAT COMES DOWN IN APRIL AND EVERYTHING PAST THAT IN TERMS OF THE EFFECT ON MS. PETERSON IS IRRELEVANT.
JUDGE DAVILA: WHAT ABOUT, WHAT ABOUT THE FACT THAT, AS YOU KNOW, A DEFENDANT CAN'T GET IN STATEMENTS THAT GO TO HER DEFENSE IN THIS CASE UNLESS SHE TESTIFIES, THESE HEARSAY STATEMENTS, MR. LEACH'S POINT? ISN'T THAT WHAT THIS DOES? ISN'T THIS A NEGATING HER STATE OF MIND, OR YOUR CLIENT'S STATE OF MIND IN THIS EFFECT?
MR. WADE: THESE WERE, THESE WERE STATEMENTS THAT WERE OBSERVED BY THE WITNESSES THAT THE GOVERNMENT HAS CHOSEN TO CALL IN THIS CASE.
JUDGE DAVILA: RIGHT.
JUDGE DAVILA: BUT LET'S SAY IF HE DIDN'T, LET'S SAY MR. LEACH DIDN'T WANT TO PUT THESE IN, YOU COULDN'T DO THEM; RIGHT?
MR. WADE: IF MR. LEACH DIDN'T WANT TO OPEN THE DOOR FOR STATEMENTS DURING THIS PERIOD OF TIME, IN OTHER WORDS, REACTIONS TO "THE WALL STREET JOURNAL" COVERAGE, IT'S NOT CLEAR TO ME THAT WE COULD PUT THESE IN, AT LEAST NOT THROUGH MS. PETERSON. YOU KNOW, I RESERVE OUR RIGHTS AS TO WHAT ISSUES MAY COME UP WITH RESPECT TO OTHER WITNESSES. BUT HE DOES WANT TO OPEN THE DOOR, AND SO HE DOES WANT TO -- HE JUST WANTS TO PUT IT A CRACK OPEN AND SAYS THAT, YOU KNOW, IT CAN'T GO -- IT CAN'T SWING A LITTLE BIT FURTHER.
JUDGE DAVILA: RIGHT. BUT TO MR. LEACH'S POINT, HE SAYS, LOOK, WE CAN PUT THIS ON, WE'RE PROSECUTING, AND THESE ARE STATEMENTS OF A DEFENDANT THAT ARE ADMISSIBLE, AND WHAT HE SAYS IS, BUT THE DEFENSE CAN'T SAY, OKAY, WELL, LET US PUT OUR STATEMENTS OF OUR CLIENT ON WITHOUT PUTTING THE CLIENT ON.
MR. WADE: AGAIN, WE'RE NOT SEEKING -- THE REASON WE'RE SEEKING TO OFFER THIS EVIDENCE IS BECAUSE THROUGH THIS WITNESS THEY'RE INTENDING TO OPEN THE DOOR ON THIS ISSUE AND ON THE POST "WALL STREET JOURNAL" IMPACT ON THE REACTION FROM MS. HOLMES AND THE COMPANY ON THIS EVIDENCE. THEY CAN'T OPEN THAT DOOR AND SAY THEY CAN ONLY OFFER THE EVIDENCE THAT THEY WANT WHEN THE WITNESS OBSERVED MANY OTHER THINGS.
JUDGE DAVILA: WELL, I'M TALKING ABOUT -- I'M STARTING CHRONOLOGICALLY WITH THE "MAD MONEY."
JUDGE DAVILA: THEY WANT TO PUT ON A FEW CLIPS OF YOUR CLIENT'S STATEMENTS DURING "MAD MONEY" AND YOU WANT TO PLAY THE WHOLE THING.
MR. WADE: WE WANT TO PLAY THE WHOLE THING. WE THINK IT'S A RULE OF COMPLETENESS ISSUE. WE THINK TAKING THE STATEMENTS OUT OF CONTEXT IN A NEWS SEGMENT IS MISLEADING, PARTICULARLY IN, PARTICULARLY IN THE "MAD MONEY" SEGMENT. WE THINK YOU NEED THE CONTEXT IN WHICH THE QUESTIONS ARE ASKED. IT'S A VERY SHORT SEGMENT. IN THE CONTEXT OF --
JUDGE DAVILA: BUT, MR. LEACH, WHAT IS YOUR POINT ON THIS?
MR. LEACH: YOUR HONOR, THIS IS THE EQUIVALENT OF A POLICE INTERVIEW. THE DEFENDANT CAN'T SAY, IF IT WERE A ONE HOUR INTERVIEW AND THE GOVERNMENT WANTS TO ELICIT FIVE MINUTES IN RESPONSE TO ONE QUESTION, WE THEREFORE GET TO SUBMIT THE WHOLE THING. I HAVEN'T HEARD A PARTICULAR QUESTION OR ANSWER THAT IS MISLEADING UNDER THE RULE OF COMPLETENESS HERE. IT'S JUST, YOU NEED THE COMPLETE CONTEXT. RULE 106 IS LIMITED. I CAN GIVE THE COURT THE TRANSCRIPT OF THE PARTICULAR QUESTIONS AND ANSWERS. I DON'T KNOW WHY YOU NEED THE REMAINDER IN ORDER TO UNDERSTAND HER RESPONSE TO THAT PARTICULAR QUESTION. AND I JUST NEED TO GO BACK, YOUR HONOR. THESE CLIPS ARE RELEVANT BECAUSE THEY SHOW THE DEFENDANT'S STATE OF MIND, MS. HOLMES'S STATE OF MIND, WHICH THE GOVERNMENT CAN DO. SHE'S, IN THE CRAMER INTERVIEW, YOU KNOW, NOT RESPONDING TO THE QUESTION OF HOW MANY TESTS YOUR EDISON DEVICE CAN DO. IN THE "TODAY SHOW" INTERVIEW, SHE'S SAYING, I'M THE CEO OF THE COMPANY, I'M RESPONSIBLE FOR EVERYTHING. SHE'S -- YOU KNOW, INSTEAD OF BLAMING THE LAB DIRECTOR LIKE SHE DOES IN THIS COURTROOM, SHE'S SAYING, NO, I'M RESPONSIBLE FOR THIS. THAT'S AN ADMISSION. THAT SHOWS HER STATE OF MIND. YOU KNOW, THE FACT THAT IT HAPPENED TO BE SOMETHING THAT MS. PETERSON SAW IS NEITHER HERE NOR THERE. AND THE FACT THAT WE WANT TO OFFER THESE STATEMENTS BY A DEFENDANT DOESN'T OPEN THE DOOR TO EVERYTHING A DEFENDANT EVER SAID TO A WITNESS OR EVER SAID TO A POLICE OFFICER. THE RULE THAT MR. WADE IS PROPOSING WOULD SWALLOW UP THE HEARSAY RULE, AND I JUST DON'T SEE WHY MS. PETERSON'S STATE OF MIND IN 2016 HAS ANY RELEVANCE ON WHY THEY MADE THE INVESTMENT. SO THAT'S THE GOVERNMENT'S POINT THERE, YOUR HONOR.
MR. WADE: MR. LEACH JUST SAID WHY WE WANT TO OFFER THE CASE, OR OFFER ALL OF THE EVIDENCE. HE JUST SAID IT'S RELEVANT TO THE CLIENT'S STATE OF MIND, AND THAT'S WHY THEY WANT TO OFFER IT. THAT'S WHY WE WANT TO OFFER IT, TOO. WE'RE HAPPY TO HAVE AN INSTRUCTION THAT IT DOESN'T GO -- IT'S NOT BEING OFFERED FOR THE TRUTH OF THE MATTER ASSERTED, BUT THE PROFFERED BASIS WHICH THE GOVERNMENT JUST GAVE IS PERMISSIBLE AS A NONHEARSAY ADMISSION OF ALL OF THIS EVIDENCE GIVEN THAT THE GOVERNMENT WANTS TO GO INTO THIS PERIOD OF TIME.
JUDGE DAVILA: GO AHEAD.
MR. LEACH: THAT'S JUST SO WRONG, YOUR HONOR, AND IT WOULD SWALLOW UP THE HEARSAY RULE. WE MIGHT AS WELL PUT IN EVERY EMAIL THAT MS. HOLMES EVER WROTE TO SHOW HER STATE OF MIND.
JUDGE DAVILA: I'M NOT CERTAIN, MR. WADE, THAT THE COMPLETENESS APPLIES TO WHAT YOU'RE TALKING ABOUT HERE, AND I'M LOOKING AT THE "MAD MONEY" AND THE "TODAY SHOW" FIRST AND SEPARATING THOSE TWO OUT. SO THE GOVERNMENT WANTS TO PLAY CERTAIN EXCERPTS. THEY CAN DO THAT. AND THEY'RE STATEMENTS OF YOUR CLIENT. THEY ARE ADMISSIBLE FOR THAT PURPOSE. BUT THEN THE QUESTION IS, CAN YOU THEN GET IN STATEMENTS OF YOUR OWN CLIENT IN THE SAME VIDEO AS TESTIMONIAL? IS THAT WHAT YOU'RE TRYING TO DO?
MR. WADE: NO, I DON'T WANT IT. I SPECIFICALLY DO NOT WANT IT AS TESTIMONIAL. I WANT IT TO SHOW HER STATE OF MIND AND I WANT IT TO SHOW THE EFFECTS ON THE LISTENER. THEY INTEND TO ASK QUESTIONS ABOUT -- MR. LEACH JUST SAID THAT THEY INTEND TO ASK QUESTIONS ABOUT THE EFFECT OF THAT STATEMENT ON THE LISTENER. I'M ENTITLED TO PUT THE WHOLE STATEMENT IN AND ASK MY OWN QUESTIONS ABOUT THE EFFECT ON THE LISTENER AS PART OF CROSS-EXAMINATION. AND SO I'M NOT OFFERING IT AS A TESTIMONIAL STATEMENT. I'M HAPPY TO HAVE AN INSTRUCTION THAT IT'S NOT OFFERED FOR THE TRUTH OF THE MATTER ASSERTED. THAT'S NOT WHAT WE'RE SEEKING. AND SO FOR BOTH OF THOSE, ONE, IT'S A NONHEARSAY PURPOSE; AND, TWO, WE THINK IN CONTEXT WHEN YOU LOOK AT THE VIDEO, IT'S MISLEADING WITHOUT GETTING THE FULL STATEMENT.
JUDGE DAVILA: BECAUSE IT EXPOSES YOUR CLIENT'S STATE OF MIND, YOUR CLIENT'S STATE OF MIND IN A DIFFERENT WAY?
JUDGE DAVILA: SHE DIDN'T MEAN THAT?
JUDGE DAVILA: BECAUSE YOU CAN'T PUT YOUR CLIENT'S STATE OF MIND IN THROUGH THIS TYPE OF EVIDENCE.
MR. WADE: WE CAN ADMIT STATEMENT -- WE CAN ADMIT THINGS FOR A NONHEARSAY PURPOSE. THERE ARE MULTIPLE NONHEARSAY PURPOSES AS OFFERED THROUGH THIS WITNESS.
JUDGE DAVILA: YEAH, BUT IF YOU'RE TRYING TO -- IF YOU WANT THIS TO COME IN AND THEN TO ARGUE, SEE, MY CLIENT'S STATE OF MIND AS TO AN ELEMENT HERE, SHE DIDN'T INTEND TO DEFRAUD, THAT'S -- THERE'S SOME CASE LAW ON THAT THAT SAYS YOU CAN'T DO THAT.
MR. WADE: NO. BUT THE GOVERNMENT WANTS TO OFFER PART OF THIS STATEMENT AND TALK ABOUT THE EFFECT IT HAS ON WITNESSES IN THE CASE. THAT'S EXACTLY WHAT MR. LEACH SAID THAT THEY'RE INTENDING TO DO. THAT IS NOT A HEARSAY -- THAT'S A NONHEARSAY PURPOSE FOR THE ADMISSION OF THE STATEMENT. HE JUST WANTS THEM TO HAVE THE -- TO REACT ONLY TO THE PIECES OF THE STATEMENT THAT HE WANTS THEM TO REACT TO WHEN IT'S NOT FAIR TO SAY, WHAT WAS YOUR REACTION TO THOSE TWO QUESTIONS, WHEN CLEARLY IF THE WITNESS SAW THE STATEMENT, THE SEGMENT, THEY SAW THE WHOLE SEGMENT. SO IF HE WANTS TO ASK THE WITNESS WHAT THE REACTION TO THE SEGMENT IS, IT'S TOTALLY UNFAIR TO SAY, WE'RE ONLY GOING TO GIVE YOU THIS PIECE AND THIS PIECE WITH RESPECT TO THE -- THAT'S ON THE CRAMER PIECE. ON THE "MAD MONEY" PIECE -- OR I'M SORRY, ON THE "TODAY SHOW" PIECE, IT ARGUABLY SHOULDN'T BE ADMITTED BECAUSE OF RULE OF COMPLETENESS CONCERNS ANYWAY BECAUSE THE SEGMENTS WITHIN, WITHIN -- WE DON'T HAVE THE ROUGH TRANSCRIPT.
THEY COULD HAVE SUBPOENAED THE "TODAY SHOW" AND GOTTEN ALL OF THE Q AND A. INSTEAD, WE'RE TALKING ABOUT DISCRETE SEGMENTS, YOU KNOW, TAKEN OUT OF CONTEXT WITHIN THAT -- WITHIN A LONGER INTERVIEW. SO, YOUR HONOR MAY KNOW WHEN ONE OF THESE THINGS IS CONDUCTED, AND IN THIS CASE IT IS MARIA SHRIVER, SHE COMES OUT TO THE COMPANY AND SHE DOES A LENGTHY INTERVIEW. THE GOVERNMENT WANTS TO OFFER VERY NARROW SEGMENTS. WE DON'T KNOW THE CONTEXT OF THAT, SO THERE'S ARGUABLY A RULE OF COMPLETENESS CONCERN JUST WITH RESPECT TO OFFERING THOSE SEGMENTS BECAUSE WE DON'T KNOW. BUT THERE'S PARTICULAR PREJUDICE WHEN YOU TAKE IT OUT OF THE CONTEXT OF THE BROADER, OF THE BROADER NARRATIVE OF THE STORY. IT'S JUST MISLEADING. IT'S A FOUR MINUTE SEGMENT. AND IF THEY WANT TO ASK ABOUT THE REACTION OF THIS WITNESS, THEN THEY -- WE SHOULD BE ABLE TO GET THE REACTION TO THE WHOLE THING, NOT JUST TO THE PIECES THAT THE GOVERNMENT WANTS TO OFFER.
WITH RESPECT TO THE AACC VIDEO, THIS WITNESS TOOK NOTES THE DAY OF THE VIDEO THAT SAID, "MUCH OF THE MEDIA COVERAGE I'VE READ SO FAR IN THE PRESENTATION CALLS THE PRESENTATION A BAIT AND SWITCH. SHE'S PRESENTING THE PUBLIC WITH A NEW MACHINE WHILE IGNORING THE ISSUES OF THE OLD MACHINE. I DIDN'T SEE IT THAT WAY. HAVING BEEN PRIVY TO SEEING THE MACHINE IN 2014, AND SEEING IT TODAY, I DO SEE THE MACHINES AS FUNDAMENTALLY SIMILAR. THE COMPANY JUST CAME OUT TOO SOON, OVERPROMISED, AND WOEFULLY FAILED IN EXECUTION THE FIRST TIME AROUND, MADE MUCH WORSE BY A TOTAL LACK OF COMMUNICATION AND A PERCEPTION OF ARROGANCE." IT'S NOT -- THAT'S HER STATE OF MIND, HER REACTION TO THIS PRESENTATION.
JUDGE DAVILA: AFTER HER INVESTMENT?
JUDGE DAVILA: SO WHAT IS THE RELEVANCE OF THAT?
JUDGE DAVILA: NO, I UNDERSTAND. BUT WHAT IS THE RELEVANCE OF HER -- THIS IS BEYOND THE CHARGING PERIOD; CORRECT?
JUDGE DAVILA: IS THAT RIGHT?
MR. WADE: THE STATEMENT -- ALL OF THESE STATEMENTS, I THINK, ARE BEYOND THE CHARGING PERIOD, WITH THE POSSIBLE EXCEPTION OF THE CRAMER STATEMENT, ALTHOUGH IT'S LONG AFTER -- IT'S A YEAR AFTER THE INVESTMENT WAS MADE IN THIS CASE. BUT, YOUR HONOR, THE RELEVANCE IS WHAT I JUST SAID, WHICH IS THE COMPANY -- HAVING BEEN PRIVY TO SEEING THE MACHINE IN 2014 AND SEEING IT TODAY, I DO SEE THE MACHINES AS FUNDAMENTALLY SIMILAR. SO SHE'S, SHE'S LOOKING AT THE TECHNOLOGY, WHICH THE GOVERNMENT IN THIS PERIOD OF TIME HAS PUT AT ISSUE AS A RESULT OF MR. EDLIN'S TESTIMONY, SHE'S LOOKING AT THE TECHNOLOGY AND SHE'S SAYING, YEAH, THIS SEEMS SIMILAR TO WHAT I OBSERVED WHEN I WENT TO VISIT THE COMPANY.
JUDGE DAVILA: OKAY.
MR. LEACH: MS. PETERSON'S STATE OF MIND IN 2016 IS IRRELEVANT, YOUR HONOR. THE PURPOSE OF THE "MAD MONEY" AND THE "TODAY SHOW" CLIPS IS TO SHOW THE DEFENDANT'S RESPONSE TO QUESTIONING ABOUT THE ALLEGATION -- THE ALLEGATIONS IN THIS CASE. HOW MANY TESTS CAN YOUR EDISON DO? SHE DEFLECTS. ARE YOU IN CHARGE OF THIS COMPANY OR ARE YOU NOT? SHE ANSWERS THAT, I AM. MS. PETERSON IS AN AUTHENTICATING WITNESS FOR THESE VIDEOS, HER REACTION IS, FRANKLY, NEITHER HERE NOR THERE, AND HER STATE OF MIND IN 2016 TWO YEARS AFTER THE INVESTMENT AT ONE ISOLATED POINT IN TIME BASED ON AN UNSWORN HOUR LONG SCIENTIFIC PRESENTATION BY MS. HOLMES WHICH WE CANNOT CROSS-EXAMINE ON UNLESS SHE TESTIFIES HAS NO BEARING ON THE ALLEGATIONS IN THIS CASE. IT'S HEARSAY. IT'S 403. I DON'T KNOW WHY WHAT MS. PETERSON THOUGHT IN AUGUST OF 2016, TWO YEARS AFTER HER INVESTMENT, REALLY MATTERS IN THIS CASE.
JUDGE DAVILA: WELL, MR. WADE SAYS THAT SHE'S PERHAPS HAD AN EPIPHANY AFTER LOOKING AT THIS AND DECIDED, OH, MAYBE THE MACHINES ARE THE SAME.
MR. LEACH: I'M QUITE CONFIDENT, WHEN ASKED ABOUT THAT, YOUR HONOR, SHE WILL DENY HAVING AN EPIPHANY, THAT SHE'LL SAY THE BAIT AND SWITCH IS MORE A REFERENCE TO WHAT TYPE OF PROMISES HAD BEEN MADE IN THE PRESENTATION, AND SHE HAS A RESPONSE TO THAT AND IT'S NOT, I WAS HAPPY WITH THE INVESTMENT AND REALLY CONFIDENT THAT THINGS WERE GOING TO WORK OUT. AND IT OPENS UP, YOUR HONOR -- I MEAN, THERE'S A CONTEXT AFTER THIS WHERE RDV IS TAKING STEPS, YOU KNOW, TO TRY TO MAXIMIZE ITS INVESTMENT. SHE'S HEARING LOTS OF THINGS FROM LOTS OF PEOPLE ABOUT LOTS OF DIFFERENT ISSUES, ALL OF WHICH IS HEARSAY. AND IF WE'RE GOING INTO AUGUST OF 2016, THERE'S A WHOLE ADDITIONAL CONTEXT THAT THE GOVERNMENT IS GOING TO WANT TO ELICIT AND IT BECOMES A MINI TRIAL OVER WHAT HAPPENED TO THE INVESTMENT. AND I JUST DON'T SEE THE RELEVANCE. IT RAISES A NUMBER OF 403 ISSUES, AND I -- IT SHOULDN'T COME IN.
MR. WADE: YOUR HONOR, WITH RESPECT, IF THE GOVERNMENT TAKES THAT POSITION, THEY SHOULDN'T HAVE ELICITED THAT TESTIMONY FROM DAN EDLIN TWICE. THEY OPENED THE DOOR TO THIS. THERE'S ALSO -- WE DON'T HAVE VIDEO OF IT, BUT --
JUDGE DAVILA: DID YOU OBJECT TO THAT TESTIMONY?
JUDGE DAVILA: I DON'T THINK I HEARD AN OBJECTION TO THAT.
MR. WADE: NO. YOUR HONOR, BELIEVE ME, IT'S ONE OF THOSE CIRCUMSTANCES WHERE A TRIAL LAWYER HAS TO MAKE A JUDGMENT AS TO WHETHER YOU OBJECT IN FRONT OF THE JURY OR NOT, AND THE JUDGMENT WAS MADE NOT TO DO IT. BUT THAT DOESN'T MEAN THAT THE DOOR HAS NOT BEEN OPENED. IT'S OPEN. SO THE GOVERNMENT MADE THAT DECISION. IT WASN'T AN ACCIDENT. IT DID IT TWICE. IT DID IT ON REDIRECT AS WELL. AND TO NOW SAY, ONCE THEY HAVE MR. EDLIN COME IN AND SAY, I THOUGHT AS A RESULT OF ALL OF THESE INTERACTIONS THAT THE TECHNOLOGY DIDN'T WORK OR WOULDN'T WORK OR COULDN'T WORK, WHEN AT THE AACC PRESENTATION THERE'S A DEMONSTRATION OF THE TECHNOLOGY, THERE'S Q AND A IN WHICH THREE OTHER EXPERTS COMMENT ON THE TECHNOLOGY --
JUDGE DAVILA: RIGHT. AND THAT'S WHERE I'M -- SORRY TO INTERRUPT YOU, MR. WADE. BUT I THINK I SEE WHERE YOU'RE GOING WITH THAT. SO MR. EDLIN SAYS HE LOST FAITH, HE LOST FAITH IN THE COMPANY FOR WHATEVER REASON, THERE COULD HAVE BEEN OTHER REASONS, AND YOU COULD HAVE PROBED THAT, BUT HE SAID, I LOST FAITH, COULDN'T DO IT, AND SO I DECIDED TO LEAVE. NOW, MS. PETERSON, YOU WANT HER TO TESTIFY BASICALLY TO SAY, WELL, ACTUALLY, IN MY OPINION, BASED ON WHAT I HAVE SEEN AT THIS OTHER -- AT THIS CONFERENCE, ACTUALLY, I THINK THE TECHNOLOGY WAS -- IT SOUNDS LIKE THEY COULD HAVE DONE WHAT THEY SAID THEY WERE GOING TO DO. AND THIS IS TO SOFTEN MR. EDLIN'S STATEMENT. SO AREN'T WE TALKING ABOUT -- ISN'T THIS REALLY TO TRY TO SOMEHOW BUFFER EDLIN'S STATEMENT ABOUT HIS BELIEF IN THIS, IN THE TECHNOLOGY, AND NOW YOU'RE TRYING TO SAY MS. PETERSON, HER BELIEF IN THE TESTIMONY, WHICH, WHAT IS THE RELEVANCE OF THAT? I JUST DON'T CAPTURE IT.
MR. WADE: WELL, THE RELEVANCE IN THE CASE IS, IS PUT AT ISSUE BY THE GOVERNMENT OPENING THE DOOR ON THE ISSUE GENERALLY WITH EDLIN, AND IT WAS THEIR JUDGMENT TO DO THAT. ONCE THOSE ISSUES ARE IN THE CASE, WE HAVE THE ABILITY TO REBUT IT. WHETHER IT'S WITHIN THE SCOPE OF CROSS --
JUDGE DAVILA: REBUT THE FACT THAT EDLIN LOST FAITH?
MR. WADE: NO, IT'S NOT THAT HE LOST FAITH, YOUR HONOR. IF YOU LOOK AT THE STATEMENTS, HE MADE THEM TWICE. HE COMMENTED SPECIFICALLY ON HIS BELIEF IN THE TECHNOLOGY AS A RESULT OF POST "WALL STREET JOURNAL" ACTIONS. I THINK HE MAYBE EVEN SAID THE AACC. AND IT CAME UP IN HIS TESTIMONY THAT THERE WERE EVENTS IN DECEMBER OF 2016, WHICH WE WANT TO GET INTO AS WELL. THIS WITNESS WAS INVOLVED IN -- THIS WITNESS -- THE GOVERNMENT WANTS TO PUT IN A MEETING IN APRIL OF 2016 --
JUDGE DAVILA: BUT WHAT IS IT THAT YOU'RE TRYING TO SHOW, THAT EDLIN WAS WRONG? HE WAS WRONG IN HIS ASSESSMENT BECAUSE MS. PETERSON WAS RIGHT? AND THEN WE GET INTO THIS MINI TRIAL ABOUT WHO IS CORRECT AND WHO IS NOT? SO WHAT WE KNOW IS EDLIN SAID WHAT HE SAID. HE LEFT BECAUSE OF HIS OWN PERSONAL BELIEFS. RIGHT, WRONG, OR WHATEVER, HE LEFT. NOW, WHAT DOES MS. PETERSON'S ASSESSMENT OF THE TECHNOLOGY HAVE TO DO WITH EDLIN?
MR. WADE: THE EVIDENCE THAT WILL COME IN THROUGH MS. PETERSON, BECAUSE THE GOVERNMENT WANTS TO OPEN THE DOOR TO POST "WALL STREET JOURNAL" INTERACTIONS AND REACTIONS FROM THE COMPANY, IF IT CHOOSES NOT TO DO THAT, WE WON'T OFFER THE AACC PRESENTATION. IF IT DOESN'T WANT TO OFFER THE CRAMER STATEMENTS, IF IT DOESN'T WANT TO OFFER THE APRIL SEGMENT, THE APRIL MEETING --
JUDGE DAVILA: I THINK THAT'S OFF THE TABLE. WE'VE BEEN TALKING ABOUT THIS ALREADY. I'M JUST -- I JUST DON'T SEE HOW MS. PETERSON, THE AACC TESTIMONY IS RELEVANT.
MR. WADE: WELL, IT ALL IS EVIDENCE OF THE COMPANY'S GOOD FAITH BELIEF THAT THE TECHNOLOGY WORKS, WHICH -- AND IT'S --
JUDGE DAVILA: WHEN YOU SAY "THE COMPANY," WHO ARE YOU REFERRING TO?
MR. WADE: I'M SAYING THERANOS AS AN ENTITY, INCLUDING MS. HOLMES. THERE WERE FIVE PEOPLE -- FOUR PEOPLE ON THE STAGE IN THE AACC --
JUDGE DAVILA: BUT WHAT YOU'VE JUST TOLD ME IS THAT IT'S EVIDENCE THAT THE COMPANY BELIEVED IT WORKED, AND THE COMPANY IS NOT ON TRIAL HERE, YOUR CLIENT IS. AND THAT GOES TO STATE OF MIND. SO DOESN'T THAT THEN COME IN TO TRY TO NEGATE AN ELEMENT OF THE OFFENSE USING HEARSAY THAT YOU'RE NOT ENTITLED TO DO?
MR. WADE: WE CAN OFFER EVIDENCE THAT GOES TO THAT FOR A NONHEARSAY PURPOSE. EVIDENCE THAT REFLECTS A DEFENDANT'S STATE OF MIND, YOU KNOW, CAN BE OFFERED. IN THIS CASE, THE FACT THAT THEY WALKED INTO A PRESENTATION WITH 2500 -- THE GOVERNMENT HAS AN ALLEGATION IN ITS 404(B) NOTICE THAT THEY HID THIS DEVICE FROM THE PUBLIC AND THAT THAT CONCEALMENT IS EVIDENCE OF CRIMINAL INTENT. THIS IS THE OPPOSITE OF THAT. THEY WENT IN FRONT OF 2500 PEOPLE AT A CLINICAL CHEMISTRY CONVENTION, THE WORLD'S EXPERTS, SKEPTICS, PEOPLE WHOSE JOBS MIGHT BE ELIMINATED IF THIS TECHNOLOGY WORKS, AND SAID, HERE'S OUR TECHNOLOGY. THAT'S, THAT'S THE -- THE VERY ACT IS EVIDENCE AND IT NEGATES CRIMINAL INTENT.
JUDGE DAVILA: OKAY. ARE THERE OTHER ISSUES WE WANT TO TALK ABOUT? WE'RE PAST 9:00 HERE. I SHOULD HAVE STARTED THIS CONVERSATION AT 8:00. I APOLOGIZE FOR THAT. I WANT TO CAPTURE SOME TIME HERE. IS THERE ANYTHING ELSE WE NEED TO TALK ABOUT?
MR. WADE: THERE IS ONE ISSUE FOR MS. PETERSON AND THEN MAYBE WE CAN TAKE MR. EISENMAN EITHER NOW OR AT A BREAK DEPENDING ON WHAT THE COURT'S PREFERENCE IS.
JUDGE DAVILA: OKAY.
MR. WADE: IT'S MY UNDERSTANDING THAT THE GOVERNMENT MAY SEEK TO OFFER EVIDENCE OF STATEMENTS FROM MS. PETERSON WITH RESPECT TO MATERIALITY, YOU KNOW, HERE'S THIS STATEMENT, DID YOUR EMPLOYER CONSIDER THAT THE -- DID THE ENTITY THAT EMPLOYS YOU CONSIDER THAT TO BE MATERIAL TO THE INVESTMENT DECISION? AS CONTEXT, YOUR HONOR, THE ENTITY THAT THE INVESTOR WHO MS. PETERSON WORKED FOR IS RDV CORPORATION, WHICH IS THE FAMILY OFFICE OF THE DEVOS FAMILY. MS. PETERSON PLAYED NO ROLE IN MAKING THE INVESTMENT DECISION. SHE WAS NOT A DECISION-MAKER. MR. TUBERGEN, JERRY TUBERGEN, AND FOUR MEMBERS OF THE DEVOS FAMILY WERE THE DECISION MAKERS. THEY WERE INVOLVED IN A WHOLE OTHER SERIES OF INTERACTIONS THAT MS. PETERSON WAS NOT INVOLVED IN. THEY MADE THE INVESTMENT DECISION INDEPENDENT OF MS. PETERSON. SHE'S BEEN ASKED UNDER OATH, WHAT ROLE DID YOU PLAY IN THOSE DISCUSSIONS, AND SHE SAID NONE. AND SO WE JUST WANT TO MAKE CLEAR THAT THE GOVERNMENT SHOULD NOT THEREFORE BE IN A POSITION TO SAY, HERE'S THIS STATEMENT, WAS THAT IMPORTANT TO RDV IN MAKING ITS INVESTMENT DECISION? BECAUSE SHE DOESN'T HAVE, YOU KNOW, A FOUNDATION TO MAKE SUCH STATEMENTS.
JUDGE DAVILA: I SEE. OKAY.
MR. LEACH: YOUR HONOR, I THINK THAT DOES NOT PAINT A COMPLETE PICTURE OF MS. PETERSON'S ROLE. SHE'S THE INVESTMENT PROFESSIONAL WITHIN RDV WHO WAS TASKED TO ANALYZE THIS INVESTMENT. SHE ATTENDS ALL OF THE CRITICAL INVESTOR PRESENTATIONS BY MS. HOLMES; SHE PARTICIPATES IN A ONE HOUR PHONE CALL WITH MS. HOLMES; SHE PREPARES THE DOCUMENT FOR RDV BY WHICH THE INVESTMENT COMMITTEE APPROVES THE INVESTMENT. SHE HEARS ALL OF THE STATEMENTS. SHE'S PERFECTLY CAPABLE -- AND SHE MAKES INVESTMENTS FOR RDV, OR RECOMMENDS INVESTMENTS FOR RDV ALL OF THE TIME, SO SHE'S PERFECTLY CAPABLE TO TESTIFY TO HER REACTIONS TO PARTICULAR STATEMENTS. WHY SHE INCLUDED INFORMATION IN THE APPROVAL MEMO FOR THE INVESTMENT, WAS THIS RELEVANT TO HER ANALYSIS, I THINK ALL OF -- YOU KNOW, MATERIALITY IS AN OBJECTIVE STANDARD. WE DON'T NEED TO PROVE RELIANCE. WE NEED TO PROVE OBJECTIVE TO A REASONABLE PERSON. MS. PETERSON IS A REASONABLE PERSON WHO WAS IN THE ROOM FOR ALL OF THIS.
JUDGE DAVILA: SO SHE IS GOING TO TESTIFY -- FOUNDATIONALLY SHE'LL TESTIFY ABOUT WHO SHE IS EMPLOYED BY, WHO IS AN INVESTOR, I PRESUME, AND SHE'LL TALK ABOUT HER DUTIES, THE JOB TITLES, HER RESPONSIBILITIES, WHAT SHE'S TASKED TO DO, MUCH LIKE THE WITNESS LAST WEEK?
MR. LEACH: YES.
JUDGE DAVILA: AND THEN SHE'LL TELL US WHAT SHE DID BASED ON HER RESEARCH, HER ANALYSIS?
MR. LEACH: YES.
JUDGE DAVILA: WHAT HER JOB SCOPE WAS AND WHAT SHE DID WITH THAT INFORMATION?
MR. LEACH: YES.
JUDGE DAVILA: AND SHE DIDN'T PERSONALLY WRITE A CHECK, BUT THIS IS PART OF HER JOB FOR THE CORPORATION, I ASSUME?
MR. WADE: YOUR HONOR, WITH APPROPRIATE RESPECT AND DEFERENCE, ALMOST EVERYTHING THAT MR. LEACH JUST SAID IS NOT TRUE.
JUDGE DAVILA: OH.
MR. WADE: IT WAS A HALF HOUR PHONE CALL THAT SHE PARTICIPATED IN. THAT WAS A VERY HIGH LEVEL MEETING. SHE WAS NOT INVOLVED IN A CRITICAL MEETING THAT HAPPENED BEFORE THAT, SO SHE WAS NOT INVOLVED IN ALL OF THE DECISIONS.
JUDGE DAVILA: I WAS JUST ASKING A GENERAL JOB DESCRIPTION THAT SHE HAS. SHE'LL TESTIFY THAT SHE'S EMPLOYED BY THIS COMPANY, WHAT SHE DOES, WHAT SHE'S TASKED TO DO, WHATEVER THE LENGTH OF RESEARCH SHE DID, SHE'LL SAY WHAT SHE DID, AND SHE'LL THEN SAY, I THEN WROTE A REPORT THAT EITHER WAS THUMBS UP, THUMBS DOWN, WHATEVER IT WAS, AND I GAVE IT TO THE COMPANY AND THEY DID WHAT THEY DID.
JUDGE DAVILA: OH.
JUDGE DAVILA: SHE DIDN'T DO ANY OF THAT?
JUDGE DAVILA: SURE.
MR. WADE: THERE WAS AN INITIAL MEETING THAT HAPPENED BETWEEN MS. PETERSON'S BOSS'S BOSS, JERRY TUBERGEN, WHO IS THE CEO AND CHIEF INVESTMENT OFFICER OF RDV. HE HAD A BUNCH OF INTERACTIONS AROUND THAT MEETING AND RECEIVED INFORMATION IN THAT MEETING WHICH WAS NOT CONVEYED TO MS. PETERSON IN TOTAL. MR. TUBERGEN THEN HAD EXTENSIVE INTERACTIONS WITH MANY MEMBERS OF THE DEVOS FAMILY WHO HAVE LEGAL AUTHORITY TO MAKE THE INVESTMENT DECISION. HE THEN COMES BACK FROM THIS CONFERENCE. HE IS IN HIS OFFICE. HE RECEIVES MATERIALS. HE HAS A 30 MINUTE PHONE CONVERSATION WITH MS. HOLMES WITH MS. PETERSON PRESENT. IT WAS A HIGH-LEVEL CONVERSATION, ACCORDING TO THE TESTIMONY OF MS. PETERSON, ABOUT VISION, WHAT SHOULD HAPPEN AT ANOTHER MEETING THAT WAS TO COME. THEY SEND 12 INCHES OF MATERIALS TO MR. TUBERGEN. MS. PETERSON'S GIVEN THE MATERIALS. SHE WRITES A MEMO. SHE DOES NOT KNOW IF MR. TUBERGEN REVIEWED THE MEMO OR IF ANY MEMBER OF THE DEVOS FAMILY REVIEWED THE MEMO ACCORDING TO HER TESTIMONY.
SHE ATTENDS A TRIP. THERE ARE EXTENSIVE ADDITIONAL INTERACTIONS HAPPENING BETWEEN MR. TUBERGEN AND MEMBERS OF THE DEVOS INVESTMENT COUNSEL, WHO ARE THE DECISION MAKERS TOGETHER, THOSE TWO PEOPLE. MEMBERS OF THE DEVOS FAMILY AND MR. TUBERGEN AND LISA PETERSON FLY TO CALIFORNIA, THEY VISIT WITH THE COMPANY, AND THEY MAKE AN INVESTMENT COMMITMENT ON THE SPOT. THAT'S MS. PETERSON'S TESTIMONY. THEY MAKE THE INVESTMENT, AND THERE ARE CONTEMPORANEOUS DOCUMENTS THAT SHOW THAT. THE MEMO IS PREPARED LATER. IT IS SIGNED. WE DON'T KNOW EXACTLY WHEN. MONTHS LATER. WE HAVE EVIDENCE THAT IT WAS SIGNED WELL AFTER THE DOCUMENTS ON THE INVESTMENT WERE SIGNED. AND IT WAS WELL AFTER THE PERIOD WHERE THE INVESTMENT WAS FUNDED. SO THE DOCUMENTS GO, THE WIRE GOES, SOME PERIOD OF TIME LATER THAT MEMO WAS SIGNED. WE DON'T KNOW -- MS. PETERSON DOESN'T KNOW WHO REVIEWED IT. I MEAN, SHE KNOWS WHO SIGNED IT, BUT SHE DOESN'T KNOW WHO REVIEWED IT OR WHEN.
SO THE FACT THAT -- THEY CAN'T USE THAT DEVICE TO PAPER THE FILE -- ALL OF THE EVIDENCE MAKES CLEAR THAT THE INVESTMENT DECISION WAS MADE BY MEMBERS OF THE DEVOS FAMILY AND MR. TUBERGEN IN THE ROOM IN PALO ALTO WHEN THEY VISITED. SO THIS ISN'T THE CASE WHERE -- YOUR HONOR HAS PROBABLY SEEN MANY DIFFERENT, YOU KNOW, SCENARIOS WHERE SOME ANALYST WRITES UP A REPORT AND THEY GIVE THE REPORT AND IT'S APPROVED. THAT'S NOT WHAT THIS IS. IT'S A TOTALLY DIFFERENT RELATIONSHIP THAT IS A UNIQUE INVESTMENT SITUATION ACCORDING TO ALL INVOLVED, AND IT'S HIGHLY PREJUDICIAL FOR HER TO BE ABLE TO SAY, THIS WAS IMPORTANT, THIS MATTERED, WHEN THERE WERE A LOT OF FACTS THAT SHE DOESN'T KNOW ABOUT THAT MAY WELL HAVE MATTERED AND WE CAN'T CROSS-EXAMINE THEM.
JUDGE DAVILA: SURE. CAN SHE SAY WHAT MATTERED AT LEAST TO HER KNOWLEDGE?
MR. WADE: I DON'T THINK SO. I THINK IT CREATES A MISLEADING PICTURE FOR THE JURY BECAUSE SHE DOESN'T HAVE -- SHE DIDN'T PLAY ANY ACTUAL ROLE IN THE INVESTMENT DECISION.
JUDGE DAVILA: BUT CAN SHE TESTIFY, JUST AS YOU DESCRIBED IT, CAN'T SHE TESTIFY ABOUT THE FAMILY STRUCTURE, WHAT HER JOB IS, THEY FLEW OUT. WAS THERE AN INVESTMENT? YES. DID YOU SEE THE "TODAY SHOW"? DID YOU SEE "MAD MONEY"? I DID. DID YOU GIVE THAT INFORMATION TO THEM, YES OR NO? CAN'T SHE TESTIFY ABOUT THAT?
MR. WADE: SOME OF -- THE "MAD MONEY" AND THE OTHER THINGS, THOSE HAPPENED AFTER THE INVESTMENT, WHICH IS PART OF THE REASON WHY WE DON'T THINK THEY SHOULD COME IN.
JUDGE DAVILA: SURE.
MR. WADE: BUT SHE CAN SAY, I'VE GOT TWO BINDERS OR TWO THINGS, OR A FOOT, A STACK OF TWO BINDERS.
JUDGE DAVILA: AND IT SOUNDS LIKE YOU HAVE PLENTY OF FODDER FOR CROSS-EXAMINATION.
MR. WADE: BUT IT'S NOT APPROPRIATE TESTIMONY IN THE FIRST INSTANCE, YOUR HONOR. IF SHE JUST WANTS TO TESTIFY AS TO THE FACTS, THIS IS WHAT WAS HERE, THIS IS WHAT WAS SAID, THIS IS WHAT I PUT IN THE MEMO, THIS IS WHAT I CONVEYED TO THE INVESTMENT PEOPLE, THIS IS WHAT HAPPENED DURING THE MEETING, THAT'S FINE.
JUDGE DAVILA: AND AN INVESTMENT WAS MADE.
MR. WADE: AND AN INVESTMENT WAS MADE. BUT CAN SHE SAY, WAS THIS IMPORTANT TO RDV'S INVESTMENT DECISION? SHE CANNOT DO THAT. SHE DOESN'T HAVE A FOUNDATION TO OFFER THOSE KINDS OF FACTS.
JUDGE DAVILA: MR. LEACH?
MR. LEACH: FIRST OF ALL, YOUR HONOR, THAT SOUNDS LIKE EFFECTIVE CROSS-EXAMINATION. NOTHING TO UNDERMINE THE RELEVANCE OR THE PERCIPIENT KNOWLEDGE OF THIS PARTICULAR WITNESS. SHE ATTENDS THE MEETING WHERE, ACCORDING TO MR. WADE, THE INVESTMENT DECISION WAS MADE. THEY DID NOT WRITE A CHECK AT THAT MEETING. THEY WERE IMPRESSED, THEY WERE EXCITED, THEY WERE TRENDING TOWARD AN INVESTMENT. BUT I THINK IT'S AN OVERSTATEMENT TO SAY THE INVESTMENT WAS MADE. SHE WAS THERE IN THE ROOM. SHE HEARD THE STATEMENTS. SHE'S PERFECTLY COMPETENT TO SAY, WAS THAT IMPRESSIVE? WAS THAT RELEVANT TO YOU? WAS THAT SOMETHING THAT YOU THOUGHT WAS IMPRESSIVE? SHE PREPARES THE APPROVAL DOCUMENT THAT RDV ALWAYS USES FOR ITS INVESTMENTS. THE FACT THAT SHE IS PREPARING THAT SHOWS HER INVOLVEMENT. NOW, IF THEY WANT TO ARGUE SOMETHING ABOUT THE TIMING OR NOBODY REVIEWED IT, THAT'S CERTAINLY FODDER FOR CROSS-EXAMINATION. BUT SHE'S THE INVESTMENT PROFESSIONAL WITHIN RDV WHO IS ASSIGNED TO THIS TASK. AND THEY WANT TO SUGGEST THAT THAT'S AN EMPTY GESTURE, FINE. BUT IT DOESN'T UNDERCUT THE RELEVANCE OF WHAT SHE'S GOING TO SAY.
JUDGE DAVILA: THIS GETS BACK TO -- LET ME GO BACK TO THESE TWO VIDEOS, THOUGH, MR. LEACH. WHAT IS THE -- IF THE VIDEOS WERE AFTER THE INVESTMENT, THEN WHAT IS THE RELEVANCE OF THOSE?
MR. LEACH: YOUR HONOR, DEFENDANTS SOMETIMES MAKE STATEMENTS AFTER THE OFFENSE THAT ARE STILL RELEVANT. YOU KNOW, MS. HOLMES TESTIFIED BEFORE THE S.E.C. IN 2017 ABOUT THE EVENTS.
JUDGE DAVILA: RIGHT.
MR. LEACH: NO ONE WOULD QUESTION THE RELEVANCE OF THAT.
JUDGE DAVILA: NO. I'M JUST TRYING TO DETERMINE THE ORDER OF INTRODUCING THESE STATEMENTS THROUGH THIS WITNESS.
MR. LEACH: THOSE WILL COME AT THE END OF THE EXAMINATION, BUT -- AND THEY'RE A YEAR AFTER THE INVESTMENT.
JUDGE DAVILA: RIGHT.
MR. LEACH: AND SO THE TIMING IS AFTER THE FACT. THE STATEMENTS ARE RELEVANT NOT BECAUSE THEY WERE MADE TO MS. PETERSON. IT'S SIMPLY THE DEFENDANT'S FALSE STATEMENT WHEN CONFRONTED WITH EVIDENCE ABOUT HOW MANY TESTS THE EDISON CAN DO, AND IT'S HER ADMISSION OF RESPONSIBILITY FOR HER OWN COMPANY.
JUDGE DAVILA: SO THEN MS. PETERSON'S OBSERVATION OF THOSE TWO VIDEOS HAS NOTHING TO DO WITH THE INVESTMENT?
MR. LEACH: CORRECT.
JUDGE DAVILA: WHAT THEY'RE -- SHE'LL TESTIFY AS ANYONE, I GUESS YOU COULD CALL ANYONE AS FOUNDATIONAL FOR THOSE. DID YOU SEE THIS? DID YOU HEAR HER MAKE THAT STATEMENT? YES, I DID.
MR. LEACH: WE COULD CALL ANYBODY, YOUR HONOR.
JUDGE DAVILA: THAT'S WHAT I'M --
MR. LEACH: WE'RE PUTTING IT IN THROUGH HER BECAUSE SHE HAPPENS TO HAVE SEEN THEM, BUT WE COULD DO IT THROUGH ANYBODY.
MR. WADE: AND THERE ARE A COUPLE OF ISSUES, RIGHT? YOUR HONOR IS RIGHT TO FOCUS ON THE FACT THAT IT IS AFTER THE INVESTMENT DECISION. THE CONCERN THAT I WAS TRYING TO EXPRESS WITH THE COURT IS THAT ONCE THEY OPEN THE DOOR TO THAT PERIOD, THEY CAN'T CRACK IT AND NOT OPEN IT, AND SO IF THEY WANT TO JUST INTRODUCE THE VIDEO AND PLAY IT TO THE JURY LIKE THEY'VE BEEN PLAYING SOME OF THESE TEXT MESSAGES OR WHATEVER THROUGH DIFFERENT WITNESSES BECAUSE MAYBE THEY'RE ADMISSIBLE, THAT'S A DIFFERENT ISSUE. I THINK MR. LEACH STARTED THE DISCUSSION BY SAYING HE WANTED HER COMMENTARY AND REACTION FROM IT, AND THAT'S WHERE WE GET INTO ALL OF THE POST-INVESTMENT INTERACTIONS AND THOSE BECOME FAIR GAME. WITH RESPECT TO THIS ISSUE -- AND I JUST WANT TO BE VERY CLEAR BECAUSE IT'S A UNIQUE SET OF CIRCUMSTANCES HERE, YOUR HONOR -- THIS WITNESS WAS ASKED UNDER OATH, WHEN WAS THE INVESTMENT COMMITMENT MADE? THE INVESTMENT COMMITMENT WAS MADE AT THE END OF THE MEETING IN PALO ALTO. WHAT INPUT DID YOU HAVE REGARDING THAT COMMITMENT? NONE. THAT'S HER TESTIMONY. SO FOR HER -- AGAIN, SHE CAN TESTIFY AS TO WHAT HAPPENED THERE, BUT FOR HER TO SAY, WAS THIS SIGNIFICANT? WAS THIS IMPORTANT? WAS THIS -- YOU KNOW, WE'VE HEARD --
JUDGE DAVILA: YOU MEAN THE VIDEOS YOU'RE TALKING ABOUT?
MR. WADE: NO, NO. I'M TALKING ABOUT -- SHE SHOULDN'T BE ABLE TO ASK -- ANSWER THOSE QUESTIONS ABOUT ANY FACTS IN THE CASE BECAUSE SHE DIDN'T MAKE THE INVESTMENT DECISION. THE U.S. SUPREME COURT CASE ON THIS, WHICH IS IRONICALLY NAMED PETERSON --
JUDGE DAVILA: SHE SHOULD BE ABLE TO TESTIFY ABOUT HER JOB AND WHAT SHE DID AND ALL OF THAT, AND THAT'S WHAT I THINK HE'S GOING TO ELICIT, WHAT IS YOUR JOB AND WHAT DID YOU DO? ALL RIGHT. EVEN IF THE DECISION WAS MADE IN PALO ALTO ON THE SPOT, OKAY.
JUDGE DAVILA: RIGHT.
MR. WADE: THE ISSUE IS, CAN HE SAY, WHICH HE DID, CAN MR. LEACH ASK, AS THEY DID IN DIFFERENT INTERVIEWS AND AT TIMES IN GRAND JURY APPEARANCES, WAS THIS IMPORTANT TO THE RDV INVESTMENT DECISION? THAT SHE HAS NO BASIS TO --
JUDGE DAVILA: WHAT IS THIS? WHAT IS THIS?
MR. WADE: WAS THIS REFERENCED IN A SLIDE DECK IMPORTANT TO RDV'S INVESTMENT DECISION? WAS THIS --
JUDGE DAVILA: SO HE COULD ASK HER, TO YOUR KNOWLEDGE, WHAT WAS IMPORTANT IN THE RDV INVESTMENT DECISION?
JUDGE DAVILA: HE COULD ASK THAT QUESTION?
MR. WADE: I GUESS HE COULD IF HE LAYS A FOUNDATION THAT SHE HAS KNOWLEDGE AS TO WHAT IS IMPORTANT TO THE INVESTMENT DECISION.
JUDGE DAVILA: WELL, SHE PROBABLY HAS WORKED THERE FOR SOME PERIOD OF TIME AND HAS THE TRUST OF THE COMPANY TO CONTINUE IN HER EMPLOYMENT.
MR. WADE: THE FACTUAL RECORD IS PRETTY CLEAR ON THIS, YOUR HONOR. SHE HAS NO INTERACTION WITH -- VERY LITTLE INTERACTION IN ADVANCE OF THE INVESTMENT DECISION WITH THE DECISION MAKERS.
JUDGE DAVILA: ALL RIGHT. WELL, THIS SOUNDS MORE LIKE THE JURY IS GOING TO HAVE TO DECIDE WHAT TO DO WITH IT. IT'S MORE OF A WEIGHT ISSUE THAN AN ADMISSIBILITY ISSUE, IT SEEMS LIKE.
MR. WADE: I THINK IT'S A FOUNDATION ISSUE, YOUR HONOR. I THINK IT EFFECTIVELY SHIFTS THE BURDEN OF MATERIALITY TO US BECAUSE WE CAN'T CROSS-EXAMINE THE ACTUAL DECISION MAKERS. THEY WANT TO MISLEAD THE JURY INTO THINKING SHE'S THE DECISION-MAKER AND, THEREFORE, SHE THOUGHT THIS WAS IMPORTANT, THAT IT WAS IMPORTANT, WHEN SHE ACTUALLY HAD NO ROLE IN THAT.
JUDGE DAVILA: WELL, IT SOUNDS LIKE YOU'LL BE VERY EFFECTIVE IN CROSS-EXAMINING AND LETTING THE JURY KNOW THAT NONE OF THAT IS ACCURATE.
MR. WADE: IT SHOULDN'T COME IN IN THE FIRST INSTANCE, YOUR HONOR. BUT I WOULD ASK THAT -- I'LL OBJECT, BUT I WOULD JUST ASK FOR A STANDING OBJECTION WITH RESPECT TO ANY QUESTIONS OF THIS NATURE BECAUSE WE THINK ANY QUESTIONS THAT THEY'RE GOING TO ASK THIS WITNESS ABOUT WAS THIS IMPORTANT --
JUDGE DAVILA: DON'T BE CONCERNED ABOUT OBJECTING. WE HAD A -- I TOLD THE JURY IN VOIR DIRE, AS YOU REMEMBER, THAT THIS WILL BE A LONG CASE AND THERE WILL BE OBJECTIONS AND THEY SHOULD EXPECT OBJECTIONS, AND I THINK I -- I CRAFTED A PRELIMINARY INSTRUCTION TELLING THEM THAT THEY SHOULD NOT, AND WILL NOT, CONSIDER THE NUMBER AND WHO MAKES IT AND THAT HAS NOTHING TO DO WITH THEIR DECISION PROCESS. SO BOTH SIDES DON'T BE AFRAID TO OBJECT AND STAND ON YOUR POSITIONS. I KNOW THERE ARE STRATEGIC REASONS WHY THAT'S NOT HAPPENING, TOO.
MR. WADE: AND I JUST WANT TO ASK THE COURT, IF THE COURT IS GOING TO LET IN QUESTIONS OF THIS NATURE, IF I COULD HAVE A STANDING OBJECTION SO I DON'T HAVE TO OBJECT TO EVERY QUESTION.
JUDGE DAVILA: RIGHT. AND I CAN SAY THAT IN FRONT OF THE JURY AS WELL IF YOU WOULD LIKE SO THEY KNOW AT LEAST YOUR POSITION. OKAY. WHAT ELSE DO WE NEED TO TALK ABOUT?
MR. DOWNEY: YOUR HONOR, WE HAVE A WITNESS --
MR. LEACH: NOTHING FROM THE GOVERNMENT.
MR. DOWNEY: -- MR. EISENMAN, WHO I THINK WILL COME NOT UNTIL AFTER CERTAINLY THE FIRST AND MAYBE THE SECOND BREAK. I WAS WONDERING IF WE COULD --
JUDGE DAVILA: LET'S DO THAT SO WE CAN GET STARTED THIS MORNING. THANK YOU, MR. DOWNEY: I APPRECIATE THAT. ANYTHING ELSE THAT THE PARTIES WANTED TO TALK ABOUT THIS MORNING?
MR. LEACH: NO, YOUR HONOR. IF THE COURT WOULD LIKE TRANSCRIPTS OF THE "TODAY SHOW" OR "MAD MONEY," I HAVE THEM.
JUDGE DAVILA: THAT WOULD BE HELPFUL. THANK YOU. DO YOU HAVE THESE TOO, MR. WADE?
MR. LEACH: I HAVE ONE FOR THE DEFENSE.
JUDGE DAVILA: OKAY. LET ME JUST TALK ABOUT SOME OTHER SCHEDULING MATTERS. PLEASE RECALL I ASKED IF WE COULD RESCHEDULE TO CAPTURE MORE TIME. AS I UNDERSTAND IT, WE WILL NOT BE ABLE TO MEET ON -- LET'S START WITH MONDAYS. I'VE ADVANCED MONDAY MORNINGS AS POSSIBILITIES. WE WILL NOT BE ABLE TO DO THAT ON THE 1ST NOR THE 8TH, BUT IT SOUNDS LIKE THE 15TH, THE 22ND, AND THE 29TH WOULD BE AVAILABLE FOR EVERYONE. I SUGGESTED SWAPPING THE DAY BEFORE THANKSGIVING TO THE 18TH, AND THAT SEEMS TO BE ACCEPTABLE. SO WE'LL TRY TO DO THAT. AND THEN WE'LL LOOK AND SEE -- DECEMBER 3RD, REMEMBER, WE CAN'T BE IN SESSION. A JUROR IS TRAVELLING ON THAT DAY. WE'LL JUST SEE WHERE WE CAN FIT OTHER THINGS IN.
MR. WADE: DID THE COURT WANT TO EXPLORE SWAPPING THE THURSDAY FOR THE FRIDAY IN DECEMBER? I KNOW YOU HAVE A CALENDAR, SO IT MAY NOT WORK. I JUST -- PLEASE LET THE PARTIES KNOW.
JUDGE DAVILA: YEAH, WE'LL LOOK AT THAT AND SEE. I MAY HAVE TO FIND SOME OTHER TIME. I DON'T KNOW WHERE WE ARE AS FAR AS TIMING GOES IN THE CASE. I DON'T KNOW, MR. LEACH, IF YOU CAN GIVE US ANY GUIDANCE, YOU DON'T HAVE TO CERTAINLY, ABOUT WHERE YOU'RE AT IN YOUR PRESENTATION OR HOW MANY MORE DAYS YOU THINK YOU NEED. OF COURSE, THAT'S DEPENDENT, I UNDERSTAND, ON CROSS-EXAMINATION.
MR. LEACH: CERTAINLY THE SECOND HALF, YOUR HONOR. I'M NOT SURE I COULD GIVE GREATER CLARITY THAN THAT, BUT I'M NOT SURE IT'S NECESSARY TO RESOLVE DATES IN DECEMBER NOW.
JUDGE DAVILA: THAT'S FINE. LET ME SHARE WITH YOU, WE RECEIVED AN EMAIL FROM A JUROR, AND AGAIN, THIS IS FOR -- ACTUALLY, THIS IS INFORMATIONAL FOR THE PARTIES, BUT ALSO DIRECTIONAL TO OUR GUESTS WHO ARE VIEWING THIS, THAT IS, THE PUBLIC. MS. KRATZMANN RECEIVED AN EMAIL FROM A JUROR WHO -- I'LL JUST PARAPHRASE IT HERE. HE THANKED THE COURT FOR COMMENTING REGARDING THE NOTE TAKING AND THE PROCEEDINGS AND THEY HAVE HAD SOME HELP. THIS JUROR REPORTS, SPEAKING FOR THE JURY, IT CONTINUES TO BE A DISTRACTION. SEVERAL JURORS -- ONE PARTICULAR INDIVIDUAL WHOSE TYPING WAS DISTRACTING. THE JUROR INDICATES HE WAS TEMPTED TO RAISE HIS HAND AND REQUEST THAT THE COURT DO SOMETHING ABOUT THIS. I JUST WANT TO INDICATE AGAIN THAT THOSE WHO ARE HERE TAKING NOTES, YOU'RE SUPPOSED TO HAVE SILENT KEYBOARDS AND BE ABLE TO KNOW HOW TO USE THE SILENT KEYBOARD. I WILL BRING ANOTHER MARSHAL IN TO MONITOR THIS.
I DON'T LIKE TO DO THAT, BUT WE DO HAVE THE OVERFLOW ROOM THAT IS AVAILABLE, AND I INVITE THOSE OF YOU WITH KEYBOARDS TO USE THAT ROOM. I'LL HAVE TO ASK YOU TO GO THERE IF IT BECOMES A PROBLEM. I JUST WANT TO SAY THAT. AND THIS IS PARTICULARLY FOR, I THINK I'M SPEAKING FOR THE JURORS WHO ARE SEATED IN THE -- OUTSIDE OF THE WELL AREA, THEY'RE IN THE PUBLIC AREA. SO THOSE OF YOU WHO FEEL THE NEED TO TYPE, PLEASE DO IT SILENTLY. IF I GET ANOTHER COMPLAINT ABOUT IT SUCH THAT THIS JURY IS BEING DISTRACTED IN A WAY THAT IMPAIRS MS. HOLMES'S RIGHT TO HER FAIR TRIAL OR THE GOVERNMENT'S ABILITY TO PUT ON A FULSOME PROSECUTION, I'M GOING TO HAVE ANYONE WHO WANTS TO TYPE TO GO TO THE OVERFLOW ROOM AND DO YOUR TYPING THERE AND NOT BE IN THIS ROOM. IT'S DISTRACTING, IT'S NOT FAIR TO MS. HOLMES, IT'S NOT FAIR TO THE GOVERNMENT, AND IT CERTAINLY, CERTAINLY IS INAPPROPRIATE FOR THE JURY TO HAVE TO FEND WITH THAT WHILE THEY LISTEN TO THE TESTIMONY HERE. SO I WOULD APPRECIATE IT VERY MUCH IF FOLKS COULD POLICE THEMSELVES WITH THEIR KEYBOARDS, AND IF NOT, THEN I'LL HAVE TO ENGAGE A PROCESS FOR THAT. I DON'T WANT TO DO THAT. I REALLY DON'T. SO HOPEFULLY YOU CAN -- THOSE OF YOU WHO ARE TYPING CAN MANAGE IT ON YOUR OWN. ALL RIGHT.
MR. WADE: YOUR HONOR, IF WE MIGHT, MAYBE WHEN YOU GIVE YOUR STANDARD MORNING GREETING WITH THE JURY, MAYBE IT WOULD BE A GOOD IDEA TO ACTUALLY ENCOURAGE THEM TO RAISE THEIR HAND IF THERE'S A CIRCUMSTANCE WHERE THEY'RE UNABLE TO PAY ATTENTION SO WE CAN PAUSE THE PROCEEDINGS AT THAT POINT. OBVIOUSLY WE WANT TO MAKE SURE THAT THAT DOESN'T PERSIST IN THAT MOMENT. SO MAYBE JUST EMBOLDENING THE JURY TO DO THAT WOULD BE A GOOD IDEA.
JUDGE DAVILA: I THINK I'M GOING TO DO THAT AND ASK THEM TO COMMENT ON THAT. AGAIN, THAT'S A DISTRACTION WITH THE EVIDENCE. THERE'S SOMEONE RAISING THEIR HAND IN THE AUDIENCE, AND I'LL HAVE THAT PERSON TALK TO MS. KRATZMANN AT THE BREAK IF THEY WANT TO BE HEARD. THAT'S THE INTENT OF THE COURT. THIS IS A PUBLIC COURTROOM. THE PUBLIC OWNS THIS COURT BUILDING. THE PUBLIC OWNS THESE FACILITIES AND THEY HAVE A RIGHT TO ACCESS TO THEM. WHEN WE'RE IN TRIAL AND WE'RE IN THIS COURTROOM, THE RESPONSIBILITY FOR CONDUCTING A FAIR TRIAL SUCH THAT ALL PARTIES HAVE ACCESS TO THIS COURTROOM FALLS UPON THE JUDGE, AND THAT'S WHAT I'M TRYING TO DO IS TO BALANCE INDIVIDUAL'S ACCESS TO THEIR COURTHOUSES WITH THE PARTIES' RIGHTS TO A FAIR TRIAL, AND SOMETIMES THERE ARE SOME TENSION BETWEEN THOSE TWO. WE HAVE THE OVERFLOW ROOM WHICH IS AVAILABLE TO MEDIATE THAT SITUATION, AND I HOPE IT'S SUCCESSFULLY USED BY THE PARTIES. OKAY. WE'LL TAKE A BREAK AND THEN WE'LL BRING THE JURY IN IN JUST A MOMENT.
MR. LEACH: THANK YOU, YOUR HONOR.
(RECESS FROM 9:31 A.M. UNTIL 9:41 A.M.)