Exhibit Admissibility Proceedings and Rule 29 Motion
172 lines(JURY OUT AT 10:16 A.M.)
JUDGE DAVILA: THANK YOU. PLEASE BE SEATED. THE RECORD SHOULD REFLECT THAT OUR JURY HAS LEFT. ALL COUNSEL AND MS. HOLMES REMAIN IN THE COURTROOM. AND THIS IS -- LET'S SEE. THIS IS REGARDING IS IT 7586A? IS THAT THE EXHIBIT?
MR. DOWNEY: THAT'S RIGHT, YOUR HONOR. I THINK WHAT HAD HAPPENED BEFORE, BUT I DON'T WANT TO --
JUDGE DAVILA: COME ON UP.
MR. DOWNEY: I THINK WE SOUGHT TO ADMIT AND WE LAID THE FOUNDATION. I DON'T KNOW IF YOUR HONOR FORMALLY ADMITTED IT. I THINK IT WAS JUST A QUESTION OF MAKING IT MORE USER FRIENDLY. BUT I CERTAINLY WANT TO GIVE HIM AN OPPORTUNITY TO REVIEW IT. I KNOW HE HAS REVIEWED IT HISTORICALLY, AND IT'S THE DESCRIPTION OF THE INVENTION THAT IS IN THERE. I THINK THE REST OF IT MS. HOLMES TESTIFIED ABOUT, SO WE DON'T NEED A FURTHER ENTRY OF THAT PART OF THE EXHIBIT.
JUDGE DAVILA: THIS IS 7 --
MR. DOWNEY: I'M SORRY, YOUR HONOR. YOU'RE TALKING ABOUT THE -- I'M SORRY. I'M CONFUSED BETWEEN MY EXHIBITS. YEAH, YOUR HONOR WAS TALKING ABOUT THE CUSTOMER SERVICE, YEAH.
JUDGE DAVILA: RIGHT.
MR. DOWNEY: WE HAVE MOVED TO ADMIT THOSE EXHIBITS, AND I HAVE THEM IN UNREDACTED FORM IF THAT'S THE PREFERENCE FOR SOME REASON OF THE GOVERNMENT. I SUSPECT NOT. I THINK THE REDACTIONS WERE DESIGNED TO BE CONSISTENT WITH SEVERAL DISCUSSIONS THAT YOUR HONOR HAD.
JUDGE DAVILA: WELL, LET'S TALK ABOUT THIS FIRST, 7586A. MR. LEACH, I INDICATED I WOULD ALLOW YOUR TEAM TO LOOK AT THIS. I DON'T KNOW IF YOU'VE HAD OCCASION TO DO THAT, IF YOU'RE PREPARED TO DISCUSS THIS.
MR. LEACH: YOUR HONOR, I'M SORRY. I HAVEN'T LOOKED AT IT. THIS WAS A 5-, 600 PAGE DOCUMENT. THE DEFENSE GAVE ME A BINDER OF EXCERPTS FROM IT.
MR. DOWNEY: I THINK WE'RE TALKING ABOUT A DIFFERENT EXHIBIT NOW.
MR. LEACH: OH.
JUDGE DAVILA: THIS IS THE ONE THAT WAS ENTERED -- SOUGHT TO BE INTRODUCED TODAY, THIS MORNING.
MR. DOWNEY: YEAH.
MR. LEACH: WE OBJECT ON 401, 403, HEARSAY, AND OTHER GROUNDS, YOUR HONOR. I THINK THIS TOUCHES ON THE ISSUE OF, YOU KNOW, WHAT IS THE RELEVANCE OF A CUSTOMER HAVING A POSITIVE EXPERIENCE IN THE WELLNESS CENTER BEFORE THEY GET THEIR BLOOD TESTS. I THINK THIS DOESN'T GO AT ALL TO THE ACCURACY OF THE TESTS. THE EMAIL THAT THEY'RE OFFERING HERE IS FROM AUGUST OF 2015, WHICH IS IN A TIME PERIOD WHEN THEY'RE UNDER SCRUTINY BY THE FDA, CMS, AND "THE WALL STREET JOURNAL." SO I THINK THERE ARE REASONS TO WONDER WHY THIS FEEDBACK IS BEING CIRCULATED AND GENERATED. I DON'T SEE HOW IT GOES TO MS. HOLMES'S STATE OF MIND ABOUT REPRESENTATIONS OF THE TECHNOLOGY TO INVESTORS IN THE 2014 AND EARLY 2015 TIME PERIOD. SO FOR ALL OF THE REASONS WE'VE DISCUSSED, WE RENEW OUR OBJECTIONS TO THIS. BUT I DON'T THINK I HAVE ANYTHING FURTHER THAN WHAT MR. BOSTIC AND MS. VOLKAR HAVE ARTICULATED.
JUDGE DAVILA: AND MR. BOSTIC AND MS. VOLKAR'S OBJECTIONS, THEY'RE STATED IN 1184 AS TO THE PRIOR DOCUMENT. I THINK THOSE ARE TRANSFERRABLE, IF YOU WILL, IF I CAN USE THAT PHRASE, FOR THIS PIECE ALSO.
MR. LEACH: YES.
JUDGE DAVILA: I DO NOTE THAT MS. HOLMES DID TESTIFY JUST A FEW MINUTES AGO ABOUT THE SAME ISSUES THAT ARE INVOLVED IN THESE DOCUMENTS. SHE WAS INFORMED ABOUT CUSTOMER SERVICE. AS A MATTER OF FACT, I INTRODUCED A CUSTOMER SERVICE DOCUMENT OVER OBJECTION OF THE GOVERNMENT, AND THAT DISPLAYED CUSTOMER SATISFACTION. SHE TESTIFIED TO THE EXTENT THAT THAT INFORMED HER STATE OF MIND AS TO THE RELATIONSHIP WITH WALGREENS AT THAT MOMENT IN TIME. SO I DO THINK THAT THAT IS IN EVIDENCE, AND THE DEFENSE HAS THAT TO DO WITH IT WHATEVER THEY WISH. I'M LOOKING AT THESE, AND I DO, I DO THINK THAT I'M GOING TO SUSTAIN THE OBJECTION AS TO THESE. I LOOK AT THE TIME PERIOD OF THESE VIS-A-VIS THE CASE AND THAT CAUSES SOME CONCERN. I ALSO LOOK AT THESE AND THEY'RE INVOLVING -- FIRST OF ALL, THEY'RE FROM PHLEBOTOMISTS, AND THEY TALK ABOUT THEIR CUSTOMER EXPERIENCE AT THE STORES. THEY DON'T RELATE -- I HAVEN'T SEEN ONE -- AND IF THERE IS ONE, PLEASE POINT IT OUT TO ME, MR. DOWNEY.
I DON'T SEE ANY RESPONSE HERE THAT SPEAKS TO ACCURACY AND RELIABILITY. THESE SEEM TO ALL BE RELATED TO THE PRICING. AND THERE'S A COUPLE OF COMMENTS HERE ABOUT THE EXTRACTION EXPERIENCE AND WHAT A POSITIVE EVENT THAT WAS. BUT THEY SEEM TO RELATE TO PRICING. AND INCORPORATING THE COMMENTS THAT THE COURT MADE AS TO THE OTHER DOCUMENT, I JUST DON'T SEE THE RELEVANCE OF THAT. I DO NOTE, AND I THINK THE RECORD REFLECTS, THAT YOUR CLIENT WAS NOT DEPRIVED OR DENIED THE OPPORTUNITY TO DISCUSS CUSTOMER EXPERIENCE AT WALGREENS. SHE DID THAT ON YOUR, ON YOUR REDIRECT, AND I ALLOWED THAT EXHIBIT TO COME IN. SO I DO THINK THE RECORD REFLECTS THAT SHE DOES HAVE THAT, AND SHE DID SPEAK TO THAT, FOR WHATEVER VALUE THAT HAS. BUT I'M GOING TO DENY -- OR SUSTAIN THE OBJECTION, PARDON ME, AS TO 7586A. I SUPPOSE FOR HOUSEKEEPING WE SHOULD TURN TO THE OTHER DOCUMENT AS WELL.
MR. DOWNEY: YOUR HONOR, I DON'T WANT TO BELABOR IT, BUT I JUST WANT TO SAY FOR THE RECORD THAT IN 7586A, THE FIRST ENTRY IN THE EMAIL WHICH IS THEN REFLECTED IN THE ATTACHMENT, WHICH IS A REPORT SET, IS A REPORT ON A PATIENT COMPARING HIS TEST RESULTS TO THE TEST RESULTS FROM ANOTHER LAB THAT HE USES AS A PHYSICIAN, AND HE FINDS THE RESULTS TO BE -- THE WORD HE USES IS "CONGRUENT," WHICH I THINK HE MEANS THEY'RE EFFECTIVELY THE SAME. SO I ONLY HIGHLIGHT THAT TO SAY THAT WE DID ACTUALLY TRY TO INCLUDE SEVERAL INSTANCES WHERE THERE WERE COMMENTS AS TO ACCURACY, AND YOUR HONOR IS FAMILIAR WITH ALL OF THE COMMENTS WE HAVE MADE BEFORE ABOUT WHAT RETURN VISITS REFLECT. BUT PUTTING THAT TO THE SIDE, THERE ARE COMMENTS IN HERE THAT GO TO THE ACCURACY ISSUE. I WOULD SAY IT'S A BIT OF A -- IT LEAVES US AT A BIT OF A DISPARITY WITH THE GOVERNMENT EVIDENCE WHERE THEY HAVE BEEN ABLE TO INTRODUCE ANECDOTES THAT THE DEFENDANT KNOWS NOTHING ABOUT WHERE A PATIENT COMES IN AND SAYS, I HAVE GOTTEN AN INACCURATE RESULT. WE HAVE EVIDENCE THAT THE DEFENDANT KNEW ABOUT WHERE SOMEONE WITH FAMILIARITY WITH THE BLOOD TESTING PROCESS SAYS, I THINK THESE RESULTS ARE VERY ACCURATE, AND WE CAN'T INTRODUCE THAT. SO THAT DOES LEAVE US AT A DISPARITY, BUT I DON'T WANT TO BELABOR THE ISSUE.
JUDGE DAVILA: WELL, LET ME REVISIT THAT, AND THANK YOU FOR POINTING THAT OUT. I LOOK AT THE ACTUAL COMMENTS FROM THE PHLEBOTOMISTS, AND THOSE WERE WHAT I WAS LOOKING AT IN THE OTHER DOCUMENT, AND THOSE WERE PHLEBOTOMIST REPORTS. WE TALKED ABOUT THE PHLEBOTOMIST BEING EMPLOYEES OF THE COMPANY, AND THEY WERE WRITING THEIR COMMENTS FROM THE PATIENTS THAT CAME IN. THOSE EXPERIENCES WERE REALLY RELATED TO THE CUSTOMER EXPERIENCE OF THE DRAW, THE LIGHTING, ALL OF THAT TYPE OF THING. THAT'S WHAT WE DISCUSSED PREVIOUSLY. AS I NOTED, THERE WEREN'T -- IN THAT PREVIOUS SET, THERE DID NOT SEEM TO BE ANYTHING, ANYTHING AS TO ACCURACY. MR. DOWNEY, YOU POINT OUT IN THE FIRST, WHERE IT SAYS HIGHLIGHTS, GUEST QUOTE, THIS MR. KARPEL IS FORWARDING THIS EMAIL. AND I DO SEE THAT LAST SENTENCE, LAB CROSS-CHECKED CONGRUENT. AND YOU SUGGEST THAT THAT IS A STATEMENT THAT POSSIBLY RELATES TO ACCURACY?
MR. DOWNEY: THAT'S RIGHT, YOUR HONOR.
JUDGE DAVILA: OKAY. MR. LEACH, ANY COMMENT?
MR. LEACH: NO. WE'LL STAND ON OUR PRIOR ARGUMENTS, YOUR HONOR, OTHER THAN I THINK WHAT THEY REALLY WANT THIS IN FOR IS THE TRUTH, A COMMENT BY AN ANONYMOUS PHYSICIAN ABOUT UNKNOWN TESTS ON UNKNOWN DATES. AND WHATEVER THE WORD "CONGRUENT" MEANS COMPARED TO OTHER LABS IS REALLY IN 403 LAND, I SUBMIT, AND THIS STRAY COMMENT AND LENGTHY EXHIBIT I REALLY DON'T THINK HAS THE PROBATIVE VALUE THAT THEY'RE ARGUING FOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU. WELL, LET ME SAY THAT YOU WOULD NOT INTRODUCE THIS FOR THE TRUTH OF THE MATTER ASSERTED, BUT JUST AS TO INFORM MS. HOLMES AS TO HER INFORMATION AND BASE OF KNOWLEDGE FOR HOW THE LABS WERE PERFORMING ON AUGUST 23RD, 2015?
MR. DOWNEY: WELL, I THINK IF IT'S ADMISSIBLE, IT'S ADMISSIBLE UNDER SOME EXCEPTION, SO I WILL SAY IT CERTAINLY IS RELEVANT TO THAT. AND I DON'T THINK THAT I CAN OFFER IT FOR THE TRUTH OF THE MATTER ASSERTED, BUT I DO THINK IT GOES TO HER STATE OF MIND. I THINK THE OTHER TESTIMONY, JUST TO REMIND YOUR HONOR, IS THAT THIS IS A ROUTINE WEEKLY OR BIWEEKLY TRANSMISSION, SO I THINK IT WOULD QUALIFY AS A BUSINESS RECORD AS WELL. BUT --
JUDGE DAVILA: WELL, I DON'T KNOW IF THERE WAS A FOUNDATION FOR THIS PARTICULAR DOCUMENT. THAT MAY HAVE GONE FOR THE OTHERS, AND AS I SAID BEFORE WHEN WE WERE TALKING ABOUT THAT OTHER PACKET, THERE WAS NO EVIDENCE THAT MS. HOLMES ACTUALLY READ THAT. THAT WAS THAT THICK STACK OF PHLEBOTOMIST REPORTS AND --
MR. DOWNEY: WHAT I OFFERED TODAY WAS JUST A SUBSET.
JUDGE DAVILA: CORRECT, CORRECT. I UNDERSTOOD THAT.
MR. DOWNEY: YEAH, YEAH.
JUDGE DAVILA: RIGHT. SO LET ME DO THIS, I'M GOING TO REVISIT -- I WILL ADMIT THE FIRST PAGE, THE EMAIL.
MR. DOWNEY: OKAY.
JUDGE DAVILA: AND THAT WILL BE ADMITTED NOT FOR THE TRUTH OF THE MATTER ASSERTED, BUT SOLELY FOR THE ISSUE OF INFORMING MS. HOLMES'S KNOWLEDGE, STATE OF MIND AS TO WALGREENS'S RELATIONSHIP IN THE DRAWS AND THE TESTING THAT WAS GOING THERE. THE JURY CAN GIVE IT WHATEVER WEIGHT THEY FEEL IS APPROPRIATE, AND SO I'LL ADMIT THAT ONLY. I'M NOT GOING TO ADMIT THE OTHER PHLEBOTOMIST REPORTS FOR THE SAME REASONS THAT I INDICATED IN THE OTHER DOCUMENTS. AND AS TO THE REQUEST TO -- THE RENEWED REQUEST, YES, IT'S 1180, TO ADMIT CUSTOMER FEEDBACK RECORDS, I'VE READ 1180 AND THE GOVERNMENT'S 1184 AS TO THAT, AND I'M NOT GOING TO DISTURB THE COURT'S PREVIOUS ORDER. I THINK THAT THE COURT'S PREVIOUS ORDER SUSTAINING THE OBJECTION WILL REMAIN. I HAVEN'T HEARD ANYTHING THAT CHANGES THE COURT'S POSITION ON THAT. AS I SAID, I WAS CURIOUS WHETHER OR NOT THERE WOULD BE TESTIMONY ABOUT ACTUAL DOCUMENTS AND THAT SET BEING READ, AND THE RECORD REFLECTS -- I DON'T THINK THERE'S A RECORD OF THAT. SO I'M NOT GOING TO DISTURB THAT ORDER. BUT I WILL ADMIT THIS. WE CAN DO THAT IN FRONT OF THE JURY WHEN THEY RETURN.
MR. DOWNEY: YOUR HONOR, I CAN HIGHLIGHT THESE. BUT IN THE, IN THE ATTACHMENT -- I THINK THERE HAS BEEN PRIOR TESTIMONY IN THE CASE FROM MR. EDLIN THAT THE SOURCES OF THESE COMMENTS IN THESE ATTACHMENTS ARE TWO-FOLD. ONE IS THAT THERE'S PHLEBOTOMIST FEEDBACK, AND IF -- ON THE PAGES THAT WE'LL NUMBER, I'M ACTUALLY LOOKING AT THE FULL EXHIBIT, BUT BETWEEN 1784 AND 1865, THOSE ARE PHLEBOTOMIST COMMENTS. SOME OF THE OTHER COMMENTS ARE DIRECT COMMENTS FROM THE PATIENTS THEMSELVES. SO THAT'S ONE THING THAT I WANT TO SAY. THE OTHER -- THE OTHER, YOU KNOW, WHERE THEIR QUOTES ARE EMBODIED OR EMBEDDED IN WHAT WAS SAID. THE OTHER THING I WANT TO MENTION, YOUR HONOR, IS SIMILAR TO THE FIRST ENTRY, WHEN WE DID THIS REDACTION, SOME OF THE ENTRIES REFLECT COMMENTARY FROM PATIENTS THAT I ALSO ENDEAVORED TO EXCLUDE THINGS ACCORDING TO CERTAIN CRITERIA, BUT THINGS WHICH RELATED TO ACCURACY, I THINK THERE WERE A FEW MORE THAN JUST THIS FIRST EMAIL ENTRY. SO IF I TOOK A MOMENT, I COULD GO THROUGH THEM AND IDENTIFY THOSE FOR YOUR HONOR. BUT THEY'RE TO THE SAME EFFECT, I THINK, AND WOULD COME IN UNDER THE SAME THEORY.
JUDGE DAVILA: WELL, I SEE ON 48542, THAT'S THE EMAIL THAT I JUST ADMITTED. THIS IS NOT PAGINATED, I'M SORRY.
MR. DOWNEY: RIGHT.
JUDGE DAVILA: IT'S THE AUGUST 15TH, 2015. AND WE DON'T KNOW -- I KNOW THERE'S BEEN SOME TESTIMONY THAT THE PHLEBOTOMISTS TOOK INFORMATION FROM THE PATIENTS AND THEN PRESUMABLY THEY ENTERED IT INTO WHATEVER THAT DATABASE IS. I THINK THERE'S SOME TESTIMONY THAT THE TECHNOLOGY ALLOWED A CUSTOMER, A PATIENT, TO SELF --
MR. DOWNEY: THAT'S RIGHT.
JUDGE DAVILA: -- ADD THAT INFORMATION. WE DON'T KNOW WHICH IS WHICH HERE. I DON'T THINK THERE'S A -- I SUPPOSE WE COULD LOOK AT THE GRAMMAR AND KIND OF INTUIT THAT, BUT --
MR. DOWNEY: I THINK THAT IS THE NATURE OF IT, YOUR HONOR.
JUDGE DAVILA: RIGHT. RIGHT. SO LOOKING AT THE RELIABILITY OF THAT, I THINK THAT ALSO INFORMS THE COURT AS TO ITS DECISION. SO I THINK BY ADMITTING THE DOCUMENT, THE EMAIL, AS I SAID, IT DID CAPTURE ONE OF THE ACCURACIES THAT YOU'VE SHOWN HERE. IT'S ACTUALLY A -- THE ACTUAL REPORT. ALL RIGHT. THANK YOU. ANYTHING FURTHER ON THIS THEN?
MR. LEACH: NO, YOUR HONOR.
MR. DOWNEY: NO, YOUR HONOR. SHOULD WE HANDLE THE FDA DOCUMENT? I DON'T HAVE THE EXHIBIT NUMBER WITH ME.
JUDGE DAVILA: WHY DON'T WE -- WE SHOULD DO THAT IN FRONT OF THE JURY.
MR. DOWNEY: YES.
JUDGE DAVILA: I THINK WE WILL ADMIT THAT.
MR. DOWNEY: AND MAYBE MR. LEACH CAN LET US KNOW BEFORE WE RESUME WITH THE JURY WHERE HE IS ON THAT.
JUDGE DAVILA: OKAY. MR. LEACH?
MR. LEACH: AS I WAS SAYING, YOUR HONOR, IT'S A 500 PAGE DOCUMENT. I GOT THE EXCERPTS AT 8:40 THIS MORNING. I WANT TO BRIEFLY REVIEW THE EXCERPTS TO MAKE SURE THAT --
JUDGE DAVILA: RIGHT.
MR. LEACH: -- THERE'S NOT SOME LEVEL OF CHERRY PICKING, WHICH I NEVER THINK MY COLLEAGUES WOULD DO. BUT I JUST HAVE NOT HAD TIME TO LOOK AT IT AND I RESPECTFULLY REQUEST FIVE OR TEN MINUTES TO DO THAT.
MR. DOWNEY: YEAH. AND I WILL SAY -- MR. LEACH WOULDN'T APPRECIATE THIS GIVEN THAT HE WAS DOING OTHER THINGS, IT'S JUST THE FIRST 167 PAGES OF THE DESCRIPTION, WHICH IS MOSTLY DIAGRAMS.
JUDGE DAVILA: YOU HAVE THREE MINUTES, MR. LEACH.
MR. DOWNEY: I THINK HE'S READ IT BEFORE, UNLESS I DON'T KNOW MY MAN.
JUDGE DAVILA: CHERRY PICKING USED TO BE THE COIN OF THE REALM HERE IN THE VALLEY OF THE HEART'S DELIGHT. THAT WAS MANY DECADES AGO. BUT HOPEFULLY THERE'S NO ORCHARD IN THE COURTROOM, SO -- ALL RIGHT. WHAT SHOULD WE DO? SHOULD WE TAKE A BREAK NOW BEFORE WE --
MR. DOWNEY: I THINK IT WOULD BE HELPFUL, FOR EFFICIENCY, IF WE CAN HAVE ABOUT ANOTHER 20 MINUTES. IS THAT ALL RIGHT?
JUDGE DAVILA: SURE. AND YOU'LL TELL US WHETHER OR NOT WE HAVE ANOTHER WITNESS?
MR. DOWNEY: YES.
JUDGE DAVILA: ALL RIGHT. LET'S DO THAT. THANK YOU.
COURT CLERK: COURT IS IN RECESS.
(RECESS FROM 10:32 A.M. UNTIL 11:03 A.M.)
JUDGE DAVILA: WE'RE BACK 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. MR. LEACH, DID YOU HAVE AN OPPORTUNITY TO REVIEW THE EXHIBIT?
MR. LEACH: I DID, YOUR HONOR, AND I HAVE NO OBJECTION TO 1328A -- THE MASKS AND DISTANCE ARE CONSPIRING AGAINST ME. I HAVE NO OBJECTION TO THE ADMISSION OF 1328A FOR THE NONHEARSAY PURPOSE OF THIS BEING FILED AND SUBMITTED TO THE FDA, WHICH I THINK WAS THE LIMITATION IMPOSED BY THE COURT PREVIOUSLY. BUT I'VE REVIEWED THE EXCERPTS AND I DON'T OBJECT TO THE EXCERPTS.
JUDGE DAVILA: ALL RIGHT. THANK YOU. MR. DOWNEY, THIS IS BEING INTRODUCED FOR WHAT PURPOSE?
MR. DOWNEY: IT'S BEING INTRODUCED TO REBUT THE GOVERNMENT'S CLAIM THAT THE DEFENDANT BELIEVED THAT THE SERIES 4 DID NOT FUNCTION PROPERLY, AND THIS EVIDENCE DEMONSTRATES WHAT A LARGE GROUP OF PEOPLE AT THERANOS BELIEVED ABOUT THAT SYSTEM AND FILED. SO IT CLEARLY GOES TO HER STATE OF MIND, AMONGST OTHER THINGS.
JUDGE DAVILA: SO IS IT OFFERED, AGAIN, FOR THE TRUTH OF THE MATTER ASSERTED IN THE DOCUMENT?
MR. DOWNEY: IT'S NOT OFFERED FOR THE TRUTH, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. AS TO HER UNDERSTANDING OF THE DEVICES, SHOULD I CALL IT, OR --
MR. DOWNEY: THE SYSTEM I THINK IS THE APPROPRIATE DESIGNATION. AND I WOULD SAY THE CORRECT TERM IS "VALIDITY."
JUDGE DAVILA: MR. LEACH?
MR. LEACH: SUBJECT TO THAT, YOUR HONOR, WE'RE FINE.
JUDGE DAVILA: OKAY. ALL RIGHT. SHOULD WE BRING THE JURY IN THEN?
MR. LEACH: YES, YOUR HONOR.
MR. DOWNEY: AND SHALL I MOVE WHEN THE JURY COMES IN 7586A AND 1328A.
JUDGE DAVILA: YES, LET'S DO THAT.
MR. DOWNEY: THANK YOU.
(JURY IN AT 11:08 A.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. PLEASE BE SEATED. WE'RE BACK ON THE RECORD. ALL COUNSEL ARE PRESENT. OUR JURY IS PRESENT. MS. HOLMES IS PRESENT. MR. DOWNEY, YOU HAD -- YOU WOULD LIKE TO MOVE SOME PIECES INTO EVIDENCE, SOME DOCUMENTS INTO EVIDENCE?
MR. DOWNEY: YES, SIR. I THINK WE HAVE PENDING MOTIONS TO ADMIT EXHIBIT 7586A.
JUDGE DAVILA: YES. AND SUBJECT TO YOUR COMMENTS, MR. LEACH, ANYTHING FURTHER ON THIS?
MR. LEACH: NO, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. I'LL NOTE THOSE COMMENTS. I'LL ADMIT 7586A, THE FIRST PAGE, WHICH IS THE EMAIL. AND THIS IS ADMITTED, LADIES AND GENTLEMEN, AGAIN, NOT FOR THE TRUTH OF THE MATTER ASSERTED IN THE EMAIL, BUT AS TO THE STATE OF MIND, AS IT INFORMS THE STATE OF MIND OF MS. HOLMES AS TO THE ARRANGEMENT WITH WALGREENS. AND FOR THAT LIMITED PURPOSE IT'S ADMITTED.
(DEFENDANT'S EXHIBIT 7586A, PAGE 1, LIMITED PURPOSE ONLY, WAS RECEIVED IN EVIDENCE.)
JUDGE DAVILA: AND YOU HAVE ANOTHER DOCUMENT?
MR. DOWNEY: YES, YOUR HONOR. WE STILL HAVE PENDING THE MOTION TO ADMIT 13288A.
JUDGE DAVILA: ALL RIGHT. MR. LEACH?
MR. LEACH: NOTHING FURTHER.
JUDGE DAVILA: ALL RIGHT. THAT WILL BE ADMITTED. THIS IS ADMITTED FOR THE SAME REASON AS THE OTHER PURPOSE, RATHER, AS THE OTHER DOCUMENT, AS TO THE STATE OF MIND OF MS. HOLMES. NOT FOR THE TRUTH OF THE MATTER ASSERTED IN THE DOCUMENT, BUT ONLY AS TO THE ISSUE OF THE STATE OF MIND OF MS. HOLMES AS TO SYSTEM VALIDITY. AND FOR THAT LIMITED PURPOSE ONLY, THAT IS ADMITTED.
(DEFENDANT'S EXHIBIT 13288A, LIMITED PURPOSE, WAS RECEIVED IN EVIDENCE.)
MR. DOWNEY: AND, YOUR HONOR, WITH THAT RESOLVED, MS. HOLMES RESTS.
JUDGE DAVILA: ALL RIGHT. LADIES AND GENTLEMEN, THIS MEANS THAT THE DEFENSE HAS RESTED. THEY HAVE PUT ALL IN OF THE EVIDENCE THAT THEY WISH IN THE CASE. I'LL NOW TURN TO THE GOVERNMENT AND ASK IF THE GOVERNMENT HAS ANY REBUTTAL EVIDENCE?
MR. SCHENK: YOUR HONOR, NO, THE GOVERNMENT HAS NO REBUTTAL CASE.
JUDGE DAVILA: ALL RIGHT. THE GOVERNMENT HAS PREVIOUSLY RESTED. LADIES AND GENTLEMEN, WHAT THIS MEANS THEN IS THAT ALL OF THE EVIDENCE THAT THE JURY WILL NEED AND REQUIRE TO DELIBERATE AND MAKE THEIR DECISIONS IS NOW COMPLETED. THE NEXT PHASE OF THE CASE IS FOR YOU TO HEAR CLOSING ARGUMENTS IN THE MATTER. BEFORE YOU HEAR THE CLOSING ARGUMENTS -- AFTER YOU HEAR THE CLOSING ARGUMENTS YOU'LL HEAR THE INSTRUCTIONS, PARDON ME. BUT WE HAVE NOT COMPLETED THE INSTRUCTIONS YET, AND I NEED TO TALK WITH THE LAWYERS ABOUT GOING OVER THOSE INSTRUCTIONS AND TO PREPARE THOSE SO THAT WE CAN THEN PRESENT THE ARGUMENT TO YOU AND HAVE YOU BEGIN YOUR DELIBERATIONS. I WANT TO TALK ABOUT TIMING FOR THIS FOR JUST A MOMENT WITH YOU. MY SENSE IS THAT COUNSEL AND THE COURT WILL MOST LIKELY MEET THIS WEEK TO ACCOMPLISH THIS TASK OF COMPLETING THE JURY INSTRUCTIONS, REVIEWING THE LAW THAT APPLIES TO THE CASE, PREPARING THOSE FINAL INSTRUCTIONS THAT YOU WILL HAVE. MY SENSE IS THAT IT WILL LIKELY TAKE THE REST OF THIS WEEK TO ACCOMPLISH THAT. I'M LOOKING AT THE SCHEDULE, AND I -- IT SEEMS TO ME THAT WE MAY BE ABLE TO ENGAGE CLOSING ARGUMENTS -- AND LET ME ASK COUNSEL TO CHIME IN ON THIS -- PERHAPS DECEMBER 16TH AND 17TH. BUT LET ME JUST -- KUNYU, DO YOU HAVE A CALENDAR FOR ME?
COURT CLERK: (HANDING.)
JUDGE DAVILA: THANK YOU. OF COURSE I RECOGNIZE THAT THE HOLIDAY SEASON PRESENTS SOME ISSUES, BUT I DO WANT TO SUGGEST SOMETHING TO YOU, LADIES AND GENTLEMEN OF THE JURY. I'M PROBABLY GOING TO BREAK FOR A MOMENT AND ALLOW YOU TO THINK ABOUT THIS, MAKE PHONE CALLS AND LOOK AT YOUR SCHEDULES. BUT WHAT I WOULD CONTEMPLATE IS THAT WE, REGRETTABLY, ARE NOT AVAILABLE ON THE 14TH AND 15TH OF NEXT WEEK. SO AS I SAID, MY THOUGHT IS THAT -- AND I'M GOING TO TALK TO THE LAWYERS SOME MORE, BUT IT SEEMS LIKE IF WE AIM, IF WE AIM TOWARDS THE 16TH AND 17TH FOR CLOSING ARGUMENTS -- AND LET ME ASK COUNSEL, DO COUNSEL THINK THAT CLOSING ARGUMENTS WILL -- WE SHOULD RESERVE TWO DAYS FOR THAT?
MR. SCHENK: YES, YOUR HONOR, I THINK THAT'S APPROPRIATE.
MR. DOWNEY: THAT MAKES SENSE TO US, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU. SO IT LOOKS LIKE THOSE TWO DATES WOULD BE THE EARLIEST DATE THAT WE WOULD ENGAGE CLOSING FINAL ARGUMENTS FROM BOTH SIDES, RECOGNIZING THEN THAT DELIBERATIONS WOULD BEGIN THE WEEK OF THE 20TH. NOW, LET ME SAY, THAT'S A HOLIDAY WEEK. I RECOGNIZE THAT. AND I WANT YOU TO KNOW THAT I WOULD -- WE WON'T BE IN DELIBERATIONS ON THE 24TH. LET ME JUST SAY THAT AT THE OUTRIGHT. IT COULD BE THAT WE DON'T HAVE TO SCHEDULE DELIBERATIONS ON THE 23RD AS WELL. IF WE GO INTO THE FOLLOWING WEEK, AGAIN, WE COULD SCHEDULE DELIBERATIONS NOT EVERY DAY, BUT YOU COULD SCHEDULE THOSE AS YOU, AS YOU NEED AND AS YOU DESIRE. I'M LOOKING AT THIS SCHEDULE, BUT I KNOW THIS EXCEEDS THE TIME THAT WE TOLD YOU THIS TRIAL WOULD TAKE, HOW MUCH TIME YOU WOULD NEED TO INVEST. THIS EXTENDS BEYOND THAT. I DON'T KNOW IF ANY OF YOU HAVE MADE PLANS FOR THE HOLIDAYS THAT MIGHT CAUSE A DISRUPTION IN THIS SCHEDULE, BUT I WANTED TO SHARE THIS SCHEDULE WITH YOU NOW. AND I'LL ASK MS.
KRATZMANN TO -- I THINK WE HAVE SOME CALENDARS THAT WE CAN PROVIDE. PERHAPS, COUNSEL, WE'LL TAKE ANOTHER RECESS TO ALLOW THE JURY TO ABSORB THIS. LOOK AT YOUR SCHEDULES, AND IF YOU NEED TO MAKE PHONE CALLS, THAT TYPE OF THING, I'LL INVITE YOU TO DO THAT. AND THEN WE'LL COME BACK AND I CAN ASK YOU WHETHER OR NOT THE SCHEDULE THAT I'VE PROPOSED HERE IS GOING TO CREATE AN ISSUE FOR YOU OR ANY PROBLEMS, AND WE CAN DISCUSS FURTHER. THIS IS REALLY REGARDING YOUR AVAILABILITY FOR THE DELIBERATIONS. SO, AGAIN, IT'S ANTICIPATED THAT FINAL ARGUMENTS WOULD ENCOMPASS THE 16TH AND 17TH OF DECEMBER, WHICH MEANS THAT IF WE BROKE TODAY, WE WOULDN'T SEE YOU AGAIN FOR ANOTHER WEEK. WE WOULD BE BACK IN SESSION ON THE 16TH AND 17TH. YOU WOULD GET THE CASE FRIDAY, THE 17TH, AND THEN BEGIN DELIBERATIONS THE FOLLOWING WEEK AND THE WEEK AFTER THAT AS NEEDED. THERE IS AN ALTERNATIVE. I JUST WANT TO SHARE THIS WITH YOU ALSO. IT'S POSSIBLE THAT WE CAN GO BEYOND THE 25TH OF DECEMBER AND THE 31ST IF NEEDED AND START DELIBERATIONS IN JANUARY. THAT'S PROBABLY NOT THE PREFERABLE, BUT THAT'S AVAILABLE. BUT I JUST WANT YOU TO CONSIDER THAT. SO LET'S -- COUNSEL, ANYTHING YOU WANT TO ADD TO THIS REGARDING SCHEDULING?
MR. SCHENK: NO. THANK YOU.
MR. DOWNEY: NOTHING FROM US, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU. LADIES AND GENTLEMEN, LET ME LET YOU TAKE A BREAK, LET YOU ABSORB THIS, AND WE'LL COME BACK AT ABOUT THE BOTTOM OF THE HOUR AND WE CAN HAVE FURTHER DISCUSSIONS AND YOU CAN INFORM THE COURT OF ANY THOUGHTS THAT THE JURY HAS. SO WE'LL BE IN RECESS.
(JURY OUT AT 11:16 A.M.)
JUDGE DAVILA: ALL RIGHT. PLEASE BE SEATED. THE RECORD SHOULD REFLECT THAT THE JURY HAS LEFT FOR THE BREAK. LET ME JUST TURN TO COUNSEL. ANYTHING THAT COUNSEL WANTS TO PUT ON THE RECORD?
MR. DOWNEY: YOUR HONOR, SINCE WE'VE REACHED THE CLOSE OF EVIDENCE, MS. HOLMES RENEWS THE MOTION FILED UNDER RULE 29 AT THE CONCLUSION OF THE GOVERNMENT'S CASE, AND I'LL SAY THAT FOR THE RECORD.
JUDGE DAVILA: I NOTE THAT. THANK YOU. I DON'T KNOW IF -- DOES THE GOVERNMENT WISH TO BE HEARD ON THE RULE 29 SUBMISSION? THE PARTIES -- LET ME ASK, DO THE PARTIES WANT ADDITIONAL BRIEFING ON THIS? THIS IS ANOTHER ISSUE THAT MIGHT AFFECT OUR DISCUSSIONS ON THE INSTRUCTIONS AS WELL, THE TIMING OF THIS, ALTHOUGH WE COULD ENGAGE A HEARING OR A DISCUSSION AT SOME OTHER TIME. MR. LEACH?
MR. LEACH: I'LL BE GUIDED BY THE COURT, YOUR HONOR. I DON'T HAVE A PARTICULAR ARGUMENT TO MAKE AT THIS POINT, BUT IF THERE'S AN ISSUE THAT THE COURT WANTS BRIEFING OR ARGUMENTS ON FROM THE GOVERNMENT, WE'RE HAPPY TO SUBMIT THAT ON ANY SCHEDULE THE COURT WISHES.
JUDGE DAVILA: OKAY. THANK YOU. MS. SAHARIA?
MS. SAHARIA: ONE MOMENT, YOUR HONOR. I COME WITH A LOT OF BAGGAGE. GOOD MORNING, YOUR HONOR. WHEN WE FIRST MOVED AT THE END OF THE GOVERNMENT'S CASE, WE DEFERRED ARGUMENT ON THAT MOTION. THE COURT RESERVED RULING. WE'RE HAPPY TO -- WE DID NOT FILE A WRITTEN MOTION AT THAT TIME.
JUDGE DAVILA: RIGHT.
MS. SAHARIA: IF YOUR HONOR WOULD LIKE A MOTION IN WRITING, WE CAN CERTAINLY PROVIDE ONE. WE COULD ARGUE ORALLY SOMETIME THIS WEEK IF THE COURT WANTS TO HEAR ORAL ARGUMENT, OR THE COURT COULD RESERVE AND WE CAN BRIEF IT POST VERDICT IF THAT BECOMES NECESSARY. IT'S THE COURT'S PREFERENCE.
JUDGE DAVILA: ALL RIGHT. THANK YOU. ANY OBJECTIONS TO THAT POST-VERDICT CONVERSATION ON THE -- IT HAS BEEN PRESERVED AND RESERVED, AND I DO REFLECT THAT ON THE RECORD, OF COURSE.
MR. LEACH: IT'S BEEN PRESERVED AT THE CLOSE OF THE GOVERNMENT'S CASE, AS WELL AS THE CLOSE OF THE DEFENSE CASE. WE HAVE NO OBJECTION TO DOING IT POST VERDICT.
JUDGE DAVILA: ALL RIGHT. IT SEEMS TO ME THAT, BECAUSE OF THE COMPRESSION OF TIME, I'D LIKE YOUR TEAMS TO DEVOTE SOME ATTENTION TO THE INSTRUCTIONS.
MS. SAHARIA: I AGREE, YOUR HONOR.
JUDGE DAVILA: AND THEN WE CAN TAKE UP ANY OTHER ISSUE AS WE NEED IT. AS TO INSTRUCTIONS, MY THOUGHT IS TO GIVE YOU A DEADLINE ON FILING INSTRUCTIONS. MY THOUGHT WAS THAT WE WOULD PROBABLY RESERVE THIS FRIDAY, THE 10TH, TO BEGIN DISCUSSION OF THOSE. MONDAY, THE 13TH, IS AVAILABLE AS WELL.
MS. SAHARIA: I THINK THAT MAKES SENSE, YOUR HONOR. WE HAVE BEEN MEETING AND CONFERRING WITH THE GOVERNMENT WITH THE GOAL OF GIVING THE COURT ONE FILING THAT WOULD BE A JOINT FILING FROM BOTH PARTIES THAT WOULD REFLECT WHICH INSTRUCTIONS ARE NOT IN DISPUTE. AND THEN AS WE DID WITH THE PRELIMINARY ONES, I THINK OUR INTENTION WOULD BE TO HIGHLIGHT FOR THE COURT THE LANGUAGE THAT IS IN DISPUTE. AND THERE MAY BE A FEW INSTRUCTIONS WHERE WE NEED TO SUBMIT COMPETING INSTRUCTIONS TO THE COURT. WE, WE EXCHANGED DRAFTS OVER THE WEEKEND. WE LAST EXCHANGED OUR DRAFT WITH THE GOVERNMENT ON SUNDAY. WE'RE WAITING TO HEAR BACK FROM THE GOVERNMENT. ASSUMING THEY CAN RESPOND TODAY, MY GOAL WAS TO FILE BY TONIGHT, OR MAYBE AT THE EARLIEST TOMORROW MORNING, THIS JOINT DRAFT THAT THE COURT COULD THEN HAVE TOMORROW WITH, AND WE CAN MEET ON FRIDAY, AND I THINK THAT WILL HELP STREAMLINE OUR DISCUSSION, ASSUMING THAT PROPOSAL IS STILL ACCEPTABLE TO THE GOVERNMENT.
MR. LEACH: IT IS.
JUDGE DAVILA: OKAY. WELL, THAT'S VERY GENEROUS OF YOU. I HAD -- IN MY NOTES HERE, I REFLECTED NOON TOMORROW TO HAVE A FILING.
MS. SAHARIA: THAT WOULD BE -- I THINK THAT WOULD BE SATISFACTORY, YOUR HONOR.
JUDGE DAVILA: DOES THAT WORK FOR YOU?
MR. LEACH: IT DOES, YOUR HONOR. THANK YOU.
JUDGE DAVILA: LET'S DO THAT THEN. IF YOU COULD FILE YOUR JOINT SUBMISSION TOMORROW BY NOON, THAT WOULD GIVE MY TEAM AN OPPORTUNITY TO LOOK AT IT AND SEE WHAT WE COULD DO, AND THEN WE'LL HAVE DISCUSSIONS ON -- BEGIN DISCUSSIONS ON FRIDAY MORNING AND SEE WHERE WE GO. LET ME ASK -- ANYTHING FURTHER ON THAT? ON THE INSTRUCTIONS?
MS. SAHARIA: NO, YOUR HONOR. 9:00 O'CLOCK ON FRIDAY I ASSUME?
JUDGE DAVILA: YES. YES. LET ME ASK YOUR THOUGHTS ABOUT SCHEDULING. YOU HEARD ME TELL THE JURY ABOUT POTENTIAL SCHEDULES. IT SEEMS LIKE -- JUST THE WAY THAT WE'RE GOING, IT SEEMS LIKE THE 16TH AND 17TH WOULD BE THE DAYS, PROBABLY THE EARLIEST DAYS WE COULD GET ARGUMENT. AND THEN DEPENDING ON THE JURY'S AVAILABILITY, THEY WOULD GO OUT AND FORMALLY BEGIN DELIBERATIONS I SHOULD SAY ON THE WEEK OF THE 20TH IF THEY'RE AVAILABLE. ANY COMMENTS ABOUT THIS SCHEDULE AND/OR IF FOR SOME REASON THE JURY THINKS THAT THEY SHOULD TAKE A CHRISTMAS BREAK AND COME BACK AFTER THE NEW YEAR BEGINS? ANY THOUGHTS ABOUT THAT?
MS. SAHARIA: I'LL DEFER THAT TO MR. DOWNEY.
MR. LEACH: I THINK MR. SCHENK AND I HAVE THE SAME VIEWS, BUT I'LL LET HIM EXPRESS THEM.
JUDGE DAVILA: OKAY.
MR. SCHENK: JUST TWO THOUGHTS. FIRST, IF THE CLOSINGS COMPLETE EARLY ENOUGH ON FRIDAY, THE 17TH, I THINK WE CAN ENCOURAGE THEM TO BEGIN DELIBERATIONS THAT DAY. I KNOW THE COURT HAS BEEN SUGGESTING THAT THE DELIBERATIONS BEGIN THE WEEK OF THE 20TH, BUT IT'S POSSIBLE WE WOULD NOT NEED TWO FULL DAYS AND, AS A RESULT, I THINK THEY COULD BEGIN THEIR DELIBERATIONS ON THE 17TH. OTHERWISE I THINK THE SCHEDULE MAKES SENSE. THE QUESTION OF WHETHER, IF THE JURY IS UNAVAILABLE THE WEEK OF THE 20TH AND ALSO UNAVAILABLE THE WEEK OF THE 27TH, WHETHER WE SHOULD DEFER THE ARGUMENTS TO JANUARY, IN ADDITION TO DELIBERATION, I THINK IS SOMETHING THAT WE SHOULD TAKE UP IF WE REACH THAT, THAT EVENTUALITY. AT THIS POINT, I CHOOSE TO REMAIN OPTIMISTIC THAT THE JURY IS GOING TO BE AVAILABLE TO DELIBERATE SOME DAYS EACH OF THOSE WEEKS, AND I THINK IF WE'RE FACED WITH A SITUATION WHERE THEY'RE COMPLETELY UNAVAILABLE FOR TWO FULL WEEKS, THEN WE SHOULD DISCUSS WHAT MAKES SENSE FOR ARGUMENT.
JUDGE DAVILA: OKAY. THANK YOU.
MR. DOWNEY: I THINK IT'S SENSIBLE TO AWAIT THEIR SCHEDULE. CERTAINLY THE FIRST PART OF THE SCHEDULE IS FINE, AND HOPEFULLY THEY ARE AVAILABLE DURING THE WEEK OF THE 20TH, AND FROM THERE I THINK LET'S SEE WHAT THEIR AVAILABILITY IS.
JUDGE DAVILA: OKAY. OKAY.
MR. DOWNEY: THANKS, YOUR HONOR.
JUDGE DAVILA: GREAT. THANK YOU. WE'LL SEE YOU AT THE BOTTOM OF THE HOUR.
MR. DOWNEY: THANK YOU.
COURT CLERK: COURT IS IN RECESS.
(RECESS FROM 11:23 A.M. UNTIL 11:33 A.M.)
JUDGE DAVILA: WE'RE BACK ON THE RECORD. ALL COUNSEL AND MS. HOLMES ARE PRESENT. WE'RE OUTSIDE THE PRESENCE OF THE JURY. TWO JURORS COMMUNICATED TO MS. KRATZMANN THEIR AVAILABILITY. JUROR NUMBER 7 I THINK IS UNAVAILABLE THE 22ND OF DECEMBER, BUT IS OTHERWISE AMENABLE TO THE SCHEDULE THE COURT PROPOSED. JUROR NUMBER 5 HAS AN APPOINTMENT ON THE 16TH OF DECEMBER, BUT WILL ENDEAVOR TO RESCHEDULE THAT SUCH THAT JUROR NUMBER 5 COULD PARTICIPATE AS WELL. THOSE WERE THE ONLY TWO COMMUNICATIONS, MS. KRATZMANN, THAT YOU RECEIVED FROM THE JURY?
COURT CLERK: YES, YOUR HONOR.
JUDGE DAVILA: SO IT SOUNDS LIKE THE JURY IS OTHERWISE AVAILABLE. WE'LL BRING THEM IN NOW AND I'LL FORMALLY ASK AVAILABILITY AND WE'LL HEAR FROM THEM. ANYTHING FURTHER BEFORE WE BRING THE JURY IN?
MR. DOWNEY: NOT FROM US, YOUR HONOR.
MR. LEACH: YOUR HONOR, NOT RELATING TO THE SCHEDULE. THERE IS A POSSIBLE MOTION THAT WE WANTED TO TALK ABOUT WITH THE COURT. WE CAN EITHER DO IT NOW --
JUDGE DAVILA: SURE. LET'S TALK ABOUT IT NOW, SURE.
MR. LEACH: THE COURT HAS NOTED IN A COUPLE INSTANCES POTENTIAL ISSUES RELATING TO TESTIMONY BY MS. HOLMES RELATING TO EVENTS IN 2003 AND EVENTS VIS-A-VIS HER AND MR. BALWANI AND WHETHER THOSE ARE ADMISSIBLE WITHOUT EXPERT TESTIMONY. THE DEFENSE HAS ELECTED NOT TO CALL THAT EXPERT. IT IS THE GOVERNMENT'S INTENTION TO MOVE TO STRIKE PORTIONS OF THE TESTIMONY, AND WE WANTED TO RAISE THIS ISSUE WITH THE COURT AS WE'RE TALKING ABOUT SCHEDULE AND TALK ABOUT THE APPROPRIATE WAY FOR US TO DO THAT AND TIMING FOR THAT. I THINK TOP OF MIND ARE THERE WERE A NUMBER OF ALLEGATIONS ABOUT AN INCIDENT AT STANFORD IN 2003, MORE THAN SEVEN YEARS BEFORE THE CONSPIRACY, THAT DOES NOT HAVE ANY APPARENT RELEVANCE AND RAISES SIGNIFICANT 403 CONCERNS. I THINK THAT ALSO TIES WITH A NUMBER OF OTHER INCIDENTS THAT WERE DESCRIBED IN THE DIRECT EXAMINATION. I HAVEN'T HAD TIME TO GATHER THE PARTICULAR CASE CITES, BUT WE WANT TO DO THAT IN WHATEVER FORM OR MANNER THE COURT WOULD FIND USEFUL.
JUDGE DAVILA: ALL RIGHT. THANK YOU. WELL, THIS MIGHT INTERPLAY WITH OUR SCHEDULE AS FAR AS INSTRUCTIONS, BECAUSE DEPENDING ON THE COURT'S RULING, THAT COULD AFFECT THE INSTRUCTIONS AND WHETHER OR NOT THERE'S MODIFICATION OF INSTRUCTIONS.
MR. LEACH: WE COULD HAVE SOMETHING ON FILE AT THE NOON DEADLINE TOMORROW IF THAT SUITS THE COURT.
JUDGE DAVILA: WELL, IF YOU WANT TO FILE SOMETHING INITIALLY, THAT WOULD BE HELPFUL, I THINK, AS TO WHAT YOUR POSITION IS.
MR. LEACH: OKAY.
JUDGE DAVILA: AND THEN, MR. DOWNEY, ANYTHING YOU WANT TO SAY?
MR. DOWNEY: WE'LL AWAIT THE MOTION, YOUR HONOR. BUT I THINK WE OUGHT TO GET IT RESOLVED QUICKLY AND, OF COURSE, THE -- I DON'T THINK WITH RESPECT TO ANYTHING THAT MR. LEACH MENTIONED THAT IT WAS OBJECTED TO CONTEMPORANEOUSLY, SO THERE'S OBVIOUSLY BEEN A BIG EFFECT ON THE RECORD BY THE FAILURE TO DO THAT, INCLUDING THAT WE DID NOT OBJECT TO CORRESPONDING CROSS-EXAMINATION. SO WE'LL DISCUSS THOSE ISSUES IN THE CONTEXT OF THE MERITS, BUT I'M SURPRISED TO HEAR THAT MOTION AFTER THE CLOSE OF EVIDENCE. BUT IF MR. LEACH FILES BY NOON TOMORROW, WE WOULD BE HAPPY TO TRY TO AT LEAST HAVE A DISCUSSION, EVEN IF WE'RE NOT ABLE IN A POSITION TO FILE SOMETHING BEFORE FRIDAY, WE WOULD BE IN A POSITION TO HAVE A DISCUSSION WITH YOUR HONOR ON FRIDAY ON THAT SUBJECT.
JUDGE DAVILA: ALL RIGHT. MR. LEACH?
MR. LEACH: NOTHING MORE THAN I THINK THE COURT NOTED IN ITS ORDER TO SEVER THE CASE, AND I THINK IT'S OBVIOUS FROM SOME OF THE ISSUES THAT WERE RAISED, THERE WAS CONDITIONAL RELEVANCE TO SOME OF WHAT SHE WAS TESTIFYING TO IF THERE WAS EXPERT TESTIMONY. BUT NOW THAT THERE'S NONE, I THINK THAT ISSUE NEEDS TO BE ADDRESSED. SO I DON'T THINK THERE'S ANYTHING IN THE TIMING AS WE'RE RAISING THIS THAT IS INAPPROPRIATE. I THINK THE DEFENSE HAS HEARD THE COURT'S COMMENTS A NUMBER OF TIMES ON THIS ISSUE, AND SO WE'LL PUT OUR SUBMISSION TOGETHER AND GET THAT ON FILE TOMORROW.
JUDGE DAVILA: ALL RIGHT. IT SEEMS LIKE A MR. LEACH'S POINT IS THAT THERE WAS A 12.2 NOTICE MADE, AS IS REQUIRED BY THE RULES, AND THAT ENGAGED CERTAIN NOTICE AND THE PARTIES TOOK CERTAIN ACTIONS BECAUSE OF THAT. AND I'LL JUST WAIT TO HEAR, MR. LEACH, YOUR THOUGHTS ABOUT THE STATE OF THE EVIDENCE AND HOW ALL OF THAT RELATES TO THE TESTIMONY.
MR. LEACH: WILL DO, YOUR HONOR.
JUDGE DAVILA: OKAY. ALL RIGHT.
MR. DOWNEY: THANK YOU, YOUR HONOR.
JUDGE DAVILA: OKAY.
(PAUSE IN PROCEEDINGS.)
(JURY IN AT 11:40 A.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. PLEASE BE SEATED. WE ARE BACK ON THE RECORD. ALL PARTIES PREVIOUSLY PRESENT ARE PRESENT ONCE AGAIN. OUR JURY IS PRESENT. LADIES AND GENTLEMEN, I UNDERSTAND THAT -- MS. KRATZMANN HAS INFORMED ME THAT TWO JURORS HAVE INDICATED COMMENTS ON THE SCHEDULE THAT I PROPOSED. I UNDERSTAND ONE JUROR IS NOT AVAILABLE ON THE 22ND OF DECEMBER, BUT OTHERWISE WOULD BE AVAILABLE TO DELIBERATE IF WE WERE NOT IN SESSION ON THAT DATE. AND MY SENSE IS THAT THE COURT WOULD ACCOMMODATE THAT SCHEDULE SHOULD THAT BE HELPFUL TO THE JUROR. I ALSO AM INFORMED THAT ONE JUROR HAS A MEDICAL ISSUE -- APPOINTMENT, PARDON ME, I SHOULD SAY AN APPOINTMENT -- ON THE 16TH OF DECEMBER, BUT IS -- IT SOUNDS LIKE THAT COULD BE RESCHEDULED, AND I THINK EFFORTS ARE GOING TO BE MADE TO RESCHEDULE THAT SUCH THAT, AT LEAST FOR NOW, THAT JUROR WOULD BE -- CAN I ASK, WILL THAT JUROR BE AVAILABLE -- THIS IS JUROR NUMBER 5. DO YOU THINK YOU WILL BE AVAILABLE ON THE 16TH, JUROR NUMBER 5?
JUROR: YES, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU. SO, COUNSEL, IT SOUNDS LIKE THE SCHEDULE THAT I PROPOSED COULD BE ENGAGED SAVE FOR THE 22ND. THE 22ND WOULD BE A DAY THAT THE JURY WOULD NOT BE DELIBERATING ON. LET ME JUST ASK THE JURY COLLECTIVELY, IF I RECOGNIZE THAT YOU WOULD NOT BE IN SESSION ON THE 22ND, AND THAT JUROR NUMBER 5 IS GOING TO RESCHEDULE THE APPOINTMENT ON THE 16TH, DOES THE SCHEDULE THAT THE COURT PROPOSED TO YOU -- IS THERE ANYONE THAT HAS ANY OTHER ISSUE WITH THAT SCHEDULE? IF SO, IF YOU WOULD JUST RAISE YOUR HAND. YOU ARE SO GOOD AT NOT RAISING YOUR HANDS WHEN I ASK YOU MY QUESTIONS. SO THANK YOU. THANK YOU VERY MUCH. SO WE'LL ADOPT THAT SCHEDULE. SO, LADIES AND GENTLEMEN, LET'S DO THIS. WE WILL BREAK NOW, AND THE NEXT TIME THAT WE WILL SEE YOU, UNLESS YOU'RE NOTIFIED OF ANY OTHER EXTENSION, THE NEXT TIME THAT WE WOULD SEE YOU WOULD BE ON DECEMBER 16TH, DECEMBER 16TH AT 9:00 A.M., AND THAT WOULD BE FOR CLOSING ARGUMENTS, CLOSING FINAL ARGUMENTS.
SO I WOULD ASK YOU TO ADJUST YOUR SCHEDULES APPROPRIATELY FOR THAT. I ANTICIPATE THE ARGUMENTS MAY TAKE TWO DAYS. WE MAY GO INTO THE 17TH. IT MAY NOT TAKE US UNTIL THE END OF THE DAY ON THE 17TH. IF THAT OCCURS, IF THERE IS TIME REMAINING ON THE 17TH, I WILL THEN INSTRUCT YOU, I'LL READ YOU THE INSTRUCTIONS, AND YOU CAN BEGIN THE DELIBERATIONS AS SOON AS THE COURT HAS GIVEN YOU THE FINAL INSTRUCTIONS. SO WITH THAT, WE'LL BE IN RECESS FOR TODAY. WE'LL SEE YOU AGAIN NEXT ON DECEMBER 16TH AT 9:00 A.M. IF YOU WOULD COLLECT YOURSELVES ACCORDINGLY. AND MS. KRATZMANN WILL BE IN TOUCH WITH YOU SHOULD THERE BE ANY DEVIATION OR CHANGE IN THIS SCHEDULE. AND SHOULD ANYTHING OCCUR IN YOUR SCHEDULES, I WOULD INVITE YOU TO PLEASE CONTACT MS. KRATZMANN AND LET HER KNOW SO THAT WE CAN, WE CAN HAVE NOTICE OF THAT. SO WE'LL SEE YOU NEXT WEEK.
BUT LET ME TELL YOU AND REMIND YOU, IT'S EVER SO IMPORTANT NOW FOR YOU TO PLEASE DO NOT DISCUSS WITH ANYONE, DO NOT DO ANY RESEARCH, DO NOT LISTEN TO, READ, OR IN ANY WAY COME INTO ANY INFORMATION ABOUT THIS CASE. DO NOT MAKE ANY OPINIONS ABOUT IT, AND DO NOT MAKE ANY DECISIONS ABOUT THIS CASE. YOU MAY ONLY DO THAT FOLLOWING THE ARGUMENTS AND FOLLOWING THE INSTRUCTIONS, AND YOU MAY BEGIN ANY DELIBERATION ONLY WHEN YOU'VE BEEN GIVEN THE CASE AND YOU'VE RETIRED TO THE DELIBERATION ROOM TO BEGIN THEN YOUR DISCUSSIONS AND SHARING INFORMATION AND THOUGHTS ABOUT THE CASE. BUT DO NOT REACH ANY CONCLUSION ABOUT THIS CASE UNTIL THEN. SO PLEASE, WITH THAT ADMONISHMENT, WE WILL RECESS TODAY, AND WE'LL SEE YOU BACK ON THE 16TH. AGAIN, THE FIRST THING I'M GOING TO ASK YOU IS THAT QUESTION AGAIN, WHETHER OR NOT ANY OF YOU SHOULD RAISE YOUR HANDS REGARDING CONTACT WITH ANY INFORMATION THAT YOU MAY HAVE SEEN. PLEASE AVOID THAT. IT'S -- AS YOU MIGHT IMAGINE, THE CASE -- THE EVIDENCE IS NOW IN, SO IT'S CRITICALLY IMPORTANT THAT YOU CONTINUE TO MAINTAIN VIGILANCE TO AVOID INFORMATION ABOUT ANYTHING TO DO WITH THIS CASE. HAVE A GOOD DAY. WE'LL SEE YOU BACK ON THE 16TH. THANK YOU.
(JURY OUT AT 11:46 A.M.).
JUDGE DAVILA: ALL RIGHT. PLEASE BE SEATED. THE RECORD SHOULD REFLECT THAT OUR JURY HAS LEFT FOR THE RECESS. COUNSEL, ANYTHING FURTHER BEFORE WE BREAK?
MR. SCHENK: NOT FROM THE GOVERNMENT. THANK YOU.
MR. DOWNEY: YOUR HONOR, I WONDER IF BEFORE WE MEET ON FRIDAY, MAYBE MR. SCHENK AND I CAN TALK ABOUT THE CLOSING ARGUMENTS. I'M OBVIOUSLY NOT KEEN TO HAVE A LENGTHY CLOSING ARGUMENT ON THE BACK END OF THE DAY AND TO HAVE THE GOVERNMENT HAVE TWO CLOSINGS ON CONSECUTIVE MORNINGS. SO MAYBE WE'LL SEE HOW LONG EACH OF US WANTS TO BE AND WE'LL PROPOSE SOME SCHEDULE IN CONNECTION WITH THAT.
JUDGE DAVILA: OKAY. THANK YOU. RESTRAIN YOUR ENTHUSIASM, MR. SCHENK.
(LAUGHTER.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. AND I APPRECIATE YOUR CONTINUED COOPERATION AND EFFORTS IN DISCUSSING MATTERS TO ASSIST BOTH YOUR TEAMS AND THE EFFICIENCY OF THE CASE GOING FORWARD. I APPRECIATE THAT. ALL RIGHT. WE'LL AWAIT YOUR SUBMISSIONS TOMORROW, AND THEN WE'LL SEE EACH OTHER ON THE 10TH AT 9:00 A.M.
MR. DOWNEY: THANK YOU, YOUR HONOR.
JUDGE DAVILA: ALL RIGHT. THANK YOU.
COURT CLERK: COURT IS ADJOURNED.
(COURT ADJOURNED AT 11:47 A.M.)