Erika Cheung Email Admissibility Hearings
126 linesSAN JOSE, CALIFORNIA SEPTEMBER 15, 2021 P R O C E E D I N G S
(COURT CONVENED AT 8:37 A.M.)
(JURY OUT AT 8:37 A.M.)
JUDGE DAVILA: WE ARE BACK ON THE RECORD IN THE HOLMES MATTER. ALL PARTIES PREVIOUSLY PRESENT ARE PRESENT ONCE AGAIN. WE'RE OUTSIDE OF THE PRESENCE OF OUR JURY, AND I WANTED TO TALK TO YOU ABOUT OUR CONVERSATION YESTERDAY REGARDING EMAILS. LET ME INDICATE THAT I DID RECEIVE, AND I SEE -- I THINK IT WAS MS. VOLKAR APPARENTLY WAS UP UNTIL MIDNIGHT LAST NIGHT. I THINK THIS WAS FILED AT 11:53 P.M., AND THIS I AM REFERRING TO IS DOCUMENT 1019, AND I DID RECEIVE THAT. HAS THE DEFENSE RECEIVED THAT, MR. WADE?
JUDGE DAVILA: THANK YOU. THIS IS THE UNITED STATES' MEMORANDUM OF LAW REGARDING THE EXHIBITS FOR MS. CHEUNG IN RESPONSE TO YOUR FILING YESTERDAY, MR. WADE. SO ANYTHING? MR. BOSTIC, ARE YOU SPEAKING TO THIS?
MR. BOSTIC: YES, YOUR HONOR.
JUDGE DAVILA: AND I'M HAPPY TO HEAR FROM YOU IF THERE'S ANYTHING ELSE YOU'D LIKE ME TO KNOW.
MR. BOSTIC: GOOD MORNING, YOUR HONOR. I WON'T REITERATE WHAT IS IN THE BRIEFS, BUT JUST TO DRIVE HOME THAT THE NINTH CIRCUIT HAS RULED ON THIS ISSUE RECENTLY. YESTERDAY I THINK I HEARD DEFENSE COUNSEL SAY THAT THE NINTH CIRCUIT LAW WAS CLEAR ON THIS ISSUE. I'M NOT SURE THAT'S THE CASE, OR AT LEAST IF IT IS CLEAR, IT IS IN THE GOVERNMENT'S FAVOR RATHER THAN THE DEFENSE'S FAVOR.
JUDGE DAVILA: MAYBE HE WAS SPEAKING TO --
MR. BOSTIC: THE LISCHEWSKI CASE?
JUDGE DAVILA: -- THE LISCHEWSKI CASE. WE'LL HEAR FROM MR. WADE IN JUST A MOMENT.
MR. BOSTIC: THAT WASN'T MY SENSE, YOUR HONOR. I DO HAVE COPIES OF THAT CASE FOR THE COURT IF IT WOULD BE HELPFUL
(HANDING.)
JUDGE DAVILA: I'VE READ THAT CASE, BUT I'M HAPPY TO RECEIVE IT. THANK YOU. YOU'VE SEEN THIS?
JUDGE DAVILA: OF COURSE, OF COURSE.
MR. BOSTIC: THE POINT OF THE DISCUSSION IN LISCHEWSKI IS SIMPLY THAT EMAILS CAN QUALIFY AS BUSINESS RECORDS. THE MONOTYPE CASE CITED BY THE DEFENSE, FIRST OF ALL, WAS FROM 1994. IT WAS A VERY DIFFERENT TIME, ESPECIALLY WHEN IT CAME TO THE USE OF EMAIL AND THE RELEVANCE OF EMAILS IN BUSINESS. I DON'T THINK I HAD A COMPUTER OR THAT THERE WAS A COMPUTER IN MY HOUSE IN 1994. TIMES ARE VERY DIFFERENT NOW AND THE LAW IS STARTING TO REFLECT THAT. THE EMAIL AT ISSUE IN THE MONOTYPE CASE WAS ALSO VERY DIFFERENT FROM THE EMAILS THAT WE'RE ATTEMPTING TO OFFER FOR EVIDENCE IN THIS CASE. IN THAT CASE THE COURT NOTED THAT THE CORRESPONDENCE INCLUDED OFFENSIVE OR DEROGATORY REMARKS ABOUT AN EMPLOYEE AT THAT COMPANY.
OBVIOUSLY THAT KIND OF CONTENT WOULD NOT BE NATURALLY PART OF THE BUSINESS RECORDS OF THE COMPANY, SO IT'S UNDERSTANDABLE THAT THE COURT IN THAT CASE DECIDED THAT THAT KIND OF CASUAL COMMUNICATION BETWEEN EMPLOYEES, THE KIND OF COMMUNICATION THAT COULD JUST AS EASILY HAVE HAPPENED IN PERSON BY A WATER COOLER, WOULD NOT QUALIFY FOR ADMISSION UNDER THE BUSINESS RECORDS HEARSAY RULE. IN LISCHEWSKI IN CONTRAST, THE COURT MADE CLEAR THAT AN EMAIL CAN QUALIFY AS A BUSINESS RECORD WHEN IT IS WRITTEN AT OR NEAR THE TIME OF THE CONVERSATION OR THE RELEVANT EVENTS WHEN THE EMAIL IS KEPT IN THE COURSE OF A REGULARLY CONDUCTED ACTIVITY OF A BUSINESS AND WAS PREPARED AS PART OF A BUSINESS'S REGULAR PRACTICE. THAT APPLIES TO PERHAPS ALL OF THE EMAILS THAT WE'RE SEEKING TO ADMIT FOR THE TRUTH IN THIS CASE WITH MS. CHEUNG ON THE STAND. WE'RE TALKING ABOUT EMAILS HERE THAT WERE CENTRAL TO THE OPERATION OF THE CORE OF THERANOS'S BUSINESS, SPECIFICALLY THE R&D LABS AND THE CLINICAL TESTING LAB.
EMAIL HAPPENS TO BE THE MEDIAN THAT THE EMPLOYEES IN THESE DEPARTMENTS USED TO SHARE IMPORTANT INFORMATION WITH EACH OTHER REGARDING ISSUES THAT THEY WERE PRESENTLY ENCOUNTERING IN THE LAB. EMAIL WAS THE MEDIAN BY WHICH THEY DOCUMENTED THOSE ISSUES, DISSEMINATED THAT THROUGHOUT THE COMPANY, AND MEMORIALIZED THOSE ISSUES FOR FUTURE REFERENCE. THEY HAD A DUTY TO REPORT ACCURATELY IN THOSE EMAILS BECAUSE OF THE STAKES, AND IT WAS IMPORTANT TO GET THOSE FACTS RIGHT BECAUSE AT THE END OF THE DAY THE VALIDITY OF PATIENT TESTING DEPENDED ON THE ACCURATE CONVEYING OF THE INFORMATION THAT THEY NEEDED TO CONVEY IN THOSE CASES. I KNOW THE COURT HAS A SET OF THE EXHIBITS THAT WE'RE OFFERING UNDER THAT DOCTRINE, AND I'M HAPPY TO DISCUSS ANY INDIVIDUALLY, BUT FOR NOW I THINK WE WOULD JUST EMPHASIZE THAT A BLANKET RULE PROHIBITING THE INTRODUCTION OF THESE DOCUMENTS WOULD BE OVERBROAD. THE GOVERNMENT WOULD LIKE THE OPPORTUNITY TO LAY A FOUNDATION FOR THESE DOCUMENTS PURSUANT TO THE RULE, AND TO OVERCOME THE DEFENDANT'S HEARSAY OBJECTION. I'M HAPPY TO ADDRESS THE RELEVANCE POINT SEPARATELY, BUT I'M NOT SURE IF THE COURT HAS ANY QUESTIONS ON THAT.
JUDGE DAVILA: NO, I DON'T. I'M GOING TO TURN TO MR. WADE RIGHT NOW. BUT I DO WANT TO COME BACK TO SOMETHING THAT IS ON PAGE 4 OF MS. VOLKAR'S FILING. IT'S AT LINE 27 REGARDING EXHIBIT 1589, BUT WE CAN TALK ABOUT THAT. THAT'S A DIFFERENT ISSUE. MR. WADE.
MR. WADE: GOOD MORNING, YOUR HONOR. THANK YOU. THE LISCHEWSKI CASE, IF I'M PRONOUNCING THAT CASE CORRECTLY, IT IS AN UNPUBLISHED DECISION FROM THE NINTH CIRCUIT WHERE THEY RULED THAT THE -- IT WAS NOT ABUSE OF DISCRETION TO ADMIT TWO EMAILS. THE CONTENT OF THE EMAILS AND THE CONTEXT IN WHICH THOSE WERE OFFERED IS NOWHERE IN THE OPINION BECAUSE IT'S A NONPRECEDENTIAL OPINION, SO THE NINTH CIRCUIT MADE QUICK WORK OF THAT CASE, SO I DON'T THINK IT GIVES US A LOT OF GUIDANCE IN THIS CASE. WE'RE TALKING ABOUT FAR MORE THAN TWO EMAILS. WE'RE TALKING ABOUT, IT WOULD APPEAR BASED ON DISCLOSURES FROM THE GOVERNMENT, DOZENS, IF NOT HUNDREDS, OF EMAILS THAT RELATE TO THIS. THE GOVERNMENT'S POSITION ON THIS WOULD ESSENTIALLY EXEMPT FROM THE HEARSAY RULES EMAIL OF ANY BUSINESS, AND THE EXCEPTION FOR BUSINESS RECORDS IS SUPPOSED TO BE A FUNCTION THAT IS SPECIFICALLY DESIGNED TO CAPTURE A FORMAL FUNCTION OF THE BUSINESS. THE PROCEDURES THAT ARE SET IN PLACE IN THE LAB HERE ARE EXTENSIVE.
THEY'RE STANDARD OPERATING PROCEDURES. THERE ARE ISSUES FOR RAISING -- THERE ARE POLICIES FOR RAISING THINGS, HOW THEY'RE SUPPOSED TO BE DOCUMENTED AND WHAT THE RULES ARE. IT MAY BE THE MOST POLICY DRIVEN AREA ALMOST WITHIN ANY COMPANY. THE COURT WILL SEE, AS WE GET INTO THE CASE OVER THE NEXT COUPLE OF WITNESSES, THERE ARE A TREMENDOUS NUMBER OF POLICIES. THESE EMAILS WERE NOT SENT PURSUANT TO THIS POLICY. THE FACT THAT THEY SENT ONE TO AN EMAIL GROUP, WHICH EXISTS IN ANY BUSINESS IN AMERICA, DOES NOT RENDER IT A BUSINESS RECORD. I BELIEVE THAT'S ONE OF THE ONLY EMAILS THAT ACTUALLY GOES TO THAT GROUP. SO WE CAN'T EXEMPT EVERY EMAIL BECAUSE THEIR EMAIL SERVERS ARE REGULARLY KEPT AND PEOPLE REGULARLY SERVE -- REGULARLY USE THE EMAILS, WE CAN'T EXEMPT THEM FROM THE HEARSAY RULES.
TELEPHONES HAVE BEEN USED WITHIN BUSINESSES FOR A LONG TIME, AND THAT DOESN'T MEAN THAT IF THAT'S THE MEANS OF COMMUNICATION THAT YOU USE WITHIN A BUSINESS, THAT YOU CAN -- YOU WOULD PICK UP AND HAVE A CONVERSATION WITH SOMEONE, THAT THAT SUDDENLY EXEMPTS THEM FROM THE HEARSAY RULES. IF YOU LOOK AT MANY OF THE EMAILS IN THIS CASE, THEY'RE EXACTLY THE KIND OF COMMUNICATIONS THAT COULD WELL HAPPEN -- YOU KNOW, BACK IN THE DAY, YOUR HONOR, WHEN WE WEREN'T USING EMAIL TO COMMUNICATE IMPERSONALLY ABOUT ANYTHING, WE WOULD PICK UP THE PHONE AND CALL AND SAY, HEY, THIS THING CAME UP IN THE LAB, WHAT DO YOU THINK I SHOULD DO? AND THE RESPONSE IS, YOU MIGHT WANT TO LOOK AT THE -- YOU MIGHT WANT TO RECALIBRATE, OR YOU MIGHT WANT TO DO THIS OR DO THAT. THAT'S A CASUAL CONVERSATION ABOUT THE OPERATION OF THE BUSINESS THAT IS NOT REQUIRED BY THE BUSINESS. IT'S NOT A STANDARD METHOD OF THE BUSINESS. IT'S CATCH-AS-CATCH-CAN, LIKE ALMOST EVERY EMAIL IS IN ANY BUSINESS.
SO I THINK THE GOVERNMENT'S READING IS FAR, FAR TOO BROAD AND WOULD RESULT IN A LOT OF EMAILS, YOU KNOW, TUMBLING INTO THIS CASE THAT ARE HEARSAY. ONE OTHER THING I WOULD NOTE JUST WITH RESPECT TO THIS ISSUE, AND EVERY EVIDENTIARY ISSUE, AS THE COURT KNOWS, THIS IS A DOCUMENT-BY-DOCUMENT ANALYSIS, AND SO THE GOVERNMENT HAS IDENTIFIED MANY OF THEM. WE THINK THE AT-ISSUE EMAILS ARE EXHIBITS 1431, 1512, 1522, 1524, 1528, 1530, 1548, 1557, 1587, 1589, 1595, 1611, 1617, AND 1633. I WILL ALSO NOTE, YOUR HONOR, THAT WITH RESPECT TO EXHIBITS 1431, 1512, 1587, AND 1617, THERE IS HEARSAY WITHIN HEARSAY, AND WE WOULD OBJECT TO THAT BOTH UNDER 802 AND 805.
JUDGE DAVILA: OKAY. THANK YOU. MR. BOSTIC?
MR. BOSTIC: EXCUSE ME. THE DEFENSE IS INCORRECT THAT THE GOVERNMENT'S ARGUMENT APPLIES TO EVERY EMAIL SENT BY A BUSINESS, OR EVEN EVERY EMAIL SENT BY THERANOS. THE CASE LAW IS STARTING TO MAKE CLEAR THAT EMAIL IS JUST ANOTHER MEDIAN BY WHICH EMPLOYEES OF THE COMPANY CAN COMMUNICATE. THAT MEANS THAT EMAILS ARE NOT AUTOMATICALLY BUSINESS RECORDS. THAT IS NOT THE GOVERNMENT'S POSITION. IT IS NOT THE GOVERNMENT'S POSITION THAT EVERY EMAIL SENT OR RECEIVED BY A THERANOS EMPLOYEE IS A BUSINESS RECORD. THE DEFENSE IS CORRECT THAT THIS IS A DOCUMENT-BY DOCUMENT CONSIDERATION. AND IN THIS CASE, THE SPECIFIC EMAILS THAT THE GOVERNMENT IS OFFERING QUALIFY BUSINESS RECORDS NOT BECAUSE THEY WERE SENT TO AND FROM THERANOS EMPLOYEES, BUT BECAUSE OF THEIR CONTENT, BECAUSE OF THEIR PURPOSE, BECAUSE OF HOW THEIR PURPOSE AND THEIR USE CONTRIBUTED TO THE FUNCTIONING OF THE LABS AT THERANOS.
DEFENSE COUNSEL HAS MADE SOME REPRESENTATIONS TO THE COURT OR CHARACTERIZATIONS ABOUT THE LEVEL OF STANDARD OPERATING PROCEDURES ENFORCED AT THERANOS AT THE TIME. RESPECTFULLY, I THINK THAT WE SHOULD LISTEN TO THE WITNESS WHEN IT COMES TO THE SIGNIFICANCE OF THESE EMAILS. I THINK IT'S UP TO THE WITNESS WHO IS ON THE STAND, TESTIFYING UNDER OATH, ABOUT THESE VERY EVENTS AND HOW THESE RECORDS CAME TO BE. I THINK IT'S UP TO THAT WITNESS TO PROVIDE THE FOUNDATION FOR BOTH THE RELIABILITY OF THESE DOCUMENTS AND HOW THEY FIT INTO THE OPERATION IN THE REGULAR COURSE OF BUSINESS AT THERANOS. SO WITH DUE RESPECT TO COUNSEL'S ARGUMENTS, I THINK THAT THEY'RE PREMATURE AND THEY MISS THE POINT, BECAUSE WE NEED TO LET THE WITNESS HAVE THE OPPORTUNITY TO LAY THE FOUNDATION FOR THE ADMISSION OF THESE DOCUMENTS AS BUSINESS RECORDS, AND I THINK WITH THE WITNESS'S TESTIMONY, IT WILL BECOME CLEAR THAT THESE ARE NOT CASUAL COMMUNICATIONS. THESE ARE COMMUNICATIONS THAT THESE EMPLOYEES HAD A DUTY TO SEND, TO REPORT ON AND MEMORIALIZE THESE EVENTS, AND PARTLY BECAUSE OF THAT AND FOR OTHER REASONS, THEY CARRY THE HALLMARKS OF RELIABILITY THAT PLACE THEM SQUARELY WITHIN THE BUSINESS RECORDS EXCEPTION TO THE RULE.
JUDGE DAVILA: THANK YOU. YOU KNOW, COUNSEL, I THINK YOU BOTH TOUCHED ON IT THAT WE HAVE COME A LONG WAY, HAVEN'T WE, IN THE COURSE OF LITIGATION, IN THE COURSE OF BUSINESS PRACTICES. THERE WAS A TIME DECADES AGO, PROBABLY EVERYONE IN THIS COURTROOM IS TOO YOUNG TO REMEMBER, BUT BUSINESSES USED TO COMMUNICATE BY THE DEVICE THAT WAS POWERED BY A PNEUMATIC SYSTEM, TUBES WERE RUN THROUGH BUSINESSES, AND MEMOS, HANDWRITTEN MEMOS AND DOCUMENTS WERE EXCHANGED WITHIN BUSINESSES THROUGH THE USE OF PNEUMATIC TUBES. THEY WOULD GO UP TO THE TENTH FLOOR, THE BASEMENT, ET CETERA, AND THOSE WERE THE DAYS WHEN THINGS WERE MEMORIALIZED BY HAND. WELL, WE HAVE COME A LONG WAY SINCE THEN, HAVEN'T WE? WE'VE, PARTICULARLY IN SILICON VALLEY, WHICH SOME PEOPLE CLAIM IS THE BIRTH PLACE OF TECHNOLOGY AND COMPUTERS, AND WE KNOW THAT BUSINESSES ARE MOVING AWAY FROM PAPER RECORDS.
IT'S DIFFICULT TO FIND BUSINESSES -- LITIGATION IN CIVIL AND CRIMINAL CASES OFTENTIMES REVOLVE AROUND DISCOVERY ISSUES, DON'T THEY, AND THE METADATA. THERE'S LITIGATION ABOUT WHAT SEARCH TERMS SHOULD BE USED TO SEARCH ELECTRONIC RECORDS THAT BUSINESSES HAVE? WE KNOW THIS. THAT HAPPENS. WE HAVE BOOKS AND VOLUMES ON E-DISCOVERY AND COURTS HAVE RULES ON SOMETHING CALLED E-DISCOVERY. I THINK ALL OF THIS SUGGESTS THAT THE COURTS HAVE TRIED TO KEEP UP WITH TECHNOLOGY AS BEST WE CAN. IT'S A RACE, AS WE KNOW, AND SOMETIMES THE COURT IS HEAD-AND-HEAD WITH THAT, BUT OFTENTIMES COURTS AND OTHER BUSINESSES TRY TO KEEP UP WITH TECHNOLOGY THAT CHANGES BY THE MINUTE. BUT WHAT THIS SAYS IS, AND I THINK WE ALL RECOGNIZE THIS, THAT THE BUSINESS COMMUNITY HAS CHANGED THE WAY IT PRACTICES DRAMATICALLY. IT'S CHANGED THE LEGAL WAY THAT THE LAW IS PRACTICED. MANY OF YOU DON'T HAVE WHAT IS CALLED A PAPER CALENDAR ANYMORE. YOU USE YOUR DEVICE TO KEEP TRACK OF THINGS.
SO THIS ALL JUST TALKS ABOUT THE CHANGE OF BUSINESS, THE WAY THE COURTS RUN THINGS. I THINK IT SPEAKS TO THE COMMUNITY RECOGNITION THAT THINGS HAVE CHANGED. EMAIL IS ONE OF THOSE, ONE OF THOSE THINGS THAT IS SO IMPORTANT TO BUSINESSES. IT'S IMPORTANT TO OUR DAILY LIVES, OF COURSE, AND EMAIL HAS INTEGRATED ITSELF, WE KNOW FROM THESE CASES THAT YOU'VE ALL TALKED ABOUT, INTO BUSINESS LIFE. HOW DOES, HOW DOES THAT EMAIL WORK IN THE BUSINESS? HOW DO BUSINESSES TREAT EMAIL? IS IT ANALOGOUS TO THE PNEUMATIC TUBES THAT I TALKED ABOUT THAT SEND A WRITTEN NOTE FROM THE FIRST FLOOR TO THE FIFTH? IT IS. MAYBE THAT'S HOW COMMUNICATIONS ARE DONE. THIS WITNESS, MS. CHEUNG, TESTIFIED ABOUT THE USE OF EMAIL, AND THERE ARE SOME EXHIBITS THAT ARE ALREADY IN EVIDENCE, ABOUT HOW EMAIL WAS USED IN THERANOS IN THE LAB WHERE SHE WORKED AND THE COMMUNICATION SHE WORKED, SHE WORKED AND EXCHANGED WITH HER FELLOW EMPLOYEE, SUBORDINATES, AND HIGHER UPS.
SHE TESTIFIED YESTERDAY THAT THE NORMANDY 911 SYSTEM WAS A SYSTEM THAT WAS CREATED BY THE -- HER EMPLOYER FOR THAT SPECIFIC PURPOSE OF COMMUNICATING. NORMANDY 911 SUGGESTS IT WAS -- AND I THINK SHE OPINED -- THAT IT WAS A CREATION BY THERANOS WHEREBY LAB TECHNICIANS COULD COMMUNICATE WITH HASTE WHEN SOMETHING CAME IN THE LAB THAT REQUIRED SOME IMMEDIATE ATTENTION, THAT WAS ONE OF THE GROUPS THAT WAS USED. THAT SUGGESTS THAT THAT WAS A TOOL THAT THE BUSINESS CREATED FOR THAT PARTICULAR FUNCTION. I BELIEVE SHE ALSO TESTIFIED THAT THIS EMAIL AND THIS SYSTEM WAS SOMETHING THAT WAS CREATED SUCH THAT IT COULD BE USED AS, SHE DIDN'T USE THE WORD ARCHIVE, BUT IT SOUNDED LIKE THAT'S WHAT SHE WAS SPEAKING TO. THE INFORMATION THAT WAS EXCHANGED IN THE EMAILS COULD BE REVIEWED AND USED FOR LABORATORY PURPOSES.
AND I CERTAINLY UNDERSTAND THAT AS THE LABORATORY IS DOING ITS WORK, INSTEAD OF A WRITTEN MEMO -- AGAIN, GOING BACK TO MY SPEAKING ABOUT THE PNEUMATIC TUBE -- THERE'S AN ELECTRONIC RECORD THAT SOMEONE CAN PULL UP AND LET'S SEE WHAT HAPPENED ON TEXT X. SO IT PROVIDES IMMEDIATE RESULTS OF WHAT IS HAPPENING IN REALTIME. THE TESTIMONY SO FAR SEEMS TO SUGGEST THAT THAT WAS SOMETHING THAT WAS CRITICAL TO THE LAB, GETTING THE TEST RESULTS, GETTING QC DONE. AND, OF COURSE, ANY BUSINESS WE KNOW GETTING THE FOUNDATIONAL WORK OF A BUSINESS ACCOMPLISHED IS THE PRIME DIRECTIVE. IT SEEMS LIKE SO FAR FROM THE TESTIMONY SHE HAS SAID THAT THIS EMAIL WAS PART OF THAT PROCESS. I FEEL COMFORTABLE AND CONFIDENT ABOUT HER TESTIMONY ABOUT THE 911 NORMANDY.
JUDGE DAVILA: SHE DID TESTIFY ABOUT EMAIL IN GENERAL, BUT I'M GOING TO SUGGEST, MR. BOSTIC, MAYBE A LITTLE BIT LARGER, GREATER FOUNDATION WOULD NEED TO BE LAID ABOUT THE USE OF THE EMAIL IN GENERAL AND WHETHER OR NOT THAT EMAIL PROCESS WAS SOMETHING THAT WAS RELIED ON IN THE LAB AS IT RELATES TO THE EXHIBITS THAT YOU'RE SEEKING TO ADMIT. I LOOKED AT THE EXHIBITS. I DON'T SEE THAT THESE FIT IN A CASUAL CONVERSATION. WE KNOW THE CASES SPEAK TO THAT. WHO WON A GAME? ARE YOU GOING TO A BARBECUE? DEROGATORY COMMENTS ABOUT OTHER EMPLOYEES, THOSE ARE OBVIOUSLY CASUAL TYPE OF CONVERSATIONS THAT WOULD NOT FOLLOW UNDER A BUSINESS RECORD AND 803(6) WOULD NOT PERMIT THOSE TYPES OF EMAILS TO COME IN. BUT I DO THINK THAT, AS I SAID, I DO THINK THAT THE FOUNDATION HAS BEEN LAID UNDER 803(6), AT LEAST AS TO THE NORMANDY. IT SEEMS TO ME THAT THAT IS -- THIS WITNESS HAS LAID A FOUNDATION FOR THOSE EXHIBITS THAT SEEK TO BE ADMITTED UNDER THAT. SHE MAY HAVE ESTABLISHED A FOUNDATION OR A GENERAL EMAIL PRACTICE, BUT IT'S ONLY AS TO THE LAB AND THESE EXHIBITS, MR. WADE. I AGREE WITH YOU, NOT EVERY EMAIL IS A BUSINESS RECORD. WE HAD THAT DISCUSSION YESTERDAY. I THINK I ENDED SAYING YOU AGREE THAT SOME EMAILS CAN BE BUSINESS RECORDS, AND I DON'T THINK YOU PART COMPANY WITH THAT. BUT IT DEPENDS ON --
JUDGE DAVILA: BUT IT DEPENDS -- BUT I APPRECIATE YOU BRINGING ME YOUR ARGUMENT THAT AT LEAST SOME OF THESE EXHIBITS ARE NOT. YOU SUGGEST IN YOUR FIVE PAGE MEMO THAT THE COURT NEEDS TO LOOK AT THESE INDIVIDUALLY, AND THAT'S CORRECT, WE HAVE TO GO THROUGH THAT. AND I THINK THAT'S WHAT MR. BOSTIC IS SUGGESTING THAT HE'LL DO WITH THIS WITNESS IS TO LOOK AT EACH EXHIBIT, GO THROUGH THE EXHIBIT, AND SEE WHETHER OR NOT IT MEETS THE REQUIREMENTS OF 803. IT SEEMS, AT LEAST SO FAR, THIS WITNESS HAS TESTIFIED REGARDING ACTS, UNDER 803(6)(A), UNDER ACTS THAT ARE CONTEMPORANEOUS WITH THE EMAIL, AND THE PERCIPIENT OBSERVATIONS AS A LAB ANALYST, SHE HAS KNOWLEDGE OF THE MATERIAL THAT WAS DISCUSSED. I THINK SHE TALKED ABOUT 803(6)(B), THAT SHE HAD EXPERIENCED THAT THESE RECORDS WERE KEPT IN THE NORMAL COURSE OF BUSINESS. IT WOULD APPEAR THAT THE DUTY TO KEEP THESE RECORDS WAS PARAMOUNT TO THE LAB EMPLOYEES AS THE SPECIFIC INFORMATION THAT WAS EXCHANGED.
SHE ALSO TESTIFIED THAT THIS RECORD OF EMAIL WAS A REGULAR PRACTICE OF THE BUSINESS. IT SHOWS THAT -- HER TESTIMONY SO FAR SHOWS THAT SHE REGULARLY USED EMAIL. NOW, WAS THIS A POLICY? WAS IT PART OF A MANAGEMENT SCHEME THAT SHE HAD OR SHE HAD TO BE INFORMED OF? PART OF TRAINING? WE DON'T KNOW THAT YET. THAT'S NOT IN EVIDENCE. BUT CERTAINLY SO FAR BY PRACTICE IT APPEARS THAT THAT'S HOW THE LAB RAN, AND THAT'S HOW SHE SUGGESTED THE EMAIL WAS. SHE WAS TO REPORT TO WHOEVER ABOUT WHATEVER RESULTS SHE HAD. SHE WOULD BE FOUND UNDER (D )TO BE A QUALIFIED WITNESS TO TESTIFY AND OFFER THIS EXAMPLE OF EMAIL. THAT, AS YOU KNOW, IS TO BE BROADLY INTERPRETED. THE WITNESS ONLY NEEDS TO UNDERSTAND THE RECORDKEEPING SYSTEM. SHE HAS TESTIFIED ABOUT THAT, THE EMAIL WAS USED, IT WAS USED AS -- MY WORD -- ARCHIVAL, IT WAS USED TO LOOK AT AND REVIEW FOR OTHER TESTING PURPOSES. AND THEN 803(6)(E) TALKS ABOUT RELIABILITY. SHE'S A LAB -- HIRED AS A LAB ANALYST.
SHE SPEAKS ABOUT THE EMAIL BEING USED REGULARLY FOR LAB FUNCTIONING PURPOSES. I DON'T SEE, AT LEAST SO FAR, THAT THESE EMAILS, THE ONES THAT WE'VE TALKED ABOUT, ARE A CASUAL CONVERSATION. I AGREE WITH YOU, MR. WADE, NOT EVERY EMAIL COMES IN. BUT THE ONES AT LEAST THAT SHE'S TALKED ABOUT HERETOFORE I DO THINK FALL UNDER 803 AND THE CRITERIA UNDER 803 AS I'VE GONE THROUGH THEM, AND AT LEAST AS TO THE ESTABLISHMENT OF THOSE CRITERIA FOR WHAT YOU'VE PUT IN, I WOULD OVERRULE YOUR OBJECTION, MR. WADE, AS TO THOSE. NOW, AS TO THE OTHERS THAT YOU SEEK TO ADMIT, I APPRECIATE YOU GIVING US ADVANCE NOTICE OF THAT AND YOUR OBSERVATIONS, TOO, MR. WADE. WE CAN GO THROUGH THOSE EACH TIME AS YOU SEEK TO ADMIT THEM. I DON'T KNOW IF YOU'RE GOING TO SEEK TO ADMIT THE SERIES THAT MR. WADE SPOKES TO HERE. THAT'S ENTIRELY UP TO YOU, MR. BOSTIC. I DID HAVE A QUESTION. I ASKED YOU TO LOOK AT THAT ONE COMMENT YOU MADE. IT'S ON A DIFFERENT TOPIC ON PAGE 4, EXHIBIT 5189, AND THIS IS RELATED TO ADOPTIVE ADMISSIONS, I THINK UNDER 801(2)(D)(2).
MR. BOSTIC: YES, YOUR HONOR. ARE YOU REFERRING TO EXHIBIT 1589?
JUDGE DAVILA: YES. I WASN'T SURE HOW THAT FIT INTO THAT CATEGORY. MAYBE I HAVE THE WRONG EXHIBIT.
MR. BOSTIC: SO, YOUR HONOR, 1589 SHOULD BE AT THE TOP, A FEBRUARY 26TH, 2014, EMAIL.
JUDGE DAVILA: LET'S SEE.
(PAUSE IN PROCEEDINGS.)
JUDGE DAVILA: YES, I THINK I HAVE THAT. YES.
MR. BOSTIC: AND THE TOP MESSAGE IS FROM THE WITNESS ERIKA CHEUNG TO JAMIE LIU. BUT JUST BELOW THAT ON EXHIBIT 1589 IS AN EMAIL MESSAGE FROM SUNNY BALWANI TO ERIKA CHEUNG, ADAM ROSENDORFF, THE LAB DIRECTOR, AND SEVERAL OTHER EMPLOYEES AT THERANOS EXPLAINING -- FIRST OF ALL, REACTING TO SOME DISCUSSION OF QUALITY CONTROL ISSUES DISCUSSED BELOW IN THE EMAIL, AND ALSO STATING THAT, OR PROVIDING HIS INPUT ON HOW VALIDATION WORK WAS HANDLED FOR THE ASSAYS PREVIOUSLY. THAT STATEMENT BY MR. BALWANI SHOULD BE ADMISSIBLE, FIRST OF ALL, AS A BUSINESS RECORD. THESE ARE BUSINESS RECORD COMMUNICATIONS. BUT ALTERNATIVELY, UNDER RULE 801(D)(2) AS A STATEMENT OF AN AGENT OF THE DEFENDANT, MS. HOLMES.
JUDGE DAVILA: OKAY. SO THAT FOUNDATION WOULD HAVE TO BE LAID STILL, I THINK. YOU HAVEN'T DONE THAT YET. WHAT YOU'RE SUGGESTING IS THAT, IF NEED BE, YOU'LL LAY THE FOUNDATION UNDER 801(D)(2)(D).
MR. BOSTIC: CORRECT, YOUR HONOR. I THINK THAT WILL INVOLVE EXPLORING WITH THE WITNESS MR. BALWANI'S ROLE IN THE COMPANY AND HOW HE FIT INTO THE OVERALL STRUCTURE.
JUDGE DAVILA: AND WE'RE PREMATURE. WE HAVEN'T GOTTEN THERE YET I DON'T THINK.
MR. WADE: YOUR HONOR, OUR OBJECTION ON THIS, THE GOVERNMENT HAS NOTICED THE STATEMENT ON THE BOTTOM OF 158 -- I'M SORRY -- AT THE TOP OF PAGE 2 OF EXHIBIT 1589. "I'M ALREADY EXTREMELY IRRITATED." I DON'T KNOW IF THE COURT HAS THE DOCUMENT IN FRONT OF IT.
JUDGE DAVILA: I JUST HAVE THE EXHIBIT IN FRONT OF ME.
JUDGE DAVILA: YES.
JUDGE DAVILA: YES.
MR. WADE: THE GOVERNMENT NOTED THAT AS A COCONSPIRATOR STATEMENT PURSUANT TO LOCAL RULE 16.SOMETHING. WE DISAGREE WITH THAT BEING OFFERED BECAUSE IT'S NOT OFFERED IN THE -- IN FURTHERANCE OF ANY CONSPIRACY. I DON'T THINK THEY'VE LAID THAT FOUNDATION.
JUDGE DAVILA: RIGHT.
MR. WADE: I DON'T THINK THEY CAN LAY THAT FOUNDATION, SO WE WOULD OBJECT ON THAT BASIS. WE WOULD OBJECT ON THE BUSINESS -- YOU KNOW, ON HEARSAY GROUNDS AS WELL.
JUDGE DAVILA: SURE. OKAY.
MR. WADE: YOUR HONOR, I JUST NOTE FOR THE RECORD, I UNDERSTAND THE COURT'S RULING AND WE'LL DEAL WITH THESE AS THE DOCUMENTS GO THROUGH. I JUST DO WANT TO MAKE CLEAR ON THE SPECIFIC EXHIBITS THE POINT THAT WE MADE YESTERDAY, THAT IN ADDITION TO THIS, GIVEN THAT THESE DOCUMENTS THAT THE GOVERNMENT HAS OFFERED, THE SPECIFIC EXHIBITS I IDENTIFIED DON'T GO TO OUR CLIENT AND SO IT'S NOT RELEVANT TO HER KNOWLEDGE, AND IT HAS ONLY -- GIVEN THE ALLEGATIONS IN THE CASE, WHICH IS A WIRE FRAUD CASE, NOT A DEFICIENT LAB PRACTICES CASE, IT HAS ONLY MINIMAL RELEVANCE. WE WOULD ALSO OBJECT TO THEIR ADMISSION UNDER 401 AND 403. BUT I UNDERSTAND THE COURT'S RULING AND I'LL LEAVE THAT ISSUE AT THAT. THERE ARE A COUPLE OF OTHER PRELIMINARY MATTERS THAT MIGHT MAKE SENSE TO AT LEAST FLAG SO WE'RE AWARE OF THEM --
JUDGE DAVILA: SURE.
JUDGE DAVILA: WELL, IT PROBABLY IS SINCE WE'RE OUTSIDE OF THE PRESENCE OF THE JURY, I THINK.
MR. WADE: I THINK THAT MIGHT BE THE MOST EFFICIENT WAY TO DO IT. THERE ARE A COUPLE OF STATEMENTS THAT THE GOVERNMENT APPEARS INCLINED TO OFFER. IT'S NOT CLEAR BECAUSE, AS THE COURT KNOWS, THEY -- WE FILED A PRETTY BROAD MOTION WITH RESPECT TO MS. CHEUNG AND STATEMENTS UNDER 302, AND THE GOVERNMENT'S RESPONSE WAS LARGELY, WE UNDERSTAND THE RULES OF EVIDENCE, WE'RE ONLY GOING TO OFFER ADMISSIBLE EVIDENCE. SO IT'S NOT CLEAR WHETHER THIS IS AN ISSUE, BUT IT'S A POTENTIALLY SIGNIFICANT ONE, SO I WANTED TO RAISE IT IN ADVANCE SO WE COULD ADDRESS IT IF NEED BE. THERE ARE A COUPLE OF THESE. THE FIRST, YOUR HONOR, IS THERE'S AN INTERACTION BETWEEN MS. CHEUNG AND MR. SHULTZ. THERE ARE SEVERAL INTERACTIONS WITH MS. CHEUNG AND MR. SHULTZ, AND THEN THERE ARE SOME SUBSEQUENT INTERACTIONS BETWEEN THE TWO OF THEM AND FORMER SECRETARY OF STATE GEORGE SHULTZ. ALL OF THOSE INVOLVE ENOUGH LAYERS OF HEARSAY THAT THEY WOULD BE A GREAT LAW SCHOOL EXAMINATION QUESTION, BUT WE WOULD OBJECT TO THE ADMISSIBILITY OF THOSE STATEMENTS. THEY'RE NOT RELEVANT, THEY'RE HIGHLY, HIGHLY PREJUDICIAL GIVEN THE NATURE OF THE STATEMENTS THAT ARE SET FORTH IN THE 302, AND THEY'RE MULTIPLE LAYERED HEARSAY. SO WE WOULD OBJECT TO THEM UNDER 802 AND 805. I CAN PAUSE THERE, YOUR HONOR, IF WE WANT TO GIVE THE GOVERNMENT A CHANCE TO ADDRESS THAT ISSUE BEFORE MOVING TO THE NEXT ONE.
JUDGE DAVILA: MR. BOSTIC?
MR. BOSTIC: I'M HAPPY TO ADDRESS IT, YOUR HONOR. FIRST OF ALL, I'M NOT SURE EXACTLY WHAT STATEMENTS OR INTERACTIONS BETWEEN ERIKA CHEUNG AND TYLER SHULTZ THAT THE DEFENSE COUNSEL IS REFERENCING. THE CONVERSATION THAT THE TWO OF THEM HAD WITH SECRETARY SHULTZ, A MEMBER OF THE BOARD OF DIRECTORS, I STRUGGLE TO SEE HOW OR TO UNDERSTAND HOW EMPLOYEES RAISING CONCERNS TO A MEMBER OF THE BOARD OF THE COMPANY, A MEMBER OF THE BOARD WHO HAD FREQUENT COMMUNICATIONS WITH THE CEO OF THAT COMPANY WHO IS THE DEFENDANT ON TRIAL HERE, ARE NOT RELEVANT OR PREJUDICIAL. WHEN EMPLOYEES RAISE CONCERNS TO THE BOARD OF A COMPANY, IT, IT IS RELEVANT TO THE QUESTION OF WHETHER THE CEO WAS AWARE OF THOSE CONCERNS AND THOSE ISSUES. I THINK HERE'S WHERE THE PARTIES PART WAYS GENERALLY IN HOW THEY VIEW EVIDENCE OF MS. HOLMES'S KNOWLEDGE OF WHAT WAS HAPPENING AT THE COMPANY. THE DEFENSE IS TAKING THE POSITION IMPLICITLY THAT ONLY DIRECT EVIDENCE OF HER KNOWLEDGE IS ADMISSIBLE. I'M NOT AWARE THAT THEY HAVE CITED ANY CASE LAW OR AUTHORITY THAT IMPOSES SO STRICT A RULE. THE GENERAL RULE IN CASES IS THAT CIRCUMSTANTIAL EVIDENCE IS ALSO ADMISSIBLE TO PROVE FACTS. EVIDENCE IS RELEVANT IF IT TENDS TO MAKE A FACT IN CONTENTION MORE OR LESS LIKELY. HERE WHEN AN EMPLOYEE DISCUSSES CONCERNS WITH OTHER EMPLOYEES, OR EVEN BETTER, RAISES THOSE CONCERNS UP THE CHAIN TO SOMEONE WHO, IN MANY CASES REPORTS DIRECTLY TO THE DEFENDANT, TO A BOARD MEMBER WHO FREQUENTLY INTERACTS WITH THE DEFENDANT AND HAS SOME AUTHORITY OSTENSIBLY OVER THE OPERATION OF THE COMPANY, THOSE FACTS UNDER 401 INCREASE THE LIKELIHOOD THAT THE DEFENDANT WAS AWARE OF THESE ISSUES, AND THEY CONSTITUTE CIRCUMSTANTIAL EVIDENCE OF MS. HOLMES'S KNOWLEDGE OF THESE ISSUES, SO THEY SHOULD BE ADMISSIBLE FOR THAT REASON.
JUDGE DAVILA: IS THIS THE, IS THIS THE CONVERSATION IN THE 302 THAT I THINK, MR. WADE, YOU IDENTIFIED IT'S ON BATES 4918?
JUDGE DAVILA: 1000-1, MS. SAHARIA'S DECLARATION IN SUPPORT.
MR. WADE: YEAH, I BELIEVE WE'RE TALKING ABOUT THE SAME CONVERSATION. AND JUST SO WE'RE CLEAR, THE ISSUE HERE IS HEARSAY. THERE ARE MULTIPLE LAYERS. SO IF WE TAKE IT BRICK BY BRICK, THERE ARE COMMUNICATIONS BETWEEN TWO EMPLOYEES, MR. SHULTZ AND MS. CHEUNG. THOSE COMMUNICATIONS GO BACK AND FORTH AND ARE HEARSAY. THERE ARE THEN COMMUNICATIONS FROM EACH OF THEM POTENTIALLY TO SECRETARY SHULTZ, AND WHO IS NOW DECEASED, AND THEN THERE ARE COMMUNICATIONS BACK TO THE TWO OF THEM FROM SECRETARY SHULTZ TO THEM. THERE'S ALSO A RELATED ISSUE, YOUR HONOR, WHICH RELATES TO EXHIBIT 1660, WHICH IS AN EMAIL FROM MR. SHULTZ TO MS. HOLMES WITH RESPECT TO HIS ISSUES, HIS CONCERNS THAT HE COMMUNICATED TO MS. HOLMES. OF COURSE THE GOVERNMENT CAN CALL MR. SHULTZ TO TESTIFY ABOUT HIS INTERACTIONS, BUT THE FACT THAT MR. SHULTZ COMMUNICATED WITH MS. CHEUNG IS HEARSAY AND THOSE COMMUNICATIONS ARE NOT ADMISSIBLE FOR THAT PURPOSE. THEY'RE ALSO HIGHLY PREJUDICIAL AND ONLY MINIMALLY RELEVANT. THEY HAVE EVIDENCE THAT THEY CAN OFFER WITH RESPECT TO THOSE COMMUNICATIONS. SO THEY HAVE THE MEANS BY WHICH TO DO THAT. THEY SHOULDN'T BE ABLE TO BRING OR SMUGGLE HEARSAY IN THROUGH MS. CHEUNG. THEY CAN CALL MR. SHULTZ AND HE CAN BE CROSS-EXAMINED, AND THAT'S THE WAY TO DEAL WITH IT. SO THERE ARE REALLY TWO ISSUES THERE, YOUR HONOR. ONE IS THAT EXHIBIT, AND THE OTHER IS, ARE THESE NUMEROUS DIFFERENT COMMUNICATIONS? AND WE'RE LOOKING AT AN EXCERPT FROM A 302, AND MAYBE THE GOVERNMENT CAN PROVIDE A PROFFER OF WHAT IT EXPECTS WILL COME, BUT I THINK THERE IS SIGNIFICANT HEARSAY ISSUES AND HUGE 403 ISSUES THERE BECAUSE WE CAN'T CROSS-EXAMINE THOSE STATEMENTS AND SO THERE ARE CONFRONTATION ISSUES AND THE LIKE.
JUDGE DAVILA: WELL, I'M JUST LOOKING AT THE 302. I'M NOT LOOKING AT THESE OTHER EMAILS THAT YOU'RE TALKING ABOUT. I DON'T HAVE THOSE. SO, MR. BOSTIC?
MR. WADE: I BELIEVE THE COURT HAS 16 -- IF YOU HAVE THE GOVERNMENT'S EXHIBIT BINDER, I BELIEVE YOU HAVE 1660.
JUDGE DAVILA: I'M TALKING ABOUT IN YOUR DOCUMENT.
JUDGE DAVILA: WHEN YOU FILED YOUR INITIAL OBJECTIONS TO THIS IN MS. SAHARIA'S DECLARATION, THOSE ARE RELATED TO THE 302.
MR. WADE: THAT'S CORRECT, YOUR HONOR. AND THEN WE RECEIVED SOME ADDITIONAL DISCOVERY FROM THE GOVERNMENT AFTER WE FILED THAT MOTION, AND SO OUR KNOWLEDGE OF THAT HAS INCREASED AND THE GOVERNMENT NOTICED THEIR SPECIFIC EXHIBITS AND SO THERE'S THIS EXHIBIT THAT MAY COME UP BEFORE THE COURT AND WE WANTED TO -- GIVEN WE DEFERRED RULING ON THAT, WE WANTED TO RAISE THAT.
MR. BOSTIC: YOUR HONOR, I THINK THERE'S SOME CONFUSION HERE ABOUT THE -- EXCUSE ME -- THE WAY TO ANALYZE THIS TESTIMONY AND THIS PARTICULAR EXHIBIT, 1660. THIS IS ACTUALLY NOT A HEARSAY ISSUE. THE PURPOSE OF INTRODUCING THAT TESTIMONY ABOUT THOSE CONVERSATIONS, THE CONVERSATION WITH ERIKA CHEUNG AND TYLER SHULTZ, WITH HIS GRANDFATHER, GEORGE SHULTZ, THE MEMBER OF THE BOARD, AND THE COMMUNICATION WITH MS. HOLMES IS NOT FOR THE TRUTH OF THE SUBSTANCE OF THOSE CONVERSATIONS OR COMMUNICATIONS, BUT RATHER TO SHOW NOTICE TO MS. HOLMES, NOTICE TO THE COMPANY GENERALLY, NOTICE TO HIGH LEVELS AT THE COMPANY. FOR THAT PURPOSE, WE ARE NOT GOING TO BE ASKING THE JURY, FOR EXAMPLE, WITH EXHIBIT 1660, WHICH IS AN EMAIL SENT BY TYLER SHULTZ TO ELIZABETH HOLMES OF WHICH ERIKA CHEUNG WAS AWARE, WE'RE NOT GOING TO BE ASKING THE JURY TO TAKE AT FACE VALUE THE CLAIMS IN THAT LETTER OR THAT EMAIL. THIS IS AN EMAIL WHERE TYLER SHULTZ RAISED CONCERNS TO MS. HOLMES, AND THE POINT HERE IS TO SHOW THAT THOSE CONCERNS WERE RAISED. THE GOVERNMENT IS ENTITLED TO DO THAT. MS. CHEUNG'S OTHER TESTIMONY, HER TESTIMONY ABOUT HER PERSONAL OBSERVATIONS AT THE LAB, HER EXPERIENCE WITH PROBLEMS, THAT WILL SUBSTANTIATE, THAT WILL SHOW WHAT ISSUES THERE WERE IN THE LAB, WHAT THE DEFICIENCIES WERE AND THE ACCURACY OF THERANOS'S TESTS. THE EMAIL FROM TYLER SCHULTZ TO MS. HOLMES IS ABOUT NOTICE, AND, THEREFORE, IT DOESN'T FALL WITHIN A HEARSAY ANALYSIS.
JUDGE DAVILA: SO IF THE COURT WERE TO ALLOW IT TO COME IN FOR THAT PURPOSE, EXCUSE ME, THE COURT WOULD ADMONISH THE JURY THAT IT'S NOT ADMITTED FOR THE TRUTH OF THE MATTER ASSERTED, BUT IT ONLY GOES AND THEY MAY CONSIDER IT ONLY AS TO THE ISSUE OF NOTICE, AND THEY CAN THEN GIVE IT WHATEVER WEIGHT THEY FEEL IS APPROPRIATE AT THAT POINT. MR. WADE?
MR. WADE: YOUR HONOR, WE WOULD STRONGLY OBJECT TO THE ADMISSION OF THIS DOCUMENT FOR THAT PURPOSE THROUGH THIS WITNESS. IT'S -- THE INTERACTIONS WITH THIS WITNESS ON THESE ISSUES, WHICH SHE WASN'T A DIRECT PARTY TO, ARE NOT -- ARE HIGHLY PREJUDICIAL. THEY HAVE A WITNESS WHO THEY CAN CALL. THEY SEEM DISINCLINED TO WANT TO CALL MR. SHULTZ FOR SOME REASON, I ASSUME GIVEN THAT THEY WANT TO BRING THIS EXHIBIT IN THROUGH MS. CHEUNG. BUT THE COMMUNICATIONS BETWEEN -- TO LAY THE FOUNDATION TO GET IT THROUGH WITH THIS WITNESS, THEY HAVE TO REFLECT HEARSAY COMMUNICATIONS BETWEEN MS. CHEUNG AND MR. SHULTZ WHICH ARE HEARSAY.
JUDGE DAVILA: WELL, WOULD THEY BE HEARSAY IF IT THEY WERE CONVERSATIONS THAT DESCRIBED SUBSEQUENT CONDUCT, THAT IS, IT IS NOT ADMITTED FOR THE TRUTH OF WHAT IS SUGGESTED IN THE CONVERSATION IF THERE WAS ANY, BUT RATHER IT JUST GOES TO SHOW SUBSEQUENT CONDUCT OF THE PARTY? I DON'T KNOW IF THAT'S WHAT YOU WERE GETTING TO.
MR. BOSTIC: THAT'S PARTLY IT, YOUR HONOR. SO, FIRST OF ALL, DURING MS. CHEUNG'S TESTIMONY, SHE'S GOING TO TALK ABOUT SPECIFIC ISSUES AND PROBLEMS THAT SHE SAW IN THE LAB. IT SO HAPPENS THAT THE EMAIL FROM TYLER SHULTZ TO ELIZABETH HOLMES RAISES SEVERAL OF THOSE SAME ISSUES TO THE DEFENDANT DIRECTLY. I SHOULD ALSO NOTE THAT THE PARTIES HAVE ENTERED INTO A STIPULATION REGARDING THE AUTHENTICITY OF EMAILS TO AND FROM THERANOS EMPLOYEES THAT COVERS THIS VERY DOCUMENT. SO THERE'S NO DISPUTE THAT THIS EMAIL IS WHAT IT APPEARS TO BE, THAT IT WAS SENT FROM TYLER SHULTZ TO MS. HOLMES ON THIS DATE. THAT'S MY UNDERSTANDING. SO THE QUESTION IS, WHY DOES IT COME IN? IT COMES IN BECAUSE IT CONNECTS THE TESTIMONY, THE EVIDENCE ABOUT PROBLEMS IN THE LAB, TO MS. HOLMES'S AWARENESS. WE WILL NOT ASK THE JURY TO RELY ON THE TRUTH OF THE STATEMENTS IN THAT EMAIL. BUT THE FACT THAT HERE'S COMMUNICATION PUTTING MS. HOLMES ON NOTICE OF THESE ISSUES THAT HAVE PREVIOUSLY BEEN DISCUSSED AND PROVEN SEPARATELY IS HIGHLY RELEVANT IN THIS CASE. AND AS FAR AS MS. CHEUNG'S ABILITY TO COMMENT ON IT, IT'S RELEVANT TO EXPLAIN HER SUBSEQUENT ACTIONS, BECAUSE HER KNOWLEDGE OF THIS EMAIL IS THE SOLE OR PRIMARY REASON WHY SHE DID NOT RAISE HER CONCERNS DIRECTLY TO MS. HOLMES. SHE WILL TESTIFY ABOUT A CONVERSATION THAT SHE HAD WITH MR. BALWANI WHERE SHE RAISED HER CONCERNS TO HIM BASED ON HER EXPERIENCES THAT SHE IS GOING TO DESCRIBE, BUT SHE DID NOT GO TO MS. HOLMES, AND THIS IS WHY, BECAUSE BASED ON THIS, SHE UNDERSTOOD THAT MS. HOLMES HAD ALREADY HAD THE CHANCE TO BECOME AWARE OF THESE ISSUES.
JUDGE DAVILA: WELL, I THINK THAT'S WHAT I GLEANED FROM LOOKING AT SOME OF THE EARLIER PLEADINGS ON THIS ISSUE, THAT THIS WOULD GO TO, AND THIS WITNESS WOULD PERHAPS TESTIFY -- I DON'T KNOW IF SHE WILL, BUT WOULD PERHAPS TESTIFY THAT, AS MR. BOSTIC JUST SAID, IT WAS MY WORD, FUTILE, TO GO FURTHER BECAUSE IN HER OPINION, KNOWLEDGE, INFORMATION BASE, IT HAD ALREADY BEEN REPORTED TO MS. HOLMES. I THINK THAT'S WHAT YOU'RE ARGUING. I THINK THAT'S WHAT I CAPTURED IN SOME OF THE PLEADINGS. SO IT DOES, AS I SAID EARLIER, EXPLAIN HER SUBSEQUENT CONDUCT OF DOING WHATEVER SHE DID AFTER THAT.
MR. WADE: WE DON'T THINK THAT THAT'S IN ANY WAY RELEVANT TO THIS WIRE FRAUD CASE, YOUR HONOR. WHY THE WITNESS DID OR DIDN'T DO SOMETHING IS NOT RELEVANT. SHE REPORTED SOMETHING TO MR. BALWANI AND MR. BALWANI REACTED. THAT'S ADMISSIBLE. BUT WHY SHE CHOSE NOT TO REPORT IT TO SOMEONE ELSE OR -- IS NOT RELEVANT.
JUDGE DAVILA: IS IT RELEVANT TO THE -- AGAIN, I'M JUST -- WE HAVEN'T HEARD THIS TESTIMONY, BUT WOULD IT BE RELEVANT TO HER SUBSEQUENT CONDUCT OF REPORTING TO AN AGENCY?
JUDGE DAVILA: MR. BOSTIC?
MR. BOSTIC: I DISAGREE, YOUR HONOR. I THINK HER ACTION IN REPORTING IT TO AN AGENCY, FIRST OF ALL, WAS PROMPTED BY ACTIONS TAKEN BY THERANOS IN SENDING HER A THREATENING LETTER, AND IT WAS ALSO PROMPTED BY, OF COURSE, HER OBSERVATIONS OF THE ISSUES IN THE LAB. THE FACT THAT SHE TOOK THAT STEP OF REPORTING THE DEFICIENCIES AT THERANOS TO CMS, TO A GOVERNMENTAL REGULATORY AGENCY, SHOWS HER STATE OF MIND, SHOWS -- IT'S RELEVANT TO HER CREDIBILITY WHEN IT COMES TO HER PERCEPTION OF THE SERIOUSNESS OF THESE ISSUES, AND FOR THOSE REASONS IT SHOULD BE ADMISSIBLE AND THE JURY SHOULD HAVE A CHANCE TO HEAR ABOUT THAT.
MR. WADE: WE HAVEN'T ATTACKED HER CREDIBILITY ON THESE ISSUES, YOUR HONOR, AND HER STATE OF MIND IS NOT RELEVANT WITH RESPECT.
JUDGE DAVILA: OKAY.
MR. WADE: THAT LEADS TO THE OTHER ISSUE. THERE ARE SEVERAL PIECES OF EVIDENCE THAT IT SEEMS LIKE THE GOVERNMENT WANTS TO OFFER WITH RESPECT TO HER EMOTIONAL STATE IN RESPONSE TO THINGS THAT ARE OCCURRING WITHIN THE COMPANY. WE DON'T SEE THAT AS IN ANY WAY RELEVANT. IT'S HIGHLY PREJUDICIAL UNDER 403. HER REACTION AND HOW SHE FELT ABOUT WHAT WAS HAPPENING IS NOT RELEVANT TO THIS WIRE FRAUD CASE. WHAT SHE DID, WHO SHE COMMUNICATED WITH, THAT'S RELEVANT. HER STATE OF MIND WITH RESPECT TO WHY SHE DIDN'T DO SOMETHING OR DID DO SOMETHING, HOW HER HOPES AND DREAMS WERE DASHED AND SHE DECIDED TO LEAVE, WHICH I'VE HEARD THIS STORY TOLD, AND SHE, SHE -- I UNDERSTAND SHE FEELS THAT WAY. BUT WE HAVE NOT ATTACKED THAT, IT'S NOT AN ISSUE, AND WE DON'T THINK THAT IT'S APPROPRIATE FOR HER TO SAY HOW SHE FELT ABOUT THESE INTERACTIONS.
JUDGE DAVILA: I THINK SHE'S TESTIFIED TO SOME OF THE REASONS WHY SHE LEFT, I THINK.
JUDGE DAVILA: RIGHT.
MR. WADE: BUT IT IS ONE OF THE ISSUES THAT WE RAISE IN OUR MOTION AND I WANT TO RERAISE NOW BECAUSE IT SEEMS LIKE THE EXAMINATION IS DESIGNED TO PULL OUT THAT EVIDENCE, AND IT'S -- IT'S HIGHLY INFLAMMATORY, ALL BEARING IN MIND SHE HAD ONE INTERACTION, SUBSTANTIVE INTERACTION WITH OUR CLIENT, YOU KNOW, AS BEST WE CAN TELL HERE. SO THIS IS, THIS IS IN THE CHEAPEST SEATS OF THE HOUSE IN TERMS OF RELEVANCE WITH RESPECT TO OUR CLIENT. IF THERANOS ITSELF WAS ON TRIAL, MAYBE A LOT OF THIS WOULD BE A DIFFERENT STORY. BUT IT'S NOT. OUR CLIENT IS ON TRIAL. A LOT OF THE INCIDENTS SHE TALKS ABOUT, OUR CLIENT -- THE GOVERNMENT HAS NOT TIED THEM TO OUR CLIENT. THE GOVERNMENT WANTS TO OFFER THAT EVIDENCE. WE HAVE A STANDING OBJECTION WITH RESPECT TO ALL OF IT UNDER 401 AND 403. BUT TO LAYER ON TOP OF THAT HOW SHE FELT ABOUT THAT AND WHAT THAT MEANT ABOUT HER EXPERIENCE, YOU KNOW, AS A YOUNG PROFESSIONAL IS INCREDIBLY INFLAMMATORY TESTIMONY THAT IS HIGHLY PREJUDICIAL TO OUR CLIENT AND, FRANKLY, NOT RELEVANT.
JUDGE DAVILA: LET ME ASK. MR. BOSTIC, ARE YOU INCLINED TO INQUIRE DEEPLY INTO HER PERSONAL FEELINGS AND HER CAREER BEING DASHED, ET CETERA?
MR. BOSTIC: I'M SORRY, YOUR HONOR.
JUDGE DAVILA: NO. ARE YOU GOING TO TRY TO EVOKE SOME EMOTIONAL RESPONSE FROM THE WITNESS ON THE STAND?
MR. BOSTIC: BY NO MEANS IS THAT THE FOCUS OF THE GOVERNMENT'S INQUIRY, YOUR HONOR. BY NO MEANS IS THAT THE PURPOSE OF THIS WITNESS'S TESTIMONY. AT THE SAME TIME, THOUGH, I'M NOT AWARE OF ANY RULE THAT PROHIBITS WITNESSES FROM EXPLAINING WHY THEY TOOK A GIVEN ACTION OR WHY THEY DIDN'T TAKE A GIVEN ACTION FOR EXPLAINING THE EFFECTS THAT AN EVENT HAD ON THEIR THOUGHT PROCESSES AND THEIR DECISION MAKING PROCESS FOR WHAT THEY DID NEXT. THAT SEEMS TO BE A CORE ELEMENT OF WHAT MANY WITNESSES FREQUENTLY TESTIFY TO. SO I TAKE MR. WADE'S POINT AS A POINT UNDER 403. THE GOVERNMENT IS AWARE OF 403. CONCEIVABLY, WHEN IT COMES TO EMOTIONALLY CHARGED TESTIMONY, THERE COULD BE A THRESHOLD BEYOND WHICH THE PROBATIVE VALUE OF THAT TESTIMONY STARTS TO BE OUTWEIGHED OR SUBSTANTIALLY OUTWEIGHED BY THE PREJUDICIAL EFFECT OF IT. THE GOVERNMENT HAS NO INTENTION OF GETTING ANYWHERE NEAR THAT LINE IN THIS CASE. BUT 403 DOESN'T REQUIRE WITNESSES TO TESTIFY AS AUTOMATONS, SCRUBBING THEIR TESTIMONY OF ANYTHING THAT MIGHT PROVOKE AN EMOTIONAL REACTION. THEY SHOULD BE ABLE TO TELL THE STORY OF WHAT HAPPENED AND WHY THEY DID WHAT THEY DID. AS FAR AS THE RELEVANCE HERE AND THE CONNECTION TO MS. HOLMES, I'LL BRIEFLY COMMENT WE ARE AT THE BEGINNING OF THE TRIAL. THIS WITNESS IS GOING TO TESTIFY ABOUT PROBLEMS THAT SHE SAW IN THE LAB. SUBSEQUENT WITNESSES WILL TESTIFY ABOUT THEIR AWARENESS OF THOSE PROBLEMS AND HOW THAT INFORMATION WAS ELEVATED TO THE TOP OF THE COMPANY, INCLUDING MS. HOLMES AND MR. BALWANI.
JUDGE DAVILA: ALL RIGHT. THANK YOU. THANK YOU FOR THE DISCUSSION HERE. AND, MR. WADE, I THINK YOU'VE PUT THE COURT AND MR. BOSTIC ON NOTICE ABOUT YOUR CONCERNS ABOUT 403 ISSUES REGARDING MS. CHEUNG AND HER PERSONAL EMOTIONAL FEELINGS AS TO WHAT MIGHT HAPPEN. AND I AGREE WITH YOU. I DON'T THINK THAT MR. BOSTIC IS GOING TO ASK QUESTIONS TO TRY TO ENGENDER AN EMOTIONAL RESPONSE FROM THE WITNESS. THAT'S NOT SOMETHING THAT HE WANTS TO DO, NEEDS TO DO. HE WANTS THE INFORMATION FROM THE WITNESS. BUT WITNESSES TESTIFY IN DIFFERENT MANNERS. WE'LL MANAGE THAT. AND I DON'T THINK MS. CHEUNG, I'VE JUST KNOWN HER HERE FROM HER TESTIMONY OF ABOUT 75 MINUTES YESTERDAY. SHE DOESN'T SEEM TO BE THE KIND OF PERSON WHO IS GOING TO DO THAT, BUT LET'S SEE WHAT IT BRINGS.
MR. WADE: I'M JUST BASING IT ON STATEMENTS THAT SHE MADE TO THE GOVERNMENT AND FLAGGING IT FOR THE COURT, AND I APPRECIATE THAT.
JUDGE DAVILA: SURE.
JUDGE DAVILA: I THINK I'D LIKE TO BRING THE JURY IN.
JUDGE DAVILA: I DON'T WANT TO DENY YOU AN OPPORTUNITY TO BE HEARD, MR. WADE. YOU HAVE GIVEN ME SOME HELPFUL SUGGESTIONS ABOUT HOW I SHOULD, THE COURT SHOULD LOOK AT THE EVIDENCE. YOU'VE HEARD ME TALK ABOUT THE 803 ISSUES REGARDING BUSINESS RECORDS, I'VE RULED ON THAT, AND I THINK WE CAN GO FORWARD WITH BRINGING THE JURY OUT.
MR. WADE: VERY WELL, YOUR HONOR. JUST ONE SMALL POINT. I'LL JUST FLAG THE ISSUE. WE DON'T NEED TO ADDRESS IT.
JUDGE DAVILA: SURE.
MR. WADE: THE ISSUE RELATING TO THE REPORTING TO CMS WHICH OCCURRED I THINK A LITTLE OVER -- ABOUT A YEAR AFTER SHE LEFT THE COMPANY AND A FEW MONTHS AFTER SHE RECEIVED THE LETTER FROM MR. BOIES, WITH THE FACILITATION OF A "WALL STREET JOURNAL" REPORTER WHO HELPED HER FIND A LAWYER, ET CETERA. THAT'S UNDER -- THAT'S EXHIBIT 2931. THERE'S A VERY INFLAMMATORY EMAIL THAT INCLUDES LAYERED HEARSAY, IT IS HEARSAY, AND WE DON'T THINK THAT THAT HAS ANY APPROPRIATE ROLE IN THIS CASE AND IT SHOULD BE EXCLUDED UNDER 401 AND 403 AND THE HEARSAY RULES.
JUDGE DAVILA: OKAY. THANK YOU FOR FLAGGING THAT. I DON'T KNOW IF YOU'RE SEEKING TO EXAMINE ON THAT OR NOT.
MR. BOSTIC: I MAY, YOUR HONOR. FOR THE COURT'S BACKGROUND, I BELIEVE THIS IS MS. CHEUNG'S COMMUNICATIONS WITH CMS DIRECTLY. THE GOVERNMENT WOULD NOT INTEND TO INTRODUCE THAT FOR THE TRUTH OF THE STATEMENTS THEREIN. MS. CHEUNG IS ON THE STAND. SHE CAN TALK ABOUT WHAT SHE SAW AT THERANOS. THAT'S WHY SHE'S HERE. THE EXHIBIT IS ADMISSIBLE TO SHOW THAT CMS WAS MADE AWARE OF THESE ISSUES. BY THE WAY, LATER ON IN THE CASE, THE GOVERNMENT MAY PRESENT TESTIMONY FROM A CMS WITNESS WHO WILL EXPLAIN WHAT THEY SAW AT THERANOS. THE GOVERNMENT SHOULD BE ALLOWED TO LAY THE FOUNDATION FOR WHY CMS WAS INVOLVED IN THE FIRST PLACE AND TO EXPLAIN THAT CAUSAL CHAIN FOR THE JURY.
JUDGE DAVILA: WELL, TO MR. WADE'S POINT, DO YOU NEED TO INTRODUCE THE EMAIL FOR THAT PURPOSE? IT SEEMS LIKE SHE COULD TESTIFY, "I DID THIS BECAUSE I WAS," AND THIS GETS INTO SOME OF THOSE OTHER AREAS, "I WAS UPSET." SHE ALREADY TESTIFIED ABOUT WHY SHE LEFT. THE COURT WOULD GIVE SOME LATITUDE TO -- NOTWITHSTANDING YOUR COMMENTS, BUT THE COURT WOULD GIVE SOME LATITUDE AS TO WHY SHE FELT SHE NEEDED TO REPORT TO AN AGENCY. IT MAY NOT -- I DON'T KNOW IF YOU NEED THE EMAIL FOR THAT PURPOSE, PARTICULARLY IF YOU HAVE CMS WHO IS GOING TO COME IN AND CORROBORATE THE REPORTING, ET CETERA. THAT'S JUST AN OBSERVATION AT A HIGH LEVEL. I DON'T KNOW.
MR. BOSTIC: THE COURT'S COMMENTS ARE WELL TAKEN. I THINK IF THE EMAIL ISN'T INTRODUCED FOR THE TRUTH, THEN IT AVOIDS THE HEARSAY CONCERNS THAT THE DEFENSE IS RAISING, BUT I TAKE THE COURT'S POINT.
JUDGE DAVILA: OR IT COULD BE SANITIZED. I DON'T KNOW.
MR. WADE: THERE ARE MULTIPLE LAYERS OF HEARSAY AND FOUNDATIONAL ISSUES WITHIN THAT EMAIL, YOUR HONOR. AND JUST WITH RESPECT TO MY COLLEAGUE, THE CMS INSPECTION WAS WELL UNDERWAY BY THE TIME THIS EMAIL WAS SENT, AND SO THIS WAS NOT -- THIS IS NOT WHAT PRECIPITATED THE CMS INSPECTION. THAT'S WHAT THE CHRONOLOGY WILL SHOW. SO IF THE GOVERNMENT CAN PROFFER THE FACTS THAT SHOW OTHERWISE, THEN, YOU KNOW, IT MIGHT BE RELEVANT. BUT THE COURT WELL KNOWS THAT THE CMS ISSUES ARE GOING TO COME IN. THEY HAVE WITNESSES THAT THEY CAN CALL TO RAISE THOSE ISSUES WITHOUT DEALING WITH THESE INCREDIBLY INFLAMMATORY STATEMENTS.
JUDGE DAVILA: YEAH. AND I DON'T KNOW IF THIS WITNESS WAS AWARE THAT THERE WAS AN INVESTIGATION ALREADY OR NOT. THAT MIGHT BE PART OF HER TESTIMONY, TOO. I JUST DON'T KNOW.
MR. WADE: JUST SO I CAN GET THE COURT'S PREFERENCE ON THESE EMAILS THAT WE'VE RAISED. MR. BOSTIC IS GOING TO LAY A FOUNDATION WITH RESPECT TO THESE DOCUMENTS. WOULD YOU LIKE ME TO RELODGE MY OBJECTION OR DO YOU WANT TO -- I'M NOT GOING TO DO A SPEAKING OBJECTION IN FRONT OF THE JURY, BUT WOULD YOU LIKE ME TO RELODGE THE OBJECTION WITH RESPECT TO EACH DOCUMENT, OR IS A STANDING OBJECTION SUFFICIENT ON THESE DOCUMENTS?
JUDGE DAVILA: WELL, I'M HAPPY TO RECEIVE YOUR OBJECTIONS AS A STANDING OBJECTION. IF YOU WOULD LIKE TO MAKE A RECORD OF IT, YOU CAN STAND UP, I'LL TURN TO YOU AND I'LL ASK AND YOU'LL SAY, PER OUR PREVIOUS CONVERSATION, AND I'LL SAY, THANK YOU, THE COURT'S RULING WILL REMAIN.
JUDGE DAVILA: WHATEVER YOU WOULD LIKE. I'M HAPPY TO HAVE YOU MAKE YOUR RECORD AS YOU WOULD LIKE IT TO BE MADE.
JUDGE DAVILA: YOU'RE WELCOME.
JUDGE DAVILA: AND LOTS OF THEM. LET ME ASK, JUST BEFORE WE -- BEFORE I STEP DOWN AND WE BRING THE JURY OUT, SHOULD WE BREAK THEN? DO WE NEED TO BREAK AT ABOUT 10:45? IS THAT SOMETHING THAT WOULD WORK FOR THE PARTIES?
MS. TREFZ: YES, PLEASE, YOUR HONOR.
MR. BOSTIC: THAT'S FINE FOR THE GOVERNMENT.
JUDGE DAVILA: WE'LL DO THAT AND TAKE A LITTLE EARLIER BREAK. I'LL ASK, CAN ANY OF YOU STAY A LITTLE LATER THAN 2:00 O'CLOCK TODAY? DO YOU HAVE ANYTHING ELSE TO DO?
(LAUGHTER.)
MR. BOSTIC: WE'RE AT THE COURT'S DISCRETION, YOUR HONOR.
JUDGE DAVILA: GREAT. THANK YOU. WE'LL ASK THE JURY IF WE CAN DO THAT. LET'S TAKE A RECESS FOR JUST A MOMENT AND WE'LL BRING THE JURY OUT. THANK YOU.
COURT CLERK: COURT IS IN RECESS.
(RECESS FROM 9:30 A.M. UNTIL 9:38 A.M.)
(JURY IN AT 9:38 A.M.)
JUDGE DAVILA: THANK YOU. WE'RE BACK ON THE RECORD. ALL PARTIES PREVIOUSLY PRESENT ARE PRESENT ONCE AGAIN. OUR JURY AND ALTERNATES ARE PRESENT. GOOD MORNING, LADIES AND GENTLEMEN. I THINK I TOLD YOU YESTERDAY THERE PROBABLY WOULD BE A DELAY AND I WAS TRUE TO THAT. THANK YOU FOR YOUR PATIENCE, THOUGH. I DID NEED TO SPEAK TO THE LAWYERS ABOUT SOME MATTERS OUTSIDE OF YOUR PRESENCE. I'M GOING TO FIRST ASK YOU AGAIN THAT QUESTION, OVERNIGHT DID ANY OF YOU, WERE ANY OF YOU SUBJECTED TO, DID YOU READ, HEAR, OR WERE YOU COMMUNICATED BY ANYONE OR DID YOU COMMUNICATE WITH ANYONE ABOUT ANY ISSUES INVOLVING THIS CASE, THAT IS, THROUGH THE MEDIA, INTERNET, RADIO, OR HARD COPY NEWS PRINT? ANYONE PLEASE RAISE YOUR HAND IF THAT IS THE CASE. ALSO LET ME SAY, WHEN I ASK THIS QUESTION, YOU SHOULD ALSO BE ASSURED YOU CAN SPEAK WITH US PRIVATELY. IF YOU WANTED TO DISCUSS SOMETHING PRIVATELY OUTSIDE OF THE PRESENCE OF YOUR COLLEAGUES, WE CAN DO THAT AS WELL. SO ANYONE? I SEE NO HANDS. THANK YOU. ONE OTHER TOPIC. I NEED TO TAKE A BREAK TODAY AT ABOUT 10:45. SO I'M SORRY, WE'RE PROBABLY GOING TO GET A LITTLE BIT OVER AN HOUR OF TESTIMONY IN THIS MORNING. WE'LL TAKE THAT BREAK, AND THEN WE'LL RESUME AFTER ABOUT 40 MINUTES OR SO. I APOLOGIZE FOR THAT. LET ME ASK YOU ABOUT GOING LATER TODAY. IS THERE ANYONE WHO THAT WOULD BE A PROBLEM FOR? ANY OF YOU? IF WE WENT PERHAPS AN HOUR LATER TODAY UNTIL PERHAPS 3:00 O'CLOCK? I SEE NO HANDS. WHAT I'LL DO IS THEN WE'LL HAVE AN ADDITIONAL BREAK FOR YOU, THOUGH. WE WON'T GO STRAIGHT THROUGH. WE'LL HAVE A SHORTER BREAK, AND I'LL COORDINATE WITH COUNSEL AND MS. KRATZMANN ABOUT WHEN THAT SHOULD BE. SO THANK YOU. THANK YOU VERY MUCH. MR. BOSTIC, YOU HAVE A WITNESS?
MR. BOSTIC: YES, YOUR HONOR. THE GOVERNMENT WOULD LIKE TO CONTINUE WITH ERIKA CHEUNG.
JUDGE DAVILA: ALL RIGHT. THANK YOU. PLEASE TAKE THE STAND. WHEN YOU'RE COMFORTABLE, WOULD YOU PLEASE STATE YOUR NAME AGAIN, PLEASE.
ERIKA CHEUNG: MY NAME IS ERIKA CHEUNG.
JUDGE DAVILA: THANK YOU. I JUST WANT TO REMIND YOU YOU'RE STILL UNDER OATH. I THINK YOU TOLD US YOUR VACCINATION STATUS YESTERDAY. IF YOU WOULD LIKE TO REMOVE YOUR MASK, YOU MAY.
ERIKA CHEUNG: OKAY. THANK YOU. (GOVERNMENT'S WITNESS, ERIKA CHEUNG, WAS PREVIOUSLY SWORN.) /// ///