Pretrial Evidentiary Hearings and Trial Scheduling
122 linesSAN JOSE, CALIFORNIA OCTOBER 27, 2021 P R O C E E D I N G S
(COURT CONVENED AT 8:14 A.M.)
(JURY OUT AT 8:14 A.M.)
JUDGE DAVILA: ALL RIGHT. 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. IT'S ABOUT 8:15. OUR COURT DAY WITH EVIDENCE STARTS AT 9:00 A.M. WE HAD AGREED TO COME THIS MORNING TO MEET AND SPEAK ON SOME OTHER EVIDENTIARY ISSUES, I THINK REGARDING THREE ITEMS. BUT I THINK WE ALL LEARNED THIS MORNING THAT APPARENTLY A BLOCK FROM HERE, NORTH OF THE COURTHOUSE ON SECOND AND SAN FERNANDO STREETS, THERE'S A WATER PIPE THAT BURST. I'M JUST INFORMED FROM OUR BUILDING MANAGER THAT WATER IS OUT ALL ON SECOND STREET FROM SANTA CLARA STREET SOUTH, WHICH INCLUDES THIS BUILDING. I'M INFORMED THE WATER WILL NOT -- THE ESTIMATED TIME TO REPAIR IS, AT THE EARLIEST, 2:00 P.M. THIS AFTERNOON. THE CHIEF JUDGE HAS BEEN NOTIFIED. MY SENSE IS THAT HE, THE CHIEF JUDGE, WILL PROBABLY CLOSE THE BUILDING FOR HEALTH AND SANITATION REASONS, AND I EXPECT THAT'S GOING TO HAPPEN SHORTLY. I HAVEN'T HEARD OR TALKED WITH JUDGE SEEBORG, BUT THAT'S MY SENSE OF IT. BUT IF, IN FACT, WE'RE NOT GOING TO HAVE WATER UNTIL 2:00 P.M., I JUST DON'T THINK THAT WE CAN PROCEED WITH THE TRIAL THIS MORNING. I'M HAPPY TO HEAR FROM YOU, BUT HAVING 15 JURORS AND HAVING ALL OF YOU AND THE PUBLIC WITHOUT WATER AVAILABLE IS -- I THINK THAT ASKS TOO MUCH. BUT I'M HAPPY TO HEAR FROM COUNSEL IF YOU HAVE ANY THOUGHTS OR SUGGESTIONS.
MR. SCHENK: THANK YOU, YOUR HONOR. NO, WE AGREE. WE DON'T HAVE ANY OTHER SUGGESTIONS. IT MAKES SENSE NOT TO HAVE THE JURY COME IN IF THEY CAN'T WASH THEIR HANDS OR DO ANYTHING THAT IS NECESSARY THESE DAYS.
JUDGE DAVILA: MR. DOWNEY?
MR. DOWNEY: YEAH, WE AGREE, YOUR HONOR. WE DON'T HAVE ANY REASON TO --
JUDGE DAVILA: AND NOT TO MENTION THE PUBLIC HERE AND ALL OF YOU, I APOLOGIZE. I DON'T KNOW WHAT HAPPENED. I SAW -- MAYBE SOME OF YOU SAW WHO WERE COMING IN FROM THE NORTH, THERE'S A HOLE DOWN ON THE CORNER OF SAN FERNANDO AND FIRST STREET WITH A LOT OF MEN WITH YELLOW JACKETS STARING DOWN THE HOLE, SO THAT SUGGESTS SOMETHING.
(LAUGHTER.)
JUDGE DAVILA: WELL, ALL RIGHT. WHY DON'T WE -- MS. KRATZMANN, HAS THE JURY -- I SAW SOME JURORS COMING IN.
COURT CLERK: I'M SURE THERE'S A FEW HERE, YOUR HONOR, BUT USUALLY THE LAST OF THEM DON'T COME IN UNTIL JUST BEFORE 9:00.
JUDGE DAVILA: OKAY. WELL, I THINK WHAT WE'LL DO IS WAIT FOR THE COLLECTIVE JURY TO COME AND THEN I'LL FORMALLY INFORM THEM OF THIS, AND THEN WE CAN TAKE A RECESS. I'M JUST WONDERING IF THERE'S ANYTHING THAT WE CAN DO IN THEIR ABSENCE, BUT THAT STILL PUTS ALL OF US AT A PROBLEM WITH THE WATER ISSUE, AND I DON'T WANT TO IMPOSE ON ANYONE. WELL, LET'S JUST SEE WHAT HAPPENS. WHEN THE JURY COMES IN, I'LL CALL THEM IN, AND MAYBE BY THAT TIME I WILL HAVE HEARD FROM THE CHIEF JUDGE. IF NOT, IF THE ETA FOR REPAIR REMAINS AS SUCH AT 2:00 P.M., I THINK WE JUST HAVE TO CANCEL TODAY REGRETTABLY. AND I'M SORRY FOR YOUR WITNESSES. I KNOW THEY HAVE FLOWN IN. I'M PAUSING BECAUSE I'M THINKING, WELL, MAYBE WE CAN ALL MOVE TO SAN FRANCISCO AND GET IN ONE OF THEIR GRAND COURTROOMS, BUT I DON'T THINK THAT WOULD WORK. ALL RIGHT. WELL, I JUST WANTED TO GIVE YOU THAT INFORMATION. I THINK YOU ALL KNEW IT, AND I APOLOGIZE FOR THAT.
MR. DOWNEY: YOUR HONOR, JUST ON THE SCHEDULE, SINCE I AM HERE, I DID WANT TO MENTION IT, AND I DIDN'T HAVE A CHANCE TO MENTION IT TO MR. SCHENK, JUST IN TERMS OF THE CURRENT WITNESSES THAT WE HAVE FOR PLANNING PURPOSES -- AND THIS IS NOW UP IN THE AIR, I REALIZE, WITH THE SCHEDULE -- BUT I DON'T THINK THAT THE COMPLETION OF MS. PETERSON WILL TAKE VERY LONG AT ALL. I THINK THAT'S PROBABLY MORE A MATTER FOR THE CROSS-EXAMINATION OF SOMETHING LIKE A QUARTER HOUR, HALF AN HOUR.
MR. DOWNEY: LESS THAN AN HOUR. I DON'T THINK, IF MR. BOSTIC IS SOMEWHERE BETWEEN AN HOUR AND AN HOUR AND A HALF, I CERTAINLY THINK ON A 4:00 P.M. DAY, IF MS. PETERSON FINISHED, WE WOULD ALSO FINISH MR. EISENMAN BASED ON WHAT WE ANTICIPATE. SO TO THE EXTENT THAT'S HELPFUL TO THE GOVERNMENT.
JUDGE DAVILA: THANK YOU. I APPRECIATE, I APPRECIATE YOUR EFFORTS IN WORKING THAT OUT.
MR. SCHENK: MAY I JUST HAVE ONE MOMENT?
JUDGE DAVILA: OF COURSE.
(DISCUSSION AMONGST GOVERNMENT COUNSEL OFF THE RECORD.)
MR. SCHENK: YOUR HONOR, I WAS JUST WONDERING WHETHER IT MADE SENSE TO TRY TO FINISH MS. PETERSON THIS MORNING? SHE'S AN OUT-OF-TOWN WITNESS. AND IF IT'S VERY BRIEF, IT'S AN OPTION.
JUDGE DAVILA: I HAD THE SAME THOUGHT AS SOON AS MR. DOWNEY FINISHED THAT.
MR. DOWNEY: I MENTION IT FOR THAT REASON, ALTHOUGH I WAS REMINDED BY MS. KRATZMANN THAT SOME OF THE JURORS HAVE COME A DISTANCE TO COME IN AND THE PROBLEM COULD PRESENT ITSELF QUICKLY, SO I DON'T WANT TO PRESUME ON THEM. OBVIOUSLY I THINK IT WOULD BE BOTH OF OUR PREFERENCE TO FINISH WHAT IS PENDING.
JUDGE DAVILA: RIGHT. WELL, LET'S WAIT FOR THE JURY. WHEN THEY ARRIVE, IF I TELL THEM WE NEED 30 MINUTES OF THEIR TIME THIS MORNING, IS THAT A FAIR STATEMENT?
MR. DOWNEY: MAYBE AN HOUR.
JUDGE DAVILA: RESTRAIN YOUR ENTHUSIASM, MR. WADE. YOU THINK AN HOUR?
MR. DOWNEY: THAT SOUNDS -- I WOULDN'T --
JUDGE DAVILA: THAT'S MAYBE PUSHING IT.
MR. DOWNEY: MAYBE SO. OKAY.
JUDGE DAVILA: WELL, WE'LL CHECK IN AND SEE.
MR. SCHENK: THANK YOU.
MR. DOWNEY: THANK YOU.
COURT CLERK: COURT IS IN RECESS.
(RECESS FROM 8:20 A.M. UNTIL 8:34 A.M.)
JUDGE DAVILA: ALL RIGHT. WE'RE BACK ON THE RECORD IN THE HOLMES MATTER OUTSIDE OF THE PRESENCE OF THE JURY. ALL COUNSEL AND MS. HOLMES ARE PRESENT. AS WE DISCUSSED EARLIER, WE RECEIVED WORD FROM SAN FRANCISCO THAT THE COURTHOUSE, SAN JOSE COURTHOUSE, WILL BE CLOSED IMMEDIATELY, AND WE HAVE INSTRUCTIONS TO VACATE THE BUILDING, EVERYONE IN THE BUILDING. WE'RE WAITING FOR OUR JURY TO ARRIVE SO WE CAN -- SO I CAN INFORM THEM OF THIS. BUT IN THE INTERIM, I THOUGHT WE WOULD USE THIS TIME TO DISCUSS SOME OF THE ISSUES THAT WE -- WHILE WE WAIT FOR THE JURY, THAT WE TALKED ABOUT. LET'S -- I TALKED ABOUT THE LISA PETERSON DOCUMENT AGAIN, AND, MR. WADE, I THINK THIS IS SOMETHING THAT WE DISCUSSED YESTERDAY.
MR. WADE: WE DID DISCUSS IT YESTERDAY, YOUR HONOR, AND I HAD THE BENEFIT OF BEING ABLE TO GO BACK AND LOOK AT THE TRANSCRIPT OF WHAT HAPPENED YESTERDAY, THE QUESTIONING OF MR. LEACH AND THE CONTEXT AROUND THAT THAT I WAS ABLE TO GET IN ALREADY, AND I THINK, AS IT SITS TODAY, I'M PREPARED TO NOT PLOW INTO, FURTHER INTO THE POST-INVESTMENT PERIOD, ASSUMING THE GOVERNMENT DOESN'T INTEND TO GO BACK TO IT IN REDIRECT. IN THE EVENT THAT THEY DO, I WOULD RESERVE THE RIGHT TO GO DEEP INTO THAT TERRITORY, BECAUSE I'M JUST TRYING TO FIND AN APPROPRIATE BALANCE GIVEN WHAT MR. LEACH DID AND WHAT I DID. I THINK AS WE SIT RIGHT NOW, I THINK I'M COMFORTABLE LEAVING IT WHERE IT IS.
JUDGE DAVILA: OKAY. THANK YOU FOR THAT. MR. LEACH?
MR. LEACH: YOUR HONOR, I'D LIKE A MINUTE OR TWO TO THINK ABOUT IT, OR MAYBE MORE THAN A MINUTE, BUT I -- MY INSTINCT IS THAT I WOULD NOT INTEND TO GO BACK TO THE CRAMER INTERVIEW OR THE "TODAY SHOW" INTERVIEW OR THE APRIL 2016 MEETING. I DO THINK THAT THE DEFENSE, BY EXPLORING A NUMBER OF ISSUES FROM THAT MEETING, OPENED THE DOOR TO A NUMBER OF ISSUED, BUT I'M NOT INTENDING TO PRESS IT RIGHT NOW BASED ON COUNSEL'S REPRESENTATION. I'D LIKE A LITTLE TIME TO THINK ABOUT THAT, BUT THAT'S WHERE I'M TRENDING.
JUDGE DAVILA: OKAY. WELL, THANK YOU. THAT'S HELPFUL I THINK FOR ALL OF US. WE'RE NOT GOING TO GET TESTIMONY TODAY, SO THIS IS HELPFUL ALSO FOR GAUGING THE LENGTH OF MS. PETERSON'S -- THE REST OF HER, THE BALANCE OF HER TESTIMONY.
MR. WADE: AND WE'RE PREPARED TO MOVE AS QUICKLY AS WE CAN ON THAT. WE HAVE A FEW ITEMS TO GO, BUT --
JUDGE DAVILA: SURE.
MR. WADE: -- THE COURT WILL KNOW THAT I WILL NOT BE BRINGING MY MULTIPLE BINDERS UP, I JUST HAVE A FEW EXHIBITS TO GO THROUGH WITH THE WITNESS.
JUDGE DAVILA: IT'S A GOOD TIME TO SEGUE TO FOLDERS FROM BINDERS.
JUDGE DAVILA: OKAY.
MR. LEACH: THERE'S A SEPARATE ISSUE WITH RESPECT TO MS. PETERSON, YOUR HONOR. IT DIDN'T COME UP YESTERDAY, BUT AFTER REVIEWING THE TRANSCRIPT, I WANTED TO RAISE IT. THERE WERE A NUMBER OF -- PRIOR TO TRIAL, THE GOVERNMENT BROUGHT A MOTION IN LIMINE TO PRECLUDE EVIDENCE AND ARGUMENT OF VICTIM BLAMING. THE COURT GRANTED THAT MOTION AT PAGE 80 TO 82 OF ITS MOTION IN LIMINE ORDER. THE COURT INSTRUCTED THE DEFENSE IF IT WAS GOING TO GET INTO AREAS WHERE IT WAS BLAMING THE VICTIM, TO FRONT THAT TYPE OF EVIDENCE. YESTERDAY DURING THE CROSS-EXAMINATION, THE DEFENSE ASKED A NUMBER OF QUESTIONS ABOUT RDV'S DUE DILIGENCE AND COMPARED THAT DUE DILIGENCE TO WHAT IS TYPICAL OR WHAT IS COMMON. I THINK THE STRONGEST EXAMPLE I SAW IN THE TRANSCRIPT WAS AT PAGE 4784 AND 4786 WHERE THE QUESTION WAS, "OFTEN IN DUE DILIGENCE ON TECH COMPANIES, PEOPLE DO PRETTY DETAILED REVIEWS OF INTELLECTUAL PROPERTY; ISN'T THAT RIGHT?" I THINK THIS TYPE OF COMPARING THE QUESTIONS THAT WERE ASKED HERE TO QUESTIONS THAT ARE TYPICALLY ASKED SERVE NO PURPOSE OTHER THAN TO FAULT RDV'S DUE DILIGENCE, TO ESSENTIALLY SAY THE NEGLIGENCE OF THE VICTIM IS RELEVANT HERE. AS THE COURT KNOWS, THE NEGLIGENCE OF THE VICTIM -- OR THE DILIGENCE OF THE VICTIM IS IRRELEVANT IN A WIRE FRAUD CASE, AND WE THINK A CURATIVE INSTRUCTION UNDER THE CIRCUMSTANCES IS APPROPRIATE.
JUDGE DAVILA: THANK YOU. DO YOU WANT TO BE HEARD, MR. WADE?
MR. WADE: THIS IS THE FIRST I'VE HEARD OF THIS ISSUE, SO I WOULD CERTAINLY LIKE TO LOOK BACK AT THE TRANSCRIPT HE'S REFERENCING AND THE ORDER THAT MR. LEACH IS REFERENCING. AS THE COURT KNOWS AND AS THE WITNESS TESTIFIED, THERE'S AN AGREEMENT THAT GOVERNS THIS RELATIONSHIP. THAT AGREEMENT SETS FORWARD DUE DILIGENCE RIGHTS IN CONNECTION WITH THE INVESTMENT AND THE RIGHTS OF THE INVESTORS TO GET INFORMATION AS PART OF THE INVESTMENT DECISION. MATERIALITY IS AN ELEMENT OF THE OFFENSE, AND THERE'S BEEN A SUGGESTION BY THE GOVERNMENT, IN FACT, MUCH OF THE CASE OF THE GOVERNMENT IS ABOUT INFORMATION THAT WAS EITHER CONCEALED OR WAYS IN WHICH INVESTORS WERE MISLED. SO I THINK IT'S APPROPRIATE TO PROBE WHETHER THERE WERE LIMITATIONS ON THEIR ABILITY TO GET INFORMATION IN CONNECTION WITH THEIR INVESTMENT DECISION. IT'S A PARTICULARLY FALSE EXERCISE TO A DEGREE IN THIS CASE BECAUSE WE DIDN'T HAVE A DECISION-MAKER AS -- ON THE WITNESS STAND AS I MENTIONED IN ADVANCE OF YESTERDAY, AND OBVIOUSLY IT HAS COME UP DURING TESTIMONY. BUT I DON'T SEE THIS AS CERTAINLY -- I DON'T SEE THIS IN ANY WAY AS INAPPROPRIATE AND I DON'T SEE IT AS ANYTHING THAT WARRANTS A CURATIVE INSTRUCTION. BUT, AGAIN, I WOULD LIKE TO LOOK AT THE PORTIONS OF THE TRANSCRIPT TO WHICH MR. LEACH REFERS.
JUDGE DAVILA: WELL, THANK YOU. THE MOTION IN LIMINE ORDER WAS, IN ESSENCE, BLAMING THE VICTIM, AND I UNDERSTAND MR. LEACH'S POINT HERE. AND I THINK IT GETS PERHAPS, MR. LEACH, TO ARGUMENT, WHETHER OR NOT THE DEFENSE WOULD BE PERMITTED TO ARGUE THAT, AND THAT'S REALLY, I THINK, THE SPIRIT OF THE MOTION IS THAT YOU WILL NOT BE PERMITTED TO SAY, WELL, THEY DIDN'T DO DUE DILIGENCE AND THEREFORE IT'S THEIR FAULT. THAT'S THE CLASSIC BLAMING THE VICTIM. THE PROBING THAT YOU DID, AND I UNDERSTAND MR. LEACH'S COMMENT IN RAISING IT NOW, PERHAPS SUGGESTS -- AND MAYBE THIS IS PROPHYLACTIC -- THAT, GEE, JUDGE, ARE YOU GOING TO LET THEM ARGUE THAT? AND I THINK WHEN YOU LOOK AT THE ORDER IN DOCKET 798, I GRANTED THE MOTION PRECLUDING THE BLAMING THE VICTIM, IF YOU WILL, WHICH WOULD PRECLUDE THAT TYPE OF ARGUMENT. NOW, WHETHER OR NOT THE EVIDENCE NOW SHOULD REMAIN STATIC FOR WHATEVER PURPOSE, WE CAN'T UNRING THE BELL, AS WE KNOW. BUT FURTHER INQUIRY ON THAT SHOULDN'T BE HAD. I THINK YOU'VE HAD AN OPPORTUNITY TO RAISE THE POINT, WHAT SHE DID, WHAT SHE DIDN'T DO. THERE WAS NO OBJECTION DURING THAT TESTIMONY ABOUT THAT, SO THE RECORD -- THE EVIDENCE IS THERE. BUT WHAT TO DO WITH THE EVIDENCE NOW, WITH THE TESTIMONY IS I THINK WHAT THE SPIRIT OF THE COURT'S RULING ON THE IN LIMINE MOTION WAS THAT THE GOVERNMENT -- THAT THE DEFENSE CAN'T ARGUE A LACK OF DUE DILIGENCE AS A DEFENSE IN THE CASE.
JUDGE DAVILA: BLAMING THE VICTIM, OF COURSE.
MR. WADE: YEAH, WE'RE NOT IN ANY WAY TRYING TO BLAME THE VICTIM. WE'RE JUST TRYING TO GIVE CONTEXT TO THE INVESTMENT DECISION THAT WAS MADE AND THE CONTRACTUAL RIGHTS UNDER THE AGREEMENT. BUT I UNDERSTAND THE COURT'S COMMENTS AND I WANT TO LOOK BACK -- AS THE COURT UNDOUBTEDLY RECALLS, IT'S A PRETTY LENGTHY ORDER, AND SO I WANT TO LOOK BACK AT THE PARTICULAR PORTION THAT IS CITED. BUT I CAN'T IMAGINE THAT WE'LL MAKE THE ARGUMENT OF THE KIND THAT WOULD CONCERN THE GOVERNMENT. OBVIOUSLY WE'LL ARGUE MATERIALITY, OR MAY ARGUE MATERIALITY, AND WE MAY ARGUE I THINK MUCH OF THE CASE IS ABOUT THE INFORMATION THAT WAS AVAILABLE TO INVESTORS AND WHAT THEY KNEW AND DIDN'T KNOW AND WHAT THEY UNDERSTOOD AND DIDN'T UNDERSTAND. SO OBVIOUSLY THAT'S GOING TO BE FAIR GAME.
MR. LEACH: JUST TO BE CLEAR, YOUR HONOR, THE QUESTIONS WENT FURTHER THAN WHAT DID YOU KNOW, WHAT DID YOU NOT KNOW. IT WENT INTO COMPARING IT TO WHAT IS TYPICAL. THE IMPORT IS THAT YOU DIDN'T LIVE UP TO A STANDARD OF CARE AND YOU WERE NEGLIGENT OR RECKLESS. THE WORDS "DUE DILIGENCE" ARE NOT GOING TO BE IN THE JURY INSTRUCTIONS, OR THE GOVERNMENT'S POSITION IS THAT IT SHOULD NOT BE IN THE JURY INSTRUCTIONS. SO I THINK THE IMPORT OF THE QUESTIONS WENT A LOT FURTHER THAN SIMPLY, WHAT DID YOU KNOW AND WHAT DID YOU NOT KNOW AND WHAT DID THE CONTRACT SAY? WE WOULD PREFER A CURATIVE INSTRUCTION NOW, BUT I THINK THIS IS SOMETHING THAT WE'LL BE PARTICULARLY ALIGNED TO AT THE FINAL INSTRUCTION PHASE AND THE LIMITS ON ARGUMENT.
JUDGE DAVILA: SURE. I APPRECIATE THAT. JURY INSTRUCTIONS ARE INTERESTING CREATURES, AREN'T THEY? THEY SOMETIMES ARE HELPFUL, BUT SOMETIMES THEY HAVE JUST THE OPPOSITE EFFECT OF DRAWING ATTENTION --
MR. LEACH: TRUE.
JUDGE DAVILA: -- TO TESTIMONY, PARTICULARLY IN A LONG TRIAL THAT -- AND PARTICULARLY IN A LONG TRIAL THAT SEEMS TO BE BROKEN UP BY EVENTS THAT WE HAVE NO CONTROL OVER.
(LAUGHTER.)
JUDGE DAVILA: ALL RIGHT. WELL, THANK YOU FOR THAT. AND THANKS FOR YOUR DISCUSSION. ANYTHING FURTHER ON THE PETERSON DOCUMENT THEN? IT SOUNDS LIKE MR. WADE IS NOT GOING TO GO INTO THIS. YOU WOULD LIKE TIME TO LOOK AT THIS?
MR. LEACH: I WOULD LIKE A LITTLE BIT MORE TIME TO THINK ABOUT IT, BUT ABSENT FURTHER WORD, I DON'T INTEND TO GO BACK TO IT.
JUDGE DAVILA: THANK YOU. AND THEN EISENMAN, DO WE WANT TO TALK A LITTLE BIT ABOUT THAT? IT SOUNDS LIKE, WITH OUR SCHEDULE, HE WILL NOT BE TESTIFYING FOR SOME TIME. MR. BOSTIC, IS THAT CORRECT?
MR. BOSTIC: YES, YOUR HONOR. MR. EISENMAN UNFORTUNATELY IS NOT AVAILABLE NEXT WEEK. HE WILL BE OUT OF THE COUNTRY, SO HE WON'T BE TESTIFYING IN THE NEXT TEN DAYS OR SO.
JUDGE DAVILA: THANK YOU. ALL RIGHT. MS. KRATZMANN, DO YOU WANT TO CHECK IF OUR JURORS ARE HERE?
COURT CLERK: YES, YOUR HONOR.
JUDGE DAVILA: THANK YOU.
COURT CLERK: SO I'VE LOOKED AT THE DOCUMENTS, THE EMAILS AND THINGS THAT WERE PROVIDED TO ME YESTERDAY, INCLUDING THE REDACTIONS THAT MR. DOWNEY SUGGESTED. MR. BOSTIC, WHAT -- DO YOU HAVE ANY COMMENT ON ANY OF THIS?
MR. BOSTIC: YES, YOUR HONOR. THANK YOU. I'VE HAD A CHANCE TO REVIEW THOSE REDACTIONS AS WELL. I DON'T SEE WHAT IS INAPPROPRIATE ABOUT THAT EVIDENCE, AND I THINK BEFORE FULLY RESPONDING I SHOULD GIVE MR. DOWNEY A CHANCE TO ARTICULATE WHY THAT LANGUAGE IS INADMISSIBLE. I WENT BACK AND FURTHER REVIEWED THE COURT'S MOTION IN LIMINE RULING ON A RELATED TOPIC, WHICH WAS THE ADMISSIBILITY OF PATIENT HARM, DOWNSTREAM FINANCIAL, EMOTIONAL PHYSICAL HARM RESULTING FROM INACCURATE TEST RESULTS IN THIS CASE. THAT'S SOMETHING THAT THE DEFENSE MOVED TO EXCLUDE BEFORE TRIAL. TO MY KNOWLEDGE, THE DEFENSE HAS NOT RAISED THE ISSUE OF INVESTOR SIDE FINANCIAL HARM OR A SIMILAR ISSUE ON THE INVESTOR SIDE. THOSE TWO PARTS OF THE CASE ARE DIFFERENT. AND EVEN WHEN IT COMES TO THE INVESTOR SIDE, CERTAINLY THE GOVERNMENT UNDERSTANDS THAT RULE 403 IS OPERATIVE. IT IMPOSES A LINE AND THERE IS A POINT BEYOND WHICH THE POTENTIAL PREJUDICIAL VALUE OF EVIDENCE ABOUT HARM TO AN INVESTOR MIGHT OUTWEIGH ITS PROBATIVE VALUE. THE GOVERNMENT UNDERSTANDS THAT. THE COURT IN RULING ON THE PATIENT HARM MOTION NOTED THAT THERE WAS NO NEED TO TAKE AN ALL OR NOTHING APPROACH, RECOGNIZING THAT THIS WAS A LINE DRAWING ISSUE. HERE, I JUST DON'T SEE HOW THE LANGUAGE THAT THE DEFENSE HAS HIGHLIGHTED COMES ANYWHERE CLOSE TO AN APPROPRIATE LINE. MR. EISENMAN IN TALKING ABOUT CHANGES IN LIFE CIRCUMSTANCE AS AN EXPLANATION FOR WHY HE'S SEEKING MORE INFORMATION FROM MS. HOLMES. IT DOESN'T HAVE ANYTHING TO DO WITH FINANCIAL HARM TO HIM OR DOWNSTREAM EFFECT OF A LOSS. IN FACT, ALL OF THE COMMUNICATIONS INVOLVED HERE ARE BEFORE ANY LOSS ACTUALLY OCCURRED. THEY'RE SIMPLY, LIKE I SAID, TO PROVIDE BACKGROUND AND CONTEXT FOR HIS REQUEST FOR MORE TRANSPARENCY AND DISCLOSURES FROM THE COMPANY.
JUDGE DAVILA: MR. DOWNEY?
MR. DOWNEY: WELL, YOUR HONOR, I THINK THERE IS AN ARTICULATION -- THERE ARE PROBABLY THREE ISSUES. I THINK WE'RE PRETTY CLOSE TO AGREEING THAT VICTIM IMPACT, WHETHER IT AFFECTS A PATIENT IN THE PATIENT CASE OR WHATEVER THE EFFECT IS IN THE INVESTMENT CASE, IS NOT SOMETHING THAT SHOULD COME IN, AND ALLOWING WITNESSES TO REHEARSE WHAT EFFECT IT HAS HAD ON THEM, THEIR LIVES, ET CETERA, WILL ENGENDER SYMPATHY, BUT IT'S ACTUALLY NOT RELEVANT TO WHETHER THERE'S AN OFFENSE. SO IT HAS 401 AND 403 IMPLICATIONS. THE STATEMENT OF HIS MOTIVE AS TO WHY HE IS SEEKING INFORMATION HERE HAS ALL OF THE SAME CONSEQUENCES. IF THE ARGUMENT THAT THE GOVERNMENT WANTS TO MAKE IS HE WAS SEEKING INFORMATION BECAUSE IT WAS RELEVANT TO HIS RETIREMENT, IF HE WAS SEEKING INFORMATION BECAUSE HE WANTED TO BUY SOMETHING FOR HIS GRANDDAUGHTER, THAT HAS NOTHING TO DO WITH THE TRANSACTIONS BETWEEN HIM AND THERANOS IN TERMS OF HIS REQUEST AND THEIR REACTIONS TO IT.
WHAT IS RELEVANT TO THAT IS THE AGREEMENTS THAT GOVERN THAT, THEIR BEHAVIOR, COMPARABLE BEHAVIOR TOWARDS OTHER SHAREHOLDERS, YOU KNOW, WHAT HE ARTICULATED AS HIS REASON FOR NEEDING THAT INFORMATION UNDER THOSE AGREEMENTS. THE FACT THAT HE IS SAYING TO THEM IN REALTIME, YOU KNOW, THIS IS SO I CAN PLAN FOR MY RETIREMENT WHEN HE HAS NO -- WE'RE NOT TALKING ABOUT A PUBLIC COMPANY HERE. HE HAS NO RIGHT TO SELL THESE SHARES. THE REASON THAT HE IS INQUIRING ABOUT IT IS THAT HE WANTS TO SELL THE SHARES AGAINST THAT RIGHT, AND HE'S TRYING TO GET THEM TO BUY THE SHARES FROM THEM. YOU'LL SEE THAT, OVER TIME, THIS GENTLEMEN RECEIVED I THINK FOUR OR FIVE OFFERS TO BUY HIS SHARES AT HUGE PREMIUMS, YOU KNOW, FOUR OR FIVE TIMES HIS INVESTMENT AT ONE POINT, TWENTY-FIVE TIMES HIS INVESTMENT AT ANOTHER POINT. HE TURNED THEM ALL DOWN BECAUSE HE WANTED A BETTER PRICE. TO INJECT INTO THAT A DISCUSSION ABOUT A PURPORTED EFFECT ON HIS RETIREMENT OR ON HIS GRANDDAUGHTER I THINK IS TOTALLY INAPPROPRIATE. I THINK ALSO, YOUR HONOR, I WOULD SAY A 403 ISSUE, ASIDE FROM PREJUDICE HERE, IS THERE'S A LOT OF REASON TO DOUBT THE CREDIBILITY OF WHAT HE IS ASSERTING TOWARDS THERANOS AS HIS PURPORTED REASONS. I THINK IT WILL NOT BE ALL THAT DIFFICULT FOR ME TO SHOW, BUT I SHOULDN'T HAVE TO.
JUDGE DAVILA: ALL RIGHT. THANK YOU. AND WHEN I LOOK AT THE SEPARATE EMAILS HERE, I THINK THE -- LET'S SEE. IT'S A NOVEMBER 19TH. THIS IS 2216, PAGE 1.
MR. DOWNEY: YES, YOUR HONOR.
JUDGE DAVILA: AND THE FIRST EMAIL, I THINK IT'S YOUR FIRST HIGHLIGHT.
MR. DOWNEY: YES.
JUDGE DAVILA: IT SEEMS TO ME, MR. BOSTIC, THAT THE STATEMENT "I HAVE MOST OF MY NET WORTH IN YOUR COMPANY" IS -- THAT'S, I THINK, TO COUNSEL'S POINT THAT I DON'T KNOW WHAT -- HOW HELPFUL THAT IS.
MR. BOSTIC: I NOTICED THAT LINE AS WELL, YOUR HONOR. I THINK IN ALL OF THE DEFENSE'S PROPOSED REDACTIONS, THAT'S THE ONE LINE THAT I THINK COMES CLOSEST TO THIS GREY AREA WHERE REDACTION MIGHT BE APPROPRIATE. I STILL DON'T THINK IT'S IN THAT ZONE. AGAIN, THIS IS BEFORE THE LAUNCH OR -- I'M SORRY. THIS IS BEFORE THE ACTUAL LOSS OCCURS. SO THIS ISN'T ABOUT THE AMOUNT OF HARM SUFFERED BY THIS PARTICULAR WITNESS. TO THE EXTENT THAT HE IS ASKED TO COMMENT ON THAT LINE, I EXPECT HE WOULD EXPLAIN THAT THAT COMMENT IS BASED ON HIS CURRENT UNDERSTANDING OF THE INCREASED VALUE OF HIS STAKE IN THERANOS AT THAT TIME. SO I DON'T THINK THIS IS THE SAME AS SAYING THAT LOSING THE THERANOS INVESTMENT WOULD RESULT IN HIM LOSING MOST OF HIS NET WORTH. I DON'T THINK THAT'S HIS CLAIM FOR WHAT THAT'S WORTH. BUT TO THE EXTENT THAT THE COURT THINKS THAT LINE IS PROBLEMATIC, IT'S NOT A CENTRAL PART OF THIS EXHIBIT OR THE ACCOMPANYING TESTIMONY. I JUST THINK THAT, YOU KNOW, BY WAY OF PROVIDING CONTEXT FOR THE REASON WHY HE WANTED MORE INFORMATION, I DON'T THINK IT'S INAPPROPRIATE FOR HIM TO HAVE SAID THAT TO MR. BALWANI. I DON'T THINK IT'S INAPPROPRIATE FOR THE JURY TO KNOW THAT THAT'S WHY HE WAS EXPLAINING -- OR THAT'S HOW HE WAS EXPLAINING HIS NEED FOR ADDITIONAL INFORMATION.
JUDGE DAVILA: I FIND THAT THAT FIRST "I HAVE MOST OF MY NET WORTH IN YOUR COMPANY," PERIOD, I THINK I WOULD BE INCLINED TO STRIKE THAT. MR. DOWNEY, I'M NOT SO CERTAIN ABOUT THE REMAINDER OF THAT, IF THAT REALLY HAS THE NEGATIVE IMPACT THAT YOU SUGGEST. LET ME TURN TO 2468. MICHELLE, ARE THEY HERE?
(DISCUSSION OFF THE RECORD.)
JUDGE DAVILA: I'M SORRY, WE'RE BACK AT 2468. LET ME ASK YOUR COMMENT, MR. DOWNEY, I THINK YOU'VE HIGHLIGHTED THE CAT AND MOUSE LINE.
MR. DOWNEY: YES, YOUR HONOR. AND THEN THERE'S A CONTINUATION SORT OF OF THE SAME DIALOGUE THAT IS IN THE PARAGRAPH AT THE TOP OF THE NEXT PAGE. THIS IS SORT OF ALL PART OF THE SAME MANTRA, THAT THIS IS MY RETIREMENT MONEY AND THAT MY DAUGHTER IS HAVING A BABY AND CAN'T BUY A HOUSE AND NEEDS THAT LIQUIDITY. I JUST WANTED TO GIVE A LITTLE BIT OF CONTEXT TO MR. BOSTIC'S COMMENTS IN THE REAL WORLD. IT IS TRUE THAT LITERALLY WHAT THIS GENTLEMAN IS SAYING IS MY STOCK IN THERANOS AT THIS POINT IS WORTH $25 MILLION AND I DON'T HAVE $50 MILLION WORTH OF NET WORTH. I THINK TO ALLOW HIM TO COME IN AND SAY, YOU KNOW, IT'S AFFECTING MY GRANDDAUGHTER, AFFECTING MY RETIREMENT, ET CETERA, OR, YOU KNOW, AT HIS STAGE OF LIFE HAS AN EFFECT ON HIM I THINK IS POTENTIALLY QUITE PREJUDICIAL IN A WAY THAT IS, YOU KNOW, CONTRARY TO FACT. BUT I DON'T THINK ALL OF THAT NEEDS TO BE REHEARSED. I THINK IT JUST SHOULD NOT BE PART OF THE TRIAL.
JUDGE DAVILA: THE 50 MILLION IS IN RELATION TO THE BUYOUT. IT LOOKS LIKE IN ONE OF THE EMAILS THERE WAS A POTENTIAL TO SELL, BUT YOU HAD TO HAVE A NET WORTH OF 50 MILLION I THINK. IS THAT WHAT YOU'RE REFERENCING?
MR. DOWNEY: NO. WHAT I'M REFERENCING, YOUR HONOR, IS THAT HE BOUGHT HIS STOCK AT -- THE FIRST INVESTMENT THAT HE MADE WAS OF A MILLION DOLLARS IN 2006. BY 2013, SHARES OF THAT SAME STOCK -- IT WAS AT $3 WHEN HE BOUGHT IT. SHARES OF THAT SAME STOCK WERE AT $75 AND THAT'S WHAT WALGREENS PAID AS PART OF ITS DEAL. SO HE RECOGNIZED THAT THAT WAS THE CURRENT VALUATION THAT SOPHISTICATED PARTIES WERE GIVING TO THE STOCK. TO SAY WHAT HIS NET WORTH IS VALUES THAT STOCK AT $25 MILLION AND TO SAY THAT IT'S MORE THAN HALF OF MY NET WORTH IS TO SAY I DON'T HAVE A NET WORTH GREATER THAN $50 MILLION. BUT THE IMPLICATION IS VERY DIFFERENT WITHIN THE EMAIL.
MR. BOSTIC: AND, YOUR HONOR, I DON'T SEE THAT IMPLICATION IN HERE. I DON'T SEE THAT THIS IS HURTING ME, YOU'RE HARMING ME. I SEE AN EXPLANATION FOR WHY HE WANTS, AND HE WOULD SAY NEEDS, MORE INFORMATION FROM MS. HOLMES AND FROM THERANOS. HE WAS IN A DIFFERENT STAGE OF LIFE. THERE'S NO REASON TO DOUBT THE STATEMENTS ABOUT HIS DAUGHTER HAVING HAD A BABY AND NEEDING LIQUIDITY TO BUY A HOUSE. NEEDING LIQUIDITY IS NOT THE SAME THING AS THE KIND OF DOWNSTREAM HARM EFFECTS THAT RUN INTO PROHIBITION UNDER RULE 403 AND I THINK WE'RE DRIVING THE COURT'S ORDER ON THE PATIENT SIDE. HERE I THINK, YOU KNOW, ESPECIALLY WHEN IT COMES TO HIS COMMENTS IT'S UNFAIR FOR YOU TO PLAY THIS CAT AND MOUSE GAME WITH ME, I THINK -- I'M SORRY, BUT THE DEFENSE IS JUST TRYING TO SENSOR INFORMATION THAT IS CRITICAL OF MS. HOLMES. I DON'T THINK THAT THAT'S A PERMISSIBLE REASON TO EXCLUDE EVIDENCE HERE. AND I THINK IN THAT FIRST PAGE ON 2468, MR. EISENMAN KIND OF SUMS UP WHY THIS INFORMATION IS IMPORTANT AND WHY IT SHOULD BE ADMISSIBLE. HE SAYS I CAN'T MAKE A RATIONAL DECISION TO HOLD OR SELL MY STOCK WITH THE LACK OF INFORMATION THAT YOU HAVE PROVIDED. SO HE'S EXPLAINING WHY HE'S CONSIDERING SELLING HIS STOCK, AND THAT INVOLVES GIVING MS. HOLMES SOME BACKGROUND ON HIS LIFE CIRCUMSTANCES. THAT'S WHY HE'S ASKING FOR MORE INFORMATION AND HE'S SAYING I CAN'T WEIGH THESE OPPORTUNITIES THAT I'M BEING PRESENTED WITH WITHOUT KNOWING WHAT IS GOING ON WITH THE COMPANY. PLEASE TELL ME WHAT IS GOING ON WITH THE COMPANY.
JUDGE DAVILA: THANK YOU. ON PAGE 2 OF 2468 YOU HAVE, MR. DOWNEY, HIGHLIGHTED NUMBER 1, WHEN I FIRST SPOKE TO ELIZABETH OVER NINE YEARS AGO AND MADE MY INVESTMENT, SHE THOUGHT THE COMPANY WOULD IPO AT THREE TO FIVE YEARS.
MR. DOWNEY: YEAH, THIS WAS THE OTHER ISSUE THAT I RAISED YESTERDAY, YOUR HONOR, YES. THIS IS A CLAIM THAT THE GOVERNMENT IS IMPLICITLY TRYING TO PUT IN FRONT OF THE JURY, WHICH IS A FALSE STATEMENT IN CONNECTION WITH A PROMISE OR SUGGESTION THAT THERE WOULD BE AN IPO. IN FACT, THE AGREEMENT BETWEEN THESE PARTIES WAS THAT IT WAS UNCERTAIN THAT THERE WOULD BE AN IPO AT ANY POINT IN THE FUTURE, AND THAT ANY PROJECTIONS OF THAT WERE SUBJECT TO CHANGE. AND BEYOND ALL THAT, BEYOND THE FACTUAL CONTEXT, THIS IS NOT CHARGED IN THE INDICTMENT AND NOT NOTICED UNDER 404(B). IT'S NOT SOMETHING THAT SHOULD BE IN THE CASE. AS I SAID TO YOUR HONOR YESTERDAY, HE ALSO WANTS TO MAKE STATEMENTS ABOUT WHAT HE WAS TOLD WITH REGARD TO PHARMA COMPANIES DURING 2006 TO 2010. THAT'S FAIR GAME. I RECOGNIZE THAT. THAT'S CHARGED CONDUCT IN CONNECTION WITH THE INDICTMENT, AND IF HE WANTS TO SAY HIS KNOWLEDGE OF THAT SOMEHOW INFORMED HIS LATER KNOWLEDGE WHEN HE MADE HIS 2016 INVESTMENT, I RECOGNIZE I HAVE TO DEAL WITH THAT. A WHOLE NEW THEORY WHICH IS NOT PART OF THE INDICTMENT, WHICH IS THAT HE WAS LIED TO IN CONNECTION WITH AN IPO IS NOT SOMETHING THAT SHOULD BE INJECTED INTO THE CASE MIDWAY BY THIS WITNESS.
MR. BOSTIC: YOUR HONOR, ON THAT LET ME CLARIFY. SO IT'S NOT THE CASE THAT THE GOVERNMENT IS INJECTING A NEW THEORY OF FRAUD HERE, NOR IS THIS 404(B). THE GOVERNMENT AT NO TIME WILL ARGUE THAT MS. HOLMES LIED TO MR. EISENMAN ABOUT THE LIKELIHOOD OF AN IPO OR HER INTENTION TO PROCEED WITH AN IPO. THAT'S NOT THE POINT OF THIS EVIDENCE. BUT THE CONVERSATION BETWEEN MS. HOLMES AND MR. EISENMAN ABOUT THE LIKELIHOOD OF AN IPO TOLD HIM ABOUT THE OVERALL STATE OF THE COMPANY, TOLD HIM ABOUT THE COMMERCIAL SUCCESS AND THE FINANCIAL HEALTH OF THE COMPANY. IT WAS POTENTIALLY RELEVANT TO THE STATE OF THE TECHNOLOGY. SO THAT'S PART OF WHAT HE FACTORED IN IN MAKING HIS INVESTMENT DECISION WAS HOW CLOSE HE UNDERSTOOD THE COMPANY TO BE TO AN IPO. IT WAS IMPORTANT TO HIM FOR OTHER REASONS, BUT THAT'S NOT WHY THIS TESTIMONY ABOUT AN IPO WAS NECESSARY. I SHOULD ALSO POINT OUT THAT MR. DOWNEY SAID THAT THIS SHOULDN'T BE IN THE CASE. THIS IS ALREADY IN THE CASE. MR. TOLBERT, WHEN HE WAS ON THE STAND, TESTIFIED ABOUT HIS 2006 CONVERSATIONS WITH MS. HOLMES ABOUT THE LIKELIHOOD OF AN IPO. MY UNDERSTANDING OR RECOLLECTION IS THAT THE DEFENSE DID NOT OBJECT TO THAT TESTIMONY AT THE TIME. SO THIS IS SOMETHING THAT THE JURY HAS ALREADY HEARD ABOUT. IT SHOULD COME IN NOW BECAUSE IT WAS RELEVANT TO MR. EISENMAN'S THOUGHT PROCESS AND DECISION MAKING IN DECIDING TO INVEST. THIS IS NOT AN ATTEMPT TO CREATE ANOTHER THEORY OF FRAUD OR LIABILITY FOR THE DEFENDANT.
MR. DOWNEY: THERE'S NO -- MR. TOLBERT DID NOT TRY TO EQUATE A BIG PROMISED SOMETHING WHICH DID NOT OCCUR. THERE'S A VERY DIFFERENT APPROACH THAT THESE WITNESSES HAVE TO INTERPRETING THAT INFORMATION. WHEN AN IPO IS PROJECTED HAS NOTHING TO DO WITH THIS VAGUE THEORY OF THE, QUOTE-UNQUOTE, STATE OF THE TECHNOLOGY OR THE STATE OF THE COMPANY. THE GOVERNMENT IS VERY CLEAR IN SPECIFYING, AS IT MUST BE, IN ITS INDICTMENT IN SPECIFYING WHAT THE THEORIES WERE AS TO WHAT WAS SAID THAT WAS FALSE. TRYING TO INJECT ALL OF THESE OTHER THEORIES UNDER THE THEORY THAT THEY SOMEHOW SUBSTITUTE FOR THE SAME INFORMATION WHEN THERE'S NO LOGICAL LINK I THINK IS UNFAIR CERTAINLY AT THIS STAGE OF THE TRIAL. IT'S VERY DIFFERENT FOR A WITNESS TO SAY, I HAD THIS CONVERSATION, AND FOR A WITNESS TO SAY, I HAD THIS CONVERSATION AND I WAS MISLED, WHICH IS WHAT THIS EMAIL IS DOING.
MR. BOSTIC: I DISAGREE THAT THAT'S WHAT THIS EMAIL IS DOING, YOUR HONOR. AND I WOULD JUST POINT OUT THAT HOW A WITNESS FEELS ABOUT A CERTAIN CONVERSATION IS NOT THE SAME THING AS HOW THE WITNESS WILL TESTIFY NECESSARILY ABOUT THE CONVERSATION. THIS MIGHT BE A SITUATION WHERE WE NEED TO SEE WHAT MR. EISENMAN ACTUALLY SAYS AND WHAT THE QUESTIONS ARE ON THIS TOPIC.
JUDGE DAVILA: WELL, IT COULD BE THAT -- AND BASED ON YOUR REPRESENTATION, MR. BOSTIC, THAT A FOUNDATION MIGHT HAVE TO BE LAID ABOUT HIS INVESTMENT THOUGHTS BEFORE I WOULD ALLOW THIS TO COME IN, AND IF IT DOES COME IN, AND I'M NOT SAYING IT IS, WHAT I'M GOING TO DO IS TO DEFER RULING ON THIS UNTIL WE HAVE EISENMAN ON THE STAND. BUT IF THIS DOES COME IN, AND MINDFUL OF MR. DOWNEY'S COMMENTS, IT WOULD BE THAT I WOULD INSTRUCT THE JURY THAT THEY, THEY CANNOT CONSIDER THIS AS PART OF THE CHARGED CONDUCT AND THEY WOULDN'T BE PERMITTED TO CONSIDER THIS EVIDENCE WHEN THEY CONSIDER THE CHARGED CONDUCT BECAUSE THIS DID NOT OCCUR AND THIS WASN'T ANY MATERIALITY -- IT DID NOT HAVE MATERIALITY AS TO THE CHARGED CONDUCT. BUT THAT RUNS SOME OTHER RISKS AS WELL, BUT I JUST WANT TO SAY THAT THAT IS, THAT IS -- IF THIS DOES COME IN, THAT IS SOMETHING THAT I WOULD BE INCLINED TO DO TO INFORM THE JURY. I THINK, TO MR. DOWNEY'S POINT, IT WOULD BE UNFAIR TO HAVE THEM CONSIDER SOMETHING OUTSIDE AS PART OF MATERIALITY. SO I JUST WANT YOU TO THINK ABOUT THAT. I'M INFORMED THE JURY IS HERE NOW.
MR. DOWNEY: OKAY.
JUDGE DAVILA: SO THANK YOU FOR YOUR COMMENTS ON THESE. THAT'S HELPFUL.
MR. DOWNEY: YOUR HONOR, COULD I JUST SAY ONE MORE THING ABOUT THAT?
JUDGE DAVILA: YES. SURE.
MR. DOWNEY: IT'S THAT WE KNOW WHAT WAS PROMISED IN CONNECTION WITH AN IPO BECAUSE IT'S WRITTEN DOWN AND AGREED TO, AND I THINK THE NOTION THAT THERE'S SOME EXTRINSIC PROMISE, I THINK CURATIVE INSTRUCTIONS, AS YOUR HONOR COMMENTED, WITH RESPECT TO ANOTHER ISSUE A FEW MOMENTS AGO, THEY CAN SERVE MULTIPLE PURPOSES. I DON'T THINK AND -- AND HAVE MULTIPLE EFFECTS. I DON'T THINK IT'S SUFFICIENT HERE.
JUDGE DAVILA: OKAY.
MR. DOWNEY: THANK YOU, YOUR HONOR.
JUDGE DAVILA: HOPEFULLY WE WON'T HAVE TO GET TO THAT, BUT WE'LL SEE.
MR. DOWNEY: THANK YOU.
JUDGE DAVILA: THANK YOU.
MR. BOSTIC: THANK YOU.
JUDGE DAVILA: I'LL BRING THE JURY IN NOW.
(JURY IN AT 9:03 A.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. PLEASE BE SEATED. THANK YOU. WE'RE BACK IN SESSION IN THE HOLMES MATTER. ALL COUNSEL ARE PRESENT, MS. HOLMES IS PRESENT, OUR JURY AND ALTERNATES ARE PRESENT. GOOD MORNING, LADIES AND GENTLEMEN. I THINK YOU'VE PROBABLY HEARD BY NOW THE SITUATION IN OUR COURTHOUSE. I BELIEVE ABOUT A BLOCK NORTH OF US THERE'S A HOLE IN THE GROUND, AND I UNDERSTAND THERE'S A WATER PIPE THAT'S BEING REPAIRED. THAT PIPE SUPPLIES WATER TO THIS COURTHOUSE. I'M INFORMED THAT THERE'S -- WATER IS OUT FOR THE ENTIRE BLOCK. WE HAVE NO WATER IN THE COURTHOUSE TODAY. I RECEIVED A MESSAGE EARLIER FROM SAN FRANCISCO, THE HEADQUARTERS FOR THE NORTHERN DISTRICT, AND I WAS INFORMED THAT THIS BUILDING WILL BE SHUT DOWN, AND WE WERE ORDERED TO EVACUATE THE BUILDING IMMEDIATELY, AND THAT WAS A FEW MINUTES AGO. SO WE WILL NOT BE ABLE TO HAVE OUR TRIAL TODAY, AND I APOLOGIZE FOR THOSE OF YOU WHO TRAVELLED, THOSE OF YOU WHO CAME TO COURT. WE'RE NOT GOING TO, BECAUSE OF HEALTH REASONS, OF COURSE, FOR LACK OF WATER, WE CAN'T -- I CAN'T KEEP YOU HERE, AND I'M NOT GOING TO ASK YOU TO DO THAT, AND I'VE BEEN ORDERED AND NOT TO DO THAT. SO WE WILL ADJOURN TODAY FOR WHAT WILL BE A LONG WEEKEND. I'D LIKE TO GO OVER WITH YOU OUR SCHEDULE, IF I MAY. I THINK -- ADRIANA, DO THEY HAVE THE SCHEDULES?
COURT CLERK: NO, THEY DON'T, YOUR HONOR.
JUDGE DAVILA: I'LL PROVIDE YOU A SCHEDULE, MS. KRATZMANN WILL PROVIDE YOU WITH A SCHEDULE. OUR NEXT SESSION WILL BE TUESDAY, NOVEMBER 2ND, TUESDAY NOVEMBER 2ND. WE'LL BE IN SESSION WEDNESDAY, THE 3RD. EXCUSE ME. AND THEN THURSDAY, THE 4TH. THE 4TH WILL BEGIN AT 9:30. THE OTHER DAYS WILL BEGIN AT 9:00 A.M. FRIDAY THERE'S NO TRIAL. THE 9TH AND 10TH WE'LL HAVE TRIAL. THERE'S NO TRIAL ON THE 11TH AND 12TH. THE 15TH, THAT'S A MONDAY, WE WILL BE IN SESSION IN THE MORNING. AND TUESDAY WE'LL BE IN SESSION REGULAR. THAT'S THE 16TH. THE 17 TH, WE'LL START AT 9:00. WE'LL HAVE A BREAK FROM 10:30 TO 11:30, AND THEN WE'LL BE IN SESSION. AND WE'LL BE IN SESSION ON THE 18TH AND 19TH. EXCUSE ME. THE 22ND IS MONDAY. IN THE MORNING, WE'LL BE IN SESSION. THE 23RD WILL BE ALL DAY, AND THAT WILL BE THE BALANCE OF THE TRIAL. THAT'S THANKSGIVING WEEK. SO WE WON'T BE IN TRIAL WEDNESDAY, THURSDAY, OR FRIDAY THAT WEEK. THE 29TH IN THE MORNING, THAT'S MONDAY MORNING. AND THEN THE 30TH OF NOVEMBER, ALL DAY.
I'M GOING TO, AND I'D LIKE TO ASK YOU, BECAUSE OF THESE BREAKS -- AND OF COURSE THIS WAS UNPLANNED AND WHO KNEW WHAT WOULD HAPPEN TODAY -- I AM GOING TO TALK TO COUNSEL, BUT I WANT TO SUGGEST TO YOU, IT MAY BE THAT I'M GOING TO ASK IF WE CAN GO UNTIL 4:00 O'CLOCK ON OUR REGULAR DAYS, AND MAYBE EVEN EXTEND UNTIL 5:00 O'CLOCK IF WE CAN. I DON'T LIKE TO -- I TYPICALLY LET JURORS GO BEFORE 5:00 O'CLOCK HOPING TO AVOID TRAFFIC SITUATIONS, SO IT MAY BE WE'LL END AT 4:45, SOMETHING LIKE THAT. BUT I WOULD LIKE TO EXTEND OUR DAYS A BIT, IF IT COMPORTS WITH YOUR SCHEDULES, JUST SO WE CAN CAPTURE SOME TIME. I DO THINK THAT WE HAVE SOME MOMENTUM GOING. I DID TALK WITH THE LAWYERS THIS MORNING, AND WE WERE TALKING ABOUT WITNESS SCHEDULING, AND I THINK IF WE EXTEND OUR DAYS A LITTLE BIT, I THINK THAT WOULD BE HELPFUL TO THE TRIAL PROCESS AND COMING TO A CULMINATION WITHIN THE SCHEDULE THAT I ANNOUNCED TO YOU AT THE START OF THE TRIAL. SO THAT'S OUR SCHEDULE. MS. KRATZMANN WILL PROVIDE YOU WITH HARD COPIES OF THIS SCHEDULE AND SHE'LL EMAIL IT TO YOU AND GET THAT TO YOU. COUNSEL, ANY COMMENTS REGARDING THE SCHEDULE?
MR. SCHENK: NO, YOUR HONOR.
MR. DOWNEY: NOTHING FROM US, YOUR HONOR.
JUDGE DAVILA: OKAY. ANYTHING FURTHER BEFORE I --
MR. SCHENK: NO, YOUR HONOR.
MR. DOWNEY: NO, YOUR HONOR.
JUDGE DAVILA: OKAY. SO, LADIES AND GENTLEMEN, I APOLOGIZE FOR THE PROBLEMS, AND THANK YOU FOR COMING HERE. I THINK MS. KRATZMANN HAD DONUTS FOR YOU. I HOPE YOU CAN TAKE A DONUT AS A PARTING GIFT ON YOUR WAY OUT AND ENJOY THAT. BUT LET ME REMIND YOU AGAIN OF THE ADMONITION. PLEASE, OVER THE LONG BREAK, PLEASE AVOID AND DO NOT DO ANY RESEARCH ON ANYTHING ABOUT THIS CASE, AVOID ANY COMMUNICATIONS, MEDIA DISCUSSIONS ABOUT ANYTHING TO DO WITH THIS CASE. IF YOU DO COME ACROSS SOMETHING INADVERTENTLY, YOU'LL TELL ME ABOUT IT NEXT TUESDAY WHEN I ASK YOU THAT. SO PLEASE ENJOY YOUR TIME OFF. I APOLOGIZE FOR THE DELAY. I JUST WANT TO ASSURE YOU, I'VE TALKED WITH COUNSEL ABOUT THIS, THAT IS, THE SCHEDULING, AND WE'RE ALL EARNESTLY PUTTING OUR HEADS TOGETHER TO SEE IF WE CAN PROMOTE AND ENGAGE A SCHEDULE THAT WILL BE MORE EFFICIENT AS WE GO FORWARD. SO I APPRECIATE YOUR CONSIDERATION ON THAT. HAVE A GOOD BREAK. WE'LL SEE YOU NEXT WEEK.
(JURY OUT AT 9:11 A.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. PLEASE BE SEATED. THE RECORD SHOULD REFLECT THAT THE JURY HAS LEFT FOR THE BREAK. COUNSEL, ANYTHING FURTHER BEFORE WE BREAK?
MR. SCHENK: NO. THANK YOU.
MR. DOWNEY: YOUR HONOR, JUST ONE HOUSEKEEPING ITEM --
JUDGE DAVILA: SURE.
MR. DOWNEY: -- FOR THE COURT TO CONSIDER OVER THE BREAK. I THINK THE COURT MENTIONED ON THE RECORD YESTERDAY THAT THERE HAD BEEN A JUROR COMMUNICATION PERHAPS IN WRITING BY SOMEONE ON BEHALF OF THE JURY RELATED TO DISTRACTION OR NOISE LEVELS. I WOULD JUST ASK THE COURT TO CONSIDER IF IT COULD BE SHARED WITH BOTH PARTIES, AND THE COURT CAN LET US KNOW NEXT WEEK.
JUDGE DAVILA: OKAY. ALL RIGHT. THAT WAS AN EMAIL, I BELIEVE, TO MS. KRATZMANN.
MR. DOWNEY: OKAY.
JUDGE DAVILA: RIGHT. AND I'LL SEE IF SHE CAN FIND THAT.
MR. DOWNEY: GOOD. THANKS, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU. HAVE A GOOD BREAK.
MR. SCHENK: THANK YOU, YOUR HONOR.
COURT CLERK: COURT IS ADJOURNED.
(COURT ADJOURNED AT 9:12 A.M.)