Rule 29 Motion and Evidentiary Record Matters
200 lines(JURY OUT AT 10:04 A.M.)
JUDGE DAVILA: PLEASE BE SEATED. THANK YOU. THE RECORD SHOULD REFLECT THAT THE JURY HAS LEFT THE COURTROOM. ALL PARTIES REMAIN. COUNSEL AND MS. HOLMES REMAIN. MR. DOWNEY, SHOULD I HEAR FROM MS. SAHARIA NOW?
MR. DOWNEY: YES, YOUR HONOR. MS. SAHARIA IS GOING TO SPEAK TO THE COURT ABOUT ISSUES UNDER RULE 29, AS WELL AS SOME OTHER ISSUES RELATED TO THE RECORD TO DATE IN THE CASE.
JUDGE DAVILA: ALL RIGHT. THANK YOU. GOOD MORNING AGAIN, MS. SAHARIA.
MS. SAHARIA: GOOD MORNING AGAIN, YOUR HONOR. WE DO INTEND TO MOVE FOR JUDGMENT OF ACQUITTAL UNDER RULE 29, BUT BEFORE I DO THAT -- AND I THINK THE INTENT TODAY IS TO DO THAT GENERALLY AND IN THE INTEREST OF MOVING ALONG, AND THEN WE CAN TAKE UP THE ARGUMENT AT A LATER DATE IF THAT'S THE COURT'S PREFERENCE. BUT BEFORE I DO THAT, WE HAVE THREE HOUSEKEEPING MATTERS TO RAISE WITH RESPECT TO THE EVIDENCE THAT HAS COME INTO THE GOVERNMENT'S CASE, AND MR. LOOBY IS GOING TO ADDRESS THE FIRST OF THOSE HOUSEKEEPING MATTERS.
JUDGE DAVILA: OKAY.
MS. SAHARIA: AND THEN I'LL RETURN FOR THE OTHER TWO.
JUDGE DAVILA: ALL RIGHT. THANK YOU. MR. LOOBY? SHOULD I SAY IT'S NICE TO SEE YOU AGAIN AS WELL, MR. LOOBY?
MR. LOOBY: YES, YOUR HONOR, IT'S WONDERFUL TO BE BACK UP HERE. GOOD MORNING. WE'RE DISCUSSING THE CMS REPORT AGAIN. SO THIS EVIDENTIARY RULING THE DEFENSE IS MOVING TO STRIKE, UNDER RULE 403 AND THE CONFRONTATION CLAUSE, THE PORTIONS OF THE JANUARY 25, 2016 CMS FORM 2567 AND COVER LETTER AND RELATED TESTIMONY THAT WERE ADMITTED DURING THE TESTIMONY OF DR. DAS, AND THAT'S EXHIBIT 4621 AS REDACTED, AND I BELIEVE IT CAME IN AS 4621A AND 4621B. WE MAKE THIS MOTION NOW THAT THE GOVERNMENT HAS RESTED. THERE ARE TWO REASONS WHY THE GOVERNMENT'S CASE, NOW THAT WE HAVE SEEN IT, THE COMPLETE CASE, CANNOT JUSTIFY ADMISSION OF THE REPORT. THE FIRST AND PROBABLY THE MOST IMPORTANT IS THE GOVERNMENT HAS RESTED WITHOUT CALLING A CMS WITNESS. THIS RAISES 403 AND CONFRONTATION CLAUSE CONCERNS. THE GOVERNMENT HAD PREVIOUSLY NOTED THAT THIS TESTIMONY IS A NECESSARY PREREQUISITE TO THE REPORT'S ADMISSION.
THE FACT THAT A CMS INSPECTOR WOULD TESTIFY WAS THE PRIMARY REASON WHY THE GOVERNMENT ASKED THE COURT TO REJECT OUR RULE 403 ARGUMENTS WHEN WE FIRST LITIGATED THIS MATTER PRETRIAL, AND THAT'S AT DOCKET 675. SO THEY SAID FUNDAMENTALLY THE EVIDENCE IS NOT EXCLUDABLE BECAUSE IT'S SUBJECTIVE. THE REMEDY IS CROSS-EXAMINATION. AND THAT'S AT PAGE 8 OR 9, 8 TO 9. AND AGAIN AT PAGE 8, MS. HOLMES REMAINS FREE TO CROSS-EXAMINE THE CMS WITNESSES AND ATTEMPT TO UNDERCUT THEIR OBSERVATIONS. THIS CONCESSION FROM THE GOVERNMENT PRETRIAL, IT MAKES SENSE, THE CMS REPORT POSES SEVERAL ISSUES AS A PIECE OF EVIDENCE, MANY OF WHICH WE HAVE ALREADY DISCUSSED, THAT MAKE IT DANGEROUS WITHOUT CONTEXT FROM ITS AUTHORS.
THAT'S THE TECHNICAL NATURE, THE FACT THAT IT SETS FORTH OBSERVATIONS OF REGULATORY VIOLATIONS THAT ARE DETERMINED BY THE INSPECTORS THEMSELVES, AND ALSO THAT WE WOULD PROFFER THAT THE CMS INSPECTORS WOULD HAVE TESTIFIED THAT A LOT OF THOSE OBSERVATIONS, INCLUDING WHETHER OR NOT A LAB PRACTICE IS DEFICIENT, WHETHER A LAB, DEFICIENT LAB PRACTICE RISES TO A STANDARD OR A CONDITION LEVEL, AND WHETHER IMMEDIATE JEOPARDY IS FOUND OR INHERENTLY SUBJECTIVE OBSERVATIONS. THE REPORT HAS BEEN ADMITTED AND MS. HOLMES DID NOT HAVE AN OPPORTUNITY TO CONFRONT THE AUTHORS ON THOSE POINTS. AND I'LL BE BRIEF ON THIS POINT, BUT THE SECOND REASON, AND IT DOVETAILS WITH THE FIRST, IS THAT THE GOVERNMENT MOVED TO ADMIT THE REPORT AS BEARING ON MS. HOLMES'S STATE OF MIND AND NOTICE TO HER, AND THAT IS AT -- THE FIRST OF THOSE EXCHANGES WITH THE COURT AND MR. LEACH WAS AT 5810 OF THE TRANSCRIPT.
THE ISSUE THAT THIS PRESENTS IS THAT IT'S ONLY NOTICE AND STATE OF MIND AS OF JANUARY 25TH, 2016, AND THE GOVERNMENT HAS NOT IDENTIFIED WHAT STATEMENTS OR ACTIONS THE DEFICIENT LAB PRACTICES IN THE REPORT ARE RELEVANT TO AND WHETHER OR NOT MS. HOLMES MADE STATEMENTS ABOUT THESE PARTICULAR ISSUES ON THE PORTIONS THAT WERE ADMITTED AFTERWARDS. OF COURSE, NONE OF THE KNOWLEDGE THAT WOULD HAVE COME IN THE JANUARY 25TH, 2016 REPORT CAN BE TRANSPORTED BACK IN TIME. SO I DON'T THINK THAT THE GOVERNMENT HAS ACTUALLY LINKED UP THE NOTICE PORTION FOR WHAT IT ADMITTED IT FOR TO ANY RELEVANT STATEMENT OR POINT IN ITS CASE. AND SO GIVEN THAT ITS PROBATIVE VALUE ON THIS POINT IS EITHER ZERO OR AT THE MINIMUM VERY LOW AND THAT THE 403 CONCERNS ARE NOW HEIGHTENED GIVEN THE WAY THAT IT CAME IN, WITHOUT CONTEXT AND WITHOUT THE TESTIMONY OF A SMS WITNESS, WE MOVE TO STRIKE THE REPORT AND THE RELATED TESTIMONY. WE'RE PREPARED TO IDENTIFIED FOR THE COURT EXACTLY WHAT PORTIONS OF THOSE TESTIMONY FROM DR. DAS THAT WOULD BE. IT'S SOME OF HIS TESTIMONY ABOUT THIS, BUT NOT ALL OF IT. AND IT WOULD BE, YOU KNOW, QUESTIONS WHERE THE GOVERNMENT READ PORTIONS OF THE REPORT INTO EVIDENCE AND ASKED DR. DAS IF HE HAD SAW AND READ THEM; QUESTIONS WHERE THE GOVERNMENT ASKED DR. DAS IF HE EVER TOLD CMS THAT HE DISAGREED WITH A PARTICULAR FINDING; AND QUESTIONS WHERE THE GOVERNMENT ASKED DR. DAS TO EXPLAIN WHAT HE HAD UNDERSTOOD CERTAIN TERMS IN THE REPORT TO MEAN. SO UNLESS THE COURT HAS FURTHER QUESTIONS?
JUDGE DAVILA: NO. LET ME ASK THE GOVERNMENT TO RESPOND IF THEY WISH.
MR. LEACH: BRIEFLY, YOUR HONOR. ALL OF THE ARGUMENTS I JUST HEARD FROM MR. LOOBY WERE RAISED AND REJECTED BY THE COURT ON MULTIPLE OCCASIONS. I THINK THIS MIGHT BE THE FOURTH OR FIFTH MOTION RELATING TO THE CMS REPORT. THERE WAS AN OBJECTION IN THE MOMENT. IT WAS OVERRULED. THE RULING WAS CORRECT. DR. DAS -- IT WAS RELEVANT TO MS. HOLMES'S STATE OF MIND, THE SPEED AND ATTENTION WITH WHICH SHE RESPONDS TO THE REPORT, HER CONVERSATIONS WITH DR. DAS ABOUT WHETHER THE FINDINGS ARE CORRECT OR INCORRECT, DR. DAS'S TESTIMONY ABOUT THE REASON FOR THE VOIDING AND WHETHER MS. HOLMES WAS TRYING TO MINIMIZE IT OR NOT MINIMIZE IT, THE STATEMENTS MS. HOLMES MAKES TO MS. PETERSON ATTEMPTING TO MINIMIZE WHAT CMS IS FINDING SUGGESTS THAT SHE DIDN'T TAKE THE REGULATORY ISSUES SERIOUSLY. SO FOR ALL OF THOSE REASONS IT WAS RELEVANT AND APPROPRIATE TO COME IN. THIS IS THE FIRST TIME THAT I'M HEARING ABOUT A RENEWED MOTION, AND I THINK IT'S QUITE PREJUDICIAL TO DO IT AT THIS POINT RATHER THAN WHEN DR. DAS HAD COMPLETED HIS TESTIMONY. I WOULD ALSO SAY THE IDEA OF IMMEDIATE JEOPARDY FIRST CAME INTO EVIDENCE DURING THE PLAYING OF THE "TODAY SHOW" INTERVIEW, WHICH WAS ADDED IN RESPONSE TO THE DEFENDANT'S RULE OF COMPLETENESS ARGUMENTS. SO I DON'T THINK THERE'S SOMETHING PARTICULARLY PREJUDICIAL ABOUT THE LETTER OR DR. DAS'S REVIEW, REPORT TO MS. HOLMES, AND ULTIMATE CONCURRENCE WITH THE OBSERVATIONS BY CMS. I'M HAPPY TO RESPOND MORE FULSOMELY IN WRITING IF THE COURT WISHES, BUT FOR ALL OF THOSE REASONS AND OTHERS, THE MOTION SHOULD BE DENIED.
JUDGE DAVILA: THANK YOU. DO YOU WISH TO COMMENT NOW OR AT SOME OTHER TIME ON THE CONFRONTATION ISSUE?
MR. LEACH: YES, YOUR HONOR. FIRST, THE CMS REPORT IS NOT TESTIMONIAL, SO THE CONFRONTATION CLAUSE DOESN'T COME INTO PLAY AT ALL. THAT'S THE FIRST REASON. THE SECOND REASON IS IT CAME IN FOR ITS STATE OF MIND ON MS. HOLMES, AND WE ASKED QUESTIONS OF DR. DAS THAT TOUCHED ON HER STATE OF MIND. SO IT CAME IN FOR A NONHEARSAY PURPOSE. THERE'S NO POINT TO CROSS-EXAMINING THE CMS WITNESS ABOUT IT, AND IT'S REALLY DR. DAS'S AGREEMENT AND, FRANKLY, MS. HOLMES'S AGREEMENT ON SOME LEVEL TO VOID THE TESTS THAT MADE ALL OF THIS RELEVANT, AND DR. DAS'S SUBSEQUENT INVESTIGATION TO SEE IF THESE WERE ABERRATIONS OR NOT ABERRATIONS. SO THERE WOULD HAVE BEEN NO POINT TO CROSS-EXAMINING SARAH BENNETT FOR THE PURPOSE FOR WHICH IT CAME IN. BUT THE CONFRONTATION CLAUSE DOESN'T COME INTO PLAY AT ALL BECAUSE THE CMS REPORT IS NOT TESTIMONIAL, WHICH IS ONE OF THE REQUIREMENTS FOR THE SIXTH AMENDMENT ANALYSIS.
JUDGE DAVILA: THANK YOU.
MR. LOOBY: YOUR HONOR, AND THE DEFENSE BELIEVES THAT THE CMS REPORT AND ITS OBSERVATIONS WERE TESTIMONIAL BECAUSE THEY WERE PREPARED IN ADVANCE WITH AN EYE TOWARDS LITIGATION AND POTENTIAL CRIMINAL LITIGATION. THIS IS AN ISSUE, YOU KNOW, THAT WE DISCUSSED AS IT RELATED TO THE HEARSAY ISSUES. INITIALLY THE DEFENSE JUST REITERATES AND PRESERVES ITS POSITION ON THAT. AND THEN AS FOR THE NONHEARSAY PURPOSE IN WHICH IT CAME IN, I THINK, YOU KNOW, EVEN IF -- THE REPORT ITSELF CAME IN FOR NONHEARSAY, BUT THEN THE GOVERNMENT ASKED DR. DAS WHETHER OR NOT HE AGREED WITH CERTAIN PORTIONS OF IT. SO I THINK THE 403 CONCERNS ARE STILL PRESENT, AND WE DISAGREE THAT THEY CAN BE ALLEVIATED OR ADDRESSED WITHOUT THE TESTIMONY OF A CMS INSPECTOR, THE PEOPLE WHO MADE THE FINDINGS. AND SO WE SUBMIT THAT IT'S BOTH THE 403 AND THE CONFRONTATION REASONS ARE WHY THE REPORT MUST BE EXCLUDED. AND WE'RE MAKING THIS MOTION NOW AT THE CONCLUSION OF THE GOVERNMENT'S CASE JUST BECAUSE WE HAVE SEEN HOW IT WAS USED AND WHICH EVIDENCE DID AND DIDN'T COME IN.
JUDGE DAVILA: UNDERSTOOD. ALL RIGHT. THANK YOU. ANYTHING FURTHER, MR. LEACH?
MR. LEACH: NO, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU VERY MUCH. THANK YOU FOR THAT. MS. SAHARIA.
MS. SAHARIA: THANK YOU, YOUR HONOR. JUST TWO MORE BRIEF HOUSEKEEPING MATTERS. I HOPE THE COURT CAN APPRECIATE THAT WE FEEL COMPELLED TO MAKE THE RECORD NOW TO PRESERVE THESE ARGUMENTS NOW THAT THE GOVERNMENT HAS RESTED. SO A SECOND POINT IS THAT WE MOVE TO STRIKE THE TESTIMONY OF E.T., THIS IS THE PATIENT THAT TESTIFIED THIS WEEK, NOW THAT THE GOVERNMENT HAS RESTED WITHOUT CALLING THE CORRESPONDING DOCTOR, DR. ASIN. E.T. IS NOT QUALIFIED TO INTERPRET THE COMPLEX HIV TEST REPORT THAT SHE RECEIVED, THEREFORE, IT POSES ISSUES WITH RESPECT TO LAY OPINION THAT IS NOT -- FOR SOMEONE WHO IS NOT QUALIFIED TO OFFER THAT OPINION. AND IT ALSO POSES VERY SEVERE 403 CONCERNS WHERE A WITNESS WHO DOES NOT KNOW HOW TO INTERPRET THIS REPORT HAS OFFERED ESSENTIALLY AN OPINION THAT SHE RECEIVED INACCURATE TEST RESULTS WITHOUT A PERSON QUALIFIED TO OFFER THAT OPINION TO THE JURY. I'LL JUST NOTE A COUPLE OF THINGS FROM THE HISTORY OF THE LITIGATION OF THIS ISSUE.
I KNOW YOUR HONOR KNOWS THAT WE'VE BEEN LITIGATING THESE ISSUES AROUND THESE PATIENTS AND DOCTORS NOW FOR QUITE A LONG TIME, AND THE, THE GOVERNMENT PREVIOUSLY RECOGNIZED THE IMPORTANCE OF CALLING DOCTORS FOR THE PURPOSE OF EXPLAINING WHETHER A TEST WAS INACCURATE. THIS IS AT ECF 660. AT TRIAL, THE GOVERNMENT WILL PRESENT TESTIMONY FROM SEVERAL OF THE PATIENT VICTIMS, ALONG WITH PATIENT TESTIMONY. THE GOVERNMENT PLANS TO INTRODUCE TESTIMONY FROM TREATING PHYSICIANS. SUCH TESTIMONY WILL BE AN ESSENTIAL PART OF THE GOVERNMENT'S PROOF AT TRIAL BECAUSE THOSE PHYSICIANS ARE QUALIFIED AND EQUIPPED TO DELIVER RELIABLE OPINIONS THAT CERTAIN THERANOS TEST RESULTS WERE DEMONSTRABLY INACCURATE. AGAIN, AT THE HEARING ON THAT MOTION -- THIS IS MAY 4TH, 2021 -- AT PAGES 130 AND 131, THE GOVERNMENT DISTINGUISHED PATIENT TESTIMONY FROM DOCTOR TESTIMONY.
THE GOVERNMENT SAID, A PATIENT CAN TESTIFY ABOUT THE PROMOTIONAL MATERIALS OR THE MARKETING MATERIALS THAT THEY WERE EXPOSED TO FROM THERANOS, ABOUT THEIR REASONS FOR CHOOSING THERANOS, ABOUT THEIR EXPERIENCES WITH THE COMPANY, THE REASONS -- THE RESULTS THAT THEY GOT. BUT HER DOCTOR IS THE ONE WHO IS IN THE BEST POSITION TO TESTIFY REGARDING WHAT AN HCG TEST WAS -- THEY WERE DISCUSSING THERE THE PREGNANCY TEST -- HOW IT WAS USED, WHY IT WAS ORDERED IN THIS SPECIFIC PATIENT'S CASE, AND ALSO TO EXPLAIN WHAT RESULTS MEAN, SO INCLUDING THE SIGNIFICANCE OF THE SPECIFIC RESULTS RECEIVED BY THAT PARTICULAR PATIENT AT ISSUE. AND THEN JUST EARLIER THIS WEEK IN AN ARGUMENT ON THE CUSTOMER SPREADSHEETS THAT WE DISCUSSED, THE GOVERNMENT EXPLAINED TO THE COURT, I SHOULD SAY, THAT EVEN AFTER A PATIENT RECEIVES A RESULT, I THINK THE EVIDENCE IN THE CASE HAS SHOWN THAT IT IS NOT ALWAYS CLEAR WHETHER THE RESULT IS ACCURATE OR NOT. 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. WE JUST DON'T HAVE ACCURATE AND RELIABLE TESTIMONY IN THIS RECORD THAT E.T. RECEIVED AN INACCURATE RESULT. THE TEST RESULT THAT SHE RECEIVED HAD A SERIES OF DIFFERENT RESULTS. ONE WAS REACTIVE, OTHERS WERE NONREACTIVE. NO ONE QUALIFIED HAS COME BEFORE THE JURY TO EXPLAIN WHAT THAT MEANS, AND FOR THAT REASON WE MOVE TO EXCLUDE HER TESTIMONY.
JUDGE DAVILA: ALL RIGHT. THANK YOU. MR. BOSTIC?
MR. BOSTIC: THANK YOU, YOUR HONOR. THE GOVERNMENT OPPOSES THIS MOTION. THE TESTIMONY OF -- I'LL USE HER NAME BECAUSE SHE TESTIFIED UNDER HER NAME. THE TESTIMONY OF MS. TOMPKINS SHOULD REMAIN IN THE RECORD. FIRST OF ALL, THE DEFENSE IS ARGUING ABOUT LAY OPINIONS AS TO THE ACCURACY OF THE TEST IN THIS CASE, BUT TO MY MEMORY, THIS WITNESS DID NOT OFFER ANY LAY OPINIONS OR CONCLUSIONS ABOUT THE ACCURACY OF THE TEST. I IMAGINE THAT SUCH TESTIMONY, HAD IT BEEN OFFERED, WOULD HAVE DRAWN AN OBJECTION FROM THE DEFENSE THAT THIS WITNESS DID NOT HAVE A BASIS TO REACH A CONCLUSION ON THAT ULTIMATE ISSUE. SO I THINK THE DEFENSE IN THAT RESPECT IS POINTING TO A PROBLEM THAT DOESN'T EXIST WITH THIS TESTIMONY. THIS PATIENT WAS QUALIFIED TO TALK ABOUT HER EXPERIENCE WITH THE THERANOS TEST AND PRESENT TO THE JURY THE RESULTS THAT SHE OBTAINED. IN THE PAST THE GOVERNMENT HAS NOTED THAT IN NOT EVERY CASE IS IT POSSIBLE TO TELL WHETHER TEST RESULTS ARE ACCURATE OR NOT.
IN SOME CASES, EVEN A DOCTOR OR AN EXPERT CANNOT TELL AFTER THE FACT AND AT THE TIME WHETHER RESULTS ARE ACCURATE OR NOT. OTHER RESULTS REQUIRE THE TESTIMONY AND THE EXPERT OPINION OF SOMEONE WHO KNOWS HOW THAT TEST WORKS AND WHO CAN PROVIDE THE JURY WITH BACKGROUND INFORMATION ABOUT THE SIGNIFICANCE OF CERTAIN RESULTS VERSUS OTHER RESULTS AND WHAT THEY CORRESPOND TO IN THE BODY OF THE PATIENT. OTHER TEST RESULTS SPEAK FOR THEMSELVES. A RESULT THAT TELLS THE PATIENT THAT THERE ARE HIV ANTIBODIES PRESENT IN HER BLOODSTREAM IS INCOMPATIBLE WITH ANOTHER TEST RESULT THAT SAYS THE OPPOSITE. THEY CANNOT BOTH BE CORRECT. EXPERT TESTIMONY IS NOT NECESSARY TO, YOU KNOW, EXPLAIN HOW THE VIRUS WORKS OR HOW THE TEST IS PERFORMED IN ORDER FOR THOSE TWO CONFLICTING RESULTS TO HAVE PROBATIVE VALUE FOR THE JURY. AND THAT'S WHAT THIS IS ABOUT. I WOULD ALSO ADD ON THAT, THOUGH, THAT THE TESTIMONY OF MS.
TOMPKINS IS ADMISSIBLE AND THE COUNT THAT IS BASED ON HER WIRE IS STILL A VALID COUNT EVEN IF THAT TEST RESULT WAS NOT INACCURATE. THIS WAS A WIRE IN FURTHERANCE OF THE SCHEME TO DEFRAUD PATIENTS, SO IT IS NOT NECESSARY THAT IT RELATE TO A TEST RESULT THAT THE JURY MUST FIND TO BE INACCURATE. THAT'S NOT A FINDING THAT THE JURY IS REQUIRED TO MAKE IN ORDER TO RULE ON ANY OF THESE COUNTS. AS THE COURT KNOWS, THE WIRE UNDERLYING A WIRE FRAUD COUNT DOES NOT NEED TO CONVEY ANY FALSE OR FRAUDULENT INFORMATION. IT MERELY NEEDS TO BE IN FURTHERANCE OF THE SCHEME TO DEFRAUD. SO THAT IS, I THINK, A FINAL REASON WHY I THINK THIS MOTION SHOULD NOT BE GRANTED.
JUDGE DAVILA: OKAY. THANK YOU. MS. SAHARIA?
MS. SAHARIA: HER TEST RESULT DOES NOT SPEAK FOR ITSELF, YOUR HONOR. THERE WERE MULTIPLE LEVELS OF TEST RESULTS ON THE DOCUMENT THAT WAS PUT INTO EVIDENCE. IT WAS A DIFFERENT WAY OF TESTING FOR HIV THAN THE ONE THAT MS. TOMPKINS RECEIVED RECENTLY WHERE THE TEST WAS A DIFFERENT KIND OF TEST. MS. TREFZ TRIED TO WALK THROUGH WITH THE WITNESS THE CDC ALGORITHM THAT THERE IS A SCREENING STEP THAT PROMPTS YOU TO FURTHER ANALYSES. OF COURSE THAT WITNESS WAS NOT QUALIFIED TO TALK ABOUT THAT SCREENING ALGORITHM, BUT THERE'S NO ONE QUALIFIED IN THIS COURTROOM TO TELL US WHAT THAT TEST RESULT MEANS OR WHETHER THAT TEST RESULT CONFLICTS WITH HER LATER ONE. SO AT A MINIMUM, HER TESTIMONY ABOUT THAT TEST RESULT SHOULD NOT BE A PART OF THIS RECORD BECAUSE THE ONLY IMPRESSION THAT IT WILL LEAVE THE JURY WITH IS A MISLEADING ONE, THAT THERE WAS IN FACT AN INACCURATE HIV TEST RESULT, WHICH IS SOMETHING THAT WE JUST DON'T KNOW FROM THE CURRENT RECORD.
JUDGE DAVILA: IS IT SUFFICIENT THEN FOR HER TO -- FOR THE JURY TO HAVE THESE TWO DIFFERENT TESTS AND THEN THEY DETERMINE?
MS. SAHARIA: I DON'T THINK THEY'RE QUALIFIED TO MAKE THAT DETERMINATION EITHER, YOUR HONOR.
JUDGE DAVILA: WITHOUT EXPERT TESTIMONY --
MS. SAHARIA: EXACTLY.
JUDGE DAVILA: -- TO SAY WHAT IT IS. THE DOCUMENTS, I THINK MR. BOSTIC SUGGESTS, THEY SPEAK FOR THEMSELVES. IS THAT SUFFICIENT?
MS. SAHARIA: I DON'T BELIEVE THAT A COMPLICATED LAB REPORT THAT DOESN'T SAY, YES, YOU HAVE HIV, NO, YOU DON'T HAVE HIV, THAT'S NOT WHAT THAT REPORT SAYS. IT SAID ONE WAS REACTIVE, OTHERS WERE NONREACTIVE. IT DIDN'T SAY, YES, YOU HAVE HIV, NO, YOU DON'T. I DON'T KNOW HOW THE JURY COULD INTERPRET THOSE RESULTS WITHOUT AN EXPERT TO TELL THEM WHAT THEY MEAN.
JUDGE DAVILA: THANK YOU. AND THEN FURTHER TO MR. BOSTIC'S POINT, THAT MIGHT NOT BE RELEVANT IF IT'S IN FURTHERANCE OF THE SCHEME.
MS. SAHARIA: SO I DO THINK THAT RAISES SOME ISSUES THAT WE CAN DISCUSS WHEN WE ARGUE THE MOTION FOR JUDGMENT OF ACQUITTAL, BUT I THINK AT A MINIMUM SHE CAN -- I THINK HER TESTIMONY ABOUT WHY SHE CAME TO THERANOS AND WHAT WAS IMPORTANT TO HER MAY STILL BE RELEVANT TESTIMONY. BUT I, I DON'T BELIEVE THAT IT IS PROPER TO LEAVE IN HER TESTIMONY ABOUT THE TEST RESULTS THEMSELVES AND THE CORRESPONDING EXHIBITS BECAUSE THE JURY IS JUST AS EQUALLY UNQUALIFIED TO INTERPRET THOSE EXHIBITS AS SHE WAS. AND WE CAN PROVIDE THOSE EXHIBIT NUMBERS FOR THE RECORD. I'M NOT SURE I HAVE THEM IN FRONT OF ME, YOUR HONOR.
JUDGE DAVILA: THE TEST RESULTS?
MS. SAHARIA: THE TWO TEST RESULTS, YOUR HONOR.
JUDGE DAVILA: RIGHT. THEY WERE ADMITTED WITHOUT OBJECTION IF I RECALL.
MS. SAHARIA: WELL, WE OBJECTED IN ADVANCE OF HER TESTIMONY TO THE FACT THAT THE GOVERNMENT HAD INDICATED THAT THEY MAY NOT CALL MR. ASIN. MS. TREFZ DID RAISE THAT ISSUE AND OUR OBJECTION TO CALLING THE WITNESS WITHOUT THE DOCTOR. THAT WAS AN OBJECTION THAT WAS MADE ON THE RECORD. THE GOVERNMENT REFUSED AT THAT TIME TO COMMIT TO WHETHER THEY WERE CALLING HIM OR NOT. NOW THAT WE KNOW THAT THEY'RE NOT CALLING HIM, THAT'S WHY I'M MAKING THIS MOTION.
JUDGE DAVILA: OKAY. THANK YOU.
MR. BOSTIC: YOUR HONOR?
JUDGE DAVILA: YES.
MR. BOSTIC: THE COURT IS CORRECT THEY WERE ADMITTED WITHOUT OBJECTION. THE DEFENSE COULD HAVE MADE A REQUEST THAT THEY BE CONDITIONALLY ADMITTED AT THAT TIME. THEY DID NOT DO SO. MS. SAHARIA JUST SAID THAT THE REPORTS DON'T SAY THAT YOU DON'T HAVE HIV OR YOU DO HAVE HIV. THAT'S NOT HOW THESE REPORTS WERE PRESENTED TO THE JURY IN THE MOMENT, AND THAT'S NOT HOW THEY'LL BE ARGUED BECAUSE, THAT'S CORRECT, THEY DO NOT SAY THOSE THINGS. HOWEVER, THEY ARE TWO TESTS FOR HIV ANTIBODIES. ONE CAME BACK REACTIVE. THE OTHER CAME BACK NEGATIVE. THOSE ARE TWO CONFLICTING RESULTS. THIS IS NOT THE ONLY TIME IN THIS CASE THAT SPECIFIC INSTANCES OF INCONSISTENT OR CONFLICTING RESULTS HAVE BEEN PUT IN FRONT OF THE JURY WITHOUT THE DEFENSE OBJECTING. THE JURY HAS SEEN EMAILS INTERNAL AT THERANOS RELATING TO RESULTS THAT CAME BACK ON DIFFERENT ASSAYS WHERE THE PATIENT GOT ONE RESULT FROM THERANOS AND A DIFFERENT RESULT FROM ANOTHER LAB. IN THOSE CASES -- LET'S BE CLEAR.
IN EACH OF THOSE CASES, WE WOULD HAVE BEEN COMPARING TEST RESULTS GENERATED BY DIFFERENT METHODS OF RUNNING THE TESTS BY DEFINITION. THAT'S THE POINT OF THIS EVIDENCE IS THAT THE THERANOS TEST METHOD WAS, AS SHOWN BY THESE CASES, PROBLEMATIC OR HAD ACCURACY PROBLEMS NOT EXPERIENCED BY TRADITIONAL METHODS. SO WHEN THE EDISON MACHINE PRODUCED A RESULT THAT WAS INCONSISTENT WITH A RESULT PRODUCED BY A CONVENTIONAL MACHINE FROM ANOTHER LAB, THAT'S THE SAME KIND OF I THINK WHAT MS. SAHARIA WOULD CALL HERE AN APPLES TO ORANGES COMPARISON, BUT IT'S NOT. THESE ARE TWO DIFFERENT METHODS AIMED AT MEASURING THE SAME THING, AIMED AT TESTING THE SAME THING, AND IF THEY PRODUCE CONFLICTING RESULTS, THEY CAN'T BOTH BE CORRECT. IT'S FAIR FOR THE JURY TO INFER THAT, BASED ON ALL OF THE EVIDENCE IN THE CASE, THE THERANOS RESULTS WERE INCORRECT. EXPERT TESTIMONY IS NOT REQUIRED FOR THAT. BUT I'LL ALSO POINT OUT ONE MORE TIME THAT THE JURY IS NOT REQUIRED TO MAKE A FINDING AS TO THE ACCURACY OF EACH TEST PRESENTED TO THEM, EVEN IF THOSE ARE TESTS IN CONNECTION WITH COUNTS ALLEGED IN THE INDICTMENT.
JUDGE DAVILA: THANK YOU.
MS. SAHARIA: JUST VERY BRIEFLY. IF THAT'S THE CASE, THEN THERE'S NO REASON TO HAVE THESE MISLEADING TEST RESULTS IN FRONT OF THE JURY WITHOUT AN EXPERT TO INTERPRET THEM. I'LL NOTE THAT THE HIV TEST WAS NOT RUN ON THE EDISON TECHNOLOGY, SO THAT COMPARISON DOES NOT WORK. BUT PUTTING THAT ASIDE, THE EMAILS THAT MR. BOSTIC REFERRED TO WERE ADMITTED THROUGH KNOWLEDGEABLE WITNESSES AT THE COMPANY WITH PERCIPIENT KNOWLEDGE OF THEM WHO DEALT WITH THOSE EVERY DAY AND KNEW HOW TO INTERPRET THOSE EMAILS. MS. TOMPKINS DOES NOT KNOW HOW TO INTERPRET THOSE HIV REPORTS AND THEY JUST DON'T SPEAK FOR THEMSELVES.
JUDGE DAVILA: OKAY. ALL RIGHT. THANK YOU VERY MUCH. THANK YOU.
MS. SAHARIA: JUST ONE FINAL HOUSEKEEPING MATTER, YOUR HONOR, AND THIS ONE IS TRULY IN AN ABUNDANCE OF CAUTION AND TO PRESERVE OUR RIGHTS GOING FORWARD ON THIS ISSUE. WE RESPECTFULLY RENEW OUR MOTION TO SUPPRESS EVIDENCE OF CUSTOMER COMPLAINTS AND TESTING RESULTS, AS WELL AS FINDINGS IN THE CMS REPORT WHICH WAS FILED AT ECF 810. THE COURT HAS DENIED THIS MOTION. THIS WAS A PRETRIAL MOTION THAT WAS SUBMITTED TO THE COURT BASED ON A PAPER RECORD. THE COURT DENIED THAT AT 886 AND 887. WE INCORPORATE BY REFERENCE ALL OF OUR PRIOR ARGUMENTS AND THE PRIOR EVIDENCE. AND JUST TO BE COMPLETE, THAT'S AT 810, 811, 850, 851, AS WELL AS AT THE ORAL ARGUMENT ON JULY 7TH.
I'LL JUST STATE FOR THE RECORD THAT THAT MOTION AND THE REQUESTED RELIEF, WHICH WAS THE MOTION TO SUPPRESS, AND NOW WE RENEW THAT AND MOVE TO STRIKE THE FOLLOWING CATEGORIES OF EVIDENCE: TESTIMONY AND EXHIBITS OFFERED BY PATIENTS RELATED TO THEIR SPECIFIC TESTING RESULTS; TESTIMONY AND EXHIBITS OFFERED BY DOCTORS OR OTHER MEDICAL PROFESSIONALS RELATED TO CUSTOMER'S SPECIFIC RESULTS; THE CMS REPORTS DISCUSSION OF QUALITY CONTROL RESULTS AND OTHER TESTING DATA MAINTAINED IN THE LIS; ALL OTHER CUSTOMER COMPLAINTS AND TESTING RESULTS OFFERED THROUGH THERANOS WITNESSES; AND ALL TESTIMONY AND EXHIBITS RELATING TO QUALITY CONTROL DATA AND OTHER DATA IN THE LIS OFFERED BY THERANOS WITNESSES. I'LL NOTE FOR THE RECORD THAT THAT MOTION WAS MADE UNDER BOTH THE DUE PROCESS CLAUSE AND THE BALANCING TESTS SET FORTH IN UNITED STATES VERSUS LOUD HAWK, WHICH IS A NINTH CIRCUIT CASE FROM 1979.
AS THE COURT WILL RECALL, THE LOUD HAWK CASE INVOLVED A BALANCING TEST BETWEEN THE QUALITY OF THE GOVERNMENT'S CONDUCT AND THE PREJUDICE TO THE DEFENDANT AND THE NATURE OF THAT EVIDENCE. WE HAVE NOT CURRENTLY PUT AT ISSUE AT TRIAL THE GOVERNMENT'S CONDUCT. WE HAVE NOT PUT ANY EVIDENCE FORWARD ON THAT PRONG OF THAT ANALYSIS. SO THAT RECORD IS EXACTLY WHERE IT WAS AT THE TIME THAT WE FIRST MADE THIS MOTION. HOWEVER, ON THE OTHER SIDE OF THE LEDGER, THERE HAS BEEN EVIDENCE ADDUCED AT TRIAL THAT GOES TO THE POTENTIALLY EXCULPATORY NATURE OF THE LIS AND THE AMOUNT OF PREJUDICE TO MS. HOLMES ASSOCIATED WITH THE LOSS OF THAT DATABASE. I WOULD RESPECTFULLY INCORPORATE THAT EVIDENCE INTO OUR MOTION JUST TO PRESERVE THE RECORD AS IT NOW STANDS. THAT TESTIMONY INCLUDES THE TESTIMONY OF MS. CHEUNG, DR. ROSENDORFF, AND DR.
SAWYER, AS WELL AS EXHIBIT 13655, WHICH PROVIDE EVIDENCE ABOUT THE WAY THE LIS DATABASE COULD BE USED TO INVESTIGATE BOTH PARTICULAR PATIENT OR DOCTOR INQUIRIES, BUT ALSO TO CONDUCT MORE STATISTICAL ANALYSES ACROSS PATIENTS AND TESTS, AND DR. ROSENDORFF IN PARTICULAR TESTIFIED TO THAT. A SIGNIFICANT AMOUNT OF EVIDENCE HAS COME OUT AT TRIAL BASED ON THE LIS DATA. AS THE COURT KNOWS, THAT DATA IS UNAVAILABLE. WE'VE BEEN UNABLE TO USE THAT DATA TO CHECK THE PATIENT ASSESSMENT WORK OF DR. DAS. WE HAVE BEEN UNABLE TO PROBE THE ANECDOTAL EMAILS SENT BY DR. ROSENDORFF WITH RESPECT TO CERTAIN TESTS OR TO CONFRONT OTHER ANECDOTAL EVIDENCE WITHOUT THAT DATABASE. SO WE JUST RESPECTFULLY RENEW THAT MOTION TO PRESERVE IT BASED ON THE CURRENT RECORD.
JUDGE DAVILA: ALL RIGHT. THANK YOU. MR. BOSTIC?
MR. BOSTIC: YOUR HONOR, JUST BRIEFLY. THE UNITED STATES OPPOSES THIS MOTION AS WELL, OF COURSE. THE RULINGS MADE BY THE COURT PREVIOUSLY ON THESE ISSUES ARE CORRECT AND SHOULD STAND. THE EVIDENCE AT TRIAL HAS NOT ALTERED THE ANALYSIS IN THE DEFENSE'S FAVOR. IF ANYTHING, IT HAS DONE THE OPPOSITE, ESPECIALLY WHEN IT COMES TO THE IMPORTANCE OF THE LIS. SEVERAL TIMES DURING THE TRIAL THE DEFENSE HAS ASKED A WITNESS TO CONFIRM THAT THEY RELIED ON THE LIS FOR ONE THING OR ANOTHER, AND I RECALL INSTANCES WHERE WITNESSES HAVE COME BACK AND SAID, NO, I DIDN'T USE THE LIS FOR THAT, OR NO, I'M NOT SURE WHETHER THAT WAS IN THE LIS. SO IF ANYTHING, I THINK THE EVIDENCE AT TRIAL HAS UNDERMINED THE DEFENSE'S ARGUMENT THAT THE LIS WAS A CRITICAL PIECE OF EVIDENCE IN THIS CASE WHOSE ABSENCE SEVERELY PREJUDICES THE DEFENSE. I THINK, AS PREVIOUSLY SHOWN BY THE GOVERNMENT, IT'S MORE LIKELY, FAR MORE LIKELY THAT THE EVIDENCE IN THE LIS WOULD HAVE BEEN INCULPATORY OF THIS DEFENDANT RATHER THAN EXCULPATORY.
I THINK THE EVIDENCE SHOWS THAT. AND THEN FINALLY, WHEN IT COMES TO THE LOUD HAWK STANDARD AND THE OTHER CASES ADDRESSING THE GOVERNMENT'S OBLIGATION TO OBTAIN AND PRESERVE EVIDENCE, THE FACTS OF THIS CASE REALLY AREN'T CLOSE TO THE STANDARD THAT WOULD REQUIRE OR SUPPORT ANY KIND OF SUPPRESSION OF EVIDENCE HERE. AS THE COURT KNOWS, THE GOVERNMENT SOUGHT AND OBTAINED, OR BELIEVED IT OBTAINED, A COPY OF THE LIS DATABASE. THE GOVERNMENT WAS INFORMED BY MS. HOLMES'S COMPANY, BY THERANOS, THAT THE GOVERNMENT HAD IN ITS POSSESSION A COPY OF THE LIS DATABASE. WITHIN DAYS OF PROVIDING THAT COPY TO THE GOVERNMENT -- A COPY THAT TURNED OUT TO BE DOUBLE ENCRYPTED AND INACCESSIBLE -- WITHIN DAYS OF PROVIDING THAT COPY, THERANOS ITSELF DISMANTLED THE LIS DATABASE HARDWARE IN A WAY THAT MADE THAT INFORMATION PERMANENTLY IRRETRIEVABLE. ON THOSE FACTS, IT SIMPLY CANNOT BE SAID THAT WE'RE ANYWHERE CLOSE TO THE LOUD HAWK STANDARD OR THE STANDARDS ADOPTED BY THE OTHER CASES ALONG THOSE LINES.
JUDGE DAVILA: ALL RIGHT.
MS. SAHARIA: I'M CONTENT TO REST ON OUR PRIOR SUBMISSIONS AND OUR PRIOR STATEMENTS.
JUDGE DAVILA: ALL RIGHT. THANK YOU VERY MUCH. THANK YOU FOR THAT.
MS. SAHARIA: SO WITH THAT, YOUR HONOR, MS. HOLMES RESPECTFULLY MOVES FOR JUDGMENT OF ACQUITTAL UNDER RULE 29. WE RESPECTFULLY SUBMIT THAT THE EVIDENCE PRESENTED BY THE GOVERNMENT IS INSUFFICIENT ON EVERY ELEMENT OF EVERY COUNT, AND WE ARE HAPPY TO ADDRESS THAT IN MORE DETAIL WHENEVER IS CONVENIENT FOR THE COURT AT A LATER TIME.
JUDGE DAVILA: ALL RIGHT. THANK YOU VERY MUCH. FIRST OF ALL, LET ME NOTE THAT THE RECORD SHOULD REFLECT THAT YOU HAVE TIMELY RESERVED AND MADE YOUR MOTION UNDER RULE 29. THE COURT WILL RESERVE JUDGMENT ON THAT AND WILL INFORM THE PARTIES WHETHER OR NOT THE COURT WISHES ADDITIONAL BRIEFLY AS TO THE RULE 29 MOTION. BUT YOU HAVE PRESERVED IT TIMELY FOR YOUR CLIENT AND FOR YOUR TEAM. I'LL NOTE THAT. FOR PURPOSES OF THE RECORD, AS I SAID, I'LL RESERVE JUDGMENT AND TAKE IT UNDER SUBMISSION AT THIS POINT, AND THEN WE'LL TAKE UP PROCEEDINGS AS IS NECESSARY.
MS. SAHARIA: THANK YOU, YOUR HONOR.
JUDGE DAVILA: YOU'RE WELCOME. LET'S TAKE A BREAK. YOU HAVE A WITNESS? I ASSUME YOU HAVE A WITNESS HERE.
MR. DOWNEY: WE DO. I THINK WE CAN APPROACH IT EITHER WAY. I THINK WE CAN BEGIN FOR HALF AN HOUR WITH THAT WITNESS, OR WE CAN BREAK NOW, WHATEVER SUITS THE COURT.
MR. LEACH: YOUR HONOR, I UNDERSTAND THE WITNESS THE DEFENSE IS REFERRING TO IS TRENT MIDDLETON --
MR. DOWNEY: THAT'S RIGHT.
MR. LEACH: -- WHO IS GOING TO PRESENT SOME SUMMARY CHARTS. THERE WERE SOME ISSUES RELATING TO THAT THAT I WANTED TO RAISE WITH THE COURT. I DON'T KNOW WHEN IT'S GOING TO COME UP ON THE EXAMINATION, AND I JUST WANTED AN OPPORTUNITY TO DO THAT OUTSIDE OF THE PRESENCE OF THE JURY.
MR. DOWNEY: THAT'S RIGHT. WHY DON'T WE DO THAT BEFORE WE BRING THE JURY BACK IN AND GET THAT RESOLVED.
JUDGE DAVILA: SURE. DO YOU WANT TO TALK?
MR. CLINE: MAYBE WE SHOULD BREAK AND HAVE THAT DISCUSSION.
JUDGE DAVILA: LET'S DO THAT. LET'S DO THAT, SO WE DON'T HAVE MULTIPLE BREAKS.
MR. DOWNEY: YES.
JUDGE DAVILA: THAT REQUIRES THE TWO OF YOU TO TALK ABOUT, UNDER 1006, WHETHER THIS WITNESS IS GOING TO TESTIFY AS A SUMMARY WITNESS, OR?
MR. DOWNEY: I THINK -- IS THIS THAT ISSUE OR -- MS. TREFZ IS GOING TO HANDLE THIS WITNESS, YOUR HONOR.
JUDGE DAVILA: OKAY. OKAY.
MR. LEACH: IT RELATES TO SOME OF THE SUMMARY CHARTS, YOUR HONOR, AND IT INVOLVES EVIDENCE FROM 2018, 2019, 2021 THAT THE GOVERNMENT VIEWS AS IRRELEVANT AND 403.
JUDGE DAVILA: I TRUST THAT THE SUMMARY WITNESS IS GOING TO SPEAK ABOUT, IF HE OR SHE SPEAKS AT ALL, EVIDENCE THAT IS IN EVIDENCE IN THIS CASE.
MR. DOWNEY: EVIDENCE THAT IS EITHER ADMISSIBLE IN THE CASE OR HAS BEEN ADMITTED, YOUR HONOR, YES.
JUDGE DAVILA: ALL RIGHT. LET'S TAKE A BREAK FOR ABOUT 30 MINUTES THEN AND LET YOU DO THAT.
MR. DOWNEY: THANK YOU, YOUR HONOR.
(RECESS FROM 10:36 A.M. UNTIL 11:09 A.M.)
JUDGE DAVILA: WE'RE ON THE RECORD. ALL PARTIES ARE PRESENT. WE'RE OUTSIDE OF THE PRESENCE OF THE JURY. MR. LEACH.
MR. LEACH: THANK YOU, YOUR HONOR. MAY I REMOVE MY MASK?
JUDGE DAVILA: YES, PLEASE. THANK YOU.
MR. LEACH: AND DOES YOUR HONOR HAVE THE BINDER FOR THE EXHIBITS FOR THE EXAMINATION OF TRENT MIDDLETON?
JUDGE DAVILA: I THINK I DO, YES.
MR. LEACH: OKAY. THE GOVERNMENT'S OBJECTION RELATES TO EXHIBIT 10684, WHICH PURPORTS TO BE A SUMMARY OF U.S. PATENTS ISSUED. WE HAVE NO OBJECTION TO PATENTS THAT WERE APPLIED FOR AND ISSUED DURING THE CONSPIRACY TIME PERIOD, SO UP THROUGH 2016. THIS EXHIBIT PURPORTS TO SUMMARIZE A NUMBER OF PATENTS THAT WERE BOTH APPLIED FOR AND ISSUED IN 2017, 2018, AND 2019, ALL OF THE WAY UP THROUGH 2021. THE SUMMARY ALSO MAKES REFERENCE, OR THE EXHIBIT THAT IT SUMMARIZES ALSO INCLUDES REFERENCE TO ENTITIES SUCH AS LABRADOR DIAGNOSTICS LLC, THERANOS IP COMPANY LLC, ALL OF WHICH TOUCH ON, YOU KNOW, ENTITIES RELATED TO THE BANKRUPTCY THAT HAPPENED IN 2018 AND 2019. I THINK IT'S IRRELEVANT TO THE ISSUES IN THE INDICTMENT. IT RAISES A NUMBER OF 403 ISSUES IN TERMS OF ARE WE GOING TO HAVE A MINI TRIAL ON WHAT HAPPENED AT THERANOS ALL OF THE WAY UP THROUGH 2021? THERE ALSO PURPORTS TO BE A COMPARISON BETWEEN THE NUMBER OF PATENTS ISSUED PRIOR TO 2016 AND PATENTS ISSUED AFTER THE INDICTMENT, WHICH I DON'T SEE HOW THAT COULD BE RELEVANT. SO WE HAVE A NUMBER OF 401 AND 403 OBJECTIONS TO THIS SUMMARY EXHIBIT.
JUDGE DAVILA: MS. TREFZ.
MS. TREFZ: GOOD AFTERNOON, YOUR HONOR. OR MORNING. I GUESS WE'RE STILL IN THE MORNING. WITH RESPECT TO THE PATENTS, JUST TO MAKE SURE THAT IT'S CLEAR, THE PATENTS ARE -- WE BELIEVE THAT THEY ARE ADMISSIBLE AND THEREFORE APPROPRIATE FOR A SUMMARY CHART. I HEAR MR. LEACH -- IF I UNDERSTAND IT CORRECTLY, THEN THE ISSUE IS NOT WITH PATENTS APPLIED FOR IN ADVANCE OF THE -- BY THE END OF 2016; IS THAT CORRECT?
MR. LEACH: WITHIN THE TIME OF THE CONSPIRACY COUNTS, YOUR HONOR. WE HAVE NO OBJECTION TO THOSE -- I MEAN, I'M NOT SURE THEY'RE RELEVANT, BUT WE AREN'T OBJECTING TO THEM.
JUDGE DAVILA: RIGHT. RIGHT.
MS. TREFZ: AND DOES THAT GO THROUGH THE END OF 2016?
MR. LEACH: YES.
MS. TREFZ: SO WITH RESPECT TO THAT, I THINK -- WE BELIEVE THAT THE PATENTS ARE RELEVANT TO A NUMBER OF DIFFERENT PURPOSES. ONE IS THAT WE BELIEVE THAT THE PATENTS ARE RELEVANT TO MS. HOLMES'S STATE OF MIND, THE AWARD OF PATENTS FOR THERANOS'S INVENTIONS IS RELEVANT TO HER GOOD FAITH BELIEF THAT THE TECHNOLOGY WORKED AND HER CONTINUED GOOD BELIEF THAT THE TECHNOLOGY WORKED, HER GOOD FAITH BELIEF.
JUDGE DAVILA: HOW DO THOSE CONNECT? HOW DO THOSE CONNECT?
MS. TREFZ: HOW DO THEY?
JUDGE DAVILA: HOW DOES IT PROVE HER STATE OF MIND FOR THAT PURPOSE?
MS. TREFZ: BECAUSE THESE ARE -- WHEN YOU DO A PATENT APPLICATION, YOU NEED TO PUT IN INFORMATION ABOUT THE INVENTION AND WHAT WAS INVENTED, AND IT GOES TO HER UNDERSTANDING THAT THE, THAT THE INFORMATION APPLIED FOR OR THE PATENTS APPLIED FOR WERE NOVEL INVENTIONS, AND THAT THEY WERE THINGS ACTUALLY INVENTED BY THERANOS. BUT I --
JUDGE DAVILA: HOW DOES THAT GO TO HER STATE OF MIND? WHAT DOES THAT SAY?
MS. TREFZ: WELL, WE BELIEVE THAT AN ALLEGATION IN THE CASE IS THAT MS. HOLMES UNDERSTOOD THAT THE TECHNOLOGY AT ISSUE, THAT SHE HAD CERTAIN UNDERSTANDINGS ABOUT THE TECHNOLOGY AT ISSUE IN THE CASE THAT WERE INCONSISTENT WITH REALITY, AND WE BELIEVE THAT THAT IS -- WE SHOULD HAVE THE OPPORTUNITY TO MEET THAT ALLEGATION OF HER KNOWLEDGE ABOUT THE STATE OF THE TECHNOLOGY WITH --
JUDGE DAVILA: DO THESE PATENTS RELATE TO THE TECHNOLOGY AT ISSUE?
MS. TREFZ: IN THE SENSE THAT THEY WERE ALL APPLIED FOR -- IN THE SENSE THAT THEY WERE ALL INVENTED AT THERANOS AND ALL REPRESENT THERANOS DEVELOPED TECHNOLOGY, YES. IF I MAY, THOUGH, WE MAY BE ACTUALLY -- IT MAY TAKE US A MOMENT TO ADDRESS THIS IN THE SUMMARY CHART, BUT I BELIEVE THAT WE DO HAVE A NATIVE EXCEL SPREADSHEET THAT CAN BE SORTED. WE WOULD WANT THE CHANCE TO JUST ADDRESS IT WITH OUR WITNESS QUICKLY. BUT, YOU KNOW --
JUDGE DAVILA: SO I GUESS I'M -- I'M SORRY, I DON'T MEAN TO BE THICK ON THIS. BUT WE'RE TALKING ABOUT THE MACHINES. IS THAT THE ALLEGATION IN THE TSI, THAT THE MACHINES DIDN'T OPERATE AS REPRESENTED?
MR. LEACH: CORRECT, YOUR HONOR. AND PART OF MY ISSUE WITH JUST DUMPING 176 PATENTS ALL OF THE WAY THROUGH 2021 INTO EVIDENCE IS JUST FROM THE PATENT -- I MEAN, SOME OF THESE SAY SYSTEMS AND METHODS FOR FLUID AND COMPONENT HANDLING. THERE'S NO PROFFER, AND NOT GOING TO BE ONE FROM THIS WITNESS, ABOUT WHAT THESE ARE AND HOW THEY RELATE TO PARTICULAR THINGS WITHIN THE TECHNOLOGY. THESE ARE ALSO PATENTS. THEY'RE PIECES OF PAPER. THEY'RE NOT PROOF THAT THE TECHNOLOGY WORKS. SO I THINK IT HAS VERY LIMITED RELEVANCE. IT COULD INVOLVE WORK FROM 2017, 2018, 2019, 2021, AND I JUST THINK IT'S -- TO DUMP A LIST OF PATENTS WITHOUT TYING THEM TO PARTICULAR THINGS RELATING TO THE MINILAB, THE EDISON, OR THE TSPU REALLY SERVES NO PURPOSE THAT I CAN SEE FROM A RELEVANCE POINT OF VIEW.
JUDGE DAVILA: IF IT'S THE -- WE'RE TALKING ABOUT THE TESTING THAT WAS DONE ON COMPLETED MACHINES; IS THAT RIGHT?
MS. TREFZ: IN, IN --
JUDGE DAVILA: THE MINILAB AND THE EDISON, AND THEN THE ITERATION OF EACH OF THOSE, I THINK THERE'S BEEN TESTIMONY ABOUT THAT.
MS. TREFZ: THE THERANOS TECHNOLOGY WAS BROADER THAN THAT, YOUR HONOR. BUT I DID JUST WANT TO SAY I THINK WE CAN LIMIT -- LIKE I SAID, WE WILL HAVE TO CHANGE THE EXHIBIT, BUT I THINK WE CAN LIMIT IT TO THE APPLICATIONS FILED BY THE END OF 2016, AND IT SOUNDS LIKE THAT WILL RESOLVE THE GOVERNMENT'S CONCERN. IT WAS RAISED NOW, AND I'M HAPPY TO ADDRESS IT QUICKLY.
JUDGE DAVILA: IS THIS WITNESS GOING TO TESTIFY ABOUT THE PATENT PROSECUTION PROCESS AND HOW LONG --
MS. TREFZ: NO.
JUDGE DAVILA: -- AND HOW LONG THAT TAKES?
MS. TREFZ: WE DID INTEND FOR -- THE SECOND PAGE, OR ACTUALLY THE THIRD PAGE OF EXHIBIT 10684 DOES SHOW THE DIFFERENCE BETWEEN WHEN A PATENT WAS APPLIED FOR AND WHEN IT WAS ISSUED. WE CAN DO THAT IN A SLIGHTLY DIFFERENT WAY. SO HE'S NOT GOING TO TESTIFY SUBSTANTIVELY ABOUT, ABOUT THAT PROCESS, WHAT, WHAT HE WAS -- WHAT WE WOULD LIKE HIM TO BE ABLE TO IDENTIFY IS THAT SOMETIMES PATENTS APPLIED FOR IN A -- YOU KNOW, OBVIOUSLY A PATENT IS APPLIED FOR AS A PARTICULAR DATE, AND THEN IT'S ISSUED LATER. AND SO WE WOULD LIKE TO BE ABLE TO SAY THAT, WHICH YOU CAN SEE FROM THE FACE OF THE PATENTS, THE APPLICATION DATE.
JUDGE DAVILA: IS HE GOING TO PUT THE WRAPPER IN AS TO THE PATENT?
MS. TREFZ: HE'S NOT GOING TO PUT IN THE WRAPPER. WE'RE NOT OFFERING THE PATENTS, WE'RE OFFERING THE SUMMARY. THE PATENTS ARE ON OUR EXHIBIT LIST, BUT WE'RE OFFERING THE SUMMARY. THEY COULD COME IN FROM A DIFFERENT WITNESS, BUT --
JUDGE DAVILA: THIS GOES TO -- WHAT YOU'RE SAYING IS THIS GOES TO HER STATE OF MIND, PARDON ME, YOUR CLIENT'S STATE OF MIND TO SHOW THAT SHE, WHAT, CONTINUED TO BELIEVE IN THE PRODUCT? I'M SORRY, I DON'T UNDERSTAND THAT.
MS. TREFZ: RIGHT. SO IS THE COURT'S QUESTION WITH RESPECT TO PATENTS AFTER -- APPLIED FOR AFTER THE CONSPIRACY?
JUDGE DAVILA: LET'S ASSUME THAT THOSE AREN'T COMING IN, AND I THINK THERE'S AGREEMENT THAT THEY WON'T. BUT WHAT DO THE ONES THAT ARE GOING TO COME IN, WHAT DO THOSE -- STATE OF MIND YOU SAID. I'VE BEEN HEARING THAT A LOT, AND I'M NOT SURE WHAT IT'S FOR.
MS. TREFZ: I APOLOGIZE FOR --
JUDGE DAVILA: NO, NO.
MS. TREFZ: THERE ARE ACTUALLY, TO BE CLEAR, FIVE REASONS WHY WE THINK THEY ARE RELEVANT. BUT WITH RESPECT TO STATE OF MIND, MS. HOLMES IS AN INVENTOR ON MANY OF THESE PATENTS. SHE OVERSAW THE PATENT -- SHE OVERSAW THE INVENTION PROCESS AT THERANOS IN SOME WAY. WE BELIEVE THAT THERE HAS BEEN KIND OF EVIDENCE, I THINK FROM MR. EDLIN, THAT SHE WAS INVOLVED MORE IN THE TECHNOLOGY. SO THE IDEA OF, THE IDEA THAT SHE -- THAT THESE PATENTS WERE PATENTS APPLIED FOR BY THERANOS, MANY OF WHICH SHE'S THE INVENTOR ON, AND WHICH I THINK IN FACT DO COVER THE TECHNOLOGY THAT THERANOS DEVELOPED AND THE ALLEGATIONS IN THE CASE ARE ABOUT THE TECH -- ARE NOT JUST ABOUT THE DEVICE ITSELF, BUT --
JUDGE DAVILA: WHAT IS THE STATE OF MIND? IS IT THAT SHE'S SMART?
MS. TREFZ: NO, YOUR HONOR.
JUDGE DAVILA: WHAT IS THE STATE OF MIND?
MS. TREFZ: WELL, IT'S THAT SHE UNDERSTOOD THAT THE COMPANY HAD, IN FACT, DEVELOPED NOVEL TECHNOLOGY, WHICH IS ONE OF THE THINGS THAT YOU DO WHEN YOU APPLY FOR -- IF A PATENT IS ISSUED, IT HAS TO BE NOVEL. AND, YOU KNOW, THERE IS A WHOLE PROCESS. WE'RE NOT INTENDING TO GO INTO THE WHOLE PROCESS. WE'RE NOT TRYING TO MAKE THIS A PATENT CASE.
JUDGE DAVILA: I'M SORRY. AND AGAIN, I DON'T MEAN TO BE THICK ON THIS, BUT STATE OF MIND AS TO AN ISSUE OF?
MS. TREFZ: OF HER UNDERSTANDING OF THE STATE OF THERANOS'S TECHNOLOGY THROUGHOUT THE CONSPIRACY PERIOD.
JUDGE DAVILA: AT THE TIME THE PATENT WAS ISSUED?
MS. TREFZ: AT THE TIME IT WAS APPLIED FOR IS WHAT I BELIEVE WE'RE -- AND THEN ISSUED. MANY OF THESE WERE ISSUED DURING THE ALLEGED CONSPIRACY AS WELL.
JUDGE DAVILA: SO IT GOES TO HER KNOWLEDGE OF THE TECHNOLOGY?
MS. TREFZ: YES, HER UNDERSTANDING OF THE TECHNOLOGY AND THAT IT WAS NOVEL. AND THERE ARE OTHER REASONS THAT IT'S ADMISSIBLE THAT I'M HAPPY TO EXPLAIN. I DON'T WANT US TO GET TOO FOCUSSED ON ONE REASON.
JUDGE DAVILA: SURE.
MS. TREFZ: THE SECOND IS THAT -- I THINK KIND OF RELATED IS THAT THE PATENTS REFLECT RESEARCH AND DEVELOPMENT WORK, AND FOR THAT REASON THEY'RE RELEVANT TO ALLEGATIONS OF FALSITY. THEY MAKE IT MORE LIKELY THAT HER STATEMENTS CONCERNING THE CAPABILITY OF THE TECHNOLOGIES WERE TRUE. NOW, AGAIN, WE'RE NOT INTENDING TO MAKE THIS -- TO GO INTO ALL OF THE DETAILS OF THE PATENTS THROUGH THIS WITNESS, BUT IT'S POSSIBLE THAT, YOU KNOW, THE STATE OF THE TECHNOLOGY MAY COME IN IN OTHER AREAS OF THE CASE.
JUDGE DAVILA: IS SHE THE INVENTOR IN EACH OF THESE PATENTS?
MS. TREFZ: THERE ARE MANY INVENTORS ON THE PATENTS. SHE'S AN INVENTOR ON MANY, BUT NOT ALL OF THEM. AND THERE ARE THREE REASONS I JUST WANTED TO IDENTIFY. THIRD IS THAT THERANOS'S PATENTS AND IP RELATES TO THE MATERIALITY OF THE INVESTOR CONSPIRACY. MULTIPLE INVESTOR WITNESSES HAVE TESTIFIED THAT THEY WERE SENT PATENT PORTFOLIOS BY THERANOS AND THAT THERANOS'S IP WAS IMPORTANT TO PROSPECTIVE INVESTORS. THAT INCLUDES MR. MOSLEY. AND INVESTOR -- AND MR. MOSLEY ALSO, YOU KNOW, IDENTIFIED THAT HE VIEWED PATENT APPLICATIONS, NOT THE FINALIZED PATENTS, AS IMPORTANT. HE TESTIFIED TO THAT. FOURTH, THE GOVERNMENT PUT AT ISSUE I THINK PROPRIETARY PATENTED TECHNOLOGY BY INTRODUCING EXHIBITS THROUGH WITNESSES, INCLUDING, INCLUDING THE PRESENTATION THAT WAS ADMITTED THROUGH MS. PETERSON. THAT'S EXHIBIT 4858 AND THE TRANSCRIPT AT 4664. AND SO WE BELIEVE THAT IT'S ESSENTIAL TO, YOU KNOW, MAKE SURE THAT THERE'S NO MISIMPRESSION THAT THIS WAS SOME SORT OF MISREPRESENTATION THAT SHE SAID THERE WERE A LOT OF PATENTS BECAUSE IT'S HIGHLIGHTED, BECAUSE IT'S INCLUDED IN THESE PRESENTATIONS THAT THE GOVERNMENT, I UNDERSTAND, WILL LIKELY ARGUE, YOU KNOW, CONTAINED MISLEADING STATEMENTS. AND THEN --
JUDGE DAVILA: SO WHAT IS THE RELEVANCE OF THE PATENTS TO THAT? TO SHOW THAT THE PATENTS ACTUALLY EXISTED?
MS. TREFZ: CORRECT, THAT THEY WERE APPLIED FOR AND ISSUED, AND THAT IT'S FROM THE FACE OF THE PATENT. I MEAN, THE INVESTOR MATERIALS INCLUDE A THICK SET OF PATENT, OF INTELLECTUAL PROPERTY DISCLOSURES.
JUDGE DAVILA: IS THAT IN DISPUTE THAT THEY'RE PATENTS?
MR. LEACH: NO, YOUR HONOR.
JUDGE DAVILA: IT'S NOT IN DISPUTE. THEY'RE NOT GOING TO SAY, OH, NO, THERE WEREN'T PATENTS ISSUED. THEY SAID IN THEIR CASE THAT THERE WERE PATENTS. I GUESS THERE IS EVIDENCE THAT INVESTORS RECEIVED THE PATENTS, AND YOU WANT TO SHOW THAT, YEAH, THE PATENTS ACTUALLY EXIST.
MS. TREFZ: EXACTLY, YOUR HONOR. AND I THINK THAT'S IMPORTANT TO JUST PROVIDE THE CONTEXT FOR THE KINDS OF INFORMATION THAT WAS BEING PROVIDED FOR INVESTORS. AND, YOU KNOW, I DON'T -- I WOULD DISPUTE THE, THE CONCEPT THAT THE DEFENSE IS ONLY REQUIRED TO KIND OF TAKE AT ISSUE IN ITS CASE, YOU KNOW, PURELY WHAT THE GOVERNMENT HAS KIND OF IDENTIFIED AS, YOU KNOW, AND EXPLICITLY SUGGESTED WAS A REPRESENTATION. SO I -- MY HOPE IS THAT THE -- YOU KNOW, IF WE CAN LIMIT THIS EXHIBIT TO 2016, THE PATENTS APPLIED FOR THROUGH 2016, THAT WE WILL RESOLVE THE GOVERNMENT'S CONCERN. AND, AND --
JUDGE DAVILA: ARE ALL OF THESE PATENTS RELATED TO THE TECHNOLOGY OF THE MACHINES, OR ARE THERE PATENTS THAT ARE HERE IN THESE CHARTS THAT ARE OUTSIDE OF THAT?
MS. TREFZ: THERE ARE MULTIPLE, OBVIOUSLY MULTIPLE INVENTIONS USUALLY THAT GO INTO A MACHINE LIKE THIS. SO I WOULD SAY MANY OF THEM ARE RELATED TO THE SYSTEMS THAT THERANOS DEVELOPED, INCLUDING THE DIFFERENT PIECES OF THOSE SYSTEMS. I THINK IF YOU LOOK AT THE TITLES OF THE PATENTS, WHICH ARE -- THE FULL LIST IS AT 10691 IN THE COURT'S BINDER, YOU CAN SEE A NUMBER OF DIFFERENT --
JUDGE DAVILA: SO HOW MANY OF THESE ARE SOFTWARE PATENTS?
MS. TREFZ: THERE ARE, THERE ARE PROBABLY A FEW OF THEM. I'M NOT SURE OFF THE TOP OF MY HEAD.
JUDGE DAVILA: DOES THAT MATTER? SHOULD WE GO INTO THAT?
MS. TREFZ: WELL, I DO BELIEVE THAT SOFTWARE WAS PART OF THE THERANOS TECHNOLOGY, AND I THINK THAT THAT'S AT ISSUE IN THE CASE.
JUDGE DAVILA: AND I ASK THAT BECAUSE, YOU KNOW, IT'S A RABBIT HOLE, ISN'T IT? DO WE WANT TO GO DOWN EVERY PATENT AND ASK, WHAT WAS THIS PATENT FOR? THIS WAS A SYSTEMS PATENT, SOFTWARE PATENT TO ALLOW FOR THE MACHINES TO TALK TO THEMSELVES WITH GREATER EFFICIENCY. THIS IS A PATENT FOR A KNOB. THIS IS A PATENT FOR A WIRE THAT CONNECTS THE CIRCUIT BOARDS. DO WE -- ARE WE GOING TO GET GRANULAR ON THIS?
MS. TREFZ: I WAS NOT INTENDING TO GO THROUGH THIS WITH THIS WITNESS, YOUR HONOR. HOWEVER, I WOULD JUST NOTE THAT THE PATENTS FOR SOFTWARE FOR THE MACHINES TO BE ABLE TO TALK TO EACH OTHER IS ACTUALLY A CORE PART OF THE THERANOS TECHNOLOGY, AND SO I WOULDN'T WANT, I WOULDN'T WANT TO LEAVE THE MISIMPRESSION THAT IT IS NOT. IT IS.
JUDGE DAVILA: WELL, I UNDERSTAND THE IMPORTANCE OF THIS.
MS. TREFZ: OKAY.
JUDGE DAVILA: I JUST -- I DON'T KNOW WHAT THE VALUE OF THIS IS. YOU TELL ME IT'S INCREDIBLY VALUABLE TO YOUR CASE, AND I'LL TAKE YOU AT YOUR WORD. SO WE'RE GOING TO LIMIT IT TO THE 2016 TIME PERIOD.
MR. LEACH: THAT WAS ALL MY CONCERN, YOUR HONOR. I THINK YOU'RE HITTING ON A LOT OF THE RELEVANCE POINTS THAT I SEE WITH THIS AND THE LIMIT OF THIS EVIDENCE, BUT THE NATURE OF MY 403 OBJECTION WAS REALLY THIS BECOMES A MINI TRIAL ABOUT LATER YEARS THAT I DON'T THINK IS APPROPRIATE.
JUDGE DAVILA: OKAY. WELL, AT A MINIMUM -- AND THANK YOU, MS. TREFZ. SO YOU'LL REDO YOUR CHARTS AND YOU'LL TELL YOUR WITNESS AND YOU'RE NOT GOING TO ASK YOUR WITNESS QUESTIONS ABOUT THE 2017 PATENTS.
MS. TREFZ: THAT'S CORRECT, YOUR HONOR. I WILL NEED A MOMENT TO ADDRESS THAT.
JUDGE DAVILA: RIGHT.
MS. TREFZ: IT WILL NOT BE A PROBLEM. THESE ARE CHARTS RUN.
JUDGE DAVILA: WE'RE NOT GOING TO HAVE MARKMAN HEARINGS THIS MORNING ABOUT ANY OF THESE PATENTS.
MS. TREFZ: I HOPE NOT.
JUDGE DAVILA: NO, WE'RE NOT.
(LAUGHTER.)
MS. TREFZ: I KNOW. I KNOW. I AM NOT PREPARED TO DO SO AND I WAS NOT INTENDING TO DO SO.
JUDGE DAVILA: OKAY. FAIR ENOUGH.
MS. TREFZ: THANK YOU, YOUR HONOR.
JUDGE DAVILA: IS THAT IT?
MR. LEACH: THAT WAS IT, YOUR HONOR.
JUDGE DAVILA: WE WERE JUST GETTING STARTED TALKING ABOUT PATENTS. ALL RIGHT. SO IS THIS YOUR FIRST WITNESS THEN? HE'S A SUMMARY WITNESS?
MS. TREFZ: YES, HE IS OUR FIRST WITNESS. I THINK IT WOULD -- IT'S NOT GOING TO TAKE US A LONG TIME TO ADDRESS THIS PARTICULAR ISSUE. YOU KNOW, THERE ARE A LOT OF NUMBERS IN THIS BINDER, BUT AS THE COURT KNOWS, WE DON'T ALWAYS USE THE NUMBERS IN THE BINDER AND SOME OF THEM WILL --
JUDGE DAVILA: WHAT ABOUT THIS? ARE WE GOING TO GO THROUGH THIS (INDICATING)?
MS. TREFZ: IF YOU WANT TO. I'M JOKING, YOUR HONOR. EXCUSE ME. WE'RE NOT INTENDING TO GO THROUGH THAT EXHIBIT. HOWEVER, WE DO HAVE IT IN THE EVENT THAT --
JUDGE DAVILA: AN INTEREST ARISES SOMEHOW IN THE CASE?
MS. TREFZ: NO, YOUR HONOR. BUT THERE IS A SUMMARY BASED ON THAT EXHIBIT.
JUDGE DAVILA: OKAY.
MS. TREFZ: AND WE DO WANT TO HAVE THE OPPORTUNITY FOR THE GOVERNMENT OR THE WITNESS TO BE ABLE TO LOOK AT THAT DOCUMENT IF THEY NEED TO.
JUDGE DAVILA: ALL RIGHT. THANK YOU. AND JUST TIMING WISE, THIS WITNESS WILL TESTIFY, THIS SUMMARY WITNESS. WHERE DO YOU THINK WE'LL BE AT THE CONCLUSION -- IN OUR DAY AT THE CONCLUSION OF THIS WITNESS'S DIRECT?
MS. TREFZ: I ANTICIPATE THAT THIS DIRECT WILL TAKE AN HOUR OR LESS.
JUDGE DAVILA: OKAY.
MS. TREFZ: AS THE COURT KNOWS, IT'S A LITTLE DIFFICULT TO PLAN EXACTLY, BUT THAT IS -- BASED ON OUR UNDERSTANDING, THAT IS ABOUT HOW LONG IT WOULD TAKE.
JUDGE DAVILA: OKAY. OKAY. AND CROSS IS PROBABLY GOING TO BE -- ARE WE GOING TO FLIP THEN? WILL YOU HAVE SIX AND A HALF HOURS OF CROSS?
MR. LEACH: I ASPIRE TO BE SHORTER THAN THE DIRECT, AND SIGNIFICANTLY SHORTER, BUT I'M NOT ENTIRELY SURE WHERE IT'S GOING.
JUDGE DAVILA: AND THEN YOUR NEXT WITNESS WILL BE THE NEXT WITNESS THAT WE SPOKE ABOUT THIS MORNING. SHOULD WE TALK MORE ABOUT THAT THEN NOW, OR SHOULD WE DO THAT AT A BREAK? WHAT ARE YOUR THOUGHTS?
MS. TREFZ: I'M HAPPY TO TALK ABOUT IT NOW. I DID GIVE MR. SCHENK THE BINDER AND I EXPLAINED TO HIM THAT WE WON'T ACTUALLY SEEK TO INTRODUCE MOST OF THE EXHIBITS, AND I EXPLAINED WHAT -- FOR SOME OF THE DEMONSTRATIVES WHAT WE INTEND TO DO WITH THAT. SO HOPEFULLY -- I DON'T KNOW IF HE'S HAD A CHANCE TO CONSIDER THAT, BUT I WANTED TO MAKE HIM AWARE.
MR. SCHENK: YES, THE DEFENSE DID DO THAT. WE MET AND CONFERRED AND I WAS SHOWN THE EXHIBITS AND HOW THEY'RE INTENDED TO BE USED, AND I'M FINE WITH PROCEEDING WITH THIS AS THE SECOND WITNESS. WE MAY HAVE RELEVANCE CONCERNS AS THE TESTIMONY COMES IN, BUT I DON'T THINK WE NEED TO ADJOURN OR DELAY.
JUDGE DAVILA: THANK YOU. AND THANK YOU FOR MEETING AND CONFERRING ON THAT. SO MUCH GETS DONE THAT WAY. I APPRECIATE IT. THANK YOU. LET ME DO TALK, BEFORE I STEP DOWN AND WE BRING OUR JURY IN, AND THIS IS SOMETHING, MR. SCHENK, YOU AND I HAD, AND MR. DOWNEY TALKED ABOUT, THIS IS THE MEDIA MOTION. I JUST WANTED TO SAY -- I'LL INVITE YOUR COLLEAGUE UP. THANK YOU, MS. TREFZ. WE HAD SOME DISCUSSION, THE THREE OF US, ABOUT TIMING OF THIS. I THINK, MR. DOWNEY, YOU SUGGESTED THAT THE COURT ISSUE ITS ORDER AT THE END OF THE GOVERNMENT'S CASE, AND PROBABLY AT THE END OF THE DAY TODAY I THINK. LET ME JUST SAY THAT WOULD BE MY INTENT. I'M WORKING ON FINALIZING THAT. IT WOULD BE MY INTENT TO INFORM THE JURY, AS I PROMISED THEM I WOULD DO, OF THE COURT'S RULING AND WHAT THE COURT'S INTENT WOULD BE ON THE RULING AND TO LET THEM KNOW THAT. AND I THINK YOUR SUGGESTION, MR. DOWNEY, TO DO IT AT THE END OF TODAY IS ONE THAT I'D LIKE TO FOLLOW.
MR. DOWNEY: WELL, I'D JUST BE HAPPY FOR IT TO HAPPEN NOW AND WOULD PREFER IT TO HAPPEN IN BETWEEN THE CASES, BUT IT DOESN'T SOUND LIKE THE JUDGE IS READY, SO -- THE COURT IS READY QUITE YET, SO I THINK WITH THE END OF THE DAY YOU'LL DO SO.
JUDGE DAVILA: YES.
MR. DOWNEY: AND I DON'T KNOW IF YOU WANT TO GIVE US A HINT AS TO WHAT IS IN IT, BUT --
(LAUGHTER.)
JUDGE DAVILA: IS THAT STEAL OR IS IT STAY?
MR. DOWNEY: AS THE COURT KNOWS, OUR POSITION IS THAT THERE'S A SIGNIFICANT FIFTH AND SIXTH AMENDMENT ISSUE AT STAKE, AND WE PREFER THAT THE JURY BE TOLD OF A PARTICULAR RESULT, BUT WE'VE ALREADY DISCUSSED THAT.
JUDGE DAVILA: RIGHT. AND I WILL, I WILL. I TOLD THEM I WOULD DO THAT PRIOR TO THE COURT ISSUING ITS ORDER, AND I INTEND TO TELL THEM THAT. AND I WANT TO GET IT FILED CONCURRENT WITH ME INFORMING THEN -- AND YOU'VE SHARED WITH ME BOTH OF YOUR POSITIONS. I DON'T THINK YOU'LL BE DISAPPOINTED. IS THAT INFORMATIVE?
MR. DOWNEY: THANK YOU, YOUR HONOR.
JUDGE DAVILA: OKAY. THANK YOU. ANYTHING ELSE BEFORE WE GET STARTED?
MR. SCHENK: NO. THANK YOU, YOUR HONOR.
JUDGE DAVILA: OKAY. IS MR. CLINE HERE NOW?
MR. CLEARY: YES.
JUDGE DAVILA: YEAH, DID MR. CLINE SHARE WITH YOU THE COURT'S COMMENTS?
MR. CLEARY: HE DID CONVEY THOSE COMMENTS AND THE COURT WAS MOST GENEROUS.
JUDGE DAVILA: WELL, I JUST WANTED TO MAKE SURE. I DIDN'T HAVE ANY DOUBT IN MR. CLINE'S ABILITY TO DO THAT. HE HAD A LOT ON HIS MIND, AND I JUST WANTED TO MAKE SURE THAT HE SHARED THAT WITH YOU. SO THANK YOU, SIR. THANK YOU. IT'S NICE TO SEE YOU.
MR. CLEARY: THANK YOU, YOUR HONOR.
JUDGE DAVILA: YOU'RE WELCOME. THANK YOU. OKAY. I'LL STEP DOWN AND THEN WE'LL BRING IN OUR JURY.
COURT CLERK: COURT IS IN RECESS.
(RECESS FROM 11:32 A.M. UNTIL 11:52 A.M.)
(JURY IN AT 11:53 A.M.)
JUDGE DAVILA: ALL RIGHT. WE'RE BACK ON THE RECORD. ALL PARTIES PREVIOUSLY PRESENT ARE PRESENT ONCE AGAIN. COUNSEL ARE PRESENT. MS. HOLMES IS PRESENT. LADIES AND GENTLEMEN, THAT BREAK WAS A LITTLE LONGER THAN ANTICIPATED. I WANT YOU TO KNOW THAT WE DID USE THE TIME. I NEEDED TO ASK THESE LAWYERS SOME QUESTIONS AND I NEEDED SOME HELP ON THESE ISSUES, AND SOMETIMES THAT TAKES A LITTLE LONGER. SO YOU SHOULD KNOW THAT BY SPENDING THE TIME THAT WE DID DURING THIS BREAK, IT DID INCREASE THE EFFICIENCY OF THE TRIAL. WE WERE ABLE TO NARROW DOWN SOME ISSUES, SO I THINK THE EVIDENCE WILL BE ABLE TO COME IN, AT LEAST INITIALLY, WITH GREATER EFFICIENCY. WHICH IS TO SAY THAT WE SAVED SOME TIME DOING -- SPENDING THIS TIME TOGETHER. SO THANK YOU FOR THAT. THE GOVERNMENT HAS RESTED. I'VE TOLD YOU THAT, LADIES AND GENTLEMEN, WHICH IS TO SAY THAT THE GOVERNMENT HAS PRESENTED ALL OF THEIR EVIDENCE IN THEIR CASE-IN-CHIEF THAT THEY FEEL THAT THEY'RE GOING TO PRESENT. AND NOW I TURN TO THE DEFENSE. DOES THE DEFENSE HAVE A WITNESS TO CALL?
MS. TREFZ: WE DO, YOUR HONOR. THE DEFENSE CALLS TRENT MIDDLETON.
JUDGE DAVILA: ALL RIGHT. THANK YOU. IF YOU WOULD COME FORWARD AND FACE OUR COURTROOM DEPUTY WHILE YOU RAISE YOUR RIGHT HAND, SHE HAS A QUESTION FOR YOU.
(DEFENDANT'S WITNESS, TRENT MIDDLETON, WAS SWORN.)
TRENT MIDDLETON: YES.
JUDGE DAVILA: PLEASE HAVE A SEAT THERE, SIR. FEEL FREE TO MAKE YOURSELF COMFORTABLE, ADJUST THAT CHAIR AND MICROPHONE AS YOU NEED. WHEN YOU ARE COMFORTABLE, WOULD YOU PLEASE STATE YOUR NAME AND THEN SPELL IT, PLEASE.
TRENT MIDDLETON: SURE. MY NAME IS TRENT MIDDLETON. T-R-E-N-T. M-I-D-D-L-E-T-O-N.
JUDGE DAVILA: THANK YOU. COUNSEL.