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Elizabeth Holmes- Case Archive
Federal Criminal Trialtrial-daytrial-dayRobert S. LeachKevin M. DowneyElizabeth A. HolmescrossredirectDay 42 - December 7, 2021The court considered late-produced documents and unresolved foundation issues before Holmes completed another extensive segment of cross-examination. Redirect then addressed laboratory oversight, modified analyzers, partner reports, finances, and trade-secret restrictions before recessing unfinished.
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Day 42 - December 7, 2021

Late-Disclosure Disputes, Holmes Cross-Examination, and Redirect

Judge Edward J. Davila
3Proceedings
2Pages
1Witnesses
3,151Lines
Day 42 of 51
Appearing:
Robert S. Leach Kevin M. Downey Elizabeth A. Holmes

The court considered late-produced documents and unresolved foundation issues before Holmes completed another extensive segment of cross-examination. Redirect then addressed laboratory oversight, modified analyzers, partner reports, finances, and trade-secret restrictions before recessing unfinished.

Full day summary

Before the jury entered, the government sought exclusion of documents produced during Holmes's testimony, arguing that repeated late disclosure caused unfair surprise. The defense said the GSK materials became relevant only after cross-examination raised the use of pharmaceutical-company logos. The court recognized potential unfairness but made no final ruling in the supplied record. On a renewed request to admit customer feedback reports, the court found that Holmes had not testified that she reviewed the specific documents and left open whether further foundation could be established. On continued cross-examination, Holmes confirmed that Theranos analyzers were not used for clinical care on Medevac helicopters, battlefields, or in the Middle East, while disputing that she told investors otherwise. She acknowledged Theranos's use of third-party analyzers, nondisclosure of modified machines to PFM and Walgreens, inaccuracies in statements attributed to Theranos in Roger Parloff's article, and substantial differences among revenue projections. She also addressed laboratory warnings, a special workflow for prospective investors, unfinished technology, the limits of patents as proof that an invention worked, and her awareness that the 2015 CMS inspection was going poorly. On redirect, Holmes attributed laboratory validation and remediation to laboratory leadership, operations and financial modeling to Balwani, and explained that modified commercial analyzers were needed because the 4 Series was not validated and could not handle the required volume. She testified that the board, FDA, and CMS knew about the modified systems and said trade-secret concerns limited disclosure to investors and journalists. The defense also introduced GSK materials and revisited Theranos's responses to Tyler Shultz. Redirect remained unfinished at the evening recess.

1. Late-Produced Documents and Feedback Reports Motions

Outside the jury's presence, the court reviewed the day's testimony schedule and heard disputes over late-produced GSK materials and customer feedback reports before cross-examination resumed.

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Procedural
Morning Scheduling Conference

The court reviewed the expected timing of cross-examination, redirect, and a possible additional defense witness.

Procedural
Government Motion to Exclude Late-Produced Documents
67 lines

The government sought exclusion of late-produced GSK-related documents under Rule 16, while the defense argued that cross-examination had only recently made them relevant; the court expressed fairness and evidentiary concerns but did not rule in the supplied record.

Procedural
Renewed Motion to Admit Feedback Reports

The court kept customer feedback reports out of evidence at this stage, finding no testimony that Holmes reviewed the specific documents despite the defense's renewed relevance argument.

Highlights

Government Motion to Exclude Late-Produced DocumentsconfrontationThe court pressed the defense on the government's asserted lack of prior access, distinguishing the defense's receipt of the documents from the government's unsuccessful efforts to obtain them and recognizing a potential unfairness in production immediately before anticipated testimony.Government Motion to Exclude Late-Produced Documents“BUT HERE WE ARE. THEY DIDN'T GET IT. YOU DID. AND THEY'RE SAYING, "WE DIDN'T GET IT AND NOW WE GET IT THE NIGHT BEFORE POTENTIAL TESTIMONY, AND THERE IS A CERTAIN UNFAIRNESS IN THAT."”— Edward J. DavilaExpresses the court's concern about the timing and asymmetry of access without resolving the motion.Renewed Motion to Admit Feedback ReportsrulingThe court stated that the specific documents had not come into evidence, while leaving open whether additional testimony might establish admissibility.

2. Elizabeth A. Holmes — Cross/Redirect (Continued)

Elizabeth Holmes completed resumed cross-examination on Theranos's military, laboratory, investor, financial, regulatory, and technology claims before the defense began redirect. Redirect continued through the remainder of the day and was unfinished at the evening recess.

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Cross
Elizabeth A. HolmesRobert S. Leach
2241 lines

Holmes acknowledged that Theranos devices were not clinically deployed with the military, that the company used third-party analyzers, and that key disclosures to investors, Walgreens, and Roger Parloff omitted or misstated aspects of actual laboratory operations. The prosecution also confronted her with divergent revenue projections, laboratory warnings, prototype limitations, special investor-visit workflows, and her knowledge of the troubled 2015 CMS inspection.

Redirect
Elizabeth A. HolmesKevin M. Downey
777 lines

Holmes used redirect to explain Theranos's laboratory oversight, modified analyzers, financial projections, partner reports, trade-secret restrictions, and responses to Tyler Shultz. She attributed operational and technical work to others while acknowledging authority over investor presentations and explaining nondisclosure of modified systems as trade-secret protection.

Highlights

Elizabeth A. Holmes — CrossadmissionHolmes confirmed that Theranos analyzers were not used for clinical care on Medevac helicopters, deployed on battlefields, or sent to Afghanistan, Iraq, or the Middle East. She maintained that Theranos pursued possible future military use and disputed telling investors otherwise.Elizabeth A. Holmes — Cross“CORRECT. WE BOUGHT ANALYZERS FROM THIRD PARTIES.”— Elizabeth A. HolmesHolmes directly acknowledged Theranos's purchase of third-party analyzers, a central subject of the prosecution's disclosure questioning.Elizabeth A. Holmes — CrossconfrontationThe prosecution compared a $990 million 2015 revenue projection associated with RDV to an Aranca projection of $113 million and a later revision to $53 million. Holmes acknowledged the figures while frequently saying she did not remember the underlying discussions.Elizabeth A. Holmes — CrossadmissionHolmes acknowledged that Theranos did not tell PFM it was modifying third-party machines, that the PFM slide deck poorly described the asserted rollout phases, and that several statements in the Parloff article were inaccurate as applied to Theranos's actual laboratory operations.Elizabeth A. Holmes — CrossconfrontationThe prosecution confronted Holmes with future-tense, candidate, and to-be-determined language in Ian Gibbons's 2010 presentation. Holmes continued to say she understood the proposed MiniLab could ultimately perform any method, while acknowledging prototypes, proof-of-concept status, and remaining work.Elizabeth A. Holmes — Cross“THERE WAS STILL WORK TO BE DONE.”— Elizabeth A. HolmesHolmes acknowledged that the proposed 4 Series remained unfinished despite maintaining that the underlying work supported her belief in its eventual capabilities.Elizabeth A. Holmes — CrossimpeachmentHolmes acknowledged receiving warnings during the 2015 CMS inspection that validation reports were poor and attending the exit interview, but she did not recall being told that inspectors were considering immediate jeopardy and denied minimizing the findings to Lisa Peterson.Elizabeth A. Holmes — RedirectadmissionThe defense addressed modified commercial analyzers and regulatory disclosure. Holmes explained the capacity and validation reasons for using them, initially answered that Theranos had not shared their use, then corrected herself and said the board, FDA, and CMS knew.Elizabeth A. Holmes — Redirecttestimony highlightHolmes explained trade-secret concerns as her reason for limiting disclosure of modified commercial systems and described policies, agreements, and enforcement steps she believed were necessary to preserve company value.Elizabeth A. Holmes — Redirect“MY CONCERN WAS THAT IF THERE WAS A PUBLIC DISCLOSURE OF THIS INFORMATION, WE WOULD LOSE THE TRADE SECRET PROTECTION THAT WE HAD WORKED SO HARD TO SECURE AND PROTECT FOR YEARS PRIOR TO THAT POINT.”— Elizabeth A. HolmesHolmes stated the rationale she offered for restricting public disclosure when questioned about Theranos's clinical laboratory.
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