Late-Produced Documents and Feedback Reports Motions

MS. VOLKAR: SO, YOUR HONOR, MR. LEACH HAS INFORMED THE COURT A COUPLE OF TIMES THROUGHOUT THE DEFENDANT'S TESTIMONY THAT THE GOVERNMENT HAS RECEIVED FOR THE FIRST TIME DURING THE DEFENDANT'S TESTIMONY SEVERAL DOCUMENTS PRODUCED WITH A HOLMES BATES STAMP IN THE BOTTOM RIGHT-HAND CORNER AS A PREFIX. I THINK THE KEY POINT HERE IS THAT THERE'S BEEN A LOT OF DISCOVERY IN THIS CASE, I BELIEVE IT'S SOMEWHERE IN THE NEIGHBORHOOD OF 2 MILLION DOCUMENTS, THAT BOTH SIDES HAVE PRODUCED TO ONE ANOTHER GOING INTO THIS TRIAL. NEVERTHELESS, FOR THE FIRST TIME IN THE LAST THREE WEEKS -- AND AGAIN, THIS IS THE THIRD TIME IN AS MANY WEEKS -- WE HAVE RECEIVED DOCUMENTS THAT HAVE NEVER BEEN PRODUCED BEFORE, AND THEREFORE, NEVER SEEN. THERE'S NO WAY THAT THE GOVERNMENT COULD KNOW OF THEIR EXISTENCE AT WHAT I WOULD CALL CRITICAL JUNCTURES IN THE CASE. FIRST IS AFTER THE DEFENDANT TAKES THE STAND, THEY PRODUCE SEVERAL DOCUMENTS, INCLUDING COMMUNICATIONS WITH PHARMA COMPANIES.

THESE ARE DOCUMENTS FROM EMAILS, THERANOS EMAILS FROM BEFORE 2010. THEN WHEN MR. LEACH BROUGHT THAT TO THE ATTENTION OF THE COURT, DEFENSE COUNSEL RESPONDED AND SAID WE'RE DOING OUR BEST. THE GOVERNMENT'S CASE JUST CLOSED. WE NEED TO LOOK AT WHAT THEY HAVE. WE'LL GIVE THEM EVERYTHING THIS WEEKEND. THEY THEN PRODUCED, I BELIEVE IT WAS LATE IN THE DAY ON SATURDAY, I THINK 20 TO 30 ADDITIONAL DOCUMENTS. MR. LEACH RAISED THAT WITH THE COURT, HAD INTENDED TO MOVE TO EXCLUDE, BUT THE WAY THE TRIAL SCHEDULE FELL, THE DIRECT TESTIMONY CONTINUED, AND THERE WAS NO OPPORTUNITY TO -- THE DOCUMENTS CAME IN BEFORE THE GOVERNMENT COULD MAKE A FORMAL MOTION. HERE WE ARE, AND THIS IS THUS THE LATE FILING, YESTERDAY AFTERNOON WE SEE -- WE RECEIVED FOUR ADDITIONAL DOCUMENTS THAT, TO THE BEST OF OUR KNOWLEDGE, WE HAVE NEVER RECEIVED BEFORE, AND THE DEFENDANT'S STATED INTENT -- THE DEFENSE COUNSEL'S STATED INTENTION TO INTRODUCE THESE DOCUMENTS.

AGAIN, I WANT TO DRAW AN IMPORTANT DISTINCTION BETWEEN DOCUMENTS THAT HAVE PREVIOUSLY BEEN PRODUCED IN DISCOVERY, BUT ARE IDENTIFIED AS AN EXHIBIT FOR THE FIRST TIME SHORTLY BEFORE A WITNESS HAS TESTIFIED. WE UNDERSTAND THAT THAT HAPPENS IN TRIAL, AND BOTH SIDES HAVE DONE THAT TO A SIGNIFICANT EXTENT IN THIS TRIAL. BUT THE PARTIES WOULD AT LEAST HAVE KNOWN OF THE EXISTENCE OF THOSE DOCUMENTS FOR THE MOST PART BEFORE THE TRIAL EVER EXISTED, AND THEY'RE JUST LEARNING THAT THOSE ARE WHAT THE PARTY INTENDS TO USE WITH THE WITNESS WHILE THEY'RE ON THE STAND. THIS IS AN ENTIRELY DIFFERENT CATEGORY WHERE THESE DOCUMENTS HAVE NEVER BEEN PRODUCED TO THE GOVERNMENT BEFORE, AND THEREFORE, THE GOVERNMENT COULD NOT HAVE ANY KNOWLEDGE OF THEIR EXISTENCE PRIOR TO YESTERDAY. AND AGAIN, THE REASON WHY THIS IS SO CRITICALLY IMPORTANT IS THAT WE'VE HEARD MS. HOLMES ON THE STAND TALK ABOUT HER VERSION. SHE STATED THAT SHE WAS THE ONE WHO ADDED THE LOGO TO THE PHARMACEUTICAL COMPANY DOCUMENTS.

BUT OVER THE COURSE OF THE LAST THREE WEEKS, ALL OF A SUDDEN I THINK, IF MY COUNT IS CORRECT, FIVE NEW DOCUMENTS THAT NEVER PREVIOUSLY WERE PRODUCED AND THEREFORE, FROM THE GOVERNMENT'S PERSPECTIVE, COULD NOT HAVE KNOWN EXISTED, HAVE ALL OF A SUDDEN BEEN PROVIDED, ADDING MORE CONTEXT AROUND THESE LOGOS BEING ADDED TO THE PHARMACEUTICAL COMPANY REPORTS, AND ANOTHER ONE WITH GSK WAS JUST GIVEN TO THE GOVERNMENT YESTERDAY. AND THE REASON WHY THIS IS IMPORTANT TO BRING UP NOW AND THE REASON WHY THE GOVERNMENT IS ASKING YOUR HONOR TO EXCLUDE THESE DOCUMENTS IS BECAUSE IF THE PRETRIAL DISCOVERY RULES -- IF RULE 16 MEANS ANYTHING, IT MEANS THAT THESE DOCUMENTS CANNOT COME IN AT THIS POINT IN TIME. AND THAT IS BECAUSE THE FEDERAL RULES DON'T ALLOW FOR A TRIAL BY AMBUSH SYSTEM. WE HAVE ACTUALLY HEARD SIMILAR ARGUMENTS FROM THE DEFENSE RAISING RULE 16 AND THE FAIRNESS THAT IT REQUIRES AND A FAIR OPPORTUNITY FOR BOTH SIDES TO UNDERSTAND WHAT THE FACTS IN THE CASE MAY BE.

I CAN THINK OF A FEW HYPOTHETICALS WHERE, IF THE GOVERNMENT WERE TO FIND AN INCREDIBLY HELPFUL DOCUMENT THAT IT HAD NEVER PRODUCED BEFORE AND GAVE IT TO THE DEFENSE AT THIS POINT AND STAGE IN THE CASE AND TRIED TO USE IT IN THE CROSS-EXAMINATION, I THINK THEY WOULD BE SCREAMING AT THE TOP OF THEIR LUNGS THAT IT'S ENTIRELY UNFAIR. AND WHILE I DON'T MEAN TO OVERSTATE THE IMPORTANCE OF THESE DOCUMENTS, I THINK AT THE END OF THE DAY THEY COULD BE DEALT WITH. THE KEY ISSUE HERE IS, WHAT DOES RULE 16 MEAN? WHY DO THE RULES OF DISCOVERY EXIST AND GOVERN TRIALS?

MS. VOLKAR: YOUR HONOR, MR. DOWNEY'S COMMENTS ARE ACTUALLY MORE CONCERNING TO ME, DEEPLY CONCERNING, AND THAT IS BECAUSE WHAT THE GOVERNMENT SOUGHT THROUGH VARIOUS SUBPOENAS RELIED ON THE COMPANIES WHO WERE THE CUSTODIANS OF THE DOCUMENTS TO PROVIDE IT TO THE GOVERNMENT. THE GOVERNMENT EXPECTS THOSE COMPANIES TO FULFILL THEIR DISCOVERY OBLIGATIONS AND COMPLY WITH SUBPOENAS IN GOOD FAITH. THERE WERE MULTIPLE SUBPOENAS TO THERANOS. THESE ARE THERANOS DOCUMENTS. MANY OF THOSE SUBPOENAS WERE SENT WHEN DEFENDANT WAS STILL IN CHARGE OF THERANOS OR THE CHAIRMAN OF THE BOARD OF THERANOS. WHAT LAWYERS, EITHER ON THE COMPANY'S BEHALF OR HER OWN, DETERMINED TO PRODUCE TO THE GOVERNMENT, THE GOVERNMENT CANNOT CONTROL THAT. THE GOVERNMENT CAN ONLY ASK FOR WHAT DOCUMENTS IT BELIEVES EXISTED.

AND TO SAY THAT GSK, A PHARMACEUTICAL COMPANY, ONE OF THE 10 TO 15 THAT SHE CLAIMED COMPREHENSIVELY VALIDATED IT, WAS NOT COVERED BY THOSE SUBPOENAS BECAUSE THE DEFENDANT -- OR BECAUSE THE GOVERNMENT, PARDON ME, DID NOT IN ITS OPENING STATEMENT TALK ABOUT IT, THAT'S DISINGENUOUS. THAT IS REALLY, REALLY TWISTING THE DISCOVERY STANDARD AND PROTOCOLS ON ITS HEAD. YES, THE GOVERNMENT HAS INVESTIGATED THIS CASE FOR MANY YEARS. THE LAST SEVERAL YEARS THERE'S BEEN SOME DELAY BECAUSE OF THE PANDEMIC. BUT WE'RE TALKING ABOUT DISCOVERY PROTOCOLS WHICH THE GOVERNMENT CAN MAKE REQUESTS. IT HAS TO RELY ON THE GOOD FAITH COMPLIANCE FROM THE PERSON ACTUALLY PROVIDING THOSE DOCUMENTS. THE GOVERNMENT DOES NOT CONTAIN ANY OF THESE EMAILS. THE GOVERNMENT WAS NOT THE SERVER THAT HOSTED THESE EMAILS. THAT WAS THERANOS.

AND NOW WHETHER OR NOT GSK STILL HAD THIS IN ITS RECORDS, IT'S AN EMAIL FROM 2009, OR WHETHER OR NOT GSK STILL MAINTAINED THIS, CLEARLY THERANOS DID, AND CLEARLY THE DEFENDANT HAS ACCESS TO IT. AGAIN, WE'RE GOING BACK TO MR. DOWNEY SAID TO THIS COURT ONCE BEFORE, "I'M NOT SITTING ON A TROVE OF DOCUMENTS THAT THE GOVERNMENT DOESN'T KNOW ABOUT." I NOW, STANDING BEFORE YOU, YOUR HONOR, DON'T KNOW IF THAT'S TRUE, BECAUSE THERE'S CLEARLY TONS -- I SHOULDN'T SAY TONS -- THERE'S CLEARLY AT LEAST 40 EMAILS THAT THEY HAVE DISCOVERED FROM THERANOS SERVERS THAT HAVE NEVER BEEN PROVIDED TO THE GOVERNMENT BEFORE. AND, AGAIN, THAT IS A VIOLATION OF RULE 16. AND TALKING ABOUT WHAT HAS AND HASN'T BEEN AT ISSUE IN THE TRIAL TO DATE IS VERY DIFFERENT THAN WHAT HAVE SUBPOENAS SOUGHT FOR YEARS PRIOR TO THIS CASE SUCH THAT THE PARTIES COULD PREPARE THE OPENING STATEMENT, COULD PREPARE THEIR QUESTIONING OF WITNESSES. AND THAT -- THEY'RE JUST TWO TOTALLY SEPARATE THINGS, AND THAT IS WHY THIS IS A VIOLATION OF RULE 16. I DO THINK IT IS EGREGIOUS, AND I DO THINK THESE DOCUMENTS SHOULD BE EXCLUDED.

MS. VOLKAR: WELL, I ALSO DON'T THINK THE DEFENSE'S FORMULATION OF RULE 16 IS CORRECT, TO A SURPRISE TO NO ONE. I KNOW THAT THEY WANT TO WITHHOLD EVERYTHING AND HAVE THE GOVERNMENT PRODUCE EVERYTHING. THEY ALSO DON'T BELIEVE THAT THEY HAVE TO COMPLY WITH JENCKS. WE STRONGLY DISAGREE WITH ALL OF THAT. BUT REGARDLESS, WE BELIEVE WE CAN MEET OUR BURDEN OF PROOF. WE BELIEVE WE HAVE PUT OUR BURDEN OF PROOF. WHAT I'M TALKING ABOUT IS IF THE DISCOVERY RULES MEAN ANYTHING, IT MEANS THAT TRIAL BY AMBUSH, SURPRISE DOCUMENTS WHILE SOMEBODY IS IN THE MIDDLE OF CROSS-EXAMINATION ARE FORBIDDEN. AGAIN, I DON'T UNDERSTAND MR. DOWNEY'S STATEMENTS THAT THE GOVERNMENT MUST HAVE THESE DOCUMENTS. WE DON'T HAVE THEM, AND WE RELIED ON PEOPLE ANSWERING OUR SUBPOENAS TO GIVE US WHAT THEY HAVE. SOMEHOW THEY WERE PROVIDED TO DOWNEY. AND I'LL NOTE THAT THESE DOCUMENTS WERE NOT PRODUCED WITH A GSK BATES NUMBER AS IF GSK PROVIDED THESE.

THESE ARE MOST LIKELY DOCUMENTS SITTING ON A THERANOS SERVER THAT DEFENSE PRETTY CLEARLY STILL HAS ACCESS TO SOMEHOW. I DON'T KNOW. I DON'T KNOW ANY OF THAT. THEY HAVEN'T PROVIDED ANY OF THAT INFORMATION TO US. I DON'T MEAN TO MAKE THIS A BIGGER DISCOVERY FIGHT, WHICH REALLY, IF IT WERE GOING TO BE ONE, SHOULD HAVE HAPPENED PRETRIAL, TO BE COMPLETELY FRANK. WHAT I'M ASKING IS THAT IN THE MOMENT WITH WHAT WE HAVE, THE REMEDY IS TO EXCLUDE THESE DOCUMENTS. NOW, TO SPECIFICALLY ADDRESS MR. DOWNEY'S STATEMENTS ABOUT GSK COMING UP FOR THE FIRST TIME DURING CROSS-EXAMINATION, THE GOVERNMENT -- AND IT'S MY BEST RECOUNT OF THE EVIDENCE -- THE GOVERNMENT IN ITS OPENING ARGUMENT TALKED ABOUT PLACING THE PFIZER LOGO ON THE DOCUMENTS, AND THAT CAME UP THROUGH THE PFIZER WITNESS. THERE WAS ALSO THE SCHERING-PLOUGH REPORT.

MY RECOLLECTION OF THE EVIDENCE IS THAT DEFENDANT HAS ACTUALLY RAISED THAT ISSUE MORE FREQUENTLY THAN THE GOVERNMENT HAS BY CROSS-EXAMINING MY COUNT IS FOUR DIFFERENT WITNESSES ABOUT IT, INCLUDING INVESTORS, SAYING "DIDN'T YOU SEE THE THERANOS ADDRESS AND EMAIL ADDRESS AT THE BOTTOM? WASN'T THAT A CLEAR SIGN THAT THERANOS WROTE IT, NOT THE PHARMACY?" THERE WERE SEVERAL DIFFERENT THEORIES ABOUT IT. AND THEN WHEN MS. HOLMES TOOK THE STAND, SHE ADMITTED PUTTING THE LOGOS ON THE DOCUMENTS. SO THE DEFENDANTS, IF ANYTHING, HAVE BROUGHT THIS ISSUE UP MORE FREQUENTLY THAN THE GOVERNMENT. THE GOVERNMENT IN CROSS-EXAMINATION ASKED MORE QUESTIONS ABOUT THAT TO DETERMINE THE EXTENT OF WHAT MS. HOLMES WAS ESSENTIALLY CONCEDING THAT SHE DID WITH RESPECT TO THESE LOGOS. I DON'T KNOW IF THE GOVERNMENT KNEW THAT SHE ADDED THE LOGO TO GSK BEFORE TUESDAY, AND I DON'T THINK THAT WE KNEW WHAT HER ANSWER TO THAT QUESTION WAS GOING TO BE.

WE CERTAINLY HADN'T BEEN PROVIDED THIS INFORMATION IN DISCOVERY TO THE BEST OF MY KNOWLEDGE. SO, AGAIN, THE POINT IS THAT REASONABLE QUESTIONS IN CROSS-EXAMINATION TO FOLLOW UP ON POINTS THAT WERE RAISED IN THE DIRECT IS FAIR GAME. I'M NOT ENTIRELY SEEING THE CONNECT TO HOW THAT ALL OF A SUDDEN OPENS DOORS TO DOCUMENTS THAT SHOULD HAVE BEEN PRODUCED OVER THE LAST SEVERAL YEARS AND HAVEN'T BEEN PRODUCED, BUT THE DEFENSE CLEARLY HAD IN THEIR POSSESSION. AND I WILL JUST POINT OUT FOR WHY I'M SUSPICIOUS THAT THERE IS MORE HANGING OUT THERE, THAT THERE'S A 70 PAGE GAP IN THE BATES NUMBERS OF WHAT WE WERE GIVEN YESTERDAY, AND I HAVE NO IDEA WHAT THOSE DOCUMENTS ARE, YOUR HONOR. I HAVE A FEELING THAT THEY'RE WAITING UNTIL THE END OF CROSS-EXAMINATION TO HAND THEM OVER AND THEN MAGICALLY USE THEM IN REDIRECT. LIKE, THIS IS OUR GROWING CONCERN THAT THIS IS A PATTERN, A PATTERN THAT MR. DOWNEY SAID WEEKS AGO WAS NOT GOING TO HAPPEN. IT HAS HAPPENED, AND THESE DOCUMENTS SHOULD BE EXCLUDED.

MS. VOLKAR: YOUR HONOR, I FIRST JUST WANT TO GET BACK TO THE POINT, TO SAY THAT GSK WASN'T AT ISSUE IN THIS CASE BEFORE MS. HOLMES TOOK THE STAND IS JUST NOT TRUE. THE PHARMACEUTICAL COMPANIES AND THERANOS'S RELATIONSHIP WITH THE PHARMACEUTICAL COMPANIES HAS BEEN -- IT'S IN THE INDICTMENT, AND HER STATEMENTS THAT 10 OUT OF 15 COMPREHENSIVELY VALIDATED THE TECHNOLOGY HAS BEEN ONE OF THE CORE STATEMENTS. THE PARTIES HAVE BEEN DISCUSSING THIS FOR YEARS. SO TO SAY THAT THE RELATIONSHIP WITH GSK ALL OF A SUDDEN BECAME RELEVANT TO THE DEFENSE ONCE THE DEFENDANT TESTIFIED BECAUSE IT WAS ONE OF THE THREE REPORTS SHE SENT TO WALGREENS, THAT'S JUST NOT TRUE, YOUR HONOR. SO GOING TO THE EVIDENTIARY POINTS FOR EXHIBIT 4, FIRST OF ALL, THE DOCUMENT DOES NOT PROVE THE VERSION OF THE EVENTS THAT THE DEFENSE WANTS IT TO BECAUSE IT DOESN'T IN ANY WAY, SHAPE, OR FORM SHOW GSK VALIDATING OR RESPONDING AND SAYING, YES, YOU CAN USE OUR LOGO. IT DOESN'T CHANGE MY RECOLLECTION OF THE TESTIMONY, WHICH WAS THAT MS.

HOLMES WASN'T SURE IF GSK EVER RESPONDED OR SAID THAT THERANOS COULD PROVIDE THIS OUTSIDE OF GSK. AND I BELIEVE THAT WAS ONE OF THE PIECES OF TESTIMONY WAS IN THE CONTRACT, WAS THIS MEANT TO BE AN INTERNAL TO GSK ONLY DOCUMENT AND NOT MEANT TO BE PROVIDED OUTSIDE OF GSK? SO THIS DOES NOT ANSWER THAT. THIS DOES NOT IN ANY WAY, SHAPE, OR FORM GIVE GSK AUTHORIZING THE USE OF ITS LOGO OR THERANOS SENDING IT TO OUTSIDE PARTIES. THIS IS WHO I BELIEVE MS. HOLMES TESTIFIED HER ASSISTANT AT THE TIME SENDING A DOCUMENT PURPORTEDLY ON DEFENDANT'S BEHALF WITH THE GSK REPORT AND THE LOGO. AND AGAIN, I GO BACK TO WHY I'M MAKING SUCH A BIG DEAL ABOUT RULE 16 AND THE DISCOVERY OBLIGATIONS IS WE, THE GOVERNMENT, DON'T KNOW IF THERE'S A DOCUMENT OUT THERE THAT EXISTS THAT IS GSK RESPONDING TO THIS SAYING, "THANK YOU, PLEASE KEEP THIS CONFIDENTIAL AND DON'T SHARE WITH ANYBODY." THAT WOULD BE CRITICAL. AND WE DON'T KNOW IF THAT DOCUMENT EXISTS.

SO I GO BACK TO THIS BOTH, IT DOESN'T PROVE WHAT THEY THINK IT DOES OR WHAT THEY'RE ASSERTING IT DOES, AND THEY CAN'T GET IT IN. IT'S HEARSAY WITHIN HEARSAY. MS. BALKENHOL IS NOT HERE TO TESTIFY AND PUT THIS FORWARD. IT'S NOT A BUSINESS RECORD AS WE'VE BEEN TALKING ABOUT MANY TIMES WITH YOUR HONOR THROUGHOUT THIS CASE. IT'S NOT EVEN AN INTERNAL THERANOS EMAIL. IT'S AN EMAIL FROM MS. HOLMES'S THEN ASSISTANT TO SOMEONE AT A PHARMACEUTICAL COMPANY. THERE'S NO WITNESS HERE TO SPONSOR IT. THERE'S NO ONE WITH PERSONAL KNOWLEDGE ABOUT THIS, AND IT'S ALSO PURPORTING TO RECOUNT SOMETHING THAT THE DEFENDANT SAID. IT'S HEARSAY WITHIN HEARSAY, AND NO ONE CAN GET PAST THE FIRST LEVEL.

MS. VOLKAR: YOUR HONOR, IF I MAY BE HEARD? WE HAVEN'T HEARD ANYTHING THIS MORNING THAT IS DIFFERENT THAN WHAT WE'VE HEARD THE PRIOR TWO TIMES THAT MY COLLEAGUE, MR. BOSTIC, WAS UP HERE ARGUING THIS EXACT SAME MOTION. THERE'S NOTHING TO DISTURB THE COURT'S RULING. YOUR HONOR CHARACTERIZED THE TESTIMONY THAT THEY CITED, MR. CLEARY QUOTED IT, AND IT EXACTLY COINCIDED WITH WHAT YOUR HONOR SAID. THEY ASKED ABOUT WHETHER OR NOT MR. BALWANI TOLD HER ABOUT FINGERSTICK, AND HE REPEATEDLY DID IN TEXT MESSAGES. THAT DOESN'T ALTER THE CORE PROBLEMS WITH ADMITTING THIS TESTIMONY. FIRST, THERE'S THE FOUNDATIONAL ISSUE, WHICH YOUR HONOR HAS NOTED, AND THEY HAVE ADMITTED THAT THEY HAVEN'T SOLVED THAT ISSUE. NOW, MAYBE SHE CAN ON REDIRECT, BUT THAT'S ONLY THE FIRST STEP. THEN THERE'S THE RELEVANCE PROBLEM. THEN THERE'S THE 403 PROBLEM.

AND THEY WANT TO JUMP OVER AND SKIP THE RELEVANCE PROBLEMS AND TALK ABOUT 403 AND MENTAL STATE, BUT I WANT TO PAUSE FOR A MOMENT ON THE RELEVANCE, WHICH EVEN THE EXCERPTS, THE WINNOWED DOWN EXCERPTS SHOW IN EXACERBATING DETAIL, 90 PERCENT OF THOSE EXCERPTS THAT THEY INCLUDE ARE ALL ABOUT PRICE. AND YOUR HONOR'S ORDER -- AND I KNOW I QUOTED IT IN MY BRIEF SO I WON'T REPEAT IT -- TALKED ABOUT AND ACKNOWLEDGED THIS IS NOT A PRICING, A MISPRICED OR A LYING ABOUT HOW LOW THE PRICES WOULD BE. THIS IS NOT THAT TYPE OF CASE. THE ALLEGATIONS IN THE INDICTMENT ARE THAT THERANOS WOULD OFFER BETTER, CHEAPER, FASTER, MORE ACCURATE TESTS. CHEAPER WAS ONE PART OF THAT, BUT I THINK WE HAVE ALSO HEARD WITNESSES SAY, I BELIEVE MS. GOULD, IF I'M NOT MISTAKEN, THAT IF SHE KNEW THE TESTS WERE LESS ACCURATE, IT WOULD MATTER A LOT LESS TO HER IF IT WAS CHEAPER.

AND WE DON'T HAVE THE OPPORTUNITY TO ASK THOSE PATIENTS WHO AT THE MOMENT OF CARE OR WERE TELLING PHLEBOTOMISTS, "WOW, THE PRICES ARE SO GREAT," WE DON'T HAVE THE OPPORTUNITY TO ASK THEM, "WOULD IT MATTER TO YOU IF YOU KNEW THE TEST WAS GOING TO BE INACCURATE THAT IT WAS CHEAPER?" AND AGAIN, WE QUOTED MS. CHEUNG, WHO I THINK SPEAKS FOR COMMON SENSE IN A LOT OF PEOPLE, THAT PEOPLE MIGHT LIKE THE CHEAPER PRICES, BUT THEY ALSO EXPECT AT LEAST AS ACCURATE TEST AS WHAT THEY WOULD GUESS ELSEWHERE, AND THAT'S THE CORE ALLEGATIONS OF THIS CASE AND THAT'S WHY THIS IS IRRELEVANT AS YOUR HONOR HAS FOUND TWICE BEFORE. SO EVEN IF THEY PUT THESE DOCUMENTS BEFORE MS. HOLMES, I WOULD ARGUE IT'S AN EXERCISE IN FUTILITY, BECAUSE EVEN IF SHE SAYS THAT SHE'S REVIEWED THEM, WHAT IS CONTAINED IN THEM IS IRRELEVANT TO THE ALLEGATIONS AND WHAT IS GOING ON WITH THIS CASE. NOW, THEY'RE TRYING TO BOOTSTRAP IT BY TYING IT TO HER MENTAL STATE AND REFERENCE IN THE 12.2. MR.

CLEARY SAYS HER MENTAL STATE IS NOW CLEARLY AT ISSUE. I DON'T KNOW ABOUT THAT. THEY HAVE NOT YET IDENTIFIED FOR US OR FOR THE COURT THAT THEIR EXPERT IS ACTUALLY GOING TO TESTIFY. THEY HAVE NOT YET -- SHE SAID THAT MR. BALWANI DIDN'T TELL ME WHAT TO SAY, MR. BALWANI DIDN'T TELL ME THIS. AND I'M WORRIED I'M GOING TO MISQUOTE THE TRANSCRIPT, SO I DON'T WANT TO GO TOO FAR. BUT AT THE END OF DISCUSSING THE ASPECTS OF THEIR RELATIONSHIP, SHE ACTUALLY DISAVOWED A DIRECT CONNECTION TO HER MENTAL STATE WITH RESPECT TO THAT. AND, AGAIN, HOW THE GOVERNMENT COUNTERED THAT IN CROSS-EXAMINATION WAS TO ASK WHAT MR. BALWANI DID TELL HER, AND IT WAS ABOUT THE FACT THAT THE FINGERSTICK WAS TOO LOW. SO THAT'S A RED HERRING, YOUR HONOR. THE CORE ISSUE HERE IS THAT THE EVIDENCE IS NOT RELEVANT. AND THE LAST ARGUMENT THAT I WANTED TO MAKE, WHICH YOUR HONOR I THINK ALSO FOUND PERSUASIVE FROM THE LAST TIME WE BRIEFED THIS, IS THE TIMING.

DEFENSE COUNSEL SKIPS OVER THE TIMING, AND BY GIVING A WINNOWED VIEW OF THIS, I THINK THAT THEY ACKNOWLEDGE IT, THE VAST MAJORITY OF THESE REPORTS SENT TO MS. HOLMES ARE IN THE SECOND HALF OF 2015. THEY HAVE NOT YET IDENTIFIED WHAT INVESTOR, IF ANY, THIS ACTUALLY WENT TO HER MENTAL STATE FOR WHEN SHE DEFRAUDED THEM. THEY HAVE NOT ACTUALLY TIED THESE REPORTS AND HER KNOWLEDGE OF THEM TO ANY SPECIFIC EVENTS THAT IT WOULD HAVE IMPACTED HER STATE OF MIND FOR. RATHER, WHEN SHE'S TALKING TO RDV, WHEN SHE'S TALKING TO RUPERT MURDOCH, THE VAST MAJORITY OF THESE REPORTS DON'T EVEN EXIST YET. AND SO, AGAIN, THE TIMING POINT IS ANOTHER KEY POINT.