Erika Cheung — Direct
576 linesDIRECT EXAMINATION BY MR. BOSTIC:
MR. BOSTIC: GOOD AFTERNOON, MS. CHEUNG.
ERIKA CHEUNG: GOOD AFTERNOON.
MR. BOSTIC: WAS THERE A TIME WHEN YOU WERE EMPLOYED BY A COMPANY CALLED THERANOS?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHEN YOU WERE AT THERANOS, WHAT WAS YOUR JOB TITLE AND DESCRIPTION?
ERIKA CHEUNG: SO MY JOB TITLE AND DESCRIPTION WAS LAB ASSOCIATE, AND I CAME INTO THE COMPANY WORKING IN THE RESEARCH AND DEVELOPMENT LAB WHEN I FIRST STARTED WORKING FOR THE COMPANY.
MR. BOSTIC: OKAY. DID YOU REMAIN IN THE RESEARCH AND DEVELOPMENT LAB FOR YOUR ENTIRE TIME AT THE COMPANY?
ERIKA CHEUNG: NO. I WAS FIRST IN THE RESEARCH AND DEVELOPMENT LAB AS A LAB ASSOCIATE, AND THEN WAS INTEGRATED INTO THE CLINICAL LAB AS A LAB ASSOCIATE WHERE THE CLINICAL LAB IS EFFECTIVELY WHERE THE PATIENT PROCESSING OCCURRED OR OCCURS AT THERANOS.
MR. BOSTIC: WHAT WERE YOUR DATES OF EMPLOYMENT AT THERANOS?
ERIKA CHEUNG: I WORKED AT THERANOS OCTOBER 2013 TO ABOUT APRIL OF 2014.
MR. BOSTIC: OKAY. APPROXIMATELY SIX MONTHS GIVE OR TAKE?
ERIKA CHEUNG: YES.
MR. BOSTIC: HOW DID YOUR EMPLOYMENT AT THERANOS END? WERE YOU TERMINATED? LAID OFF? DID YOU RESIGN?
ERIKA CHEUNG: I RESIGNED.
MR. BOSTIC: AND IN GENERAL TERMS, WHAT WAS THE REASON FOR RESIGNING FROM YOUR JOB AT THERANOS?
ERIKA CHEUNG: I LEFT THERANOS BECAUSE I WAS UNCOMFORTABLE PROCESSING PATIENT SAMPLES AND I DID NOT FEEL THAT THE TECHNOLOGY THAT WE WERE USING IN ORDER TO PROCESS PATIENT SAMPLES WAS ADEQUATE ENOUGH TO BE ENGAGING IN THAT BEHAVIOR OF PROCESSING PATIENT SAMPLES. AFTER LOTS OF CONVERSATIONS WITH VARIOUS EXECUTIVES AND PEOPLE WITHIN THE ORGANIZATION, I HAD MADE THE DECISION TO LEAVE THE ORGANIZATION.
MR. BOSTIC: OKAY. LET'S GO BACK IN TIME A LITTLE BIT. CAN YOU SUMMARIZE YOUR EDUCATION FOR ME BEGINNING POST HIGH SCHOOL?
ERIKA CHEUNG: POST HIGH SCHOOL EDUCATION, I GRADUATED FROM U.C. BERKELEY, UNIVERSITY OF CALIFORNIA BERKELEY, AND I RECEIVED A DEGREE IN MOLECULAR AND CELLULAR BIOLOGY AND A BACHELOR'S IN LINGUISTICS, SO A DUAL DEGREE.
MR. BOSTIC: WAS THERANOS YOUR FIRST EMPLOYMENT OUT OF COLLEGE?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND HOW DID YOU FIRST HEAR ABOUT THE COMPANY THERANOS?
ERIKA CHEUNG: I FIRST HEARD ABOUT THERANOS AT A STUDENT CAREER FAIR AT THE U.C. BERKELEY CAMPUS, AND ESSENTIALLY THEY'RE BOOTHS SET UP WITH DIFFERENT COMPANIES, AND THERANOS HAD PROBABLY THE MOST POPULAR BOOTH. IT HAD KIND OF A LINE OUT THE DOOR OF PEOPLE WAITING TO TALK TO THE RECRUITER THERE, AND SO I WAITED IN LINE TO TALK TO ONE OF THE RECRUITERS TO BE A PART OF THE COMPANY.
MR. BOSTIC: AND AT THAT TIME DID YOU KNOW MUCH ABOUT THE BUSINESS OF THE COMPANY, WHAT IT WAS DOING?
ERIKA CHEUNG: NO.
MR. BOSTIC: DID YOU THEN GO THROUGH THE JOB INTERVIEW PROCESS FOR A POSITION AT THERANOS?
ERIKA CHEUNG: YES. SO ESSENTIALLY AFTER WAITING IN LINE, I HANDED OVER MY RESUME TO THE RECRUITER, AND SHE SAID WE'RE HIRING A WHOLE BUNCH OF PEOPLE FOR MANY DIFFERENT POSITIONS, LET ME SUBMIT YOUR RESUME AND GIVE YOU A CALL TO SEE WHAT OPENING POSITIONS YOU'LL HAVE. SO AFTER I SUBMITTED MY RESUME I HAD GOTTEN A CALL BACK AND THEY HAD TOLD ME THAT I HAD A PHONE INTERVIEW WITH THE COMPANY FOR A POTENTIAL POSITION, AN ENTRY LEVEL POSITION. AND THEN I PROCEEDED TO GO THROUGH THEIR INTERVIEW PROCESS FROM THAT POINT FORWARD.
MR. BOSTIC: AND DID THE INTERVIEW PROCESS INCLUDE INTERVIEWS WITH EITHER ELIZABETH HOLMES OR RAMESH "SUNNY" BALWANI?
ERIKA CHEUNG: YES, WITH BOTH RAMESH BALWANI AND ELIZABETH HOLMES.
MR. BOSTIC: OKAY. AND WAS THAT THE ORDER THAT THEY OCCURRED IN FIRST MR. BALWANI AND THEN MS. HOLMES IF YOU RECALL?
ERIKA CHEUNG: YES.
MR. BOSTIC: DURING THOSE INTERVIEWS -- WELL, LET'S START WITH THE INTERVIEW WITH MR. BALWANI FIRST. DO YOU RECALL LEARNING ANYTHING ABOUT THE COMPANY DURING YOUR CONVERSATION WITH HIM?
ERIKA CHEUNG: I DIDN'T LEARN TOO MUCH. I UNDERSTOOD THAT IT WAS A MEDICAL DIAGNOSTIC COMPANY, THAT THERE WERE SORT OF GRAND ENVISIONS OF WHAT THEY WERE GOING TO ACCOMPLISH, BUT IN TERMS OF THE QUESTIONS THAT I ASKED DURING THE INTERVIEW IT WAS TOLD TO ME THAT THEY, YOU KNOW, HAD CONFIDENTIALITY AROUND THE TECHNOLOGY THAT THEY WERE BUILDING AND I WOULD FIND OUT ONCE I STARTED WORKING FOR THE COMPANY AND MORE SPECIFICS ABOUT WHAT IT WAS THAT WE WERE WORKING ON AND THE TECHNOLOGY THAT WE WERE DEALING WITH.
MR. BOSTIC: HOW ABOUT YOUR INTERVIEW WITH MS. HOLMES, HOW DID THAT COMPARE IN THAT REGARD?
ERIKA CHEUNG: I ALSO -- IN MY INTERVIEW WITH MS. HOLMES I THINK I WAS MORE KIND OF STAR STRUCK BECAUSE OF WHAT I HAD READ ON THE INTERNET WITH HER. I ASKED A COUPLE OF QUESTIONS, AND SHE SAID YOU'LL FIND OUT ONCE YOU START WORKING FOR THE COMPANY AS WELL ABOUT THE TECHNOLOGY WE'RE WORKING WITH AND SEE WHAT IT IS THAT WE'RE ALL ABOUT AND WHAT THE PROSPECTS BASICALLY OF THE COMPANY ARE GOING TO BE RIGHT NOW AND IN THE FUTURE.
MR. BOSTIC: AND YOU WERE IN THE MIDST OF THE JOB APPLICATION PROCESS, SO I TAKE IT YOU WERE INTERESTED IN THE POSITION; IS THAT CORRECT?
ERIKA CHEUNG: YES.
MR. BOSTIC: SEPARATE FROM THAT, WERE YOU EXCITED ABOUT THE PROSPECT OF WORKING AT THERANOS?
ERIKA CHEUNG: I WAS VERY EXCITED ABOUT THE PROSPECT OF WORKING FOR THERANOS BASED ON THE VERY LITTLE INFORMATION THAT WAS ABOUT THE COMPANY, IT HAD WHAT WOULD APPEAR TO BE A REALLY EXCITING TECHNOLOGY WHERE THEY WERE ESSENTIALLY GOING TO PREVENT PEOPLE FROM GETTING LAB DIAGNOSTICS THAT WERE PAINFUL BY DOING VENOUS DRAWS BY A FINGERSTICK, THAT IT WOULD BE AFFORDABLE, THAT THERE WAS COMPLETE PRICE TRANSPARENCY, WHICH IS SOMETHING THAT I WAS EXCITED ABOUT, SOMETHING THAT WAS GOING TO BE MORE ACCESSIBLE. SO ESSENTIALLY INSTEAD OF JUST GETTING YOUR BLOOD TESTS DONE ONCE OR TWICE, YOU COULD GET IT MULTIPLE TIMES. SO BETWEEN THE TECHNOLOGY, BETWEEN WHAT I HAD HEARD ABOUT MS. HOLMES, AND THE FACT THAT WE WERE IN THE SILICON VALLEY AND IT HAD SORT OF THIS HYPE ABOUT BEING THIS KIND OF A STARTUP, I WAS REALLY EXCITED TO WORK WITH THERANOS AND HAD ACTUALLY TURNED DOWN OTHER JOB OPPORTUNITIES TO WORK WITH THEM.
MR. BOSTIC: WHAT WAS ABOUT IT MS. HOLMES IN PARTICULAR THAT INCREASED THE APPEAL OF THE COMPANY TO YOU?
ERIKA CHEUNG: I THINK IN THE INTERVIEW THAT I HAD SEEN WITH THE STANFORD TECHNOLOGY VENTURE PROGRAM SHE HAD TALKED ABOUT ESSENTIALLY WHAT THE TECHNOLOGY COULD DO, WHAT POINT OF CARE DIAGNOSTICS COULD DO. SO INSTEAD OF JUST HAVING A ONE TIME STAMP OF YOUR BLOOD DIAGNOSTICS YOU COULD HAVE MULTIPLE BECAUSE IT WAS EASIER, LESS PAINFUL, CHEAPER, AND IT WOULD HAVE A SORT OF DYNAMIC STORY LINE OF WHAT YOUR HEALTH WAS, WHICH COULD REALLY CHANGE THE WAY IN WHICH WE TREAT PATIENTS. AND SHE HAD A CHARISMA TO HER, RIGHT? SHE WAS VERY ARTICULATE. SHE HAD A STRONG SENSE OF CONVICTION ABOUT HER MISSION. AND ALSO AT THAT TIME SHE WAS ONE OF THE FEW, YOU KNOW, FEMALE ENTREPRENEURS WHO MANAGED TO GET THIS SORT OF UNICORN STATUS OF A COMPANY, WHICH MEANS THAT IT HAD A VALUATION OF OVER A BILLION DOLLARS, AND TO HELP SUPPORT SOMEONE WHO HAD WHAT APPEARED TO BE STRONG LEADERSHIP, A STRONG MISSION, AND WHO COULD POTENTIALLY SET AN EXAMPLE FOR OTHER WOMEN TO GET EXCITED ABOUT SCIENCE AND ENGINEERING. IT SEEMED LIKE A COMPANY THAT I WANTED TO BE APART OF AND TO HELP BUILD AND GROW.
MR. BOSTIC: AT THE CONCLUSION OF THE APPLICATION PROCESS, WERE YOU OFFERED A POSITION AT THERANOS?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND DID YOU ACCEPT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND FOR THE REASONS THAT WE JUST DISCUSSED?
ERIKA CHEUNG: YES.
MR. BOSTIC: WHEN YOU STARTED AT THE COMPANY, DID YOU SIGN A NONDISCLOSURE AGREEMENT?
ERIKA CHEUNG: YES.
MR. BOSTIC: DURING THE EARLY DAYS OF YOUR EMPLOYMENT WITH THE COMPANY, DID YOU GET A SENSE OF WHETHER INFORMATION WAS RESTRICTED AT THE COMPANY? IN OTHER WORDS, WHETHER THERE WAS INFORMATION THAT YOU WERE LEARNING THAT COULD NOT BE SHARED OUTSIDE OF THE COMPANY?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND HOW DID YOU GET THAT SENSE?
ERIKA CHEUNG: WHEN WE DID OUR ENTRY INTERVIEW INTO THE COMPANY, WE SAT DOWN WITH CHRISTIAN HOLMES, WHO WAS ONE OF THE PROJECT MANAGERS OF THE COMPANY, AND HE ESSENTIALLY TOLD US THAT SECRECY WAS VERY IMPORTANT BECAUSE WE NEEDED TO GUARD INFORMATION TO ENSURE THAT COMPETITORS WOULD NOT FIGURE OUT WHAT WE WERE DOING WITHIN THE COMPANY AND THAT WE COULDN'T PUT -- SAY THAT WE WORKED AT THERANOS ON OUR LINKEDIN PROFILES OR HAVE VERY DESCRIPTIVE INDICATIONS ABOUT WHAT OUR ROLES AND RESPONSIBILITIES WERE, AND IT WAS VERY IMPORTANT FOR US TO KEEP INFORMATION ABOUT WHAT WE WERE DOING IN THE COMPANY INTERNAL. SO IT WAS VERY CLEAR FROM THE VERY BEGINNING WORKING THERE THE FIRST DAY ON THE JOB THAT WE NEEDED TO KEEP INFORMATION CONFIDENTIAL AND SECRET AND THAT IT WAS MEANT FOR SORT OF INTERNAL VIEWING.
MR. BOSTIC: REMIND ME OR REPEAT, WHAT WAS CHRISTIAN HOLMES'S TITLE AT THE COMPANY AGAIN?
ERIKA CHEUNG: CHRISTIAN HOLMES'S TITLE, HE WAS ONE OF THE LEAD PROJECT MANAGERS.
MR. BOSTIC: IN ADDITION TO THAT WAS HE ALSO ELIZABETH HOLMES'S BROTHER?
ERIKA CHEUNG: YES.
MR. BOSTIC: NOW THAT YOU WERE EMPLOYED AT THE COMPANY, DID YOU DEVELOP A SENSE OF WHAT BUSINESS THE COMPANY WAS IN? WHAT THE COMPANY DID?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND HOW WOULD YOU DESCRIBE THAT AT A HIGH LEVEL?
ERIKA CHEUNG: SO AT A HIGH LEVEL THERANOS WAS CREATING A NEW TYPE OF MEDICAL DEVICE WHERE ESSENTIALLY INSTEAD OF RUNNING VENOUS DRAW BLOOD SAMPLES THEY WERE RUNNING A FINGERSTICK. YOU WOULD TAKE THIS FINGERSTICK SAMPLE AND PUT IT INTO A TESTING KIT, AND STICK IT INTO A MACHINE, AND THEN IT WOULD GIVE YOU ALL OF THE RESULTS THAT YOU WOULD NEED FOR YOUR LAB DIAGNOSTICS THAT AT THAT POINT A DOCTOR WOULD TYPICALLY ORDER. SO IT WAS A PATIENT PROCESSING COMPANY IN ADDITION TO AN INNOVATIVE MEDICAL DEVICE COMPANY.
MR. BOSTIC: BASED ON YOUR UNDERSTANDING AT THE TIME, DID THERANOS HAVE ANY COMPETITORS IN THE BLOOD TESTING FIELD?
ERIKA CHEUNG: THEY DID, YES.
MR. BOSTIC: WHO WERE THE CHIEF COMPETITORS IF YOU HAVE A SENSE?
ERIKA CHEUNG: THE CHIEF COMPETITORS WERE LAB CORP. AND QUEST DIAGNOSTICS.
MR. BOSTIC: AND WAS THERE ANYTHING ABOUT THERANOS THAT SET THAT COMPANY APART FROM THOSE TWO COMPETITORS THAT YOU MENTIONED?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHAT WAS THAT?
ERIKA CHEUNG: SO THE BIGGEST THING THAT SET THERANOS APART WAS EVENTUALLY THE GOAL OF THERANOS WAS THE FACT THAT THESE DEVICES WOULD BE SET UP IN PHARMACIES ACROSS THE U.S., SO IN WALGREENS. SO INSTEAD OF HAVING YOUR BLOOD TUBES SORT OF SENT TO A CENTRALIZED LABORATORY FACILITY LIKE LAB CORP., QUEST DIAGNOSTICS, IT COULD BE RUN ONSITE. SO IT COULD BE RUN AT THE WALGREENS LOCATION AND HAVING A MORE SORT OF DECENTRALIZED WAY OF TESTING PEOPLE WAS SOMETHING THAT YOU HADN'T QUITE SEEN YET.
MR. BOSTIC: YOU MENTIONED A MINUTE AGO THE METHOD OF DRAWING BLOOD FROM A FINGERSTICK AS WELL?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WAS THAT SOMETHING THAT WAS RELATIVELY UNIQUE TO THERANOS AS COMPARED TO THE COMPETITOR COMPANIES THAT YOU MENTIONED?
ERIKA CHEUNG: YES.
MR. BOSTIC: YOU SAID THAT YOUR INITIAL PLACEMENT AT THE COMPANY WAS IN THE RESEARCH AND DEVELOPMENT LAB; IS THAT CORRECT?
ERIKA CHEUNG: THAT IS CORRECT.
MR. BOSTIC: AND JUST ONE MORE TIME, WHAT WAS YOUR JOB TITLE THERE?
ERIKA CHEUNG: I WAS A LAB ASSOCIATE.
MR. BOSTIC: WHEN YOU JOINED THE COMPANY, WAS THERANOS ALREADY OFFERING BLOOD TESTING SERVICES TO THE PUBLIC?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND THIS WOULD HAVE BEEN IN OCTOBER 2013 YOU SAID?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHAT DEPARTMENT OR GROUP IN THERANOS HANDLED PATIENT BLOOD TESTING?
ERIKA CHEUNG: IN OCTOBER OF 2013 IT WAS THE RESEARCH AND DEVELOPMENT DEPARTMENT FOR FINGERSTICK SAMPLES.
MR. BOSTIC: WAS THERE ALSO A CLINICAL LAB OPERATING AT THAT TIME?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND DID THE CLINICAL LAB ALSO HAVE A ROLE IN CONDUCTING PATIENT TESTING?
ERIKA CHEUNG: YES.
MR. BOSTIC: CAN YOU EXPLAIN AGAIN IN GENERAL TERMS THE DIFFERENCE BETWEEN THE RESEARCH AND DEVELOPMENT DEPARTMENT VERSUS THE CLINICAL LABORATORY DEPARTMENT AT THERANOS?
ERIKA CHEUNG: JUST TO MAKE SURE I UNDERSTAND THE QUESTION. EXPLAIN THE DIFFERENCES BETWEEN THE RESEARCH AND DEVELOPMENT LAB AND THE CLINICAL LAB?
MR. BOSTIC: EXACTLY.
ERIKA CHEUNG: SO IN THE RESEARCH AND DEVELOPMENT LAB, THAT WAS THE CREATION OF ALL OF THE DIFFERENT BLOOD TESTS. SO THE RESEARCH AND DEVELOPMENT LAB WAS THE LABORATORY WHERE WE WERE DEVELOPING ALL OF THE TESTS THAT WE WERE GOING TO RUN ON FINGERSTICK SAMPLES. AND SO THE DEVELOPMENT HAPPENED THERE IN ADDITION TO THE VALIDATION TO MAKE SURE ARE THESE ACCURATE TESTS? DO THEY OPERATE RELIABLY? AND, YOU KNOW, THIS WAS THE PLACE WHERE ALL OF THE NEW TESTS THAT WE HADN'T DEVELOPED YET WERE ONGOING AND WORKING. AND THEN IN THE CLINICAL LAB, THE CLINICAL LAB IS WHERE YOU ACTIVELY PROCESS PATIENT SAMPLES. SO WHEN A DOCTOR HAS A REQUEST, IT GETS SENT TO THE CLINICAL LAB, AND WE FIGURE OUT IN THE CLINICAL LAB HOW TO RUN THAT PATIENT SAMPLE. SO THAT'S THE DIFFERENCE.
MR. BOSTIC: SO A GIVEN TEST WOULD BEGIN IN THE RESEARCH AND DEVELOPMENT SECTION OR LAB, AND THEN ONCE IT WAS READY IT WOULD BE MOVED INTO THE CLINICAL LAB FOR PATIENT TESTING?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND YOU WORKED IN BOTH OF THESE LABS AT THERANOS; CORRECT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND DURING YOUR TIME AT THE COMPANY, DID YOU BECOME GENERALLY FAMILIAR WITH WHAT KINDS OF TESTS THERANOS WAS CONDUCTING?
ERIKA CHEUNG: YES.
MR. BOSTIC: HOW ABOUT THE DEVICES USED BY THE COMPANY. AS PART OF YOUR ROLE DID YOU BECOME FAMILIAR WITH THE KINDS OF ANALYZERS THAT THERANOS WAS USING TO TEST PATIENT BLOOD SAMPLES?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND DID THERANOS MANUFACTURE SOME BLOOD ANALYZERS?
ERIKA CHEUNG: YES, THEY DID.
MR. BOSTIC: WHAT WERE THOSE?
ERIKA CHEUNG: THE DEVICES THAT THERANOS MANUFACTURED WERE THE EDISON, THE EDISON DEVICES.
MR. BOSTIC: AND WERE THERE DIFFERENT VERSIONS OF THE EDISON DEVICES?
ERIKA CHEUNG: YES. SO THERE WAS THE EDISON 3.0'S AND THE EDISON 3.5'S.
MR. BOSTIC: AND WERE THOSE TWO DIFFERENT VERSIONS OF THE SAME BASIC DEVICE?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND THERE'S A BINDER ON THE DESK IN FRONT OF YOU. IF I COULD ASK YOU TO OPEN THAT AND TURN TO A TAB LABELLED EXHIBIT 5388. LET ME KNOW WHEN YOU'RE THERE.
ERIKA CHEUNG: IS IT IN THE FRONT OF 5388 OR THE BACK?
MR. BOSTIC: IT SHOULD BE IN THE BACK. I THINK IT'S THE SECOND TO THE LAST TAB IN THE BINDER.
ERIKA CHEUNG: YES.
MR. BOSTIC: AND YOU SHOULD BE LOOKING AT AN IMAGE.
ERIKA CHEUNG: YES.
MR. BOSTIC: AND DO YOU RECOGNIZE WHAT IS DEPICTED IN THAT IMAGE?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHAT IS IT?
ERIKA CHEUNG: THAT'S THE EDISON DEVICE.
MR. BOSTIC: AND IS THIS A TRUE AND CORRECT IMAGE OF THE EDISON DEVICE?
ERIKA CHEUNG: YES.
MR. BOSTIC: YOUR HONOR, I WOULD MOVE EXHIBIT 5388 INTO EVIDENCE AT THIS TIME.
JUDGE DAVILA: IT'S RECEIVED AND MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 5388 WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: LET'S GET THAT UP ON THE SCREEN, MS. HOLLIMAN. OKAY.
MR. BOSTIC: MS. CHEUNG, DO YOU NOW SEE ON THE SCREEN IN FRONT OF YOU THE IMAGE THAT WE WERE TALKING ABOUT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND YOU SAID THIS WAS THE EDISON. WHAT DOES THIS LOOK LIKE IN PERSON? CAN YOU EXPLAIN, FOR EXAMPLE, HOW BIG IT WAS?
ERIKA CHEUNG: IT WAS ABOUT THE SIZE OF A, LIKE, DESKTOP COMPUTER, MAYBE SLIGHTLY BIGGER.
MR. BOSTIC: AND THE SCREEN IN FRONT, IS THAT A TOUCH SCREEN?
ERIKA CHEUNG: YES.
MR. BOSTIC: DURING YOUR TIME AT THE COMPANY, DID YOU BECOME FAMILIAR WITH THE USE OF THE EDISON ANALYZER?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND CAN YOU DESCRIBE WHAT THE STEPS WERE INVOLVED IN RUNNING A SAMPLE ON THE EDISON?
ERIKA CHEUNG: YES. SO WHEN A PATIENT WOULD GET THEIR BLOOD COLLECTED, IT WOULD BE IN A CONTAINER CALLED A NANOTAINER. THAT NANOTAINER WOULD BE TAKEN TO THE LABORATORY WHERE WE WOULD BASICALLY SORT WHO GOT ACCESS TO THE BLOOD SAMPLE FIRST. AND THEN ONCE WE WOULD GET THE BLOOD SAMPLE, WE WOULD RUN IT THROUGH SOMETHING CALLED A TECAN, AND THEN PUT THIS BLOOD SAMPLE INTO A CARTRIDGE. AND THAT CARTRIDGE WOULD THEN BE PUT INTO THIS DEVICE. AND WE WOULD SCAN A BAR CODE, AND WE WOULD HIT START IF IT WAS THE ACCURATE TEST, MAKING SURE YOU CHECK. AND THEN ONCE WE CONFIRMED IT WAS THE ACCURATE TEST, WE WOULD START IT, AND IT WOULD RUN. AND EVENTUALLY THE RESULTS WOULD COME THROUGH A BACK-END SYSTEM CALLED ALCHEMIST, IT'S A-L-C-H-E-M-I-S-T. AND FROM THERE WE WOULD GET THE PATIENT RESULTS. AND THAT'S HOW WE USE THE EDISON DEVICES.
MR. BOSTIC: I JUST WANT TO FOLLOW UP ON ONE STEP YOU MENTIONED. YOU MENTIONED I THINK A DEVICE CALLED THE TECAN; IS THAT CORRECT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND IS THAT T-E-C-A-N?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHAT DID THE TECAN DO IN THIS PROCESS?
ERIKA CHEUNG: SO THE TECAN WAS A LIQUID HANDLING DEVICE. ESSENTIALLY WHAT IT DOES IS THAT IT'S ABLE TO DISPENSE AND DISPENSE VERY SMALL QUANTITIES OF LIQUID INTO VERY SPECIFIC LOCATIONS. SO IT'S A ROBOTIC SYSTEM. YEAH, IT'S ROBOTICS LIQUID HANDLING DEVICE.
MR. BOSTIC: AND DID THE TECAN ADD TO OR TAKE ANYTHING AWAY FROM THE BLOOD SAMPLE?
ERIKA CHEUNG: IT WOULD DILUTE THE BLOOD SAMPLE.
MR. BOSTIC: SO, IN OTHER WORDS, IT WOULD ADD A LIQUID TO THE BLOOD SAMPLE?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHAT LIQUID WAS USED TO DILUTE THE BLOOD SAMPLES?
ERIKA CHEUNG: TYPICALLY IT WOULD BE SOME SORT OF REAGENT. IT WOULD BE SOMETHING LIKE PBS OR PSA, DEPENDING ON WHAT TYPE OF TEST IT WAS. THERE WERE DIFFERENT DILUTION BUFFERS THAT WOULD BE USED.
MR. BOSTIC: AND WAS THE TECAN DEVICE, THE TECAN MACHINE MANUFACTURED BY THERANOS?
ERIKA CHEUNG: NO.
MR. BOSTIC: WAS IT SOMETHING THAT HAD BEEN INVENTED BY OR DEVELOPED BY THERANOS?
ERIKA CHEUNG: NO.
MR. BOSTIC: AND WHAT DID IT LOOK LIKE, THE TECAN DEVICE?
ERIKA CHEUNG: IT'S A VERY LARGE DEVICE. IT'S PROBABLY, IF YOU FLIPPED A REFRIGERATOR ON ITS SIDE IT WOULD BE ABOUT THAT SIZE, AND IT HAS KIND OF LIKE A TABLETOP WHERE YOU CAN SORT OF SET UP DIFFERENT SETUPS IN ORDER TO TELL THE ROBOTIC SYSTEM WHERE TO PLACE THE LIQUID OR WHERE TO TAKE LIQUID FROM, OR WHAT TO PUT IT INTO. SO IT'S A PRETTY LARGE TABLETOP ROBOTICS DEVICE, YEAH.
MR. BOSTIC: THE EDISON ANALYZER, COULD IT RUN DIFFERENT TYPES OF TESTS -- WELL, LET ME ASK A DIFFERENT QUESTION. IN YOUR EXPERIENCE USING THE EDISON ANALYZER, WAS IT USED TO RUN MULTIPLE TYPES OF TESTS ON THE SAME SAMPLE AT ONE TIME?
ERIKA CHEUNG: THE EDISON DEVICE COULD ONLY RUN ONE TYPE OF TEST FOR ONE PATIENT AT A GIVEN TIME.
MR. BOSTIC: IN OTHER WORDS, ONE DEVICE COULD ONLY RUN ONE TYPE OF SAMPLE ON ONE DEVICE AT ONE TIME?
ERIKA CHEUNG: YES.
MR. BOSTIC: WERE THERE OTHER BLOOD ANALYZERS THAT THERANOS MANUFACTURED IN HOUSE?
ERIKA CHEUNG: THERE WAS ONE OTHER THAT THERANOS DEVELOPED, YEAH.
MR. BOSTIC: SO LET ME ASK A BETTER QUESTION, WHICH IS DURING YOUR TIME AT THE COMPANY, WERE THERE ANY OTHER THERANOS MANUFACTURED DEVICES THAT WERE USED FOR PATIENT SAMPLE TESTING?
ERIKA CHEUNG: NO.
MR. BOSTIC: WERE THERE OTHER THERANOS ANALYZERS THAT WERE BEING USED BUT NOT FOR PATIENT TESTING?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND CAN YOU DESCRIBE WHICH OF THOSE YOU BECAME FAMILIAR WITH?
ERIKA CHEUNG: SO THERE WAS ANOTHER DEVICE CALLED THE 4.0'S WHICH WAS ESSENTIALLY A DEVICE THAT WAS MEANT TO BE ABLE TO PROCESS ALL OF THE DIFFERENT TYPES OF TESTS THAT WE RUN WITH DIFFERENT TYPES OF METHODOLOGY. YOU KNOW, ONE WOULD BE A CHEMISTRY METHODOLOGY, AND AN IMMUNOCHEMISTRY METHODOLOGY, MICROBIOLOGY. SO IT WAS SUPPOSED TO BE THIS AGGREGATIVE DEVICE, AND THAT WAS THE 4.0.
MR. BOSTIC: AND YOU SAID "SUPPOSED TO BE." WHY ARE YOU USING THAT TERM INSTEAD OF JUST SAYING WHAT THE DEVICE COULD DO?
ERIKA CHEUNG: IT WAS STILL IN DEVELOPMENT WHILE I WAS THERE. IT DIDN'T HAVE THAT CAPACITY WHILE I WAS WORKING FOR THE COMPANY.
MR. BOSTIC: YOU SAID THAT THAT DEVICE -- AND DID YOU CALL IT THE 4.0?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND YOU SAID THAT THAT DEVICE WAS SUPPOSED TO BE ABLE TO DO ALL OF THE KINDS OF TESTS THAT THERANOS OFFERED; IS THAT CORRECT?
ERIKA CHEUNG: YES.
MR. BOSTIC: WOULD THAT MAKE IT DIFFERENT FROM THE EDISON DEVICE?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND HOW SO?
ERIKA CHEUNG: THE EDISON DEVICES COULD ONLY RUN ABOUT 12 DIFFERENT TYPES OF TESTS, AND THEY WERE IMMUNO ASSAYS, SO THEY WERE IMMUNOCHEMISTRY TESTS. ANOTHER TERM FOR THEM IS AN ELISA, SO IT'S E-L-I-S-A.
MR. BOSTIC: AND THAT WAS JUST A SUBSET OF THE TOTAL SET OF TESTS THAT THERANOS WAS OFFERING AT THE TIME?
ERIKA CHEUNG: YES.
MR. BOSTIC: I THINK YOU JUST ANSWERED THIS QUESTION AS WELL, BUT JUST TO BE CLEAR, DURING YOUR TIME AT THERANOS, DID THERANOS RUN PATIENT BLOOD TESTS ONLY ON THE EDISON, THE THERANOS BUILT ANALYZER?
ERIKA CHEUNG: NO.
MR. BOSTIC: DID IT USE OTHER TYPES OF DEVICES FOR PATIENT BLOOD SAMPLE TESTING?
ERIKA CHEUNG: YES.
MR. BOSTIC: WHAT WERE THE OTHER TYPES OF DEVICES THAT THERANOS USED FOR PATIENT SAMPLE TESTING?
ERIKA CHEUNG: SO THERANOS HAD UTILIZED OTHER FDA APPROVED MACHINES THAT THEY HAD MODIFIED IN ORDER TO BE ABLE TO HANDLE THE SMALL BLOOD SAMPLES THAT WE HAD. SO ONE OF THEM FOR CHEMISTRY SAMPLES WAS CALLED THE SIEMENS ADVIA, AND THAT'S A NORMAL FDA APPROVED MACHINE THAT YOU WOULD FIND IN HOSPITALS AND YOU CAN BUY OFF THE SHELF. ANOTHER ONE FOR ALL OF THE HEMATOLOGY SAMPLES WE WOULD USE A MACHINE CALLED THE BSD FORTESSA, IT'S A FLOW CYTOMETER, AND THAT WAS ANOTHER DEVICE THAT WE USED IN ORDER TO RUN ALL OF THE CYTOLOGY OR HEMATOLOGY SAMPLES.
MR. BOSTIC: THE DEVICES THAT YOU'RE TALKING ABOUT RIGHT NOW, WERE THOSE DEVICES MANUFACTURED OR DEVELOPED BY THERANOS?
ERIKA CHEUNG: NO.
MR. BOSTIC: WERE THEY INSTEAD DEVELOPED AND SOLD BY THIRD PARTY COMPANIES?
ERIKA CHEUNG: YES.
MR. BOSTIC: IN THE BINDER IN FRONT OF YOU, CAN I ASK YOU TO TURN TO EXHIBIT 5389. THAT SHOULD BE JUST THE NEXT ONE IN ORDER. YOU SHOULD SEE AN IMAGE THERE.
ERIKA CHEUNG: YES.
MR. BOSTIC: AND DO YOU RECOGNIZE WHAT IS DEPICTED IN THAT IMAGE?
ERIKA CHEUNG: YES. THIS IS THE SIEMENS ADVIA.
MR. BOSTIC: IS THE IMAGE MARKED AS EXHIBIT 5389 A TRUE AND CORRECT DEPICTION OF THAT DEVICE BASED ON YOUR EXPERIENCE?
ERIKA CHEUNG: YES.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT WOULD MOVE TO ADMIT EXHIBIT 5389 AT THIS TIME.
JUDGE DAVILA: IT'S ADMITTED, AND IT MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 5389 WAS RECEIVED IN EVIDENCE.)
BY MR. BOSTIC:
MR. BOSTIC: MS. CHEUNG, ARE WE NOW LOOKING AT THE SIEMENS ADVIA ANALYZER?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHAT DID THIS LOOK LIKE IN PERSON?
ERIKA CHEUNG: THIS DEVICE, IT'S LARGER. IT'S ABOUT THE SIZE OF -- IT WOULD BE LIKE THE SIZE OF A WASHER AND DRYER IF YOU PUT IT TOGETHER, SO IT WAS QUITE LARGE. YOU COULD FIT PROBABLY TWO TO THREE PEOPLE IN FRONT OF IT. AND YOU OPEN THIS CASING AND ESSENTIALLY IT WILL HAVE A PLACE WHERE YOU CAN PUT ALL OF THE VENOUS TUBES, THE BLOOD TUBES FOR VENOUS DRAWS IN THERE WITH DIFFERENT BAR CODES SO YOU CAN SCAN IT AND ACTUALLY PROCESS THE PATIENT SAMPLES.
MR. BOSTIC: THIS DEVICE WAS MANY TIMES LARGER THAN THE EDISON ANALYZER; CORRECT?
ERIKA CHEUNG: YES.
MR. BOSTIC: YOU SAID THAT THE EDISON ANALYZER COULD ONLY RUN ONE TYPE OF ASSAY OR ONE TYPE OF TEST ON ONE PATIENT SAMPLE AT A TIME; IS THAT RIGHT?
ERIKA CHEUNG: CAN YOU REPEAT THAT.
MR. BOSTIC: I THINK YOU SAID THAT THE EDISON ANALYZER COULD ONLY RUN ONE TYPE OF TEST ON ONE PATIENT SAMPLE AT A TIME; IS THAT CORRECT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WAS THAT TRUE FOR THE SIEMENS ADVIA AS WELL?
ERIKA CHEUNG: NO.
MR. BOSTIC: AND HOW WAS IT DIFFERENT?
ERIKA CHEUNG: SO THE SIEMENS ADVIA WAS DIFFERENT BECAUSE YOU COULD ESSENTIALLY PLACE THE VENOUS TUBE IN THERE AND SCAN THE BAR CODE, AND IT WOULD BE ABLE TO DETERMINE, YOU KNOW, MAYBE A BLOOD SAMPLE HAS NUMEROUS TYPES OF CHEMISTRY TESTS THAT IT NEEDS TO RUN, AND IT WOULD RUN THEM IN CONJUNCTION WITH ONE ANOTHER. AND IT WOULD RUN BASICALLY MULTIPLE TESTS, MULTIPLE DIFFERENT TYPES OF TESTS ON MULTIPLE DIFFERENT SAMPLES. THERE WOULD BE SOME SORT OF CAP, LIKE MAY BE 30 PATIENTS, LET'S SAY 30 TO 40 PATIENTS. YEAH, YOU COULD RUN MULTIPLE PATIENTS, MULTIPLE DIFFERENT TYPES OF TESTS WITHIN A GIVEN, WHAT WE WOULD CALL A RUN. SO ONCE YOU FILL UP ALL OF THE SLOTS FOR ALL OF THE VENOUS TUBES AND ALL OF THE SLOTS FOR ALL OF THE TESTING, THEN YOU COULD START IT AND HAVE IT GO TO COMPLETION TO RUN ALL OF THE PATIENTS IN DIFFERENT TYPES OF TESTS.
MR. BOSTIC: THE SIEMENS ADVIA ANALYZER, THE WAY IT COMES FROM THE FACTORY, IS IT CAPABLE OF PROCESSING A SMALL FINGERSTICK BLOOD SAMPLES AS FAR AS YOU KNOW?
ERIKA CHEUNG: NO.
MR. BOSTIC: DID THERANOS MAKE CHANGES TO ITS SIEMENS ADVIA TO ALLOW THEM TO RUN SMALL FINGERSTICK SAMPLES?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHAT WERE THOSE CHANGES GENERALLY SPEAKING?
ERIKA CHEUNG: SO INSTEAD OF -- WHERE THE PATIENT PROCESSING HAPPENS ARE IN THESE LITTLE CUPS, AND THEY'RE CALLED J-CUPS, AND THAT'S WHAT SIEMENS ENDS UP SELLING TO YOU IN ORDER TO DO THE PROCESSING. BUT THERANOS HAD 3D PRINTED THESE THINGS CALLED T-CUPS, SO THEY WERE SHORTER, AND WOULD PLACE THE T-CUPS BASICALLY INSIDE OF THE SIEMENS ADVIA IN ORDER TO RUN THE FINGERSTICK SAMPLES THAT HAD THESE SMALLER VOLUMES OF BLOOD.
MR. BOSTIC: AND WHY WAS THE DIFFERENT CUP NECESSARY?
ERIKA CHEUNG: BECAUSE IT WAS -- THE MACHINE WASN'T BUILT TO BE ABLE TO DO THE PROCESSING ON THAT SMALL OF A VOLUME THAT WE HAD COLLECTED UTILIZING THE SORT OF NANOTAINERS AND FINGERSTICK COLLECTION.
MR. BOSTIC: FOR A SAMPLE TO BE RUN -- LET ME START AGAIN. FOR A FINGERSTICK SAMPLE TO BE RUN ON THE SIEMENS ADVIA, DOES IT NEED TO FIRST BE DILUTED ON THE TECAN DEVICE AS WELL?
ERIKA CHEUNG: YES.
MR. BOSTIC: FOR A FINGERSTICK SAMPLE TO BE RUN ON A SIEMENS ADVIA, DID IT FIRST HAVE TO BE DILUTED USING THE TECAN DEVICE, T-E-C-A-N?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND SIMILAR TO RUNNING A SAMPLE ON THE EDISON ANALYZER?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND CAN I ASK YOU TO TURN IN YOUR BINDER TO EXHIBIT 3741. I'LL ASK YOU TO LOOK AT THE FIRST SEVEN PAGES OF THIS EXHIBIT, PLEASE. HAVE YOU PREVIOUSLY HAD A CHANCE TO REVIEW THIS DOCUMENT IN DETAIL?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND DO YOU RECOGNIZE THIS DOCUMENT?
ERIKA CHEUNG: YES.
MR. BOSTIC: WHAT IS IT?
ERIKA CHEUNG: THIS IS THERANOS'S TESTING MENU.
MR. BOSTIC: AND IS THIS REPRESENTATIVE OF THE TESTING MENU APPROXIMATELY DURING THE TIME THAT YOU WORKED AT THE COMPANY?
ERIKA CHEUNG: YES.
MR. BOSTIC: YOUR HONOR, THE GOVERNMENT MOVES TO ADMIT EXHIBIT 3741 AT THIS TIME -- OR SORRY. THE GOVERNMENT MOVES TO ADMIT PAGES 1 THROUGH 7 OF EXHIBIT 3741, AND WE'LL MARK THAT AS EXHIBIT 3741A IF WE CAN.
MR. BOSTIC: SO THIS WILL BE BATES 15286 THROUGH 15292.
JUDGE DAVILA: THESE PAGES ARE ADMITTED, AND THEY MAY BE PUBLISHED.
(GOVERNMENT'S EXHIBIT 3741, BATES PAGES 15286 THROUGH 15292, WAS RECEIVED IN EVIDENCE.)
MR. BOSTIC: MS. HOLLIMAN, IF WE COULD PUT UP PAGE 6 OF EXHIBIT 3741.
MR. BOSTIC: MS. CHEUNG, ARE YOU SEEING IN FRONT OF YOU ONE OF THE PAGES FROM WHAT YOU SAID WAS THE TEST MENU?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND I WON'T ASK YOU TO PROVIDE AN EXHAUSTIVE LIST, BUT LOOKING AT THESE TESTS, CAN YOU GIVE US SOME EXAMPLES OF SOME TESTS THAT THE EDISON ANALYZER COULD DO?
ERIKA CHEUNG: SOME EXAMPLES OF THE TESTS THAT THE EDISON COULD DO.
MR. BOSTIC: YES, PLEASE. EITHER REFERENCING THIS OR FROM YOUR MEMORY?
ERIKA CHEUNG: SO THE EDISON COULD DO -- WHILE I WAS WORKING THERE?
MR. BOSTIC: YES, PLEASE.
ERIKA CHEUNG: THE EDISON COULD DO ABOUT MAYBE THREE TESTS ON THE THYROID, THYROID SECTION. WE COULD DO ABOUT TWO ON THE REPRODUCTIVE HEALTH SECTION. AND MAYBE ONE ON THE -- YES, ONE ON THE ALPHABETICAL TEST SECTION.
MR. BOSTIC: AND YOU SAID IN TOTAL THE NUMBER OF TESTS THAT THE EDISON COULD RUN IN YOUR EXPERIENCE WAS APPROXIMATELY HOW MANY?
ERIKA CHEUNG: IT WAS LIKE, DEPENDING ON THE TIME, IT WAS BETWEEN 4 TO MAX 12.
MR. BOSTIC: WE HAVE ALSO BEEN TALKING ABOUT THERANOS'S USE OF MODIFIED THIRD PARTY DEVICES. DO YOU SEE ANY TESTS ON THIS PANEL THAT THERANOS RELIED ON MODIFIED THIRD PARTY DEVICES TO RUN?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHICH ONES OF THOSE THAT STAND OUT TO YOU?
ERIKA CHEUNG: THE COMMON PANELS, SO THINGS LIKE CBC, CBC WITH DIFFERENTIAL, THE LIPID PANEL, THERE'S THE ELECTROLYTES PANEL, THE COMPREHENSIVE METABOLIC PANEL, AND WE COULD ALSO DO -- ON THE MODIFIED, AGAIN, JUST FOR CLARIFICATION?
MR. BOSTIC: JUST ON THE MODIFIED FOR NOW, UH-HUH.
ERIKA CHEUNG: WE COULD DO SOME OF THE ALPHABETICAL TESTS AS WELL, THINGS LIKE THE -- LIKE MAGNESIUM, I BELIEVE, IRON.
MR. BOSTIC: FAIR TO SAY THAT THE THIRD PARTY MODIFIED DEVICES COULD DO SIGNIFICANTLY MORE TYPES OF ASSAYS THAN THE THERANOS-BUILT EDISON?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WERE THERE SOME -- LET ME FIRST ASK, THE TEST THAT COULD NOT BE RUN ON THE EDISON, FOR EXAMPLE, YOU LISTED SEVERAL OF THE COMMON PANELS IN THAT LIST; IS THAT RIGHT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND ARE THEY CALLED COMMON PANELS BECAUSE THEY'RE COMMON AND FREQUENTLY ORDERED?
ERIKA CHEUNG: YES.
MR. BOSTIC: LOOKING AT THE TEST MENU, WERE THERE SOME THAT COULD NOT BE RUN ON THE EDISON OR THE THIRD PARTY MODIFIED?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHAT DID THERANOS DO TO RUN THOSE TESTS?
ERIKA CHEUNG: SO THERANOS ARE SOME OF THESE FDA APPROVED MACHINES, SORT OF PREDICATED MACHINES IN AN UPSTAIRS LABORATORY WHERE THEY COULD RUN SOME VENOUS SAMPLES, SO THEY WOULD COLLECT A VENOUS TUBE AND RUN THEM IN THE UPSTAIRS LABORATORY. AND IF IT WAS SOMETHING THAT WE DIDN'T POSSESS IN HOUSE IN ORDER TO PROCESS, IT WOULD BE SENT TO AN ORGANIZATION CALLED ARUP, IT'S A-R-U-P, LABORATORIES, ALL CAPS FOR A-R-U-P, IN ORDER TO DO THE ONES THAT WE DIDN'T HAVE IN-HOUSE CAPABILITIES TO RUN.
MR. BOSTIC: SO NOW WE'RE TALKING ABOUT DEVICES THAT WERE NOT INVENTED OR MANUFACTURED BY THERANOS; IS THAT CORRECT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND DEVICES THAT HAVE NOT BEEN CHANGED OR ALTERED BY THERANOS IN ANY WAY?
ERIKA CHEUNG: YES.
MR. BOSTIC: ARE THESE DEVICES THAT ANY BLOOD LAB TO YOUR KNOWLEDGE COULD PURCHASE AND OPERATE THE SAME WAY THAT THERANOS DID?
ERIKA CHEUNG: YES.
MR. BOSTIC: AM I UNDERSTANDING CORRECTLY THAT EVEN THOSE CATEGORIES THAT WE'VE TALKED ABOUT, THE THERANOS'S BUILT EDISON, THE MODIFIED THIRD PARTY DEVICES, AND THE UNMODIFIED STORE BOUGHT THIRD PARTY DEVICES, THOSE THREE CATEGORIES WERE STILL NOT SUFFICIENT FOR THERANOS TO BE ABLE TO CONDUCT ALL OF THE TESTING THAT IT OFFERED?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND HOW DID IT HANDLE THE KINDS OF TESTS THAT IT COULD NOT PERFORM IN HOUSE?
ERIKA CHEUNG: IT WOULD SEND THEM OFF TO A THIRD PARTY ESSENTIALLY TO RUN THOSE SAMPLES.
MR. BOSTIC: AND THAT WAS AN INDEPENDENT THIRD PARTY NOT AFFILIATED WITH THERANOS?
ERIKA CHEUNG: YES.
MR. BOSTIC: I'D LIKE TO TALK A LITTLE BIT ABOUT YOUR WORK IN THE RESEARCH AND DEVELOPMENT LAB?
ERIKA CHEUNG: OKAY.
MR. BOSTIC: WHEN YOU WERE WORKING IN R&D, DID YOU COME TO UNDERSTAND WHAT VALIDATION MEANT, THE PROCESS OF VALIDATION AT THERANOS?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHAT WAS VALIDATION?
ERIKA CHEUNG: SO VALIDATIONS, VALIDATION IS ESSENTIALLY A SERIES OF EXPERIMENTS THAT YOU RUN WHEN YOU DEVELOP A TYPE OF LABORATORY TEST OR DIAGNOSTIC TEST. SO IT WILL CHECK THINGS LIKE IS THE TEST ACCURATE? IS IT PRECISE? BECAUSE WE WERE DOING FINGERSTICKS VERSUS VENOUS DRAWS, IS THERE A DIFFERENCE BETWEEN THOSE AND HOW DO WE ACCOMMODATE FOR THOSE DIFFERENCES? IT WOULD CHECK THINGS LIKE THE STABILITY OF, YOU KNOW, DO YOU RUN IT IN A DIFFERENT TYPE OF COLLECTION UNIT? YOU KNOW, DO YOU HAVE TO HAVE A CERTAIN TYPE OF CODING? SO ESSENTIALLY IT'S A VERY COMPREHENSIVE SET OF EXPERIMENTS THAT YOU RUN IN ORDER TO MAKE SURE THAT THE NEW TEST THAT YOU'RE DEVELOPING IS, IS UP TO A QUALITY THAT IS APPROPRIATE TO TEST ON PATIENTS.
MR. BOSTIC: AND IN YOUR EXPERIENCE IS THAT PROCESS SUPPOSED TO HAPPEN BEFORE, DURING, OR AFTER THE ACTUAL USE OF THAT ASSAY FOR A PATIENT TESTING?
ERIKA CHEUNG: IT'S SUPPOSED TO HAPPEN BEFORE.
MR. BOSTIC: AND DOES A GIVEN TEST OR ASSAY NEED TO PASS VALIDATION BEFORE IT CAN BE USED FOR CLINICAL PATIENT TESTING?
ERIKA CHEUNG: YES.
MR. BOSTIC: YOU MENTIONED BEFORE THAT WHEN YOU JOINED THE COMPANY IN OCTOBER OF 2013, THE COMPANY WAS ALREADY CONDUCTING PATIENT TESTING; IS THAT RIGHT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND DOES THAT MEAN THAT ALL OF THE VALIDATION WORK WAS DONE AND THERE WAS NOTHING TO DO IN THE R&D LAB?
ERIKA CHEUNG: NO.
MR. BOSTIC: AND WHAT WAS STILL HAPPENING IN THE R&D LAB?
ERIKA CHEUNG: THE RESEARCH AND DEVELOPMENT LAB WAS STILL VALIDATING SOME OF THE DIFFERENT ASSAYS AND TESTS FOR THE EDISON DEVICES WHEN I CAME TO THE COMPANY.
MR. BOSTIC: WAS THAT PART OF AN EFFORT TO TRY TO GET MORE TESTS RUN ON THE THERANOS DEVICE?
ERIKA CHEUNG: YES.
MR. BOSTIC: DID YOU WORK ON VALIDATION WHEN YOU WERE AT THERANOS?
ERIKA CHEUNG: YES.
MR. BOSTIC: WHEN YOU LEFT THE COMPANY IN APRIL OF 2014, WAS VALIDATION WORK COMPLETE AT THAT POINT OR WAS IT STILL ONGOING IN R&D?
ERIKA CHEUNG: IT WAS STILL ONGOING IN R&D.
MR. BOSTIC: DID THE VALIDATION WORK INVOLVE TESTING THE ANALYZER BY HAVING IT RUN BLOOD SAMPLES?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHERE DID THE BLOOD SAMPLES COME FROM IN THE THERANOS R&D LAB?
ERIKA CHEUNG: THE BLOOD SAMPLES CAME FROM -- SOMETIMES THEY WERE PURCHASED AND OTHER TIMES THEY WERE COLLECTED FROM EMPLOYEES. SO EMPLOYEES WOULD ESSENTIALLY DONATE THEIR BLOOD TO THERANOS IN EXCHANGE FOR, LIKE, CASH FOR BOTH FINGERSTICK AND VENOUS DRAWS IN ORDER TO CONDUCT THE RESEARCH STUDIES.
MR. BOSTIC: DID YOU PERSONALLY EVER DONATE BLOOD TO THE RESEARCH PROCESS?
ERIKA CHEUNG: YES.
MR. BOSTIC: ON MULTIPLE OCCASIONS?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHEN YOU DID THAT, DID YOU GET RESULTS BACK FROM THE TESTS THAT WERE RUN ON YOUR BLOOD?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND DID ANYTHING STAND OUT TO YOU ABOUT THE SPECIFIC TEST RESULTS THAT YOU GOT BACK ON YOUR SAMPLES?
ERIKA CHEUNG: WHAT WE WERE -- WHAT I NOTICED WHEN I HAD -- ESSENTIALLY WHAT WE WOULD DO IS WE WOULD MEMORIZE THE KIND OF NUMBER THAT WAS CREATED ONCE THEY TOOK OUR BLOOD SAMPLES. AND SO WE WOULD RUN IT. IN MY CASE I WAS IN CHARGE OF RUNNING VITAMIN D SAMPLES, AND SO WHEN I WOULD RUN MY VITAMIN D, IT WOULD ALWAYS COME OUT THAT I HAD A VITAMIN D DEFICIENCY, WHICH REALLY WOULDN'T MATCH UP WITH WHAT WE WOULD RUN ON THE PREDICATE DEVICES. SO I STARTED TO NOTICE THAT THERE WAS A SLIGHT DISCREPANCY BETWEEN WHAT WAS DONE ON THE EDISON DEVICES VERSUS WHAT WAS DONE ON THE UPSTAIRS CLINICAL LAB FOR THE VENOUS DRAWS.
MR. BOSTIC: AND JUST TO BE CLEAR, AROUND THE TIME THAT YOU WERE HAVING YOUR BLOOD SAMPLE TESTED AS PART OF THE R&D PROCESS ON THE THERANOS ANALYZER --
ERIKA CHEUNG: RIGHT.
MR. BOSTIC: -- WERE YOU ALSO ABLE TO SEE RESULTS FROM YOUR BLOOD ANALYSIS RUN ON A THIRD PARTY DEVICE?
ERIKA CHEUNG: YES, BECAUSE WE WERE FREQUENTLY RUNNING SORT OF THE COMPARATIVE STUDIES.
MR. BOSTIC: I SEE. AND THAT'S THE BASIS FOR YOU SAYING THAT YOU SAW SOME DISAGREEMENT BETWEEN THE TWO?
ERIKA CHEUNG: YES.
MR. BOSTIC: DID THERANOS EVER RUN DEMONSTRATIONS OF ITS TECHNOLOGY FOR VIP GUESTS OR POTENTIAL INVESTORS WHO CAME TO THE COMPANY?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND DID YOU HAVE AN UNDERSTANDING AT THE TIME OF WHO THOSE GUESTS WERE GENERALLY SPEAKING?
ERIKA CHEUNG: WE UNDERSTOOD THEM TO BE VERY IMPORTANT PEOPLE. SO THEY WOULD BE CALLED DEMO PATIENTS OR VIP PATIENTS ESSENTIALLY THAT WOULD COME IN.
MR. BOSTIC: WERE YOU EVER INVOLVED IN HELPING WITH THOSE DEMOS OR RUNNING THOSE DEMOS?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHAT WAS YOUR ROLE?
ERIKA CHEUNG: I WAS IN CHARGE OF ANY DEMOS THAT CAME IN THAT REQUIRED EDISON TESTING. SO ANY OF THE EDISON TESTS THAT CAME IN, I WOULD BE IN CHARGE OF RUNNING THOSE DEMO SAMPLES.
MR. BOSTIC: WHEN THESE DEMOS WERE HAPPENING -- WE'VE TALKED ABOUT THE RESEARCH AND DEVELOPMENT LAB, THAT WAS OPERATIONAL; CORRECT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND THERE WAS ALSO A CLINICAL LAB WHERE PATIENT TESTING WAS HAPPENING; IS THAT RIGHT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND BETWEEN THOSE TWO WHERE WERE THE DEMO SAMPLES RUN OR WERE THEY SOMETIMES IN BOTH?
ERIKA CHEUNG: SO IN THE BEGINNING OF STARTING TO WORK THERE THEY WERE RAN IN THE RESEARCH AND DEVELOPMENT LAB, BUT THEN EVENTUALLY -- AND THIS IS FOR THE EDISONS, THEY WERE RUN IN THE CLINICAL LAB.
MR. BOSTIC: I'LL ASK YOU TO TURN IN YOUR BINDER TO EXHIBIT 1227, PLEASE. DO YOU RECOGNIZE EXHIBIT 1227?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND IS THIS AN EMAIL THAT YOU RECEIVED DURING YOUR TIME AS AN EMPLOYEE AT THERANOS?
ERIKA CHEUNG: YES.
MR. BOSTIC: IS THIS A TRUE AND ACCURATE COPY OF THAT EMAIL?
ERIKA CHEUNG: YES.
MR. BOSTIC: YOUR HONOR, I'LL MOVE EXHIBIT 1227 INTO EVIDENCE AT THIS TIME.
MR. WADE: YOUR HONOR, MAY WE APPROACH ON THESE DOCUMENTS? I THINK THERE ARE A NUMBER OF SIMILAR DOCUMENTS COMING UP.
JUDGE DAVILA: DO YOU HAVE OTHER DOCUMENTS SIMILAR TO THIS CLASS THAT YOU'LL BE EXAMINING THIS WITNESS ON?
MR. BOSTIC: THERE ARE OTHER EMAILS IF THAT'S WHAT DEFENSE COUNSEL IS REFERRING TO, YES, YOUR HONOR.
JUDGE DAVILA: OKAY. ALL RIGHT. LET'S HAVE A SIDE-BAR. FOLKS, I'M GOING TO MEET WITH COUNSEL IN THE BACK IN THE JURY ROOM NOW. WE'LL HAVE OUR COURT REPORTER GO BACK AS WELL. LADIES AND GENTLEMEN, WE'RE GOING TO LEAVE THE COURTROOM. YOU'RE NOT TO DISCUSS THE CASE AT ALL AMONGST YOURSELVES. COUNSEL, DO YOU HAVE AN IDEA OF HOW LONG THIS WILL BE?
JUDGE DAVILA: WHY DON'T WE DO THIS. RATHER THAN DO THAT, WHY DON'T WE EXCUSE OUR JURY FOR JUST A SECOND. LET'S DO THAT. LADIES AND GENTLEMEN, WHY DON'T YOU GO BACK TO THE JURY ROOM, PLEASE. I'LL REMAIN HERE. MS. CHEUNG, YOU CAN STEP DOWN. IF YOU WOULD GO OUTSIDE OF THE COURTROOM, PLEASE.
(JURY OUT AT 1:24 P.M.)
JUDGE DAVILA: PLEASE BE SEATED. THE RECORD SHOULD REFLECT THAT OUR JURY AND ALTERNATES HAVE LEFT THE ROOM. MS. CHEUNG IS OUTSIDE. YES. SHE'S OUTSIDE. ALL COUNSEL AND THE DEFENDANT REMAIN.
MR. WADE: THANK YOU, YOUR HONOR. THERE ARE A NUMBER OF EXHIBITS THAT ARE ABOUT TO BE INTRODUCED, I BELIEVE, BASED ON COUNSEL'S COURTESY DISCLOSURE OF THESE DOCUMENTS IN ADVANCE OF THE TESTIMONY THAT ARE BUSINESS RECORDS, AND CONTAIN -- THAT ARE NOT BUSINESS RECORDS AND THAT CONTAIN HEARSAY WITHIN THEM. IN ADDITION, WE WOULD SUGGEST TO THE COURT VIRTUALLY ALL OF THE DOCUMENTS THAT ARE ABOUT TO BE OFFERED, AND I BELIEVE A LOT OF THE TESTIMONY BASED ON THE 302, DOESN'T INVOLVE OUR CLIENT IN ANY WAY SO IT WOULD NOT BE RELEVANT UNDER 401. IT CERTAINLY IS NOT RELEVANT TO HER STATE OF MIND IF SHE'S NOT AWARE OF IT. AND SOME OF THESE ISSUES THAT ARE ABOUT TO COME UP MAY HAVE -- I ASSUME THE GOVERNMENT IS GOING TO CONTEND THAT THEY REFLECT LAB DEFICIENCIES OF SOME KIND, BUT, YOU KNOW, THIS PERSON IS NOT AN EXPERT, AND NOT -- IS NOT IN A POSITION TO OPINE ON THOSE. MS. HOLMES WASN'T AWARE OF MANY OF THESE THINGS. SO I WANTED TO FLAG THIS ISSUE. AND IN PARTICULAR THE DOCUMENTS THAT THEY SEEK TO BE ADMITTED, I THINK THE NINTH CIRCUIT LAW IS CLEAR ON THESE EMAILS THAT DON'T GO TO OUR CLIENT, YOU KNOW, BEING HEARSAY AND IN SOME CASES LAYERED HEARSAY AND SHOULD NOT BE ADMISSIBLE.
JUDGE DAVILA: MR. BOSTIC?
MR. BOSTIC: YOUR HONOR, I DISAGREE. I THINK THE RECORDS THAT THE GOVERNMENT IS GOING TO OFFER ARE BUSINESS RECORDS. I'D ASK FOR AN OPPORTUNITY TO LAY A FOUNDATION FOR THAT WITH THIS WITNESS. I THINK WE CAN DO THAT. SEPARATELY, I THINK SEVERAL OF THESE DOCUMENTS ARE COMING IN FOR A NONHEARSAY PURPOSE. NOT ON ALL OF THEM BUT ON SOME THE COURT WILL SEE THAT ISSUES WERE ULTIMATELY RAISED TO MR. BALWANI, WHO IS THE CHARGED COCONSPIRATOR IN THIS CASE, HIS KNOWLEDGE OF ISSUES AT THERANOS IS RELEVANT AND ADMISSIBLE HERE. SEPARATELY, I THINK THAT TO THE EXTENT THAT THESE DOCUMENTS AND MS. CHEUNG'S TESTIMONY WILL SHOW THAT ISSUES WERE FREQUENT IN THE THERANOS LAB, THAT THEY WERE SERIOUS, THAT THEY WERE FREQUENTLY ELEVATED, THAT THEY WERE GENERALLY KNOWN. THE JURY COULD INFER FROM THAT AND FROM OTHER EVIDENCE THAT THE DEFENDANT AND THE COCONSPIRATOR WERE AWARE OF THESE ISSUES. FINALLY, AT THE CONCLUSION OF THE WITNESS'S TESTIMONY I EXPECT THAT SHE WILL TESTIFY ABOUT ISSUES THAT SHE DID RAISE DIRECTLY TO MR. BALWANI BEFORE SHE LEFT AND THE REASONS WHY SHE DID NOT RAISE ISSUES TO MS. HOLMES, SPECIFICALLY THAT SHE WAS SHOWN AN EMAIL BY ANOTHER EMPLOYEE SENT DIRECTLY TO MS. HOLMES RAISING SOME OF THESE ISSUES. SO ULTIMATELY THESE ISSUES DO PERCOLATE UP TO THE DEFENDANTS IN THE CASE. THE WITNESS SHOULD BE ABLE TO DESCRIBE WHAT SHE ACTUALLY WITNESSED AT THE GROUND LEVEL IN THE LAB TO EXPLAIN HOW THOSE CONCERNS DEVELOPED AND WHY THEY EVENTUALLY PROMPTED HER TO TAKE THAT ACTION.
JUDGE DAVILA: SO I THINK SHE CAN, AS YOU SUGGEST, SHE CAN TESTIFY ABOUT HER PERCIPIENT OBSERVATIONS, THOSE THINGS THAT SHE EXPERIENCED, AND IF THERE ARE SPECIFIC COMMENTS FROM EITHER THIS DEFENDANT TO HER, SHE CAN CERTAINLY TALK ABOUT THAT. BUT WHAT ABOUT, MR. WADE SUGGESTS, THESE AREN'T BUSINESS RECORDS AND THERE MAY NOT BE AN OPPORTUNITY TO PROVE THOSE UP?
MR. BOSTIC: I THINK, YOUR HONOR, THEY SHOULD BE CONSIDERED BUSINESS RECORDS. THE WITNESS'S ROLE AT THE COMPANY WORKING IN THE LAB, I EXPECT THAT SHE WILL EXPLAIN, IF GIVEN A CHANCE, THAT THAT EMAIL WAS THE PRINCIPAL MEANS OF COMMUNICATION AND THE MEANS BY WHICH EMPLOYEES IN THE LAB TRANSMITTED IMPORTANT INFORMATION TO EACH OTHER ABOUT THE OPERATIONS OF THE COMPANY AND THE BUSINESS AFFAIRS OF THE COMPANY AT THAT TIME. I THINK THAT DOES MAKE THEM ADMISSIBLE UNDER 803(6). THAT RULE AND THE COMMENTARY TALKS ABOUT THE IMPORTANCE OF SITUATIONS WHERE THERE'S A DUTY TO BE ACCURATE IN REPORTING AND WHERE THAT IS IMPORTANT, AND THAT WAS CERTAINLY THE CASE HERE. I THINK THAT IF GIVEN THE CHANCE, THE WITNESS WILL EXPLAIN THAT BOTH ON THE R&D SIDE, AND, OF COURSE, ON THE CLINICAL SIDE WHEN DEALING WITH PATIENT TESTING IT WAS VERY IMPORTANT THAT INFORMATION BE TRANSMITTED CONTEMPORANEOUSLY, ACCURATELY REFLECTING THE TRUE EVENTS, AND THAT THE PURPOSE OF THESE EMAILS WAS TO TRANSMIT THAT INFORMATION, TO PRESERVE AND MAINTAIN THAT INFORMATION, AND TO FACILITATE THE OPERATION OF THE BUSINESS. I THINK THAT PUTS THEM SQUARELY WITHIN THE COVERAGE OF THE RULE.
JUDGE DAVILA: YOU THINK HER TESTIMONY WILL ALLOW THESE TO COME IN UNDER 803(6)?
MR. BOSTIC: I DO, YOUR HONOR.
MR. WADE: YOUR HONOR, WE WELCOME THE OPPORTUNITY TO BRIEF THIS. IT'S 1:30. WE'RE APPROACHING 2:00 O'CLOCK. MAYBE WE CAN GO -- WE HAVE A BENCH MEMORANDUM I CAN HAND UP. UNFORTUNATELY, I ONLY HAVE ONE COPY.
JUDGE DAVILA: WELL, WHO GETS IT, HE DOES OR ME?
(LAUGHTER.)
MR. WADE: AND WE WILL FILE THIS ON ECF SO EVERYONE HAS NOTICE OF IT, BUT THE LAW IN THE NINTH CIRCUIT IS CLEAR ON THIS. THEY ARE CONSIDERED BUSINESS RECORDS THAT ARE EMAILS AND WHETHER THEY'RE ADMISSIBLE, AND THEY'RE NOT. AND IN MANY CASES THESE DOCUMENTS ARE LAYERED HEARSAY. SO --
JUDGE DAVILA: WELL, EMAILS CAN BE BUSINESS RECORDS. IT'S NOT A WHOLESALE PRECLUSION.
MR. WADE: YOUR HONOR IS ABSOLUTELY RIGHT, ALTHOUGH THE LIMITATIONS UNDER THE LAW ARE PRETTY LIMITED. FOR EXAMPLE, THE PHILLIPS CASE COUNSEL SUGGESTED THAT THE STATE OF MIND OF THE COCONSPIRATOR WOULD BE A NONHEARSAY PURPOSE. UNDER THE PHILLIPS CASE IN THE NINTH CIRCUIT THAT'S NOT THE CASE. ONLY ACTS IN FURTHERANCE OF THE CONSPIRACY. THE MENTAL STATE OF THE COCONSPIRATOR IS NOT A BASIS TO OFFER A DOCUMENT FOR A NONHEARSAY PURPOSE.
JUDGE DAVILA: SO I THINK I KNOW WHERE YOU'RE -- I THINK I TRACK WHERE YOU'RE GOING WITH THIS, BUT I WAS CURIOUS WHETHER OR NOT YOU WERE GOING TO TRY, THE GOVERNMENT IS GOING TO OFFER ANY OF THIS EVIDENCE OR THIS -- THESE DIALOGUES UNDER AN E EXCEPTION, THAT IS, A CONSPIRACY. IS THAT SOMETHING THAT YOU'RE GOING TO TRY TO DO, A STATEMENT IN FURTHERANCE OF? I HAVEN'T HEARD IT YET, LET ME JUST SAY THAT. AND YOUR QUESTIONING DON'T SEEM TO BE DESIGNED TO CREATE THAT YET. I'M JUST ASKING IF THAT IS SOMETHING THAT WE'RE GOING TO SEE AS WELL.
MR. BOSTIC: I THINK, YOUR HONOR, FOR SOME OF THE EXHIBITS THAT I'M CONTEMPLATING INTRODUCING, YES, THAT PROVISION WILL APPLY. I THINK THAT FOR OTHERS 801(D)(2)(D) STATEMENT OF AN AGENT WILL APPLY. I THINK THIS NEEDS TO BE ANALYZED ON A CASE-BY-CASE BASIS FOR THESE EMAILS, BUT I DO THINK THAT GENERALLY THEY'RE ADMISSIBLE AS A BUSINESS RECORD IN THIS CASE.
JUDGE DAVILA: OKAY. SO UNDER THE (2)(D)(2) ANALYSIS, I WAS LOOKING AT THAT, TOO, AND WONDERING CAN THIS WITNESS LAY A FOUNDATION FOR THAT?
MR. BOSTIC: I BELIEVE SO, YOUR HONOR. I BELIEVE THIS WITNESS COULD TESTIFY ABOUT THE REPORTING RELATIONSHIP THAT SHE HAD TO OTHERS IN THE COMPANY AND HOW THAT ULTIMATELY LED TO MS. HOLMES. I THINK SHE WILL BE ABLE TO IDENTIFY THE PARTICIPANTS ON THE EMAILS IN PARTICULAR, IDENTIFYING THEM ALSO AS EMPLOYEES OF THE COMPANY AND AGENTS OF MS. HOLMES, AND EXPLAIN HOW THEY FIT INTO THAT GENERAL ORG CHART AND REPORTING STRUCTURE.
JUDGE DAVILA: SO HOW DOES THAT RELATE TO THIS WITNESS IF SHE WAS NOT A DIRECT REPORT? I DON'T KNOW IF SHE WAS OR NOT. IF SHE'S A DIRECT REPORT, IT MAKES IT EASY -- OR EASIER. BUT IF SHE'S NOT A DIRECT REPORT, WE'LL PROBABLY HAVE -- I'M JUST ANTICIPATING THAT MR. WADE WILL OBJECT TO THAT LINEUP.
MR. BOSTIC: SO I'M NOT AWARE OF THE CASE LAW, YOUR HONOR, THAT SAYS THAT AN AGENT CANNOT BE REPORTING TO THE PRINCIPAL THROUGH A LAYER, INCLUDING SOMEONE ELSE. I HAVEN'T SEEN THAT. I'M HAPPY TO REVIEW IT, OF COURSE, IF DEFENSE COUNSEL IS AWARE.
JUDGE DAVILA: WELL, WE'LL LET'S SEE IF HE RAISES IT.
MR. WADE: YOUR HONOR, KNOWS FROM THE MOTION IN LIMINE BRIEFING THAT THERE HAS TO BE SOME TIE HERE TO OUR CLIENT. THE CEO IS NOT RESPONSIBLE FOR EVERY COMMUNICATION THAT OCCURS WITHIN THE COMPANY. THEY HAVE TO PROFFER SOME BASIS AND SHOW SOME EVIDENCE THAT GOES FORWARD APART FROM JUST A REPORTING RELATIONSHIP. TO THE BEST OF OUR KNOWLEDGE BASED ON THE STATEMENTS OF THE WITNESS WHO WE HAVE NEVER SPOKEN WITH BEFORE, THE INTERVIEW THAT YOU JUST HEARD IS THE LONGEST CONVERSATION THAT SHE EVER HAD WITH OUR CLIENT, AND SO SHE WAS NOT INTERACTING WITH HER ON A DAILY BASIS. THE EVIDENCE IS PRETTY CLEAR THAT MR. BALWANI WAS THE MANAGER FROM A NON-LAB STANDPOINT, WAS THE MANAGER OVERSEEING THE LAB. SO I DON'T THINK THAT THE GOVERNMENT CAN ADMIT IT ON THAT BASIS, AND I DON'T THINK THAT THEY -- MANY OF THESE STATEMENTS ARE NOT, ARE NOT DOCUMENTS THAT ARE STATEMENTS IN FURTHERANCE OF THE CONSPIRACY EVEN IF, YOU KNOW, EVEN IF WE GET TO THAT LEVEL AS THE COURT WAS REFERRING TO THAT EXCEPTION. SO, YOU KNOW, WHAT I'M -- I KNOW THE COURT DENIED OUR 1000 MOTION ON THIS, AND IN PART THERE WAS A TIMING ISSUE ON THIS. THIS IS WHERE WE ARE NOW BECAUSE I THINK EVERY DOCUMENT, YOU KNOW, IS GOING TO PRESENT THE NEED TO, THE NEED TO COME TO SIDE-BAR AND TO RAISE THESE ISSUES BECAUSE THEY'RE CLEARLY HEARSAY. YOU HEARD THE GOVERNMENT SUGGESTING THAT THEY CAN OFFER A HEARSAY STATEMENT OF ANOTHER WITNESS TO OUR CLIENT THAT THIS WITNESS OBTAINED KNOWLEDGE OF, YOU KNOW, INTO THE CASE, WHICH THAT IS A NEW ONE FOR ME, YOUR HONOR. SO I JUST WANT TO FIND AN ORDERLY WAY TO TRY TO DEAL WITH THIS WITHOUT DERAILING THE TRIAL.
JUDGE DAVILA: ALL RIGHT.
MR. BOSTIC: YOUR HONOR, ON THAT, I WOULD JUST BRIEFLY COMMENT THAT I THINK WE NEED TO RESIST THE RULE THAT A DOCUMENT IS NOT RELEVANT UNLESS MS. HOLMES'S NAME IS ON IT, AN EVENT DOESN'T EXIST UNLESS SHE WAS PRESENT FOR IT. THAT'S NOT HOW IT WORKS. THERE WILL BE SUBSTANTIAL EVIDENCE THROUGHOUT THE TRIAL SHOWING AND ESTABLISHING MS. HOLMES'S INVOLVEMENT IN THE AFFAIRS OF THE COMPANY GENERALLY. THE TYPES OF INFLUENCE, INTERACTION, AND DIRECTION THAT SHE APPLIED WHEN SHE WAS AT THE COMPANY, IN PARTICULAR THE LEVEL OF COMMUNICATION AND THE PERVASIVE NATURE OF THE COMMUNICATION BETWEEN MR. BALWANI AND MS. HOLMES, THAT IS ALL SUITABLE EVIDENCE FOR THE JURY TO INFER THAT MS. HOLMES WAS AWARE OF THE HAPPENINGS AT THERANOS. THE GOVERNMENT SHOULD BE ALLOWED TO SHOW WHAT WAS HAPPENING AT THE COMPANY, MS. HOLMES'S KNOWLEDGE OF WHAT WAS HAPPENING AT THE COMPANY. THOSE TWO THINGS DON'T NECESSARILY NEED TO HAPPEN SIMULTANEOUSLY. OF COURSE, ONLY ONE PERSON CAN FIT ON THE WITNESS STAND AT A TIME SO WE WOULD ASK FOR SOME LATITUDE TO DEVELOP IT.
JUDGE DAVILA: WELL, I APPRECIATE THAT. YOU'RE CREATING THE LADDER, IF YOU WILL, THAT MOVES UPWARDS. BUT I THINK TO MR. WADE'S POINT, THERE MIGHT BE SOME FOUNDATIONAL ISSUES THAT WE SHOULD CLEAR UP FIRST. LET ME ASK YOU THIS, AND HE HAS SOME LAW THAT HE WOULD LIKE TO GIVE TO THE COURT AND HE'S, OF COURSE, GOING TO GIVE IT TO YOU. I THINK COUNSEL SHOULD HAVE AN OPPORTUNITY TO LOOK AT THIS AND RESPOND. IS THERE ANY -- ARE THERE ANY OTHER QUESTIONS THAT YOU CAN POSE TO THIS WITNESS BEYOND THESE ISSUES? AND WHAT I'D LIKE TO DO IN THE INTERIM ALSO IS I'M CURIOUS TO KNOW WHICH EXHIBITS THAT YOU THINK MIGHT FALL UNTO MR. WADE'S OBJECTION SO I COULD REVIEW THAT AS WELL, IF THEY'RE ALL THE SAME CATEGORY OF DOCUMENTS, IT'S THE EMAILS IT SOUNDS LIKE.
MR. BOSTIC: YOUR HONOR, I WANT TO BE HELPFUL TO THE COURT'S ANALYSIS HERE. I'M NOT SURE I'M IN THE BEST POSITION TO PREDICT WHAT THE OBJECTION IS GOING TO BE. THE GOVERNMENT PROVIDED THE DEFENSE NOTICE LAST WEEK OF THE SPECIFIC EXHIBITS THAT IT INTENDED TO INTRODUCE THROUGH MS. CHEUNG. IF THE DEFENSE'S POSITION IS THAT THESE OBJECTIONS APPLY IT TO EACH AND EVERY SINGLE EMAIL THAT THE GOVERNMENT INTENDS TO INTRODUCE, THEN I THINK WE HAVE OUR ANSWERS, BUT I'M NOT SURE.
JUDGE DAVILA: OKAY.
MR. WADE: WITH POSSIBLY ONE EXCEPTION, WHICH MAY NOT BE ADMISSIBLE FOR A DIFFERENT PURPOSE. BUT THAT'S WHY WE DIDN'T STIPULATE. AS THE COURT SAW WITH MS. SPIVEY, WE STIPULATED ON ALMOST EVERY DOCUMENT. WE DID NOT STIPULATE TO THESE BECAUSE OF THE HEARSAY ISSUES. SO I WOULD SUGGEST IF THE COURT HAS A BINDER, IT'S VIRTUALLY EVERY DOCUMENT IN THE BINDER. AND THE COURT WILL NOTE, I THINK THERE'S ONE EXCEPTION, MAYBE THERE'S TWO WITHIN THE BINDER THAT ACTUALLY GO TO OUR CLIENT. MANY OF THEM ARE LOWER LEVEL ISSUES THAT HAPPEN WITHIN THE LAB. MS. CHEUNG, AS SHE TESTIFIED, WAS AN ENTRY LEVEL EMPLOYEE. THERE WERE SEVERAL LEVELS, YOU KNOW, BETWEEN HER AND EVEN THE LAB DIRECTOR, BUT SHE'S INTERACTING, YOU KNOW, WITH PEOPLE WITHIN THE LAB. THERE'S NOT AN INDICATION FROM THESE DOCUMENTS THAT THEY GO TO OUR CLIENT. IF THE ISSUE DOES GO TO OUR CLIENT, THEY CAN CALL THE WITNESS WHO BROUGHT IT TO OUR CLIENT OR OFFER THE EVIDENCE THROUGH A COCONSPIRATOR EXCEPTION THAT BRINGS IT TO OUR CLIENT. BUT THEY CAN'T JUST DUMP EVERY ISSUE IN THE LAB AND SUGGEST THAT'S IMPUTABLE TO OUR CLIENT. THE COURT NOTED THE RISK IN THE MOTION IN LIMINE ORDER WHERE THERE'S A RISK THAT OUR CLIENT COULD BE FOUND GUILTY BECAUSE OF NEGLIGENT PRACTICES WITHIN THE LAB.
JUDGE DAVILA: THAT WAS GOING TO -- WHAT I WAS TALKING ABOUT IS THAT WAS GOING TO A VIOLATION OF A REGULATORY THAT CAN'T BE CONSIDERED.
JUDGE DAVILA: AND I UNDERSTAND THAT. MR. BOSTIC, ARE THERE -- I WANT TO GIVE YOU -- I'M GOING TO LOOK AT THIS. HE'S OFFERED ME SOME LAW THAT I NEED TO LOOK AT, AND I WANT YOU TO LOOK AT IT ALSO. IS THERE ANOTHER LINE OF QUESTIONING THAT YOU CAN CONDUCT FOR 20 MINUTES WITH THIS WITNESS? WILL THAT BREAK IT UP? IF NOT, WE CAN TAKE A RECESS NOW AND YOU'LL HAVE 20 EXTRA MINUTES TO GO OVER THIS DOCUMENT.
MR. BOSTIC: YOUR HONOR, I WONDER IF THE ONE EXCEPTION -- WELL, I DON'T WANT TO GUESS. IF COUNSEL WILL TELL ME WHAT THE ONE EXCEPTION IS TO THE OBJECTION, WE MIGHT BE ABLE TO EXPLORE THAT WITH THE WITNESS.
JUDGE DAVILA: I THOUGHT YOU SAID THERE MIGHT BE ONE.
MR. WADE: THERE MIGHT BE ONE DEPENDING ON HOW THEY OFFER THE DOCUMENT. I BELIEVE 1287 OUR CLIENT RECEIVES, BUT THE ISSUES ON WHICH MS. CHEUNG IS COMMUNICATING ARE NOT, ARE NOT -- SHE'S NOT ON THE EMAIL CHAIN WITH OUR CLIENT. DOES THE COURT HAVE THAT DOCUMENT? I APOLOGIZE.
JUDGE DAVILA: I HAVE 1287, YES.
MR. BOSTIC: YOUR HONOR, I WOULD ALSO DRAW THE COURT'S ATTENTION TO 1289, WHICH IS THAT SAME EMAIL CHAIN. I'D SUBMIT THAT WE SHOULD BE ABLE TO AT LEAST EXPLORE THESE WITH THIS WITNESS PENDING RESOLUTION OF THE DEFENSE'S OBJECTIONS.
JUDGE DAVILA: DO YOU SEE 1289, MR. WADE?
JUDGE DAVILA: 1289? MR. BOSTIC IS SUGGESTING THAT AT A MINIMUM WE GO FORWARD WITH 1289. MS. CHEUNG'S NAME IS ON THESE EMAILS.
MR. BOSTIC: AND THE CHAIN IS FORWARDED TO MS. HOLMES AT THE TOP OF 1287.
JUDGE DAVILA: SO IT SEEMS FOUNDATIONALLY WE CAN GO THROUGH THIS ONE.
MR. WADE: I THINK WE CAN GO THROUGH 1287, YOUR HONOR. I HAVEN'T -- MY ONLY HESITATION IS THAT I HAVEN'T -- I NOW WANT TO JUST LOOK TO MAKE SURE THERE'S NO LAYERED HEARSAY WITHIN HERE, BUT IT DID GO TO OUR CLIENT. SO AS LONG AS IT'S NOT OFFERED FOR THE TRUTH.
JUDGE DAVILA: AND THIS IS -- 1287, IT LOOKS LIKE FOUNDATIONALLY 1289 CONNECTS WITH THIS.
MR. BOSTIC: CORRECT, YOUR HONOR.
JUDGE DAVILA: LET'S -- WHY DON'T WE DO THIS, WE HAVE 15 MINUTES LEFT IN THE DAY. WHY DON'T I LET YOU START WITH THESE THEN, MR. BOSTIC. I'M SORRY TO INTERRUPT YOUR PRESENTATION HERE, BUT DO YOU HAVE A COPY OF THE -- WHAT YOU WANT TO GIVE ME, YOUR BRIEF?
MR. WADE: I WILL HAND THIS UP. AND MY APOLOGIES FOR NOT BRINGING TWO COPIES. WE'LL SEND ONE TO THE GOVERNMENT, AND WE CAN FILE IT ON PACER.
JUDGE DAVILA: KYLE, CAN YOU MAKE A COPY?
MR. DOWNEY: I HAVE ONE, YOUR HONOR, AND I'LL GIVE IT.
JUDGE DAVILA: THANK YOU.
MR. BOSTIC: VERY BRIEFLY, YOUR HONOR, A PROCESS POINT, IF I COULD. WE HAVE HAD A COUPLE OF DISCUSSIONS, THE PARTIES AND THE COURT, ABOUT THE MOST EFFICIENT WAY OF RAISING DEFENSE OBJECTIONS TO GOVERNMENT EVIDENCE. THERE WAS SOME DISCUSSION ABOUT FILING WEEKLY MOTIONS ON MONDAY MORNINGS. I UNDERSTAND THAT THE COURT EXPRESSED A PREFERENCE THAT THOSE ISSUES BE RAISED SOONER. I THINK THE COURT PROPOSED SATURDAY AS A DEADLINE FOR THAT. THE GOVERNMENT WAS IN AGREEMENT WITH THE COURT THERE. THIS SEEMS TO BE A STEP IN THE OPPOSITE DIRECTION RAISING AN ISSUE THAT IS ALREADY BRIEFED BUT NOT TO THE GOVERNMENT'S KNOWLEDGE WHILE A WITNESS IS ON THE STAND. I'M HOPEFUL THAT WE CAN FIND A MORE EFFICIENT WAY TO DEAL WITH THESE DISPUTES IN THE FUTURE.
MR. WADE: WE RAISED -- WE FILED MOTION 1000 AND THE GOVERNMENT DIDN'T LIKE THAT, SO WE UNDERSTOOD IT WAS OUR PREFERENCE TO DEFER ON MS. CHEUNG PER THE COURT'S ORDER. SO WE'RE HERE TO DO THAT. WE'LL RAISE ISSUES AS PROMPTLY AS WE CAN.
JUDGE DAVILA: I THOUGHT YOU SAID YOU HAD THIS LAST WEEK? I THOUGHT YOU SAID YOU HAD THIS LAST WEEK OR LOOKED AT THIS LAST WEEK?
MR. WADE: WE FILED THE MOTION LAST WEEK. THE 1000 MOTION, AS THE COURT KNOWS, WAS RULED ON LAST WEEK.
JUDGE DAVILA: RIGHT. RIGHT.
MR. WADE: THE GOVERNMENT EXHIBITS WITH RESPECT TO MS. CHEUNG, YOU KNOW, WE HAVE HAD TO PULL THEM AND SORT OF GO THROUGH A PROCESS, BUT IF THE COURT PREFERS US TO RAISE THEM IN THE MORNING, I WOULD HAVE BEEN HAPPY TO RAISE THIS. THE REASON I WAITED UNTIL NOW IS BECAUSE I THOUGHT IT WAS THE COURT'S PREFERENCE TO COME FORWARD AFTER WE SAW HOW THE EVIDENCE WAS GOING TO COME IN.
JUDGE DAVILA: WELL, THAT'S HOW -- THAT'S WHAT THE ORDER SUGGESTS IT WAS PREMATURE TO MAKE OBJECTIONS AT THAT POINT. BUT IF YOU KNOW IN ADVANCE WHAT THE OBJECTIONS ARE GOING TO BE BASED ON THE DOCUMENTATION THAT YOU RECEIVE, THAT'S HELPFUL TO -- SO WE DON'T HAVE TO WASTE THE JURY'S TIME OBVIOUSLY, AND I WOULD PREFER TO DO IT WHEN WE -- TO DO THESE DISCUSSIONS OUTSIDE, OF COURSE, THE PRESENCE OF THE JURY, BUT ALSO BEFORE THE JURY COMES INTO THE COURTROOM, THAT'S HELPFUL TO THEM. YOU'VE HEARD ME TELL THEM TODAY I MIGHT ASK THEM TO STAY A LITTLE LATER ON SOME DAYS SO WE CAN CAPTURE TIME AND STAY ON SEQUENCE. THIS IS COUNTER TO THAT. BUT LET'S DEVELOP A PROTOCOL WHERE WE CAN MEET IN THE MORNING, AND I'LL GET HERE AS EARLY AS YOU WOULD LIKE SO WE CAN DISCUSS THESE ISSUES. BUT FOR NOW WHY DON'T WE -- LET'S CALL THE JURY BACK, WE'LL PROCEED WITH -- MR. BOSTIC, YOU CAN LAY SOME FOUNDATION AND START ON THESE EXHIBITS 1287 AND 1289 AND SEE WHAT KIND OF FOUNDATION YOU CAN LAY. I'LL LOOK AT THESE DOCUMENTS TOMORROW. WE'RE IN SESSION TOMORROW. I MIGHT TELL THE JURY THAT WE WON'T HAVE THEM OUT UNTIL 9:30 JUST TO GIVE US A FULL OPPORTUNITY TO DISCUSS THESE TOMORROW. MAYBE WE WILL MEET AT 8:00. WE'LL TALK ABOUT THAT AFTER THE JURY LEAVES TODAY. ALL RIGHT.
MR. BOSTIC: THANK YOU, YOUR HONOR.
(PAUSE IN PROCEEDINGS.)
(JURY IN AT 1:45 P.M.)
JUDGE DAVILA: THANK YOU. PLEASE BE SEATED. WE'RE BACK ON THE RECORD. OUR JURY AND ALTERNATES ARE PRESENT. THE WITNESS IS ON THE STAND, AND ALL PARTIES PREVIOUSLY PRESENT ARE PRESENT ONCE AGAIN. I'M SORRY FOR THE INTERRUPTION, LADIES AND GENTLEMEN. MR. BOSTIC.
MR. BOSTIC: THANK YOU, YOUR HONOR.
MR. BOSTIC: WELCOME BACK, MS. CHEUNG. CAN I DIRECT YOUR ATTENTION, PLEASE, TO EXHIBIT 1289 IN THE BINDER IN FRONT OF YOU?
ERIKA CHEUNG: YES.
MR. BOSTIC: LET ME KNOW ONCE YOU'RE THERE?
ERIKA CHEUNG: I'M AT 1289.
MR. BOSTIC: OKAY. IF YOU WOULD LOOK AT PAGE 2 OF 1289, DO YOU SEE AN EMAIL THAT BEGINS THIS CHAIN? IT SHOULD JUST BE ON THE BACK OF THAT FIRST PAGE.
ERIKA CHEUNG: OH, YES.
MR. BOSTIC: ARE YOU LOOKING AT AN EMAIL FROM YOU TO OTHER EMPLOYEES AT THERANOS?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND LOOKING AT THIS EMAIL CHAIN, DO YOU HAVE A RECOLLECTION OF THE EVENTS THAT IT COVERS?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND CAN YOU EXPLAIN -- WE'LL GO THROUGH THIS IN SOME MORE DETAIL, BUT CAN YOU EXPLAIN GENERALLY WHAT WAS HAPPENING?
ERIKA CHEUNG: A PATIENT SAMPLE CAME INTO THE WALGREENS LOCATION IN PALO ALTO TO HAVE THEIR VITAMIN D TESTED, AND ESSENTIALLY I WAS PREPPING TO RUN THIS VITAMIN D SAMPLE. AND BEFORE YOU RUN A VITAMIN D SAMPLE YOU HAVE TO RUN SOMETHING CALLED QUALITY CONTROLS, AND THEY HAVE TO PASS IN ORDER TO RUN THE PATIENT SAMPLE. SO IN THIS EMAIL I'M NOTIFYING DIFFERENT PEOPLE WITHIN THE CLINICAL LAB AND THE RESEARCH AND DEVELOPMENT LAB AND THE HELP LINE CALLED NORMANDY 911 THAT THE QC'S AREN'T PASSING AND TRYING TO FIGURE OUT WHAT I'M SUPPOSED TO DO.
MR. BOSTIC: AND DO YOU REMEMBER THESE EVENTS?
ERIKA CHEUNG: YES.
MR. BOSTIC: LET ME ASK YOU A FEW QUESTIONS ABOUT HOW YOU USED EMAIL AT THERANOS IF THAT'S OKAY.
ERIKA CHEUNG: OKAY.
MR. BOSTIC: FIRST, DID YOU REGULARLY SEND EMAILS AS PART OF YOUR WORK AT THERANOS?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WAS IT YOUR PRACTICE TO SEND EMAILS LIKE THESE AT OR NEAR THE TIME OF THE EVENTS THAT YOU WERE DESCRIBING IN THE EMAILS?
ERIKA CHEUNG: YES.
MR. BOSTIC: IN RESEARCH AND DEVELOPMENT AND IN THE CLINICAL LAB, DID YOU AND OTHER EMPLOYEES AT THERANOS USE INFORMATION TO CONVEY INFORMATION IN THE COURSE OF REGULARLY CONDUCTED ACTIVITIES OF THE COMPANY?
ERIKA CHEUNG: YES.
MR. BOSTIC: IN THE WORK THAT YOU DID AND THE WORK THAT OTHERS DID AT THERANOS IN R&D AND IN THE CLINICAL LAB, WAS IT IMPORTANT TO CONVEY INFORMATION IN EMAILS ACCURATELY?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WERE THESE KINDS OF EMAILS RELIED UPON BY INDIVIDUALS AT THERANOS SUCH THAT IT WAS ESSENTIAL TO REPORT INFORMATION ACCURATELY IN THE EMAILS?
ERIKA CHEUNG: YES.
MR. BOSTIC: DID YOU ALSO, WHEN YOU WERE AT THERANOS, USE EMAILS TO MEMORIALIZE OR PRESERVE INFORMATION SO IT COULD BE REFERRED BACK TO LATER?
ERIKA CHEUNG: YES.
MR. BOSTIC: DID THERANOS SET UP ANY SPECIFIC EMAIL GROUPS OR EMAIL ALIASES OR ADDRESSES TO BE USED TO FACILITATE THE FUNCTIONS THAT WE'VE BEEN TALKING ABOUT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHAT WERE SOME OF THEM IF YOU REMEMBER?
ERIKA CHEUNG: SO WE CREATED DIFFERENT GROUPS FOR DIFFERENT DEPARTMENTS, SO DIFFERENT RESEARCH AND DEVELOPMENT LABS WOULD HAVE THEIR OWN SORT OF GROUP, EMAIL GROUP. AND WE ALSO HAD THEM IN THIS CASE FOR A HELP LINE. SO IF WE HAD ANY ISSUES IN THE LABORATORY, WE HAD NORMANDY 911, WHICH WAS TO ESSENTIALLY CONTACT A GROUP OF PEOPLE WHO COULD HELP TROUBLESHOOT ANY PROBLEMS THAT MAY HAVE AROSE WHILE WE WERE WORKING.
MR. BOSTIC: AND HOW DID YOU CONTACT THE NORMANDY 911 GROUP? WHAT WAS THE MECHANISM AT THERANOS?
ERIKA CHEUNG: YOU JUST CC'D THAT GROUP TAG.
MR. BOSTIC: AND SO YOU WOULD SEND AN EMAIL TO AN EMAIL ADDRESS NORMANDY 911?
ERIKA CHEUNG: YES.
MR. BOSTIC: AT THERANOS.COM OR SOMETHING LIKE THAT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND THAT EMAIL ADDRESS WAS CREATED BY THE COMPANY ITSELF?
ERIKA CHEUNG: YES.
MR. BOSTIC: GOING BACK TO EXHIBIT 1289. WE TALKED ABOUT THE BASIC SITUATION INVOLVING HERE I THINK YOU SAID A QC FAILURE; IS THAT CORRECT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND I'LL POINT YOUR ATTENTION TO PAGE 1 OF THAT EXHIBIT. YOU WILL SEE AT THE TOP THE EMAIL CHAIN ENDS WITH AN EMAIL FROM MR. BALWANI; IS THAT CORRECT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND CAN YOU FLIP BACK ONE EXHIBIT TO EXHIBIT 1287, PLEASE. DO YOU SEE EXHIBIT 1287?
ERIKA CHEUNG: YES.
MR. BOSTIC: IS THAT ANOTHER VERSION OR A DIFFERENT PORTION OF THIS SAME EMAIL CHAIN?
ERIKA CHEUNG: YES.
MR. BOSTIC: AT THE TOP OF EXHIBIT 1287 DO YOU SEE A COUPLE OF EXCHANGES WHERE MS. HOLMES IS EITHER THE SENDER OR RECIPIENT OF EMAILS?
ERIKA CHEUNG: YES.
MR. BOSTIC: YOUR HONOR, AT THIS TIME THE GOVERNMENT WOULD MOVE TO ADMIT EXHIBIT 1289.
MR. WADE: YOUR HONOR, I HAVE NO OBJECTION TO EVERY EMAIL IN 1289 WITH THE EXCEPTION OF THE TOP EMAIL, WHICH IS NOT INCLUDED IN 1287.
JUDGE DAVILA: THE EMAIL AT THE TOP OF THE PAGE ON THE FIRST PAGE OF 3069?
MR. BOSTIC: BATES ENDING IN 3069.
JUDGE DAVILA: MR. BOSTIC?
MR. BOSTIC: I BELIEVE THAT EMAIL SHOULD BE ADMITTED, YOUR HONOR. IT PROVIDES THE REACTION OF THE COCONSPIRATOR IN THIS CASE, AND I THINK THAT'S RELEVANT.
JUDGE DAVILA: I SEE THE COCONSPIRATOR'S NAME HERE. WHAT IS THE -- IS HE A RECIPIENT?
MR. BOSTIC: HE'S A SENDER IN THE EMAIL MESSAGE THAT WE'RE REFERENCING, YOUR HONOR.
JUDGE DAVILA: I SEE. IT'S A THREE HOLE PUNCH, AND IT'S PUNCHED OUT IN THE TITLE OF THE COPY THAT I HAVE.
MR. BOSTIC: YOUR HONOR, FOR EXPEDIENCY, WE CAN DEFER ON 1289 FOR NOW. I CAN ASK THE WITNESS ABOUT THE EVENTS INDEPENDENT OF THE EMAIL.
JUDGE DAVILA: SURE. ALL RIGHT. LET'S DO THAT. WE'LL TALK ABOUT THIS TOMORROW.
BY MR. BOSTIC:
MR. BOSTIC: MS. CHEUNG, YOU MENTIONED A CONCEPT CALLED QC OR QUALITY CONTROL?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHAT IS QC AND HOW DID IT WORK AT THERANOS?
ERIKA CHEUNG: SO QC STANDS FOR QUALITY CONTROLS, AND ESSENTIALLY QUALITY CONTROL IS A SYSTEM THAT YOU SET UP BEFORE YOU RUN PATIENT SAMPLES. SO A QUALITY CONTROL ITSELF IS A SAMPLE WHERE YOU HAVE A KNOWN CONCENTRATION OF WHATEVER YOU'RE TRYING TO TEST. SO, FOR EXAMPLE, IF YOU'RE TRYING TO TEST VITAMIN D, YOU KNOW THAT THE QUALITY CONTROL SAMPLE IS 12 MICROGRAMS PER MIL. SO WHAT YOU'LL DO IS RUN THESE QUALITY CONTROL SAMPLES PRIOR TO RUNNING A PATIENT SAMPLE TO MAKE SURE EVERYTHING IN YOUR SYSTEM IS WORKING ACCURATELY. BECAUSE THERE ARE SO MANY DIFFERENT MOVING PARTS, YOU WANT TO MAKE SURE THAT THE DEVICE, THE CHEMICALS THAT YOU USE, THE CHEMISTRY, EVERYTHING, THE TECHNICIAN IS TRAINED PROPERLY, IS WORKING EFFECTIVELY SO YOU RUN THIS QUALITY CONTROL SAMPLE TO SEE IF IT PASSES OR FAILS IN ORDER TO ALLOW YOU THEN TO PROCESS A PATIENT SAMPLE. SO IT'S KIND OF LIKE AN ASSURANCE SYSTEM BEFORE RUNNING A PATIENT SAMPLE.
MR. BOSTIC: SO A BLOOD TEST, THE GOAL IS TO TEST THE CONCENTRATION OF A CERTAIN SUBSTANCE IN THE BLOOD GENERALLY SPEAKING?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND SO FOR THIS QUALITY CONTROL STEP, IF I'M UNDERSTANDING CORRECTLY, YOU TAKE A SAMPLE THAT HAS A KNOWN CONCENTRATION?
ERIKA CHEUNG: RIGHT.
MR. BOSTIC: AND THE GOAL IS TO SEE IF THE DEVICE CAN RETURN THE RESULT THAT MATCHES WITH THAT KNOWN CONCENTRATION?
ERIKA CHEUNG: YEAH. SO IT WILL EITHER BE A TYPE OF CONCENTRATION, SO YOU WANT THE SAME CONCENTRATION, OR SOMETIMES IT WILL BE A POSITIVE OR A NEGATIVE VALUE OR YOU WILL KNOW YOU HAVE A POSITIVE VALUE OR A NEGATIVE VALUE. SO IT COULD BE EITHER OF THOSE TYPES OF SETUPS.
MR. BOSTIC: AND HOW OFTEN WAS -- HOW OFTEN DID QUALITY CONTROL HAVE TO BE PERFORMED AT THERANOS WHEN YOU WERE WORKING THERE?
ERIKA CHEUNG: AT THERANOS WE PERFORMED QUALITY CONTROLS TYPICALLY AT THE BEGINNING OF THE DAY BEFORE WE WERE GOING TO RUN ALL OF OUR PATIENT SAMPLES.
MR. BOSTIC: DID QUALITY CONTROL HAVE TO BE PERFORMED JUST ON ONE REPRESENTATIVE DEVICE OR DID IT HAVE TO BE PERFORMED ON EACH DEVICE THAT WAS GOING TO BE USED FOR PATIENT TESTING?
ERIKA CHEUNG: IT HAS TO BE RUN ON EACH DEVICE THAT IS GOING TO BE USED FOR PATIENT TESTING.
MR. BOSTIC: AND DOES IT HAVE TO BE RUN FOR EACH KIND OF TEST FOR EACH ASSAY THAT IS GOING TO BE USED THAT DAY OR JUST FOR CERTAIN EXAMPLE ASSAYS?
ERIKA CHEUNG: IT HAS TO BE RUN FOR EACH ASSAY. SO EACH TEST THAT YOU RUN YOU HAVE TO RUN QC'S FOR.
MR. BOSTIC: AND WHAT HAPPENS IF A DEVICE FAILS QC ON A CERTAIN DAY FOR A CERTAIN ASSAY?
ERIKA CHEUNG: SO TYPICALLY IF A QC FAILS, YOU HAVE TO INVESTIGATE WHY DID IT FAIL, AND YOU HAVE TO COME UP WITH SOME SORT OF CORRECTIVE ACTION IN ORDER TO MAKE SURE THAT THEY PASS AND THAT THE SYSTEM IS WORKING. SO, FOR EXAMPLE, IF IT FAILS, YOU WILL LOOK AND SEE, OKAY, LET'S LOOK AT THE SOLUTIONS I'M USING, YOU KNOW, IS ANYTHING EXPIRED? OR MAYBE I MADE SOME SORT OF A MISTAKE, AND YOU'LL TRY AND BASICALLY RE-CORRECT FOR ANY POTENTIAL ERROR THAT YOU MIGHT HAVE. IT KIND OF WORKS LIKE A FLAG SYSTEM TO LET YOU KNOW THAT SOMETHING IS OFF OR SOMETHING IS WRONG AND SO YOU HAVE TO INVESTIGATE WHAT THAT IS.
MR. BOSTIC: AND IN THAT CASE IF A DEVICE FAILS QC FOR A CERTAIN ASSAY ON A CERTAIN DAY, CAN IT CONTINUE TO BE USED FOR PATIENT TESTING WHILE THE PROBLEM IS INVESTIGATED?
ERIKA CHEUNG: NO.
MR. BOSTIC: CAN THE MACHINE BE USED AGAIN BEFORE IT PASSES -- SORRY. WHEN A MACHINE FAILS QC, CAN IT BE USED AGAIN FOR PATIENT TESTING BEFORE IT PASSES QC?
ERIKA CHEUNG: CAN YOU REPEAT THAT QUESTION.
MR. BOSTIC: SURE. IF A DEVICE FAILS QC, ARE YOU ALLOWED TO USE IT FOR PATIENT TESTING AGAIN BEFORE IT PASSES QC?
ERIKA CHEUNG: NO, YOU CAN'T USE IT FOR PATIENT TESTING.
MR. BOSTIC: SO GOING BACK TO THE EMAIL THAT YOU SEE IN FRONT OF YOU. WHAT WAS THE DATE WHEN THIS SITUATION OCCURRED WITH THE QC RESULT YOU REFERENCED EARLIER?
ERIKA CHEUNG: THE DATE WAS NOVEMBER 30TH, 2013.
MR. BOSTIC: OKAY. AND ON THAT DATE DO YOU REMEMBER SENDING AN EMAIL TO THE NORMANDY 911 EMAIL ADDRESS?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHAT WAS THE REASON FOR SENDING THAT EMAIL?
ERIKA CHEUNG: THE REASON FOR SENDING THAT IS BECAUSE THE QC'S DIDN'T PASS, AND I WAS TRYING TO TROUBLESHOOT DIFFERENT SOLUTIONS AND NOTHING WAS WORKING BECAUSE THEY KEPT REPEATEDLY FAILING.
MR. BOSTIC: AND BECAUSE THE QC'S FAILED, YOU WEREN'T ALLOWED TO RUN THE PATIENT SAMPLE THAT YOU NEEDED TO RUN; IS THAT CORRECT?
ERIKA CHEUNG: THAT IS CORRECT.
MR. BOSTIC: AND WHAT WAS THE ASSAY INVOLVED HERE?
ERIKA CHEUNG: THE ASSAY WAS VITAMIN D.
MR. BOSTIC: DO YOU HAVE AN UNDERSTANDING FROM YOUR TIME AT THERANOS OF WHAT THE VITAMIN D TEST IS AND WHY IT'S IMPORTANT?
ERIKA CHEUNG: THE VITAMIN D TEST IS TO CHECK FOR THE MINERAL VITAMIN D, AND SO IT WILL INDICATE TO A PATIENT WHETHER THEY HAVE A DEFICIENCY, WHETHER THEY'RE OVERDOSING, IF THEY'RE TAKING SUPPLEMENTS OR WHETHER THEY'RE IN THE NORMAL RANGE.
MR. BOSTIC: I'LL ASK YOU TO TURN BACK TO EXHIBIT 1287.
JUDGE DAVILA: HE HASN'T ASKED A QUESTION YET.
MR. BOSTIC: MY NEXT STEP IS TO SEEK TO MOVE EXHIBIT 1287 INTO EVIDENCE.
JUDGE DAVILA: IT MAY BE PUBLISHED. THANK YOU.
(GOVERNMENT'S EXHIBIT 1287 WAS RECEIVED IN EVIDENCE.)
BY MR. BOSTIC:
MR. BOSTIC: DO YOU SEE A VERSION OF THIS EMAIL CHAIN ON THE SCREEN IN FRONT OF YOU, MS. CHEUNG?
ERIKA CHEUNG: YES.
MR. BOSTIC: I'LL DIRECT YOUR ATTENTION TO THE BOTTOM OF PAGE 1. IF WE CAN ZOOM DOWN TO -- YES, TO THE BOTTOM THERE, MS. HOLLIMAN. THANK YOU. THERE'S A MESSAGE FROM MR. BALWANI IN THE MIDDLE OF THE TEXT THERE ON NOVEMBER 30TH, 2013, AT 7:10 A.M. DO YOU SEE THAT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND MR. BALWANI REMARKS, "THIS IS BEYOND UNACCEPTABLE PERFORMANCE." DO YOU SEE THAT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND FROM YOUR STANDPOINT AS AN EMPLOYEE OF THE COMPANY, DID YOU AGREE THAT THIS WAS BEYOND UNACCEPTABLE PERFORMANCE FOR THE THERANOS ASSAY AT THIS TIME?
ERIKA CHEUNG: YES, THAT THE QC FAILED.
MR. BOSTIC: MS. HOLMES THEN RESPONDS TO THAT MESSAGE AND ASKS "DO WE HAVE ENOUGH SAMPLE TO RUN THIS ONE ON TRADITIONAL METHODS?" DO YOU SEE THAT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHAT WAS YOUR UNDERSTANDING WHAT SHE MEANT WHEN SHE SAID "TRADITIONAL METHODS"? WHAT DOES THAT MEAN?
ERIKA CHEUNG: TRADITIONAL METHODS MEANS IS THE PREDICATE METHOD, SO IT'S THE MACHINES THAT WE HAD IN THAT UPSTAIRS LABORATORY, THE SORT OF OFF-THE-SHELF MACHINES. SO THIS WOULD HAVE LIKELY BEEN THE DIASORIN, WHICH IS UTILIZED FOR VITAMIN D SAMPLES.
MR. BOSTIC: AND YOU SAID DIASORIN. IS THAT ANOTHER MANUFACTURER BESIDES THERANOS?
ERIKA CHEUNG: YEAH, IT'S LIKE THE DIASORIN LIAISON. IT'S THE MACHINE USED TO PROCESS VITAMIN D SAMPLES.
MR. BOSTIC: SO, IN OTHER WORDS, MS. HOLMES IS ASKING HERE WHETHER THE SAMPLE IS LARGE ENOUGH TO FORGET ABOUT USING THE THERANOS TECHNOLOGY ALTOGETHER AND SIMPLY RELY ON GENERAL STORE BOUGHT ANALYZERS; IS THAT CORRECT?
ERIKA CHEUNG: YES.
MR. BOSTIC: THANK YOU, MS. HOLLIMAN. LET'S ZOOM OUT AND ZOOM IN ON THE NEXT -- KIND OF THE NEXT MIDDLE THIRD OF THE DOCUMENT, PLEASE. LET'S SAY FROM THE LINE ABOUT ONE-THIRD DOWN, FROM ABOUT THERE (INDICATING). SORRY. LET'S GO BACK. AND FROM WHERE I MARKED NEAR THE TOP, STARTING FROM THERE GOING DOWN. CORRECT. PERFECT. THANK YOU. NISHIT DOSHI RESPONDS TO MS. HOLMES'S QUESTION; CORRECT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND WHAT IS THE ANSWER TO HER QUESTION AND WHETHER IT IS POSSIBLE TO JUST USE THIRD PARTY DEVICES AND NOT THERANOS DEVICES FOR THIS?
ERIKA CHEUNG: HE'S EFFECTIVELY SAYING THAT WE NEED A LARGER SAMPLE, SO WE NEED 150 MICROLITERS OF SERUM, WHICH SERUM IS A DIFFERENT TYPE OF TUBE AND NOT EDTA PLASMA. SO SOMETIMES YOU HAVE DIFFERENT COATINGS ON DIFFERENT TYPES OF TUBES. SO WE DON'T HAVE ENOUGH SAMPLE AND THE RIGHT TYPE OF SAMPLE IN ORDER TO RUN IT ON THE LIAISON, WHICH IS THIS PREDICATE METHOD MACHINE, THE VENOUS OFF-THE-SHELF FDA-APPROVED MACHINE THAT YOU WOULD RUN VITAMIN D SAMPLES ALTERNATIVELY ON.
MR. BOSTIC: MS. HOLMES THEN RESPONDS AND ASKING HOW FAST WE CAN RESOLVE THIS ISSUE. DO YOU SEE THAT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND DANIEL YOUNG RESPONDS. WHO WAS DANIEL YOUNG AT THE COMPANY?
ERIKA CHEUNG: DANIEL YOUNG WAS THE VICE PRESIDENT OF THE COMPANY.
MR. BOSTIC: WHAT WAS HIS FUNCTION AT THE COMPANY, IF YOU HAVE AN UNDERSTANDING OF WHAT HIS JOB ENTAILED?
ERIKA CHEUNG: SO DANIEL YOUNG WAS THE VICE PRESIDENT, AND HE TENDED TO HAVE OVERSIGHT OVER ALL OF THE RESEARCH AND DEVELOPMENT ACTIVITIES. AND THEN SPECIFICALLY WHEN IT CAME TO SORT OF THIS INTEGRATION, HELPING TO BASICALLY MAKE IT POSSIBLE SO THAT THERANOS COULD PROCESS EVEN MORE SAMPLES THAN WE CURRENTLY HAD CAPACITY OF. SO THAT WAS MY UNDERSTANDING OF WHAT HIS ROLE WAS. HE KIND OF OVERSAW A LOT OF THE R&D AND A LOT OF THE SCIENTISTS AND ALSO THIS INTEGRATION OF GETTING THESE NEW TYPES OF TESTS THAT WE WERE DEALING WITH INTO THE CLINICAL SETTING. HE WAS KIND OF A LEAD PERSON THAT WE WOULD CONTACT TO DISCUSS WHAT WE WERE WORKING ON OR ANY ISSUES THAT WE HAD IN THAT REGARD.
MR. BOSTIC: HIS ANSWER TO MS. HOLMES IS "THIS HAS BEEN RESOLVED. SAMPLE IS BEING RUN ON THE EDISON." IS THAT CORRECT?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND MS. HOLMES ASKS "WHAT IS THE RESOLUTION?" LET'S ZOOM OUT AND GO TO THE TOP EMAIL ON THE CHAIN, PLEASE, THE TOP PORTION. THANK YOU. THERE'S AN EMAIL FROM SURAJ SAKSENA. WHO WAS SURAJ SAKSENA AT THERANOS?
ERIKA CHEUNG: SURAJ SAKSENA WAS A TEAM LEAD. HE WAS A SCIENTIST ON THE BINDERS TEAM AND HE ALSO WORKED ON THE ELISA AND ALSO ON PRODUCTION.
MR. BOSTIC: AND HIS RESPONSE SAYS, "HI ELIZABETH. 2 OUTLIERS HAD TO BE MANUALLY REMOVED TO PASS QC. FOR FUTURE, WE WILL INCORPORATE AUTOMATIC OUTLIER DETECTION AND REMOVAL FROM ANALYSIS." CAN YOU EXPLAIN WHAT THAT MEANS, "2 OUTLIERS HAD TO BE MANUALLY REMOVED TO PASS QC"?
ERIKA CHEUNG: SO ESSENTIALLY THE PATIENT RESULTS AND THE QC RESULTS WERE ALL DERIVED FROM AN AGGREGATION OF SIX DATA POINTS. AND SURAJ IS TALKING ABOUT THIS, LIKE, PROCESS AT THERANOS WHERE THEY WOULD DELETE TWO DATA POINTS IF A QC FAILED OR IF A THERE WAS SOME INSTANCE WHERE WE WEREN'T GETTING LIKE THE QC TO PASS OR INVALIDATION STUDIES, THIS WAS ALSO CONDUCTED LIKE THIS SORT OF OUTLIER REMOVAL. SO LET'S TAKE TWO DATA POINTS OUT OF THE SIX DATA POINTS THAT WE HAVE TO SEE IF THAT CHANGES THE RESULTS THAT WE'RE GETTING.
MR. BOSTIC: AND IS THIS A PROCESS THAT YOU BECAME FAMILIAR WITH DURING YOUR TIME AT THERANOS?
ERIKA CHEUNG: YES.
MR. BOSTIC: AND IS THIS A PROCESS THAT YOU AGREED WITH OR DISAGREED WITH?
ERIKA CHEUNG: I DISAGREED WITH.
MR. BOSTIC: BY SAYING OUTLIERS WERE REMOVED, DOES THAT MEAN THAT THOSE RESULTS NEVER EXISTED IN THE FIRST PLACE OR JUST THAT THEY WERE IGNORED OR DISREGARDED FOR PURPOSES OF QUALITY CONTROL?
ERIKA CHEUNG: THEY WERE IGNORED AND DISREGARDED FOR THE PURPOSES OF QUALITY CONTROL.
MR. BOSTIC: YOUR HONOR, THERE'S MORE TO TALK ABOUT ON THIS TOPIC, BUT THIS MIGHT BE A GOOD TIME TO BREAK FOR THE DAY.
JUDGE DAVILA: LET'S DO THAT. LADIES AND GENTLEMEN, WE'LL TAKE OUR RECESS AT THIS TIME. I WANT TO TELL YOU TOMORROW I'M HOPEFUL THAT WE CAN BEGIN AT 9:00 O'CLOCK TOMORROW. IT MAY BE -- I'M PROBABLY GOING TO WANT TO TALK TO THE LAWYERS IN ADVANCE, BUT I'M QUITE CONFIDENT THAT WE WILL BE ABLE TO BEGIN AT THE LATEST AT 9:30, BUT I'M SHOOTING FOR 9:00 O'CLOCK. I JUST WANT TO GIVE YOU A HEADS UP ON THAT. WE'LL TAKE OUR RECESS TODAY. I DO, ONCE AGAIN, WANT TO ADMONISH YOU ABOUT THE NEED TO DECIDE THIS CASE SOLELY ON THE EVIDENCE PRESENTED IN THE COURTROOM. AGAIN, THIS MEANS THAT YOU'RE NOT TO DO ANY RESEARCH ABOUT THE CASE, ANYTHING TO DO WITH THE CASE, INCLUDING ANY INDEPENDENT RESEARCH. YOU SHOULD LIMIT YOUR EXPOSURE TO TRADITIONAL FORMS OF MEDIA INFORMATION, AND YOU MUST NOT COMMUNICATE WITH ANYONE IN ANY WAY ABOUT THIS CASE, AND YOU MUST IGNORE ANY INFORMATION ABOUT THE CASE THAT YOU MIGHT SEE WHILE BROWSING THE INTERNET OR ON YOUR SOCIAL MEDIA FEEDS.
AGAIN, TOMORROW MORNING I'M GOING TO ASK YOU THE OTHER QUESTION, WHETHER OR NOT ANY OF YOU HAVE BEEN EXPOSED TO INFORMATION. I HOPE YOU APPRECIATE THE SOMEWHAT REDUNDANCY OF THIS, BUT I HOPE YOU ALSO APPRECIATE HOW IMPORTANT IT IS FOR THIS CASE AND FOR YOUR DELIBERATIONS TO BE DECIDED ONLY ON THE EVIDENCE HERE. WITH THAT, WE'LL SEE YOU TOMORROW MORNING. MS. KRATZMANN WILL TELL YOU WHERE TO COLLECT YOURSELVES AND HOW THAT IS GOING TO BE ENGAGED. I UNDERSTAND THERE'S ANOTHER JURY TRIAL GOING ON IN OUR COURTHOUSE, AND IT MIGHT CREATE SOME CHALLENGES AS FAR AS ELEVATORS AND THINGS. ALTHOUGH I BELIEVE WE HAVE WORKED THE TIMING OUT ON THAT. BUT IN ANY EVENT, HAVE A GOOD EVENING. PLEASE REMEMBER THE ADMONITION. I HOPE WE CAN START AT 9:00 O'CLOCK. REALISTICALLY IT'S PROBABLY GOING TO BE A LITTLE BIT AFTER THAT, JUST TO BE CANDID, BUT WE'LL DO THE BEST THAT WE CAN. TOMORROW WE MIGHT GO LATER. I ASKED YOU TO CHECK ON THAT, BUT WE'LL FOLLOW UP ON THAT TOMORROW. THANK YOU. MS. CHEUNG, YOU CAN STEP DOWN AS WELL. IF YOU COULD BE AVAILABLE TOMORROW AT 9:00 O'CLOCK, PLEASE.
(JURY OUT AT 2:10 P.M.)
JUDGE DAVILA: ALL RIGHT. PLEASE BE SEATED. THANK YOU. THE RECORD SHOULD REFLECT OUR JURY HAS LEFT FOR THE DAY. MS. CHEUNG, OUR WITNESS, HAS LEFT THE COURTROOM. COUNSEL, I THINK THE PROSECUTION -- YOU HAVE A COPY OF THIS, OF THE BRIEF?
MR. BOSTIC: WE DO, YOUR HONOR.
JUDGE DAVILA: YOU CAN LOOK THAT OVER TONIGHT. IF YOU HAVE ANYTHING YOU WANT TO PREPARE IN WRITING AND YOU FINISH IT THIS EVENING, I APPRECIATE YOU SENDING IT OVER SO I CAN LOOK AT IT BEFORE TOMORROW MORNING, AND THEN WE'LL HAVE A FULLER DISCUSSION ABOUT THIS TOMORROW. MR. WADE?
MR. WADE: YOUR HONOR, IN LIGHT OF SOME OF THE ISSUES THAT CAME UP, IF THERE'S ANYTHING THAT -- ANY CASE LAW THAT WE THINK WOULD SHED ANY FURTHER LIGHT ON THIS, WE'LL FILE IT AS WELL. THIS WAS NOT A SUBMISSION THAT WAS SPECIFIC TO THESE EMAILS. IT WAS JUST A BENCH MEMO THAT WE HAD ON BUSINESS RECORDS. IF IN LIGHT OF SOME OF THE ISSUES THAT THE GOVERNMENT HAS RAISED THERE ARE PARTICULAR ITEMS THAT COME UP, WE'LL FILE THEM WITH THE COURT AND GIVE THEM TO THE GOVERNMENT AS QUICKLY AS WE CAN.
JUDGE DAVILA: YOU'RE SAYING IN RESPONSE TO WHAT THEY FILE?
MR. WADE: THEY RAISED, FOR EXAMPLE, THE AGENCY ISSUE WHICH IS SUGGESTING THAT A WHOLE SLEW OF DOCUMENTS CAN COME IN. IF WE THINK THERE'S SOME CASE LAW ON POINT, WE MAY SUBMIT A ONE PAGER OR A VERY SHORT SUBMISSION JUST IN THE SPIRIT OF GIVING EVERYONE NOTICE AS QUICKLY AS POSSIBLE.
JUDGE DAVILA: WELL, LET'S -- I DON'T KNOW WHAT THE -- WE'VE TALKED ABOUT A BUSINESS RECORD EXCEPTION, WE'VE TALKED ABOUT VICARIOUS ADMISSIONS, WE'VE TALKED ABOUT, I THINK, AN AGENCY TYPE OF THEORY FOR ADMISSION UNDER 801(D)(2) AND PERHAPS (E) AND PERHAPS (D), PERHAPS (C), IF YOU WANT TO LOOK AT THOSE. I THINK THIS IS WHAT WE TALKED ABOUT IN OUR DISCUSSION. THERE MIGHT BE ALTERNATIVE WAYS THAT THIS COULD BE AT LEAST ARGUABLY ADMITTED. SO IF THERE'S GOING TO BE DISCUSSION ABOUT THAT, I'M HAPPY TO RECEIVE YOUR COMMENTS.
MR. WADE: AND I'M NOT SUGGESTING -- WE WOULDN'T FILE A MOTION THAT WOULD REQUIRE A RULING OR ANYTHING TO THAT EFFECT. IT'S JUST THAT IF WE NOTE SOME AUTHORITY, WE'LL BRING IT TO EVERYONE'S ATTENTION SO THEY HAVE AS MUCH NOTICE AS POSSIBLE.
JUDGE DAVILA: OKAY. ANYTHING FURTHER?
MR. BOSTIC: NOT ON THIS ISSUE.
JUDGE DAVILA: ANYTHING FROM YOUR SIDE?
JUDGE DAVILA: ALL RIGHT. HAVE A GOOD EVENING. THANKS.
(COURT ADJOURNED AT 2:12 P.M.)