LIS Evidence and Customer Survey Report Hearings
118 linesSAN JOSE, CALIFORNIA NOVEMBER 16, 2021 P R O C E E D I N G S
(COURT CONVENED AT 8:17 A.M.)
(JURY OUT AT 8:17 A.M.)
JUDGE DAVILA: LET'S GO ON THE RECORD IN THE HOLMES MATTER. ALL COUNSEL ARE PRESENT AND MS. HOLMES IS PRESENT. WE'RE OUTSIDE OF THE PRESENCE OF THE JURY THIS MORNING. WE WERE GOING TO TAKE UP -- I THINK THERE WAS A MATTER, THE MOTION FILED BY THE DEFENSE. I JUST WANTED TO TOUCH BASE. LAST WEEK WE -- WHEN WE LEFT COUNSEL, I THINK YOU WERE GOING TO HAVE SOME DISCUSSION ABOUT SOME IDENTIFICATION OF DECISIONS MADE BY 4:00 P.M. LAST WEEK. IS THAT SOMETHING THAT I SHOULD KNOW ABOUT, OR CAN I JUST KNOW, HAVE YOU HAD THAT DISCUSSION? I THINK THIS --
MR. DOWNEY: YOUR HONOR, ARE YOU REFERRING TO YESTERDAY?
JUDGE DAVILA: NO. I THINK IT WAS LAST WEEK THERE WAS A DISCUSSION ABOUT THE LIS, AND IS THAT SOMETHING THAT WE SHOULD TALK ABOUT THIS MORNING?
MR. SCHENK: I'M NOT SURE THERE'S AN ISSUE THAT NEEDS THE COURT'S ATTENTION. THE DEFENSE DID SEND US A LETTER BY 4:00 P.M. THE LETTER INDICATED THAT THEY DID NOT BELIEVE THAT THE DOOR WAS OPEN FOR THE GOVERNMENT TO INTRODUCE FACTS REGARDING THE LIS DATABASE, AND THEY ALSO MAINTAIN THEIR ABILITY TO MAKE ANY ARGUMENTS, IF I'M SUMMARIZING THEIR POSITION CORRECTLY.
JUDGE DAVILA: OKAY.
MR. SCHENK: I DON'T KNOW -- THE POINT THE GOVERNMENT WAS MAKING WAS THAT WE DON'T KNOW WHETHER THE DEFENSE IS GOING TO PUT A CASE ON OR NOT, AND WHEN WE ARE IN THAT POSITION, WHAT WE ARE FACED WITH IS ASKING THE COURT, HAS THE DOOR BEEN OPENED SO THAT WE CAN PUT IN THE FACTS AS WE SEE THEM WITH REGARD TO LIS? BECAUSE THE CURRENT STATE OF THE RECORD IS A LITTLE BIT UNCLEAR ON WHAT ARGUMENTS THE DEFENSE CAN MAKE BASED UPON THE FACTS THAT HAVE BEEN INTRODUCED. FOR INSTANCE, THE CAPABILITIES OF LIS IS IN THE RECORD. SO FROM THAT THE DEFENSE MIGHT ARGUE, IF THEY PUT ON NO CASE, THEY MIGHT ARGUE IN CLOSING THAT THE GOVERNMENT FAILED TO GET VERY IMPORTANT EVIDENCE. FROM THE GOVERNMENT'S PERSPECTIVE, IT WOULD BE UNFAIR TO HAVE THAT ARGUMENT BASED UPON THIS RECORD WITHOUT THE GOVERNMENT IN ITS CASE-IN-CHIEF GETTING TO INTRODUCE ADDITIONAL EVIDENCE REGARDING LIS TO CONFRONT THAT TYPE OF ARGUMENT. THAT'S WHAT THE GOVERNMENT WAS GETTING AT BY RAISING THIS TO THE COURT'S ATTENTION LAST WEEK BY ASKING FOR SOME NOTICE REGARDING HOW THE DEFENSE VIEWS THE STATE OF THE EVIDENCE. AND WHAT WE DETERMINED IS THAT THE DEFENSE DOESN'T BELIEVE THAT THE DOOR IS OPEN, WHICH WE TAKE TO MEAN THAT THEY WILL NOT MAKE THAT ARGUMENT BECAUSE IT CAN'T BE -- BOTH CAN'T EXIST. THE DOOR CAN'T BE CLOSED AND ALSO THE DEFENSE GETS TO ARGUE MISSING EVIDENCE HERE. THAT WOULD BE UNFAIR. AND WE'RE FINE WITH THE RECORD AS IT IS ON THAT ISSUE, UNLESS SORT OF HEARING THAT THE COURT HAS FURTHER GUIDANCE FOR THE PARTIES.
JUDGE DAVILA: AND THIS IS WHAT I WANTED TO TOUCH ON. I THINK THERE WAS SOME DISCUSSION ABOUT THIS, AND I THOUGHT, MR. WADE, YOUR TEAM HAD SAID WE'RE GOING TO LOOK AT THIS AND MAKE A DECISION OR GIVE SOME INFORMATION. SO --
MR. WADE: YOUR HONOR, IF I MIGHT, WE DID SEND A LETTER TO THE COUNSEL. IF I MIGHT PASS THAT UP, ALONG WITH --
JUDGE DAVILA: SURE.
MR. WADE: -- THERE'S AN EXCERPT OF THE PORTION OF DOCKET 798 WHICH, OF COURSE, IS THE COURT'S MOTION IN LIMINE RULING THAT RELATES TO THE LIS ISSUE. I'M SURE THE COURT HAS A DOG-EARED COPY OF 798 THAT IT KEEPS UP ON THE BENCH, BUT I HAVE JUST COPIED THE RELEVANT PORTIONS THERE. YOU'LL SEE, YOUR HONOR, WHAT WE DID IN THE LETTER IS WE TOOK MR. SCHENK'S INQUIRY TO BE AN INQUIRY AS TO WHETHER WE WISHED TO TELL HIM WHAT DEFENSES WE WANT TO PRESENT BEFORE HIS CASE CLOSES. WE DECLINED THE INVITATION. WE RESERVE OUR RIGHT TO OFFER ANY DEFENSE. WE DID NOTE IN THE COURT'S ORDER, AS MR. SCHENK SUGGESTED, WE DID NOTE THAT WE DON'T BELIEVE THAT WE HAVE OPENED THE DOOR. THE COURT'S ORDER SPECIFICALLY DISCUSSED ISSUES THAT WE COULD ADDRESS WITH RESPECT TO LIS, AND IT ADDRESSED -- IT NOTED THE CONCEPT THAT IF WE, THAT IF WE ARGUE THAT THE LIS DATABASE IS UNAVAILABLE BECAUSE OF THE GOVERNMENT'S FAILURE TO OBTAIN IT, THAT THAT COULD OPEN THE DOOR. I THINK THE COURT ALSO NOTED IN THE ORDER THAT IF WE SOUGHT A JURY INSTRUCTION THAT RELATED TO SPOLIATION -- I ALWAYS HAVE TROUBLE WITH THAT WORD, YOUR HONOR -- AND WE PRESENTLY DON'T INTEND TO OFFER THAT, BUT, OF COURSE, WE'LL SEE WHERE WE ARE AFTER THE GOVERNMENT RESTS AND WHAT DEFENSE WE NEED TO PROVE. THE GOVERNMENT HAS A REBUTTAL CASE IF WE END UP OPENING THAT DOOR IN THE DEFENSE CASE, AND AS ALWAYS, IT HAS THE ABILITY TO ADDRESS WHATEVER DEFENSES WE MIGHT RAISE IN ITS REBUTTAL.
JUDGE DAVILA: OKAY. WELL, ONE OF THE OBSERVATIONS, LET ME JUST SAY, IS THERE'S BEEN MENTION OF THE LIS THROUGH CROSS-EXAMINATION, AND TWO OR THREE WITNESSES WERE ASKED ABOUT IT, THE LAB DIRECTORS AND THE EXISTENCE OF IT, AND IT WAS, I'LL USE THE WORD INTERESTING, TO LISTEN TO THOSE QUESTIONS AS TO THE RELEVANCY OF THE TOPICS AND RAISING THE LIS, WHICH CAUSED ME, PARDON ME, SOME QUESTION ABOUT WHETHER OR NOT THAT IS GOING TO BE AN ISSUE IN THE CASE. AND I UNDERSTAND WE'RE TREADING LIGHTLY BECAUSE I'M NOT ASKING THE DEFENSE TO REVEAL WHAT THEIR DEFENSE IS IN ADVANCE. I'M NOT DOING THAT. NEITHER IS THE GOVERNMENT. BUT THERE IS THIS ISSUE. IT'S BEEN PROBED BY YOU, WHICH, TO THE GOVERNMENT, PERHAPS SUGGESTS THAT, WELL, WHAT DO WE NEED TO DO ABOUT IT? IF WE SIT ON OUR HANDS ABOUT IT AND THEN THIS BECOMES AN ISSUE, THEN IT'S PART OF THE REBUTTAL CASE. I UNDERSTAND THAT'S HOW THE SYSTEM WORKS AND THEY CAN PUT THAT ON. THE OTHER REASON FOR ME TO MAKE INQUIRY ON THIS IS THE TIMING OF THINGS.
IF THE LIS COMES IN, IT COULD OPEN THE DOOR TO -- IF YOUR TEAM IS GOING TO ARGUE THAT THE GOVERNMENT DESTROYED IT AND IT'S THEIR FAULT, OR SOMEHOW THE JURY SHOULD LOOK AT THAT, THEN THAT OPENS THE DOOR TO SIGNIFICANT OTHER ISSUES ABOUT RESPONSIBILITY FOR THAT. AND YOU KNOW WHAT THE HISTORY IS. YOU KNOW WHAT THE EVIDENCE IS AND THAT, AND WHAT TESTIMONY IS LIKELY TO COME IN FRONT OF ALL OF THAT. SO MY THOUGHT IN DOCKET 798 WAS THE LIS IS NOT GOING TO BE RELEVANT IN THE CASE, BUT THAT'S WHAT THE COURT'S THOUGHT WAS AFTER LOOKING AT YOUR MOTIONS. BUT IT COULD COME IN. AND, OF COURSE, IF THE DOOR IS OPENED, THEN IT IS PART OF THE CASE AND THE JURY IS ENTITLED TO HEAR BOTH SIDES OF IT. SO YOU'RE KIND OF DRIVING THIS, MR. WADE. YOU'RE KIND OF DRIVING THIS. BUT, YOU KNOW, YOU'RE IN THE DRIVER'S SEAT ON THIS, BUT QUERY AS TO, YOU KNOW, ARE YOU ON THE FREEWAY YET?
MR. WADE: I'M NOT EVEN SURE WE'VE TURNED ONTO THE ENTRY RAMP, YOUR HONOR. OF COURSE THE LIS IS IN THE CASE. AS WE NOTED AT THE OUTSET IN THE MOTIONS PRACTICE, THE LIS IS THE CENTRAL HUB OF INFORMATION WITHIN THE CASE. THE GOVERNMENT CALLED WITNESS AND THEY ASKED A LOT OF QUESTIONS RELATING TO RESULTS. THEY ASKED DR. DAS, FOR EXAMPLE, ABOUT DIFFERENT THINGS HE DID WHEN HE CAME INTO THE COMPANY. ALL OF THAT RELATED TO DATA WITHIN THE LIS. AND OF COURSE THE COURT IN ITS ORDER IN 798 DIDN'T PRECLUDE US FROM QUESTIONING ON LIS. THE LINE THAT WE TOOK THE COURT TO BE DRAWING THERE, AND WHICH WE'VE SOUGHT TO BE MINDFUL OF AS WE'VE ASKED QUESTIONS, IS WHETHER WE ARGUE OR WHETHER WE SEEK EVIDENCE RELATING TO THE LIS BEING UNAVAILABLE BECAUSE OF THE GOVERNMENT'S FAILURE TO OBTAIN IT. AND I DON'T BELIEVE THAT WE'VE ASKED ANY QUESTIONS WITH RESPECT TO THE GOVERNMENT'S FAILURE TO OBTAIN IT. I DON'T BELIEVE AT THIS POINT THAT WE'VE ASKED ANY QUESTIONS -- YOU KNOW, AN AGENT HASN'T TESTIFIED, FOR EXAMPLE, THERE'S BEEN NO INQUIRY ABOUT THE GOVERNMENT'S FAILURE TO OBTAIN IT. BUT WE DID RAISE THIS VERY ISSUE IN 798 ABOUT PRESERVING OUR ABILITY TO MAKE ARGUMENTS ABOUT THE GOVERNMENT'S FAILURE TO MEET ITS BURDEN.
JUDGE DAVILA: WELL, HOW IS THAT DIFFERENT FROM THE GOVERNMENT'S FAILURE TO MAINTAIN IT, TO MAINTAIN THE EVIDENCE AND MAINTAIN IT? THIS IS THE -- YOU KNOW, THIS IS THE ISSUE HERE, AND IF THERE'S -- IF THERE'S SOME OPAQUENESS ABOUT THIS, THEN THE GOVERNMENT IS JUST GOING TO HAVE TO DO WHAT THEY NEED TO DO IN THEIR CASE-IN-CHIEF I SUPPOSE.
MR. WADE: WELL, YOUR HONOR, OF COURSE, CONSIDERED THIS AT LENGTH WITH LENGTHY BRIEFING AND ARGUMENT IN THE MOTION IN LIMINE STAGE. AND YOU'LL RECALL AT 58 OF THE COURT'S ORDER, IT DECLINED TO PRECLUDE MS. HOLMES FROM RAISING THE LACK OF STATISTICAL OR SCIENTIFIC EVIDENCE AS A DEFENSE, FROM CHARACTERIZING THAT MISSING EVIDENCE AS CRITICAL TO THE GOVERNMENT'S CASE, OR FROM ARGUING ABOUT THE STATISTICAL INSIGNIFICANCE OF INDIVIDUAL PATIENT OR PHYSICIAN TESTIMONY. SO TO THE EXTENT THAT THE GOVERNMENT WAS SEEKING TO EXCLUDE THAT, THE COURT SAID NO. THE COURT ALSO SAID IN THAT ORDER THAT THERE IS NO EVIDENCE TYING ANY OF THE UNAVAILABILITY OF LIS TO MS. HOLMES, AND SO THE GOVERNMENT COULDN'T GO INTO THAT UNLESS WE OPENED THE DOOR TO THE -- BY BLAMING THE GOVERNMENT FOR THE FAILURE TO OBTAIN OR PRESERVE THE EVIDENCE. AND I DON'T BELIEVE YET WE'VE DONE THAT, SO I DON'T THINK THE DOOR HAS BEEN OPENED IN THE GOVERNMENT'S CASE. THIS IS SOMETHING THAT WE CAN DISCUSS AS THE DEFENSE CASE, IF THERE IS ONE, MOVES FORWARD. BUT I DON'T SEE ANYTHING THAT WE'VE DONE TO DATE AS CHANGING THE STATUS QUO. THE LIS IS THE CENTRAL HUB OF ALL OF THE DATA AND ALL OF THE PATIENT INFORMATION, AND THAT'S JUST A FACT OF THE CASE. BUT WE HAVEN'T ARGUED ABOUT THE GOVERNMENT'S FAILURE TO PRESERVE IT IN ANY WAY TO MY KNOWLEDGE. IF WE HAVE, I WELCOME, YOU KNOW, THE REFERENCES IN THE TRANSCRIPT. WE CAN CONSIDER IT AND COME BACK AND, YOU KNOW, ADDRESS THE SIGNIFICANCE OF IT WITH THE COURT IN LIGHT OF THE ORDER. OF COURSE, YOU KNOW, IF THE COURT WANTS TO REVISIT ITS ORDER AND THE GOVERNMENT WANTS TO GO INTO THAT, WE CAN ENTERTAIN THAT, TOO. IT WAS MY UNDERSTANDING THEY DIDN'T INTEND TO CALL WITNESSES ON THAT IN THEIR CASE-IN-CHIEF.
JUDGE DAVILA: WELL, IT SOUNDS TO ME LIKE -- AND YOU DON'T HAVE TO CORRECT ME -- BUT IT SOUNDS TO ME LIKE THE LIS IS IMPORTANT TO THE DEFENSE AND IT SOUNDS LIKE IF THERE WAS NOTHING ELSE, IF THE CASE ENDED NOW AND WE ARGUED TOMORROW, YOU WOULD BE PREPARED TO ARGUE THAT THE GOVERNMENT HASN'T PROVEN THE CASE BECAUSE THE LIS THAT YOU EXAMINED ON IS THE REPOSITORY OF ALL THE INFORMATION, AND YOU HAVE NO INFORMATION FROM THE GOVERNMENT AS TO THAT INFORMATION. IT SOUNDS LIKE THAT'S THE ARGUMENT THAT YOU'RE GOING TO MAKE. I'M NOT ASKING YOU TO REVEAL OR NOT, BUT I'M JUST TELLING YOU, GENERALLY IT SOUNDS LIKE YOU'RE PREPARED TO MAKE THAT ARGUMENT.
MR. WADE: WE, OF COURSE, ARE PREPARED TO ARGUE THE EVIDENCE IN THE CASE. WE HAVEN'T MADE ANY SPECIFIC -- WE'VE GOT SOME ROAD TO COVER HERE --
JUDGE DAVILA: SURE.
JUDGE DAVILA: SURE.
MR. WADE: AND WE DON'T KNOW IF THERE'S A DEFENSE CASE AND, IF THERE IS, WHAT THE CONTOURS OF THAT MIGHT BE. SO WE'RE STILL IN THE GOVERNMENT'S CASE. I UNDERSTOOD THE LITIGATION OF THIS ISSUE. I THINK WE STILL UNDERSTAND THE LITIGATION OF THIS ISSUE AS RELATING TO WHAT IS FAIR GAME WITHIN THE GOVERNMENT'S CASE-IN-CHIEF. I DON'T THINK -- WHO WAS RESPONSIBLE FOR NOT GETTING THE LIS OR NOT PRESERVING THE LIS, THE COURT KNOWS THERE COULD BE A 10 DAY TRIAL, PROBABLY, ON THAT ISSUE, AND 10 OR 15 WITNESSES. WE HAVEN'T SOUGHT TO BURDEN THE COURT WITH THOSE ISSUES, BUT WE HAVE PRESENTED ISSUES WITH RESPECT TO THE SIGNIFICANCE OF THE ROLE THAT THE LIS PLAYED WITHIN THE LAB, THE ROLE -- THE GOVERNMENT'S WITNESSES, DR. DAS IN PARTICULAR, BROUGHT THAT ISSUE INTO THE CASE BASED UPON THE -- THEIR EXAMINATION OF THE WITNESS.
MR. SCHENK: ON THAT LAST POINT, I DISAGREE. DR. DAS, HIS TESTIMONY, MY RECOLLECTION IS, WAS THAT HE DIDN'T GATHER THE INFORMATION THAT HE ENDED UP REVIEWING TO REACH HIS CONCLUSIONS. OTHER PEOPLE AT THERANOS GATHERED INFORMATION, AND HE WASN'T SURE WHERE THAT INFORMATION CAME FROM. SO FOR THE DEFENSE TO SUGGEST THAT THE GOVERNMENT'S DIRECT OR THE GOVERNMENT'S CHOICE OF WITNESSES IN THIS CASE HAS INJECTED OR CAUSED LIS TO BE AN ISSUE IS DISINGENUOUS. IT'S NOT TRUE. AND ALL THE GOVERNMENT IS CONCERNED ABOUT IS BEING PUT IN A POSITION WHERE THE DEFENSE DOES NOT PUT ON A CASE. OF COURSE IF THEY PUT ON A CASE, WE HAVE REBUTTAL AND WE HAVE AN OPPORTUNITY TO COME BACK TO THE COURT AND SAY, CAN WE HAVE DIRECTION NOW, YOUR HONOR, ON WHETHER THE DOOR IS OPEN? THERE IS NO ISSUE AT THAT POINT. THEN WE ALL KNOW, AND THE GOVERNMENT IS IN A POSITION WHERE IT COULD CALL NEW WITNESSES ON LIS.
THE GOVERNMENT'S CONCERN IS THAT AT THIS STAGE, ONE, WE DON'T KNOW IF THE DEFENSE IS GOING TO PUT ON A CASE, AND TWO, WE DON'T KNOW IF, BASED UPON THE RECORD THAT THE DEFENSE HAS ELICITED THROUGH CROSS, THEY INTEND TO MAKE ARGUMENTS SUGGESTING LIS IS MISSING. AND WHEN THE GOVERNMENT BEARS THE BURDEN OF PROOF, IT'S IMPLICIT IN THAT ARGUMENT THAT THE MISSING EVIDENCE SHOULD BE HELD AGAINST THE GOVERNMENT. IT IS IMPLICIT IN THAT ARGUMENT THAT THE JURY SHOULD FAULT THE GOVERNMENT FOR THIS EVIDENCE TO BE LACKING. AND ALL WE'RE ASKING FOR IS, BASED UPON THE CURRENT STATE OF THE RECORD, IS THE DOOR OPEN AND SHOULD WE TELL THE COMPLETE STORY ABOUT LIS? IF THE ANSWER IS NO, THAT'S FINE. I'M NOT ASKING FOR THE COURT TO FIND THAT THE DOOR HAS BEEN OPENED. BUT I GUESS WHAT I'M ASKING IS THAT IF THE DOOR ISN'T OPEN, WHEN WE OBJECT TO THIS ARGUMENT IN CLOSING, THAT OBJECTION SHOULD BE SUSTAINED. THE DEFENSE SHOULDN'T BE ABLE TO HAVE IT BOTH WAYS. THAT REALLY IS THE SUM OF IT.
JUDGE DAVILA: I THINK THAT'S WHAT I UNDERSTAND FROM LAST WEEK'S CONVERSATION. AND I WAS APPRECIATIVE OF, MR. WADE, YOUR TEAM SAYING WE'LL LET THEM KNOW BY 4:00 O'CLOCK, WE'LL MAKE THAT DECISION AT 4:00 O'CLOCK. I THINK THE GOVERNMENT ASKED, WELL, YOU KNOW, WE'RE PROBABLY GOING TO FINISH OUR CASE MID NEXT WEEK AND SO WE'VE HAD THIS ENGAGEMENT OF RECIPROCITY ABOUT WITNESSES, AND MAYBE THEY CAN LET US KNOW SO WE CAN PREPARE, AND I THINK YOU SAID WE'LL BE IN COMMUNICATION BY 4:00 P.M., WHICH WOULD INCLUDE THIS LIS ISSUE.
MR. WADE: WE DID, YOUR HONOR. WE DID EXCHANGE WITNESSES EVEN AS WE AGREED TO BEFORE THE CASE BEGAN.
JUDGE DAVILA: SURE.
JUDGE DAVILA: RIGHT.
MR. WADE: -- GIVING THEM A SENSE OF THE WITNESSES. I DON'T THINK IT WAS ANYONE'S UNDERSTANDING THAT WE WERE, YOU KNOW, COMMITTING TO THAT BEFORE THE GOVERNMENT RESTS ITS CASE, BUT WE DID PROVIDE WITNESSES. AND, YOUR HONOR, I DON'T THINK I'VE EVER BEEN ASKED TO RULE IN OR OUT A DEFENSE BEFORE THE GOVERNMENT CASE CLOSED, AND I KNOW --
JUDGE DAVILA: I'M NOT ASKING.
MR. WADE: -- THE COURT IS NOT ASKING THAT. I'M JUST VERY MINDFUL OF THE COURT'S ORDER ON THIS ISSUE, WHICH WAS AFTER CONSIDERED BRIEFING, WHICH WAS THE COURT DECLINES TO PRECLUDE HOLMES FROM RAISING THE LACK OF STATISTICAL OR SCIENTIFIC EVIDENCE AS A DEFENSE, FROM CHARACTERIZING THAT MISSING EVIDENCE AS CRITICAL TO THE GOVERNMENT'S CASE, OR FROM ARGUING ABOUT THE STATISTICAL INSIGNIFICANCE OF INDIVIDUAL PATIENT OR PHYSICIAN TESTIMONY. THAT'S WHAT THE COURT CONTEMPLATED IN ITS ORDER. I DON'T THINK -- WE TAKE THAT ORDER SERIOUSLY, AS I KNOW THE COURT DOES, AND I KNOW THE GOVERNMENT DOES. AS TO BLAMING THE GOVERNMENT FOR THE LIS OR SEEKING A DESTRUCTION OF EVIDENCE INSTRUCTION OF SOME SORT, THAT'S A TOTALLY DIFFERENT ISSUE, AND IT MAY BE THAT -- I WOULD IMAGINE IF WE WERE TO SEEK SUCH AN INSTRUCTION BASED UPON THE EVIDENCE WE HAVE ELICITED DURING THE GOVERNMENT'S CASE, THAT THE COURT PROBABLY WOULDN'T PERMIT US TO OFFER THAT INSTRUCTION, BECAUSE I DON'T THINK THERE HAS YET BEEN EVIDENCE OF THE GOVERNMENT'S DESTRUCTION OF THE EVIDENCE OR NEGLIGENT FAILURE TO GET THE EVIDENCE. I KNOW THERE ARE A COUPLE OF NINTH CIRCUIT INSTRUCTIONS ON THAT. AND SO --
JUDGE DAVILA: WELL, NOT IN THE EVIDENCE, BUT CERTAINLY IN THE MOTIONS THAT HAVE PRECLUDED -- OR EXCUSE ME, THAT HAVE COME UP EARLIER IN THE TRIAL. YOUR TEAM HAS MADE THAT ALLEGATION, AND WE HAD SOME, WE HAD SOME MOTION PRACTICE ON THAT. AND I THINK THAT'S THE GOVERNMENT'S CONCERN, AND THAT'S -- FROM A TRIAL MANAGEMENT POSITION, THAT'S MY CONCERN, TOO. IF WE NEED TO DO THAT LITIGATION, WE'LL DO IT. WE'LL DO IT. BUT WHETHER OR NOT IT BECOMES AN ISSUE IN THIS CASE IS SOMETHING THAT I'M JUST TRYING TO PROBE RIGHT NOW. AND YOU KNOW WHAT THE EVIDENCE IS. YOU KNOW WHAT THAT EVIDENCE IS GOING TO LOOK LIKE, WE ALL DO, ABOUT THE LIS. WE HAD MOTIONS ON THAT, AND YOU HAD THE COURT'S OPINION ON THAT, AND THE COURT HAD EXPRESSED ITS OPINION. SO I THINK YOU KNOW WHAT IS COMING.
MR. WADE: WE DO, YOUR HONOR. AND AGAIN, LIKE I SAID, I DON'T WANT TO -- I DON'T KNOW THAT WE WOULD OFFER, I DON'T KNOW THAT WE WOULD OFFER ANY KIND OF INSTRUCTION OF THAT NATURE AT THIS POINT. AND AS I SAID, BASED ON THE PRIOR LITIGATION, BASED ON THE RECORD EVIDENCE TO DATE, MY GUESS IS -- AND I HATE TO GUESS HOW THE COURT IS GOING TO RULE -- BUT IF WE SOUGHT SUCH AN INSTRUCTION BASED ON THE EVIDENCE THAT HAS BEEN ELICITED SO FAR, YOU WOULDN'T LET US OFFER IT BECAUSE I DON'T THINK THERE IS ANY EVIDENCE THAT GOES TO THAT AT THIS POINT. THAT'S KIND OF MY POINT. AND SO -- NOW, OF COURSE IF WE CHOOSE TO GO INTO THAT IN OUR DEFENSE CASE, THEN THE GOVERNMENT HAS THAT REBUTTAL CASE THAT THEY'RE FOCUSSED ON AND THEY COULD GO INTO THAT. BUT I THINK IT'S A LITTLE PREMATURE. MAYBE WE CAN HAVE THIS DISCUSSION, YOU KNOW, A LITTLE BIT LATER IN THE WEEK OR EARLY NEXT WEEK --
JUDGE DAVILA: SURE.
MR. WADE: -- YOU KNOW, AS IT RELATES TO HOW WE'RE GOING TO PROCEED IN THIS. WE'RE MINDFUL OF THE SCHEDULE, YOUR HONOR, AND, YOU KNOW, ARE WORKING TO TRY TO CONTINUE TO MOVE FORWARD.
JUDGE DAVILA: WELL, THANK YOU. I JUST WANTED TO RAISE THIS BECAUSE I THINK FROM THE GOVERNMENT'S SIDE THEIR CONCERN IS IF WE, IF WE DO NOTHING ON THIS, BUT YET THE ARGUMENT IS THAT THEY HAVEN'T PROVEN THEIR CASE BECAUSE THE LIS IS THERE AND THEY DIDN'T PUT IT ON, THEY HAD ACCESS TO THE LIS, OR SOMETHING LIKE THAT. AND MR. SCHENK SAYS, WELL, AT A MINIMUM, YOU NEED TO STOP THAT ARGUMENT BECAUSE. I THINK THAT'S WHAT I HEARD HIM SAY. YOU KNOW, THAT MAY BE AN ISSUE. IT MIGHT BE AN ISSUE AS TO HOW DOES THE LIS COME INTO THE CASE AND WHAT IS IT? THERE'S BEEN EVIDENCE IN ABOUT THE EXISTENCE OF A LIS. AND I'M CONCERNED THAT IF THE DOOR IS NOT OPENED, THE LIGHT IS CERTAINLY COMING THROUGH THE CRACK IN THE DOOR. SO WE NEED TO BE MINDFUL OF THAT.
MR. WADE: WELL, IF THAT'S THE CONCERN -- I WANT TO BE VERY CLEAR, YOUR HONOR. THE DEFENSE BELIEVES THAT IT CAN ARGUE THE EVIDENCE IN THE CASE, OKAY?
JUDGE DAVILA: SURE.
MR. WADE: SO IF THE GOVERNMENT FEELS THAT IT NEEDS TO CALL WITNESSES TO MEET THAT EVIDENCE, IT SHOULD CALL THE WITNESSES. THAT'S OUR POSITION, BECAUSE WE'RE NOT GOING TO LIMIT OUR ABILITY TO ARGUE THE EVIDENCE THAT HAS BEEN ELICITED AT THIS POINT. YOU KNOW, WITH RESPECT TO THE COURT, WE'RE MINDFUL OF THE TIME, AND WITH RESPECT TO THE GOVERNMENT, WE'RE JUST NOT GOING TO DO THAT. SO I THINK THERE HAS BEEN SOME EVIDENCE WITH RESPECT TO LIS. I THINK WE'VE BEEN MINDFUL OF THE LINE THAT THE COURT DREW IN ITS ORDER, BUT I THINK WE HAVE THE RIGHT TO ARGUE THE EVIDENCE THAT HAS BEEN ELICITED. AND IF THE GOVERNMENT WANTS TO CALL WITNESSES AND THINKS THAT IT NEEDS TO -- THAT SOME LINE HAS BEEN CROSSED, IT SHOULD SAY WHO IT WANTS TO CALL AND WE SHOULD ADDRESS WHETHER THAT IS ADMISSIBLE UNDER 401 OR 403.
JUDGE DAVILA: OKAY. I THINK THOSE LAST COMMENTS ARE VERY INFORMATIVE. ALL RIGHT. WELL, LET'S MOVE ON TO THE MOTION THAT WE HAVE THIS MORNING. THANK YOU. ANYTHING ELSE, MR. SCHENK?
MR. SCHENK: NO. THANK YOU.
JUDGE DAVILA: ALL RIGHT. LET'S SEE. THIS IS DOCUMENT 1140, I THINK, MS. HOLMES'S RENEWED MOTION TO ADMIT.
MR. DOWNEY: GOOD MORNING, YOUR HONOR. I HAVE ASKED ONE OF OUR YOUNG COLLEAGUES, MR. CLEARY, TO ADDRESS THIS MOTION WITH YOU.
JUDGE DAVILA: YES.
MR. DOWNEY: AND HE HASN'T BEEN HERE BEFORE AND SO I JUST WANTED TO INTRODUCE THE COURT TO RICHARD CLEARY. HE'S BEEN ADMITTED PRO HAC FOR SOME TIME AND HAS BEEN WORKING ON THE MATTER.
JUDGE DAVILA: GREAT, THANK YOU. WE'RE ALWAYS HAPPY TO HAVE NEW COUNSEL APPEAR. GOOD MORNING, MR. CLEARY.
MR. CLEARY: GOOD MORNING, YOUR HONOR.
JUDGE DAVILA: I THINK YOU ROSE TO YOUR FEET YESTERDAY JUST AS THE MENTION OF THIS MOTION.
(LAUGHTER.)
MR. CLEARY: YES. I'M ALMOST AS ENTHUSIASTIC AS THE CUSTOMERS APPEAR TO BE IN THESE REPORTS.
JUDGE DAVILA: ALL RIGHT. WELL, WE WON'T NEED A PHLEBOTOMIST TO TELL US ABOUT YOUR ENTHUSIASM.
MR. CLEARY: THAT'S RIGHT, YOUR HONOR. TO BEGIN, WE VIEW THESE REPORTS AS VERY IMPORTANT EVIDENCE IN THIS CASE. THEY'RE POWERFUL EVIDENCE OF MS. HOLMES'S INTENT AND HER KNOWLEDGE. MR. EDLIN LAID A FOUNDATION FOR THEIR ADMISSION SUBJECT TO THE GOVERNMENT'S OBJECTION, WHICH WAS SUSTAINED BY THE COURT. WE UNDERSTOOD THAT THE COURT HAD EXPRESSED AN OPENNESS TO REVISITING THIS ISSUE. THAT WOULD BE AT TRANSCRIPT PAGE 4263. FOR FOUR REASONS, WE BELIEVE THAT THIS EVIDENCE IS RELEVANT TO CORE ISSUES IN THIS CASE, INCLUDING THREE SEPARATE ISSUES IDENTIFIED IN THE INDICTMENT. SO THE FIRST IS WALGREENS, THE WALGREENS ALLEGATIONS IN PARAGRAPH 12(D). THE SECOND IS THE ACCURACY AND RELIABILITY ALLEGATIONS IN PARAGRAPH 16. THE THIRD ARE ALLEGATIONS CONCERNING PRICE AND THE ROLE OF PRICE AND THE REPRESENTATIONS THAT WERE ALLEGEDLY MADE BY MS. HOLMES TO CUSTOMERS. AND THEN THE FOURTH, THIS IS CRITICAL CONTEXT FOR MS. HOLMES'S VISION AND HER UNDERSTANDING THAT THE THERANOS BUSINESS WAS WORKING. SO I'M HAPPY TO TAKE THOSE IN TURN.
JUDGE DAVILA: ALL RIGHT. THAT'S FINE.
MR. CLEARY: FIRST WITH WALGREENS, THE ALLEGATION IN THE INDICTMENT GOES TO THE STATUS AND PROSPECTS OF THE RELATIONSHIP DURING THE CONSPIRACY PERIOD; SPECIFICALLY, WHETHER REPRESENTATIONS WERE MADE THAT THE RELATIONSHIP WITH WALGREENS WAS EXPANDING OR WHETHER -- WHEN ALLEGEDLY THE RELATIONSHIP WAS STALLING. SO THESE ARE STATEMENTS ABOUT THE BUSINESS PERFORMANCE. THEY ARE NOT STATEMENTS ABOUT THE TECHNOLOGY ITSELF. AND THESE REPORTS GIVE INSIGHT INTO THE MARKETPLACE RESPONSE TO THIS INNOVATIVE PARTNERSHIP. THESE ARE ENTHUSIASTIC RESPONSES. THEY GIVE A SENSE OF THE MARKET POSITION. THEY EXPLAIN THE COMPETITIVE ADVANTAGES THAT MIGHT EXIST. AND TO BE CLEAR, WE ARE OFFERING THIS EVIDENCE FOR THE NONHEARSAY PURPOSE OF ITS INTENT -- OF MS. HOLMES'S INTENT, ITS EFFECT ON HER STATE OF MIND. WE ARE NOT OFFERING THEM FOR THE TRUTH OF THE MATTER ASSERTED.
JUDGE DAVILA: AND JUST SO I'M CLEAR -- PARDON ME, MR. CLEARY.
MR. CLEARY: SURE.
JUDGE DAVILA: YOU'RE ASKING THAT ALL OF THE CUSTOMER, ALL OF THE CUSTOMER SURVEYS BE ADMITTED AS IS, WITHOUT ANY REDACTIONS, WITHOUT ANY CHANGES, ANYTHING LIKE THAT; IS THAT CORRECT?
MR. CLEARY: THAT'S CORRECT, YOUR HONOR. AND I'M HAPPY TO DISCUSS THE REDACTION ISSUE. WE BELIEVE THAT REDACTIONS WOULD BE INAPPROPRIATE BECAUSE ALL OF THE SURVEY RESPONSES ARE RELEVANT TO DIFFERENT ALLEGATIONS IN THE CASE. MR. JHAVERI TALKED ABOUT PATIENT EXPERIENCE AND TALKED ABOUT HOW IT WAS ESSENTIAL TO THE WALGREENS/THERANOS PARTNERSHIP, AND ALL OF THESE GO TO THAT PATIENT EXPERIENCE IN ONE WAY OR ANOTHER. SO --
JUDGE DAVILA: HE DID. HE TALKED ABOUT -- HE WAS ASKED, I THINK BY ONE OF YOUR COLLEAGUES, WHETHER OR NOT THERE WAS POSITIVE CUSTOMER INFORMATION, AND I THINK HIS TESTIMONY WAS THAT THERE WAS GENERALLY POSITIVE CUSTOMER REACTION TO THERANOS IN WALGREENS AND THEIR EXPERIENCE.
MR. CLEARY: SO, YES, YOUR HONOR. BUT THIS IS NOT CUMULATIVE WITH THAT TESTIMONY FOR A COUPLE OF REASONS. FIRST, THESE ARE REPORTS THAT WENT DIRECTLY TO MS. HOLMES. THEY SPAN -- THEY BEGIN IN THE FALL OF 2014. THEY CONTINUE IN REALLY THE -- THE FIRST ONE IS REALLY FROM FALL OF 2014, AND THE REMAINING NINE ARE FROM SUMMER OF 2015. AND BECAUSE THEY GO TO MS. HOLMES, THEY'RE DIRECTLY RELEVANT TO HER INTENT, AND THEREFORE, NOT CUMULATIVE WITH OTHER POSITIVE FEEDBACK THAT WALGREENS MAY HAVE OBTAINED. THEY GO TO MS. HOLMES, NOT TO WALGREENS. AND MR. JHAVERI, ON PAGE 3587 OF THE TRANSCRIPT, SPEAKS ABOUT THE ENTIRE SERVICE WAS TO CREATE A NEW PATIENT EXPERIENCE, ONE THAT IS EFFICIENT, ONE THAT IS LESS PAINFUL, ONE THAT IS LESS COST. AND WHEN MS. HOLMES RECEIVES THESE REPORTS, THESE REPORTS SUPPORT A REASONABLE BELIEF THAT NOT ONLY IS THE RELATIONSHIP WITH WALGREENS, LIKE, WORKING, IT IS THRIVING, AND IT'S POWERFUL EVIDENCE FOR THAT REASON. SO THAT'S PARAGRAPH 12(D).
NOW, LET'S MOVE TO PARAGRAPH 16, WHICH IS THE ACCURACY AND RELIABILITY ALLEGATIONS. I THINK THERE ARE FOUR DIFFERENT CATEGORIES OF TESTIMONIALS IN THESE REPORTS THAT ARE RELEVANT TO THOSE ALLEGATIONS. THE FIRST ARE THE COMPARISONS BETWEEN LABS. SO YOUR HONOR WILL RECALL THE TESTIMONIAL BY THE DOCTOR WHO COMPARED HIS LAB RESULT WITH LAB RESULTS -- HIS LAB RESULT FROM THERANOS WITH LAB RESULTS FROM STANFORD. THE SECOND ARE REPEAT CUSTOMERS WHO GENERALLY GIVE THESE GLOWING REVIEWS. YOU WOULD EXPECT REPEAT CUSTOMERS NOT TO GIVE GLOWING REVIEWS IF THEY HAD SOME REASON TO DOUBT THE SOUNDNESS OF THE RESULTS THAT THEY RECEIVED. AND I WILL SAY THAT, AS YOUR HONOR KNOWS, THE DEFENSE DOES NOT CONCEDE THAT INDIVIDUAL ANECDOTES ARE, IN FACT, PROBATIVE OF ACCURACY AND RELIABILITY. BUT ONCE THE GOVERNMENT HAS PUT ANECDOTES INTO THE CASE, WE BELIEVE THAT WE CAN PRESENT ANECDOTES OF OUR OWN AS THEY RELATE TO MS. HOLMES'S UNDERSTANDING OF THE PERFORMANCE OF THE TECHNOLOGY.
YOU ALSO HAVE CUSTOMERS WHO ARE REFERRED BY OTHER CUSTOMERS. SO I THINK THAT'S A FAIR INFERENCE THAT A CUSTOMER WOULD NOT REFER, IN ONE CASE, A PATIENT. THERE'S AN M.P., FOR EXAMPLE, WHO WAS A REGULAR PATIENT -- A REGULAR CUSTOMER OF THERANOS WHO REFERRED ANOTHER CUSTOMER TO THERANOS. THAT CUSTOMER HAD A GOOD EXPERIENCE AND EXPLAINED THE SOURCE OF THE REFERRAL. YOU ALSO HAD FAMILY MEMBERS, LIKE, YOU KNOW, PARENTS BRINGING THEIR CHILDREN BACK, FOR EXAMPLE. AND THEN LAST YOU HAVE SOME -- AN INTERESTING COMMENT ABOUT THE POTENTIAL FOR PRE-ANALYTIC ERROR. YOUR HONOR WILL CALL THAT DR. ROSENDORFF DISCUSSED THIS ISSUE. SO IN THIS CASE, FOR EXAMPLE, THERE IS AN ANECDOTE BY A PHLEBOTOMIST ABOUT HOW SHE MESSED UP THE LABELS ON THE TUBES OF THE -- CONTAINING BLOOD THAT WOULD NEED TO BE SENT FOR PROCESSING AT THE THERANOS FACILITY.
WELL, THAT'S AN EXAMPLE OF HUMAN ERROR AT THE PRE-ANALYTIC PHASE THAT WOULD NOT RELATE TO THERANOS TECHNOLOGY AND ITS PERFORMANCE, AND, THEREFORE, GIVES REASON TO BELIEVE THAT THERE'S A POTENTIAL FOR THIS ERROR THAT HAS NOTHING TO DO WITH THERANOS TECHNOLOGY. SO THE THIRD IS THE PRICE. AND I APPRECIATE THE GOVERNMENT'S REPRESENTATION, AT LEAST AS I UNDERSTAND IT, IN THEIR PLEADING THAT THEY'RE NOT ALLEGING FALSITY OF PRICE. BUT THE INDICTMENT DOES ALLEGE IN PARAGRAPHS 15, 16, AND 17 THAT PRICE -- REPRESENTATIONS AS TO PRICE WERE PART OF THE ALLEGED SCHEME TO DEFRAUD. PARAGRAPH 17 IN PARTICULAR SAYS THE PRICE WAS USED TO INDUCE CUSTOMERS TO PURCHASE THERANOS BLOOD TESTS. PRICE IS IN THE CASE. YOUR HONOR WILL REMEMBER THE TESTIMONY OF B.G. AND THE TESTIMONY OF MR. JHAVERI. WE BELIEVE THAT WE ARE ENTITLED TO PUT ON EVIDENCE SHOWING THAT THERE WAS A BASIC GOOD FAITH BELIEF AND GOOD FAITH REASON FOR THESE PRICES. AND THEN FINALLY, WE BELIEVE THAT THIS IS CRITICAL CONTEXT FOR MS.
HOLMES'S VISION AND HER UNDERSTANDING THAT THE THERANOS BUSINESS WAS WORKING, HER UNDERSTANDING OF WHAT PATIENTS, CUSTOMERS WANTED IN THE MARKET, AND WHAT THEY VALUED. YOUR HONOR WILL RECALL THAT MR. MOSLEY DISCUSSED THE IMPORTANCE OF VISION, INCLUDING THE VISION WITH RESPECT TO WALGREENS'S DECISION IN MAKING THE DECISION TO INVEST, AND WE BELIEVE THIS EVIDENCE IS CONSISTENT WITH THAT. AND THEN I'LL GIVE MR. BOSTIC AN OPPORTUNITY TO SPEAK, BUT I JUST WANTED TO ADDRESS BRIEFLY THE 403 ARGUMENT THAT THE GOVERNMENT MADE. WE BELIEVE THAT THE REPORTS THAT WE SEEK TO ADMIT AND THE CUSTOMER SERVICE SPREADSHEETS THAT THE GOVERNMENT PREVIOUSLY SOUGHT TO ADMIT AND THAT WERE EXCLUDED ARE FUNDAMENTALLY DIFFERENT.
MR. CLEARY: THESE REPORTS WERE SENT TO MS. HOLMES. THE CUSTOMER SERVICE SPREADSHEETS WERE NOT SENT TO MS. HOLMES. THESE REPORTS ARE RELEVANT TO MS. HOLMES'S INTENT AND HER KNOWLEDGE AND HER STATE OF MIND. THE SPREADSHEETS ARE NOT RELEVANT TO THOSE ISSUES. FURTHERMORE, AS THE COURT WILL RECALL, IN ITS RULING AT ECF 798 THAT WE'VE BEEN DISCUSSING THIS MORNING, THE COURT RULED THAT THE CONTENTS OF THE SPREADSHEETS THEMSELVES COULD NOT BE ADMITTED, AND THE GOVERNMENT HAS NEVER PROFFERED A BASIS CONNECTING THOSE DOCUMENTS TO MS. HOLMES.
JUDGE DAVILA: THANK YOU. SO LET ME ASK YOU, IT SEEMS LIKE, MR. CLEARY, THAT THE VALUE OR THE REASON THAT YOU WOULD LIKE, YOUR TEAM WOULD LIKE THESE IN, ALL OF THESE SURVEYS IN, IS BECAUSE THEY SHOW MS. HOLMES'S STATE OF MIND. YOU'RE NOT OFFERING THEM FOR THE TRUTH OF THE MATTER ASSERTED, WHETHER OR NOT SOMEBODY ENJOYED THEIR VISIT OR NOT, BUT YOU'RE SAYING THAT THESE THEN WOULD ALLOW YOU TO ARGUE THAT MS. HOLMES'S STATE OF MIND AT THE TIME IN QUESTION INFORMED HER THAT, OR THESE DOCUMENTS INFORMED HER THAT THINGS WERE GOING WELL AT WALGREENS, AND THAT'S HER STATE OF MIND SUCH THAT THE JURY CAN CONSIDER THAT AS SHE ENGAGED WITH INVESTORS DURING THIS TIME PERIOD. IS THAT, IS THAT THE PURPOSE FOR THESE?
MR. CLEARY: YOUR HONOR IS ABSOLUTELY RIGHT THAT WE SEEK TO ADMIT THESE ONLY FOR THE NONHEARSAY PURPOSE, NONHEARSAY PURPOSE OF THEIR EFFECT ON MS. HOLMES'S STATE OF MIND. WE BELIEVE THAT THESE REPORTS ARE RELEVANT FOR HER STATE OF MIND IN THE PARAGRAPH 12 ALLEGATIONS AS SHE ALLEGEDLY MADE CERTAIN REPRESENTATIONS ABOUT THE WALGREENS RELATIONSHIP TO INVESTORS. WE BELIEVE THAT THEY'RE RELEVANT TO THE OTHER PARAGRAPHS IDENTIFIED IN THE INDICTMENT AS WELL.
JUDGE DAVILA: OKAY. ALL RIGHT. IN LOOKING AT THESE, I HAD ASKED PREVIOUSLY WHEN WE WERE DISCUSSING THESE IF THE DEFENSE WISHED TO PARSE OUT -- I THINK I USED THE PHRASE PARSE -- TO PARSE OUT ANY OF THESE SURVEYS THAT WOULD SPEAK TO TEST RESULTS. AND THAT'S WHY MY THRESHOLD QUESTION THIS MORNING WAS, YOU WANT ALL OF THESE IN, NOT ANY PARSE OF THEM? WHEN I LOOK AT THESE, I WAS TRYING TO FIND WHETHER ANY OF THESE HAD RESULTS JUST TO SEE, AND MY REVIEW OF THE RECORDS DIDN'T COME UP WITH ANY. I DID SEE AN INDIVIDUAL WHO SAID THAT THEY CAN'T -- THIS WAS IN THE TWO PATIENTS ON JULY 4TH AND JULY 6TH OF 2015, AND THEIR RESPONSES WERE "I CAN'T WAIT TO GET THE RESULTS."
MR. BOSTIC: UH-HUH.
JUDGE DAVILA: THOSE WERE THE ONLY -- AND, AGAIN, I DIDN'T DO AS THOROUGH A JOB AS YOU DID WITH YOUR ENTHUSIASM, BUT THOSE WERE THE ONLY RESULTS THAT I COULD FIND THAT TALK ABOUT RESULTS, AND THEY SEEM TO TALK ABOUT A FUTURE EVENT. "CAN'T WAIT TO GET THE APP." APPARENTLY THERE WAS AN APP THAT WAS CREATED AND THE PATIENTS, FOR EASE OF CUSTOMER SERVICE -- THERE'S AN APP FOR EVERYTHING. THERE WAS AN APP. THEY PUT IN WHATEVER THEIR INFORMATION WAS, AND IT SOUNDS LIKE THEY WOULD GET THEIR TEST RESULTS BACK THROUGH THIS APP ON THEIR MOBILE DEVICE OR WHATEVER, AND THEY WERE VERY EXCITED ABOUT THAT. BUT THOSE WERE THE ONLY REFERENCES THAT I COULD FIND THAT ACTUALLY SPEAK TO RESULTS. AND, OF COURSE, THEY'RE NOT TEST RESULTS. IT'S ANTICIPATION OF RECEIVING. SO THAT'S SOMETHING THAT I WAS -- AGAIN, THIS GETS TO -- THE ISSUE, AS I TALKED ABOUT PREVIOUSLY, WAS THE TECHNOLOGY, THE TECHNOLOGY BEING THE RESULTS AND HOW THAT IS AN ISSUE IN THE CASE.
THE MAJORITY OF THE COMMENTS, A SIGNIFICANT MAJORITY OF THE COMMENTS, AS YOU KNOW, TALK ABOUT PRICING. THEY ALL TALK ABOUT PRICING. AND THEY SEEM TO SAY THAT ONE OF THE DRAWS OF THE TECHNOLOGY OF THE WALGREENS RELATIONSHIP WAS MANY OF THE PATIENTS, THE CUSTOMERS, HAD NO INSURANCE, AND THEY WERE, THEY WERE VERY HAPPY THAT THEY COULD FIND AFFORDABLE TESTING, AND THEY EXPRESSED THAT IN THEIR COMMENTS. THAT WAS A CONCURRENT THEME THROUGHOUT. THEY WERE -- WHAT WE LEARNED FROM READING THE -- AND I THINK THESE ALL HAVE SOME QUESTIONS ABOUT YOU -- IT SEEMS LIKE THESE WERE ALL THE PHLEBOTOMIST COMMENTS. I COULDN'T DISCERN WHICH WERE APPS AND WHICH WERE PHLEBOTOMISTS, OTHER THAN THE PRELIMINARY PAGES THAT HAVE THE GRAPHS AND THINGS THAT TALK ABOUT CUSTOMER SERVICE. MY SENSE IS THAT THOSE ARE CUSTOMERS WHO RESPONDED THROUGH AN APP.
THE WRITINGS, THE LITTLE COMMENTS, THOSE ARE ALL, MY SENSE IS, COMMENTS FROM THE PHLEBOTOMISTS WHO WERE EMPLOYEES OF THE COMPANY, NOT OF WALGREENS, BUT OF YOUR CLIENT'S COMPANY, AND SO THEY WERE MAKING THOSE NOTES. MANY OF THE NOTES HAVE SIMILAR COMMENTS AND OBSERVATIONS. BUT IT APPEARS, IT APPEARS THAT THE MAJORITY OF THOSE COMMENTS RELATE TO PRICING AND THE RELIEF OF FINDING AFFORDABLE TESTING THROUGH WALGREENS, THROUGH YOUR CLIENT'S COMPANY. WHAT WE ALSO LEARNED IN LOOKING AT THAT IS THAT THERE WAS A MENTION OF GIFT CARDS. AND IT SEEMS LIKE DOCTORS GAVE $100 GIFT CARDS TO INDIVIDUALS TO USE AT WALGREENS TO OBTAIN TESTING THROUGH YOUR CLIENT'S COMPANY. MAYBE THAT WAS PART OF THE BUSINESS PLAN. I DON'T KNOW. BUT IT SEEMS LIKE THAT APPEARED THROUGHOUT. THERE WERE MANY REFERENCES TO "THE DOCTOR GAVE ME A GIFT CARD SO I COULD GET THE TESTING DONE." I DON'T KNOW WHAT THAT IS RELEVANT TO OTHER THAN THAT'S A FAVORABLE COMMENT, I SUPPOSE, OF THE EXPERIENCE.
AND THAT WOULD -- THAT WAS A CONCERN THAT I HAD PREVIOUSLY ALSO. THE OTHER THING THAT WAS -- I THINK WAS THE GENESIS OF THE ARGUMENT HERE WAS MR. EDLIN TESTIFIED THAT THESE SURVEYS WERE SHARED, AND HE USED THE WORD "SHARED," THEY WERE SHARED WITH HIM, HE RECEIVED THEM. AND I THINK YOUR CLIENT, THEY WERE SHARED WITH YOUR CLIENT. HE DID NOT TESTIFY, AND I HAVEN'T HEARD ANY WITNESS TESTIFY, THAT THESE WERE ACTUALLY READ BY YOUR CLIENT. WE KNOW AT LEAST FROM THE TESTIMONY THAT THEY WERE SENT TO HER, BUT I'M CURIOUS WHETHER OR NOT THERE NEEDS TO BE SOME FOUNDATIONAL EVIDENCE THAT SHE READ THEM, YOU KNOW? JUST BECAUSE IT WAS SENT DOESN'T MEAN IT WAS READ AND DOESN'T MEAN THAT IT HAD THAT EFFECT. SO I'M JUST CURIOUS WHETHER OR NOT THERE'S A FOUNDATIONAL GAP HERE THAT NEEDS TO -- BUT LET ME TURN TO MR. BOSTIC. MR. BOSTIC?
MR. BOSTIC: THANK YOU, YOUR HONOR. WOULD THE COURT MIND IF I REMOVED MY MASK?
JUDGE DAVILA: THANK YOU.
MR. BOSTIC: MOSTLY FOR THE COURT REPORTER'S SAKE. SO, FIRST OF ALL, JUST TO BE CLEAR ABOUT WHAT WE'RE TALKING ABOUT HERE, I THINK FOCUS NEEDS TO BE KEPT ON THE SCOPE OF THE DEFENSE'S REQUEST AND HOW MUCH EVIDENCE THEY'RE SEEKING TO ADMIT IN THIS CASE. THESE PATIENT STATEMENTS CONSTITUTE A MOUNTAIN OF HEARSAY STATEMENTS. THEY'RE ALL OUT OF COURT STATEMENTS BY NONTESTIFYING WITNESSES. THEY ARE GENERALLY FAVORABLE TO THERANOS. THEY'RE POSITIVE ABOUT THE EXPERIENCE THAT THE PATIENTS AND CUSTOMERS HAD WITH THERANOS, BUT OTHERWISE THEY'RE REALLY NOT RELEVANT TO THE ISSUES IN THE CASE, AND THAT'S WHY THEY SHOULD BE EXCLUDED. I THINK THE, YOU KNOW, THE POTENTIAL IMPACT OF THIS KIND OF EVIDENCE ON THE JURY OR THE WAY THE DEFENSE MIGHT USE IT IS TO BALANCE OUT THE SCALES AS IT WERE BETWEEN, YOU KNOW, THE NEGATIVE EVIDENCE THAT THE JURY HAS HEARD ABOUT PROBLEMS WITH THE THERANOS ASSAYS, INCORRECT AND QUESTIONABLE PATIENT RESULTS, INFORMATION WITHHELD WITH PATIENTS AND DOCTORS.
I THINK THIS EVIDENCE, YOU KNOW, COULD BE PLACED ON THE OTHER SIDE OF A SCALE AND THE DEFENSE COULD SEEK TO SHOW, WELL, THERE WERE ALSO POSITIVE REPORTS COMING IN ABOUT THERANOS. BUT THAT EVIDENCE DOESN'T REALLY BELONG ON THE OTHER SIDE OF THE SCALE WEIGHED AGAINST THE EVIDENCE THAT ACTUALLY GOES TO THE ISSUES HERE, AND THOSE ISSUES ARE THE ACCURACY AND RELIABILITY OF THE TESTS AND MS. HOLMES'S KNOWLEDGE OF THE ACCURACY AND RELIABILITY. THE COURT PREVIOUSLY RULED, CORRECTLY IN THE GOVERNMENT'S VIEW, THAT THIS EVIDENCE WAS NOT ADMISSIBLE. TO THE EXTENT THAT THE COURT WAS OPEN TO THE ISSUE BEING RAISED AGAIN, WE UNDERSTOOD THAT TO MEAN TO THE EXTENT THE RECORD WAS DEVELOPED FURTHER IN A WAY THAT SUPPORTED THE ADMISSION OF THIS EVIDENCE, OR TO THE EXTENT THAT THE DEFENSE TOOK THE COURT'S SUGGESTION TO TRY TO IDENTIFY INDIVIDUAL STATEMENTS AMONG THIS MOUNTAIN OF HEARSAY THAT WERE ACTUALLY RELEVANT SOMEHOW TO AN ISSUE IN DISPUTE IN THE CASE, AND NEITHER OF THOSE THINGS HAVE HAPPENED.
SO WE THINK THE SAME RULING SHOULD APPLY TO THE MOTION FOR RECONSIDERATION. THE COURT HIT ON SOME TIMING ISSUES WITH RESPECT TO THESE PATIENT STATEMENTS, AND I THINK THAT'S IMPORTANT TO FOCUS ON ALSO. THESE STATEMENTS ARE INADMISSIBLE FOR TIMING REASONS, TWO DIFFERENT KINDS OF TIMING PROBLEMS. ONE IS THE STAGE IN THE PROCESS AT WHICH THESE CUSTOMER REPORTS WERE COLLECTED, AND THE COURT NOTED THAT MANY OF THEM WERE COLLECTED BY PHLEBOTOMISTS AT THE TIME OF THE SAMPLE DRAW. THAT WOULD HAVE BEEN BEFORE THE PATIENTS RECEIVED THEIR RESULTS. BY DEFINITION THEN, THOSE PATIENT STATEMENTS CAN'T HAVE ANYTHING TO DO WITH THE ACCURACY OR INACCURACY OF THE RESULTS THAT HAVEN'T EVEN BEEN CREATED YET, MUCH LESS PROVIDED TO THE PATIENTS. I SHOULD ALSO SAY, THOUGH, THAT EVEN AFTER A PATIENT RECEIVES A RESULT, I THINK THE EVIDENCE IN THE CASE HAS SHOWN THAT IT'S NOT ALWAYS CLEAR WHETHER A RESULT IS ACCURATE OR NOT. DR.
ROSENDORFF TESTIFIED ABOUT HOW TO IDENTIFY INACCURATE RESULTS, AND I THINK THAT'S MADE CLEAR THAT A PATIENT LOOKING AT A SHEET OF RESULTS CANNOT BE COUNTED ON TO SAY, HERE'S AN INACCURATE ONE, I'M THEREFORE NOT GOING TO GIVE THERANOS A POSITIVE REVIEW WHEN I FILL OUT THIS SURVEY. SO THE SURVEY COMMENTS EXPRESSING FAVORABLE EXPERIENCES BY PATIENTS, AGAIN, REALLY JUST DON'T GO TO THE ACCURACY OF THE RESULTS, AND THAT MAKES THEM UNLIKE THE INDIVIDUAL ACCOUNTS THAT THE GOVERNMENT HAS SUBMITTED, WHICH ACTUALLY DO CONSTITUTE PROOF OF INACCURATE OR UNRELIABLE PATIENT RESULTS SENT OUT BY THERANOS. SO THAT'S ONE TIMING ISSUE. THE OTHER TIMING ISSUE RELATES TO WHEN THESE BATCHES OF PATIENT STATEMENTS WERE ACTUALLY SENT TO MS. HOLMES. IF I'M READING THEM CORRECTLY, THE MANY BATCHES OF REPORTS THAT THE DEFENSE SEEKS TO ADMIT WERE SENT TO THE DEFENDANT MOSTLY IN 2015. I THINK THERE WAS ONE THAT WAS SENT TO HER IN EARLY OCTOBER 2014, ONE INITIAL BATCH.
TO THE EXTENT THAT THE DEFENSE IS TRYING TO USE THIS AS EVIDENCE OF MS. HOLMES'S MENTAL STATE ON THE INVESTOR SIDE OF THE CASE, THAT REALLY MATTERS BECAUSE THE MAJORITY OF THE INVESTMENTS CHARGED IN THE INDICTMENT OCCURRED BEFORE OCTOBER 2014. SO THERE ARE NO PATIENT REPORTS THAT THE DEFENSE IS TRYING TO ADMIT DURING THE TIME PERIOD WHEN THE MAJORITY OF THE INVESTMENTS WERE TAKING PLACE. THERE ARE TWO INVESTMENTS THAT TOOK PLACE THAT ARE CHARGED IN THE INDICTMENT IN LATE OCTOBER 2014. SO ARGUABLY, YOU KNOW, IF THE SUBSTANCE WERE DIFFERENT, THE CONTENT OF THAT FIRST BATCH MIGHT BE RELEVANT TO HER MENTAL STATE AS TO THOSE INVESTMENTS.
MR. BOSTIC: BUT THE 2015 REPORTS CAN'T HAVE ANYTHING TO DO WITH WHAT SHE WAS THINKING WHEN SHE ENCOURAGED AND ACCEPTED THOSE INVESTMENTS THAT ARE CHARGED IN THE INDICTMENT. I'D LIKE TO BRIEFLY JUST GO THROUGH THE CATEGORIES FOR WHICH THE DEFENSE SAID THAT THIS EVIDENCE WOULD BE ADMISSIBLE. FIRST, ON THE TOPIC OF WALGREENS, THIS EVIDENCE MISSES THE POINT, AND I THINK THAT'S THE THEME HERE. I THINK IT WAS CLEAR FROM MR. JHAVERI'S TESTIMONY THAT WALGREENS EXECUTIVES HAD CONCERNS ABOUT THERANOS'S PERFORMANCE, SPECIFICALLY WHEN IT CAME TO THE COMPANY'S RELIANCE ON VENIPUNCTURE AND THE COMPANY'S FAILURE TO DELIVER ON ITS PROMISE TO CONDUCT ITS TESTS USING THIS REVOLUTIONARY FINGERSTICK TECHNOLOGY. THE INDICTMENT, BY THE WAY, DOES NOT SAY ANYTHING ABOUT CUSTOMER DISSATISFACTION. IT SPECIFICALLY SAYS WALGREENS EXECUTIVES HAD CONCERNS ABOUT THERANOS'S PERFORMANCE, AND THAT'S WHAT THE EVIDENCE AT TRIAL HAS SHOWN. THIS EVIDENCE DOESN'T COUNTER THAT OR RELATE TO IT IN ANY WAY. THE COURT NOTED THAT MR.
JHAVERI WAS AWARE, OR THAT WALGREENS GENERALLY WAS AWARE OF POSITIVE CUSTOMER FEEDBACK FROM THERANOS. SO THIS EVIDENCE HAS NOTHING TO DO WITH WALGREENS'S DISSATISFACTION. THAT MEANS IT WOULD HAVE GIVEN MS. HOLMES NO REASON TO SUSPECT THAT ONCE WALGREENS FOUND OUT ABOUT THESE POSITIVE CUSTOMER STATEMENTS, THE RELATIONSHIP WOULD HAVE TURNED AROUND. SHE UNDERSTOOD AT THE TIME THAT THIS DID NOT ADDRESS WALGREENS'S CONCERNS, WHICH AGAIN RELATED TO THE COMPANY'S RELIANCE ON VENIPUNCTURE AND THE ABILITY TO DO ALL OF ITS TESTING BY FINGERSTICK. SO IN THAT SENSE IT'S NOT ABOUT WHETHER THESE POSITIVE RESULTS ARE CUMULATIVE OR NOT. IT'S ABOUT THE FACT THAT THEY'RE SIMPLY NOT RELEVANT TO WALGREENS'S CONCERNS AS SHOWN IN THE RECORD. WHEN IT COMES TO THE ACCURACY OF THE TESTS, FIRST OF ALL, IF THE DEFENSE IS SEEKING TO USE THIS AS ACTUAL EVIDENCE OF WHETHER THE TESTS WERE ACCURATE OR NOT, THAT'S A HEARSAY USE.
AND I DON'T THINK THE DEFENSE IS SEEKING TO USE THEM THAT WAY, BUT THERE'S STILL DANGER THAT THEY COULD CREATE CONFUSION ON THE PART OF THE JURY AND THAT THE JURY MIGHT VIEW THEM AS EVIDENCE OF THE ACCURACY OR INACCURACY OF THE TESTS. THESE REPORTS AREN'T CAPABLE OF SPEAKING TO THAT FACT. AND THAT GOES FOR THE SUBCATEGORIES THAT THE DEFENSE MENTIONED ALSO. THE FACT THAT THERE WERE REPEAT CUSTOMERS, CUSTOMERS CAME BACK OR REFERRED OTHERS, CAN'T SPEAK TO THE ACCURACY OF THE TESTS BECAUSE PATIENTS DIDN'T ALWAYS KNOW WHETHER THEY WERE GETTING ACCURATE TEST RESULTS OR NOT. SO THE FACT THAT THEY MIGHT HAVE COME BACK MIGHT SUGGEST THAT THEY DIDN'T HAVE ANY SUBJECTIVE CONCERNS ABOUT ACCURACY, BUT IT HAS NOTHING TO DO WITH THE ACTUAL ACCURACY OF THE TESTS. AND MS. HOLMES HAD BETTER SOURCES OF INFORMATION BECAUSE SHE HAD LAB PERSONNEL WHO WERE TELLING HER, WE HAVE PROBLEMS WITH THE TESTS. ACCURACY PROBLEMS WERE BEING RAISED TO HER AND SHE WAS BEING KEPT IN THE LOOP ON THOSE. THAT'S HOW SHE KNEW ABOUT THE ACCURACY PROBLEMS WITH THERANOS'S TESTS, NOT FROM READING EXPERIENCE RATINGS FROM SURVEYS OF WALGREENS'S PATIENTS. SO AGAIN, IT'S JUST --
JUDGE DAVILA: MS. VOLKAR TELLS US IN THE PLEADING THAT WAS SUBMITTED FOR YOUR TEAM THAT THERE WAS A CONCURRENT EMAIL EXCHANGE WITH MR. BALWANI ABOUT ACCURACY, ABOUT PROBLEMS AT THE LAB AT THIS TIME PERIOD.
MR. BOSTIC: YES, YOUR HONOR, THAT'S EXACTLY THE POINT. THE CONVERSATION -- THE CONVERSATIONS ABOUT THE ACCURACY OF THE THERANOS'S TESTS THAT MS. HOLMES WAS INVOLVED IN WERE SEPARATE FROM THIS INFORMATION. THIS WAS NOT PART OF THAT ANALYSIS. AND THERE HASN'T BEEN ANY SUGGESTION IN THE RECORD THAT CUSTOMER EXPERIENCE SCORES SOMEHOW RELATE TO THE ACCURACY OF TESTS. NONE OF THE LAB DIRECTORS HAVE SAID, FOR EXAMPLE, THAT THEY RELY ON SURVEY RESULTS TO DETERMINE WHETHER THEIR LAB IS FUNCTIONING CORRECTLY OR NOT, OR WHETHER A GIVEN ASSAY IS RELIABLE, NOR WOULD WE EXPECT THEM TO. THIS IS JUST NOT THAT KIND OF EVIDENCE, AND THAT'S THE POINT. THE DEFENSE POINTS TO A COUPLE EXAMPLES. APPARENTLY THERE MAY BE AN EXAMPLE OR TWO WHERE A PATIENT COMPARES THERANOS LAB RESULTS TO A THIRD PARTY LAB. BUT, AGAIN, THERE'S BEEN NO EFFORT TO PARSE OUT THOSE POTENTIALLY RELEVANT STATEMENTS FROM THE WHOLE.
AND THE EXISTENCE OF THOSE, YOU KNOW, REALLY MINORITY OF EXAMPLES THAT MIGHT RELATE TO SOME KIND OF OBJECTIVE COMPARISON DON'T MAKE THE ENTIRE BATCH ADMISSIBLE. I'LL ALSO POINT OUT JUST ON THE TOPIC OF REPEAT CUSTOMERS, ON THE FACE OF THE DOCUMENTS, THE MAJORITY OF THE COMMENTS DO COME FROM FIRST-TIME USERS. THE COMMENTS ARE EXPLICIT IN THAT RESPECT, SO I THINK EVE THAT WOULD BE A MINORITY HERE. FINALLY, WHEN IT COMES TO PRICE, PRICE IS MENTIONED IN THE INDICTMENT, BUT IT'S NOT A DISPUTED ISSUE IN THE CASE. THERE'S EVIDENCE IN THE CASE ALREADY THAT THE THERANOS PRICES WERE LOW. PEOPLE LIKED LOW PRICES. THAT'S NOT A CONTROVERSIAL POINT EITHER. SO THE FACT THAT INDIVIDUAL PATIENTS SENT IN COMMENTS PRAISING THE PRICES IS NOT RELEVANT TO ANY QUESTION BEFORE THE JURY.
AND ALTHOUGH THE INDICTMENT MENTIONS PRICE, THE GOVERNMENT HAS NOT INTRODUCED EVIDENCE AND DOESN'T INTEND TO ARGUE THAT ANY REPRESENTATIONS ABOUT PRICES WERE DISHONEST TO PATIENTS; IN OTHER WORDS, THAT THERANOS WASN'T CHARGING THE LOW PRICES THAT IT WAS ADVERTISING OR SOMETHING IN THAT RESPECT. SO THERE'S NO NEED TO INTRODUCE EVIDENCE THAT PATIENTS APPRECIATED LO9W PRICES. THAT'S BESIDE THE POINT OF THE PATIENT SCHEME AND THE INVESTOR SCHEME. AND REALLY FINALLY, ON MS. HOLMES'S VISION AND HER OVERALL UNDERSTANDING OF HOW WELL THE BUSINESS WAS GOING, I THINK, AGAIN, IT'S -- MS. HOLMES HAD BETTER INFORMATION AND ACTUAL RELEVANT INFORMATION WHEN IT CAME TO THE PERFORMANCE OF THE TECHNOLOGY AND THE STATE OF THE BUSINESS WITH WALGREENS. SHE WAS IN CONVERSATIONS WITH LAB STAFF. SHE WAS IN CONVERSATIONS WITH WALGREENS EXECUTIVES. THIS IS NOT THE EVIDENCE THAT WOULD HAVE INFORMED HER UNDERSTANDING THERE.
THE REAL POTENTIAL IMPACT OF THIS EVIDENCE ON THE JURY IS TO SHOW THERE WERE FAVORABLE REPORTS ABOUT THERANOS, BUT THAT'S A HEARSAY PURPOSE AND AN IRRELEVANT ONE. IF THE TEST FOR ADMISSIBILITY HERE IS -- ESPECIALLY IN THE 2015 TIME PERIOD, IS THAT ANYTHING THAT WENT TO MS. HOLMES OR ANYTHING THAT SHE WAS AWARE OF IS ADMISSIBLE FOR HER MENTAL STATE, THAT WOULD ALSO INCLUDE THINGS THAT THE DEFENSE HAS SOUGHT TO EXCLUDE, LIKE "THE WALL STREET JOURNAL" ARTICLE IN OCTOBER OF 2015. IF THIS POSITIVE INFORMATION ABOUT THERANOS IS ADMISSIBLE JUST BECAUSE MS. HOLMES SAW IT, THEN IS NEGATIVE INFORMATION, LIKE "THE WALL STREET JOURNAL" ARTICLE, ALSO ADMISSIBLE, BECAUSE THAT WOULD HAVE INFORMED HER UNDERSTANDING OF HOW THINGS WERE GOING? I'M NOT RAISING THAT TO SAY THAT IT ALL SHOULD COME IN. I'M SAYING THAT I THINK THE COURT KNOWS HOW TO DRAW THE PROPER LINE THERE.
JUDGE DAVILA: ALL RIGHT. THANK YOU. MR. CLEARY?
MR. CLEARY: YOUR HONOR, IF I MAY, THERE ARE A NUMBER OF THINGS TO RESPOND TO HERE. SO FIRST, IN THE PLEADING AND AGAIN HERE THE GOVERNMENT HAS SUGGESTED THAT WE MAY SEEK TO ADMIT THIS, OR ASK THAT THIS BE ADMITTED FOR A HEARSAY PURPOSE. THAT'S NOT TRUE. THIS IS SOLELY NONHEARSAY AS THE COURT -- A NONHEARSAY PURPOSE AS THE COURT EXPRESSED EARLIER. THE POINT THAT THERE MAY BE AN ISSUE UNDER 403 WITH RESPECT TO A BALANCING OF THE SCALES, WE BELIEVE THAT IT WOULD BE VERY MISLEADING TO THE JURY AND UNFAIRLY PREJUDICIAL TO OUR CASE TO EXCLUDE THIS EVIDENCE BECAUSE -- THIS EVIDENCE WHICH WENT TO MS. HOLMES BECAUSE THERE IS OTHER EVIDENCE IN THE CASE THAT DID NOT GO TO MS. HOLMES. IN FACT, AS THE COURT KNOWS, ONE OF THE STARTING POINTS FOR ANY FULL AND FAIR ASSESSMENT OF MS. HOLMES'S STATE OF MIND IS THE INFORMATION THAT WAS SENT TO HER, THE INFORMATION THAT WAS TRANSMITTED TO HER, THE INFORMATION THAT SHE HAD AVAILABLE. AND FOR THAT REASON, THE FACT THAT CERTAIN CUSTOMER SERVICE SPREADSHEETS WERE NOT SHARED WITH HER, BUT THESE REPORTS WERE, JUST MAKES THE REPORTS THAT MUCH MORE PROBATIVE. AND TO THE COURT'S EARLIER QUESTION, MY UNDERSTANDING -- CONCERNING WHETHER THERE WOULD NEED TO BE A SPONSORING WITNESS FOR THESE DOCUMENTS, WE BELIEVE, CONSISTENT WITH THE COURT'S RULING, THAT MR. EDLIN AUTHENTICATED THESE, HE LAID A FOUNDATION FOR THEM. AND WE WOULD COMMIT TO ADMITTING THESE THROUGH A WITNESS, BUT WE DON'T BELIEVE THAT SOMEONE WITH KNOWLEDGE OF THE REPORTS WOULD BE NEEDED TO TESTIFY. IN THIS CASE A NUMBER OF EMAILS HAVE BEEN ADMITTED THAT WENT TO MS. HOLMES WITHOUT ANY TESTIMONY AS TO WHETHER MS. HOLMES ACTUALLY READ THE EMAILS.
JUDGE DAVILA: WELL, MANY OF THOSE HAD RESPONSES FROM HER.
MR. CLEARY: SO IN THE CASE --
JUDGE DAVILA: SO THEY WERE SELF-AUTHENTICATING IN THAT REGARD.
MR. CLEARY: IN THE CASE OF EMAILS WITH THE RESPONSES IN WHICH MS. HOLMES RESPONDED, THAT IS THE INFERENCE. FOR OTHER EMAILS WHERE SHE WAS CC'D OR WHERE SHE WAS THE RECIPIENT, THE INFERENCE IS THAT THIS IS RELEVANT BECAUSE IT WAS SHARED WITH HER AND IS THEREFORE RELEVANT TO HER STATE OF MIND. THERE ARE A COUPLE OF POINTS ABOUT TIMING. THE -- I'LL TAKE THEM IN REVERSE ORDER. THE INDICTMENT CHARGES A CONSPIRACY UNDER COUNT ONE AND A SCHEME TO DEFRAUD UNDER COUNTS THREE THROUGH EIGHT THROUGH 2015. THE GOVERNMENT HAS NOT DISCLAIMED THAT TIME PERIOD. WE'RE ENTITLED TO PUT ON EVIDENCE RELATING TO MS. HOLMES'S INTENT DURING THAT TIME PERIOD. SEPARATELY, THE GOVERNMENT HAS HAD SUCCESSFULLY ADMITTED CERTAIN EVIDENCE THAT ACTUALLY POST-DATES THESE REPORTS AND IS PRESUMABLY RELEVANT TO THE INVESTOR COUNTS. THAT WOULD BE, JUST TO TAKE A COUPLE OF EXAMPLES, THE "MAD MONEY" CLIP THAT THE COURT WILL RECALL FROM OCTOBER OF 2015, AND THEN "THE TODAY SHOW" CLIP FROM 2016.
WITH RESPECT TO TIMING, I THINK THAT THE TIMING OF THE RETURN OF THE REPORTS, THE CUSTOMER TESTIMONIALS AND FEEDBACK, IT IS CERTAINLY TRUE THAT FOR MANY THEY WERE FILLED OUT BEFORE ANY THERANOS RESULT WAS TRANSMITTED TO THE INDIVIDUAL CUSTOMER OR -- IN THE CASE WHERE THE PHLEBOTOMIST WAS MAKING AN ENTRY BEFORE THE CUSTOMER HAD HAD A CHANCE TO REVIEW THE RESULT. BUT I DO THINK THAT IT IS A FAIR INFERENCE THAT, FOR REPEAT VISITORS, FOR VISITORS WHO WERE REFERRED BY FAMILY AND FRIENDS WHO WERE PRIOR CUSTOMERS, FOR VISITORS WHO MADE EXPRESS COMPARISONS BETWEEN THEIR EXPERIENCES AT THESE DIFFERENT LABS, ALL OF THAT SUPPORTS THE INFERENCE THAT THEY BELIEVED THAT THE RESULTS THAT THEY HAD RECEIVED WERE SOUND. AND IN THIS CASE WE HAVE HEARD LAY OPINION TESTIMONY ABOUT THE ACCURACY OR INACCURACY OF THE RESULTS. MS. B.G. EXPLICITLY TESTIFIED TO THAT. AND -- SO WE BELIEVE THAT --
JUDGE DAVILA: BUT NONE OF THESE DO -- NONE OF THESE SPEAK TO THE RESULTS. THEY SPEAK TO -- THE REFERRALS, THE MAJORITY, IF NOT ALL, OF THE REFERRALS ARE BASED ON EITHER CONVENIENCE, BUT THE MAJORITY OF THOSE ARE BASED ON PRICING, AT LEAST FROM MY REVIEW OF THIS. THEY'RE GOING TO TELL THEIR FAMILY, THEY'RE GOING TO TELL THEIR FRIENDS, FINALLY THERE'S A LOW COST AVAILABILITY FOR TESTING FOR THEIR MEDICAL NEEDS. THAT SEEMS TO BE THE CONCURRENT THEME THROUGHOUT ALL OF THAT. AS I SAID EARLIER, I DID NOT SEE, AND I INVITE YOU TO POINT ME, PLEASE, TO ANYONE SAYING "MY TEST RESULTS WERE GREAT" OR ANYTHING ABOUT THE RESULTS. IT'S ABOUT THE EXPERIENCE. AND, YOU KNOW, A LOT OF IT IS, WHICH I SUPPOSE GOES TO RELIABILITY, I SUPPOSE, YOU KNOW, IT'S THE PHLEBOTOMIST GIVING THEIR COMMENTS, THEIR INTERPRETATION OF THE COMMENTS OF THEIR PATIENTS AND THEY'RE POSITIVE AND, YOU KNOW, THEY ENJOYED THE EXPERIENCE, ALL OF THAT. BUT I DON'T SEE ANY REALLY RESULTS, AS I SAID. I DIDN'T SEE ANY OF THOSE.
TWO PEOPLE I POINT OUT WHO ARE EAGER TO GET THEIR RESULTS, THOSE ARE -- THAT'S WHAT I FOUND. IF YOU HAVE OTHERS, I'M HAPPY TO HEAR ABOUT THEM. ONE PERSON, I THINK THIS IS JUNE 9, 2015, SAID, "I CAME IN BECAUSE I SAW" -- I'M QUOTING HERE -- "ELIZABETH ON T.V.," THAT'S WHAT THE PATIENT SAID, "SO I CAME IN AFTER HAVING SEEN HER ON T.V. THAT'S WHY I'M HERE." AND ON JUNE 26TH, I THINK I POINT OUT ANOTHER PATIENT SAID "I CAME IN FOR A PREGNANCY TEST," AND THAT'S VERY CLOSE IN TIME TO B.G.'S TEST. I THINK SHE WAS IN MAY, WAS IT? OR PERHAPS JULY. I CAN'T RECALL. SO THE RESULTS IS SOMETHING THAT I'M LOOKING AT HERE. IT SEEMS LIKE THESE ARE CUSTOMER REVIEWS THAT ARE POSITIVE ABOUT THE EXPERIENCE, AND THEY ALL ARE. THERE'S A FEW CRITICISMS ABOUT WAITING IN LINES AND BATHROOMS BEING UNCLEAN AND THOSE KINDS OF THINGS, BUT THE MAJORITY OF THEM ARE POSITIVE. AND YOU WANT THEM TO COME IN TO SHOW, NOT FOR THE TRUTH OF THE MATTER ASSERTED THAT THEY HAD A POSITIVE EXPERIENCE, BUT RATHER TO SHOW THAT YOUR CLIENT SOMEHOW READ ALL OF THESE DOCUMENTS, CONSUMED THE INFORMATION IN THEM, AND THAT THAT INFORMED HER AS TO HER STATE OF MIND THAT THINGS WERE GOING WELL AT WALGREENS AND DURING THE RELATIONSHIP.
MR. CLEARY: YOUR HONOR, A COUPLE OF THINGS. SO WE ARE SEEKING TO ADMIT THESE BECAUSE THEY WERE SHARED WITH MS. HOLMES. THEY WERE TRANSMITTED TO HER. I DON'T WANT TO LOSE SIGHT OF PARAGRAPH 12(D) WITH RESPECT TO WALGREENS. YOUR HONOR IS CERTAINLY RIGHT THAT THE VAST MAJORITY OF THE EXPLICIT TESTIMONIALS HAVE TO DO WITH FACETS OF THE EXPERIENCE AND DO NOT EXPRESSLY MENTION THE BLOOD TEST RESULTS. THERE ARE EXAMPLES OF COMMENTARY ON THE BLOOD TEST RESULT ITSELF. JUST TO READ ONE, THIS IS DOCKET NUMBER 1142-4. "I'VE HAD SOME OTHER ROUTINE BLOOD TESTS DONE AT YOUR LAB AND CROSS-CHECKED THEM WITH STANFORD, THEY WERE ALL CONGRUENT." BUT TO YOUR HONOR -- YOUR HONOR IS ABSOLUTELY CORRECT THAT MANY OF THESE RELATE TO PRICE. MANY RELATE TO OTHER FEATURES OF THE CUSTOMER EXPERIENCE, ACCESSIBILITY, THE ABILITY TO TRACK AND MONITOR TESTS OVER TIME, WHICH IS SOMETHING THAT WE'VE HEARD ABOUT. THAT WAS ONE OF THE REAL VISIONS OF MS. HOLMES AND OF THE COMPANY.
AND ALL OF THESE DIFFERENT FEATURES -- ANOTHER ASPECT ACTUALLY WOULD BE THE ENTHUSIASM ASSOCIATED WITH RECEIVING A FINGERSTICK TEST, BUT ALSO THE WILLINGNESS OF CUSTOMERS TO SAY VERY POSITIVE THINGS AFTER RECEIVING A VENOUS BLOOD DRAW. THERE ARE A NUMBER OF ACCOUNTS IN HERE THAT SAY THAT THE CUSTOMER RECEIVED A VENOUS BLOOD DRAW AND, FOR A VARIETY OF REASONS, EXPECTS TO COME BACK TO THERANOS. THIS BRINGS ME TO THE WALGREENS ALLEGATION, AND I THINK THAT THE GOVERNMENT HAS NARROWED THAT ALLEGATION SUBSTANTIALLY. IT DOES NOT JUST RELATE TO THE SUBJECTIVE OPINIONS OF WALGREENS EXECUTIVES. IN THE CASE OF ONE EXECUTIVE, MR. JHAVERI, HE HAD VERY LIMITED CONTACT WITH MS. HOLMES. THE ALLEGATION ITSELF, AND JUST READING FROM PARAGRAPH 12(D) OF THE INDICTMENT, IS THAT MS.
HOLMES ALLEGEDLY REPRESENTED TO INVESTORS THAT THERANOS PRESENTLY HAD AN EXPANDING PARTNERSHIP WITH WALGREENS, THAT IS, THAT THERANOS WOULD SOON DRAMATICALLY INCREASE THE NUMBER OF WELLNESS CENTERS WITHIN WALGREENS STORES, WHEN, IN TRUTH, HOLMES AND BALWANI KNEW BY LATE 2014 THAT THERANOS'S RETAIL WALGREENS ROLLOUT HAD STALLED BECAUSE OF SEVERAL ISSUES, INCLUDING THAT WALGREENS EXECUTIVES HAD CONCERNS WITH THERANOS'S PERFORMANCE. SO I JUST WANT THE RECORD TO BE CLEAR ABOUT THE NATURE OF THAT ALLEGATION AND OUR ABILITY TO MEET THAT ALLEGATION. JUST A FEW OTHER THINGS. AS THE COURT KNOWS, WE WOULD BE HAPPY TO CONSENT TO A LIMITING INSTRUCTION INFORMING THE JURY OF THE PURPOSE FOR WHICH THESE DOCUMENTS ARE ADMITTED. THERE WERE A NUMBER OF ARGUMENTS THAT MR. BOSTIC MADE CONCERNING HIS VIEW THAT MS. HOLMES HAD BETTER SOURCES OF INFORMATION. THAT'S A FACT ARGUMENT THAT THE GOVERNMENT CAN CERTAINLY MAKE IN CLOSING. IT GOES TO WEIGHT. IN MY VIEW IT DOES NOT GO TO ADMISSIBILITY.
AGAIN, I APPRECIATE THE GOVERNMENT'S COMMENTS CONCERNING PRICE, BUT I RESPECTFULLY DISAGREE. PRICE IS VERY MUCH AT ISSUE IN THIS CASE BECAUSE THE GOVERNMENT HAS ALLEGED THAT THERE WAS A SCHEME TO DEFRAUD COMMITTED BY WAY OF REPRESENTATIONS AS TO PRICE AMONG OTHER THINGS. THAT'S PART OF THE CASE. THERE'S BEEN TESTIMONY ABOUT PRICE, AND THE GOVERNMENT CAN CHARACTERIZE THE NATURE OF THOSE REPRESENTATIONS, BUT WE'RE ABLE TO PUT ON EVIDENCE OF OUR OWN AS TO THE GOOD FAITH REASONS FOR THE THERANOS PRICE AND THE WAY IT FIT INTO THE THERANOS BUSINESS MODEL. I DON'T WANT TO TAKE UP ANY MORE OF THE COURT'S TIME. I THINK THE COURT IS AWARE OF OUR POSITIONS, AND I'M HAPPY TO RESPOND TO ANY MORE SPECIFIC QUESTIONS THAT YOU MIGHT HAVE.
JUDGE DAVILA: WELL, THANK YOU. MR. BOSTIC, MR. CLEARLY GETS THE LAST WORD, BUT ANYTHING YOU WANT TO SAY?
MR. BOSTIC: A FINAL POINT. IMAGINE THAT THE GOVERNMENT WAS SEEKING TO ADMIT HUNDREDS OF PAGES OF CUSTOMER REPORTS THAT WERE GENERALLY NEGATIVE ABOUT THERANOS, RELATING TO THINGS LIKE DISTANCE BETWEEN A CUSTOMER'S HOME AND A STORE, THE AMOUNT OF TIME THAT THEY HAD TO WAIT IN LINE, HOW CLEAN THE FACILITIES WERE, HOW FRIENDLY PEOPLE WERE, A LOT OF NEGATIVE INFORMATION ON THOSE ANCILLARY UNRELATED POINTS. THE DEFENSE WOULD BE MAKING THE SAME ARGUMENTS THAT I AM MAKING HERE TODAY, AND THEY WOULD BE RIGHT TO DO SO. CUSTOMER FEEDBACK ON THESE ISSUES IS NOT RELEVANT TO THE CASE, REGARDLESS OF WHETHER IT'S FAVORABLE OR NOT. THE FACT THAT IT'S FAVORABLE RAISES 403 CONCERNS WITH THE GOVERNMENT, AND IT'S INADMISSIBLE FOR THE REASONS THAT I'VE DESCRIBED.
JUDGE DAVILA: THANK YOU. MR. CLEARY, THE LAST WORD.
MR. CLEARY: THIS IS POWERFUL EVIDENCE OF MS. HOLMES'S STATE OF MIND. WE BELIEVE THAT IT SHOULD BE ADMITTED, AND WE BELIEVE THAT EXCLUDING IT FOR THE REASONS THAT THE GOVERNMENT INVITES THE COURT TO DO SO WOULD SERIOUSLY MISLEAD THE JURY AS TO THE INFORMATION SENT AND SHARED TO MS. HOLMES ABOUT CRITICAL ALLEGATIONS IN THE CASE AND WOULD UNFAIRLY PREJUDICE OUR DEFENSE.
JUDGE DAVILA: THANK YOU VERY MUCH. THANK YOU. AND THANK YOU FOR YOUR PLEADINGS AND THE ARGUMENT THIS MORNING. MR. CLEARY, I DON'T SEE ANYTHING THAT CAUSES ME TO DISTURB THE COURT'S PREVIOUS RULING IN THIS MATTER. I UNDERSTAND YOUR VIEW AND YOUR TEAM'S VIEW THAT THIS IS CRITICALLY IMPORTANT TO SHOW YOUR CLIENT'S STATE OF MIND AS TO THE NEGOTIATION THAT SHE HAD, AND THIS WOULD BETTER INFORM HER OF THE INFORMATION RATHER THAN THE INFORMATION THAT SHE RECEIVED FROM WALGREENS, ET CETERA. I KNOW YOU COMMENTED ON THAT'S A FACT ISSUE AND THAT'S AN ISSUE THAT THE JURY COULD WRESTLE WITH IF THIS INFORMATION IS ADMITTED. BUT AS A THRESHOLD ISSUE, I JUST DON'T SEE THAT IT'S RELEVANT TO THE ISSUES IN THE INDICTMENT, NOTWITHSTANDING THE FACT THAT PRICE IS MENTIONED. THIS IS NOT A PRICING CASE, QUOTE-UNQUOTE. IT'S NOT A -- THE ALLEGATIONS ARE NOT SPECIFIC THAT ONE PRICE WAS PROMISED AND A DIFFERENT PRICE WAS OBTAINED. IT'S NOT BAIT AND SWITCH.
PRICE IS PERHAPS AN ANCILLARY PART OF THE CASE, AND I APPRECIATE THAT. BUT THE REAL ISSUES IN THE CASE I THINK ARE CONTAINED IN 12(D), WHICH TALK ABOUT THE ACCURACY OF THE TEST RESULTS. THAT'S REALLY WHAT THE FOCUS OF THE PROSECUTION IS. I DON'T HEAR THE GOVERNMENT SAYING THAT THEY'RE GOING TO ARGUE THAT PRICING IN ANY WAY, THE FALSITY OF PRICING WAS AN ISSUE. I JUST DON'T SEE ANYTHING THAT CAUSES ME TO DISTURB THE COURT'S PREVIOUS RULING ON THIS MATTER, AND I'M GOING TO RESPECTFULLY DECLINE YOUR INVITATION TO CHANGE THAT POSITION. I AM INFORMED WHEN I LOOK AT THE TIMING AND THE RANGES OF THIS INFORMATION, I THINK THAT'S IMPORTANT ALSO. THAT WAS POINTED OUT DURING OUR DISCUSSION. I JUST DON'T SEE THE RELEVANCE OF THIS. AND EVEN UNDER A 403 ANALYSIS, I DO THINK THAT THIS INFORMATION, THE PROBATIVE VALUE IS OUTWEIGHED BY ANY PREJUDICIAL VALUE, AS WELL AS ANY TIME CONSUMPTION THAT IS GOING TO BE REQUIRED TO LOOK THROUGH THESE DOCUMENTS FOR THAT PROBATIVE, MINIMAL, MINIMAL PROBATIVE VALUE. SO I'M GOING TO RESPECTFULLY DECLINE YOUR INVITATION TO DISTURB THE COURT'S PREVIOUS RULING ON THESE MATTERS. THESE WILL CONTINUE TO BE EXCLUDED. SO THANK YOU VERY MUCH. THANK YOU, MR. CLEARY. THANK YOU, MR. BOSTIC.
MR. BOSTIC: THANK YOU, YOUR HONOR.
JUDGE DAVILA: I APPRECIATE IT. ANYTHING ELSE BEFORE WE BRING IN THE JURY?
MR. BOSTIC: YOUR HONOR, I'M NOT SURE WHETHER THE COURT WANTED TO DO THIS IN THE JURY'S PRESENCE OR NOT, BUT I UNDERSTAND FROM THE DEFENSE THAT THEY HAD NO OBJECTION TO EXCUSING MR. EISENMAN. WE SO INFORMED HIM, AND I BELIEVE HE HAS TRAVELLED OUT OF TOWN. WE JUST WANTED TO PUT THAT ON THE RECORD.
JUDGE DAVILA: YES. THANK YOU. IS THAT CORRECT, MR. DOWNEY?
MR. DOWNEY: YOUR HONOR, I THINK THE SIMPLEST, MOST SUCCINCT STATEMENT IS THAT WE DON'T OBJECT TO HIS EXCUSAL. I WOULDN'T WANT THE COURT TO TAKE THAT AS AN INDICATION THAT WE DIDN'T CONTINUE TO HAVE SOME OF THE CONCERNS AFTER WE'VE HAD THE OPPORTUNITY TO REVIEW. BUT FOR PURPOSES OF WHERE WE ARE, WE DON'T OBJECT TO HIS EXCUSAL.
JUDGE DAVILA: ALL RIGHT. THANK YOU THEN. HE IS EXCUSED. I WILL MENTION THAT IN FRONT OF THE PRESENCE OF THE JURY. I THINK THAT'S APPROPRIATE. AND YOU OTHERWISE HAVE A WITNESS, THE GOVERNMENT HAS ANOTHER WITNESS?
MR. BOSTIC: YES, YOUR HONOR, WE DO.
JUDGE DAVILA: OKAY.
MR. BOSTIC: AND THE LAST ISSUE RELATED TO MR. EISENMAN. THE GOVERNMENT HAS POSSESSION CURRENTLY OF THE ORIGINAL NOTES THAT WERE SUBPOENAED BY THE DEFENSE. I UNDERSTAND FROM CONVERSATIONS WITH MR. DOWNEY THAT HE'S FINE WITH THE GOVERNMENT SENDING THOSE BACK TO MR. EISENMAN. I WANTED TO MAKE SURE THAT WAS OKAY WITH THE COURT.
JUDGE DAVILA: THAT'S FINE. YOU'LL DO THAT. AND YOU HAVE THE MECHANISMS AND THE KNOWLEDGE AND THE ABILITY TO GET THOSE BACK TO HIM UNDISTURBED?
MR. BOSTIC: I THINK WE CAN HANDLE THAT, YES, YOUR HONOR.
JUDGE DAVILA: OKAY. THAT'S OKAY WITH YOU, MR. DOWNEY?
MR. DOWNEY: THAT'S FINE.
JUDGE DAVILA: ALL RIGHT. WE'LL TAKE OUR BREAK NOW. YOU CAN -- MR. DOWNEY, IF YOU WOULD NOTIFY MS. DIBBLE AS TO YOUR SUGGESTED BREAKS, THAT WOULD BE HELPFUL.
MR. DOWNEY: WE'LL DO THAT, YOUR HONOR. THANK YOU.
JUDGE DAVILA: YOU'RE WELCOME.
(RECESS FROM 9:26 A.M. UNTIL 9:39 A.M.)
(JURY IN AT 9:39 A.M.)
JUDGE DAVILA: ALL RIGHT. WE'RE ON THE RECORD IN THE HOLMES MATTER. ALL COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. OUR JURY IS PRESENT. GOOD MORNING, LADIES AND GENTLEMEN. I APOLOGIZE FOR THE DELAY. I NEEDED TO GET SOME ASSISTANCE AND DISCUSS SOME THINGS WITH THE LAWYERS. SO WE'RE GETTING STARTED NOW. LET ME ASK THAT QUESTION AGAIN. DURING OUR BREAK, DID ANY MEMBER OF THE JURY HAVE CAUSE OR COME ACROSS ANY INFORMATION, CONVERSATION, READ, OR LISTEN TO ANYTHING THAT HAD ANYTHING TO DO WITH THIS CASE? I SEE NO HANDS. THANK YOU AGAIN. THANK YOU VERY MUCH, LADIES AND GENTLEMEN. SCHEDULING, I THINK WE'RE GOING TO END AT 4:00 TODAY. I THINK TODAY IS A 4:00 O'CLOCK DAY. TOMORROW WE'LL END AT 3:30. WE'LL START AT 9:00. THAT'S OUR SCHEDULE SO FAR. SO LET ME ASK A QUESTION REGARDING THE LAST WITNESS, MR. EISENMAN, IS HE EXCUSED? MAY THAT WITNESS BE EXCUSED?
MR. BOSTIC: YES, YOUR HONOR. THANK YOU.
MR. DOWNEY: HE MAY, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU. DOES THE GOVERNMENT HAVE A WITNESS TO CALL?
MR. LEACH: THE UNITED STATES RECALLS SO-HAN SPIVEY.
JUDGE DAVILA: GOOD MORNING, MS. SPIVEY. IF YOU WOULD COME AND FACE OUR COURTROOM DEPUTY WHILE YOU RAISE YOUR RIGHT HAND, SHE HAS A QUESTION FOR YOU.
COURT CLERK: GOOD MORNING.
(GOVERNMENT'S WITNESS, SO-HAN SPIVEY, WAS SWORN.)
SO-HAN SPIVEY: YES.
COURT CLERK: THANK YOU. PLEASE HAVE A SEAT.
JUDGE DAVILA: PLEASE HAVE A SEAT. I'LL INVITE YOU TO MAKE YOURSELF COMFORTABLE AGAIN. FEEL FREE TO ADJUST THE CHAIR AND THE MICROPHONE. I'LL ENCOURAGE YOU TO SPEAK DIRECTLY INTO THE MICROPHONE. IF YOU HAVE BEEN VACCINATED, I THINK -- IF YOU HAVE BEEN, YOU MAY REMOVE YOUR MASK IF YOU WISH. BUT WOULD YOU PLEASE STATE YOUR NAME AND THEN SPELL IT, PLEASE.
SO-HAN SPIVEY: SO-HAN SPIVEY. S-O-H-A-N, S-P-I-V-E-Y.
JUDGE DAVILA: THANK YOU. COUNSEL.
MR. LEACH: THANK YOU, YOUR HONOR.