Pretrial Evidentiary Hearing
96 linesSAN JOSE, CALIFORNIA SEPTEMBER 21, 2021 P R O C E E D I N G S
(COURT CONVENED AT 8:33 A.M.)
(JURY OUT AT 8:33 A.M.)
JUDGE DAVILA: LET'S GO ON THE RECORD IN 18-258, UNITED STATES VERSUS ELIZABETH HOLMES. LET ME JUST SAY THAT I SEE ALL COUNSEL PRESENT, AND DEFENDANT IS PRESENT. GOOD MORNING EVERYONE.
JUDGE DAVILA: WE'RE OUTSIDE OF THE PRESENCE OF THE JURY. BEFORE WE START TODAY, I UNDERSTAND THAT THE PARTIES WANTED TO DISCUSS SOME MATTERS?
MS. TREFZ: WE DO, YOUR HONOR.
JUDGE DAVILA: YES, MS. TREFZ.
MS. TREFZ: GOOD MORNING, YOUR HONOR. KATIE TREFZ ON BEHALF OF MS. HOLMES. WE HAVE THREE ISSUES WITH RESPECT TO WITNESSES THAT ARE EXPECTED TO COME AFTER MS. GANGAKHEDKAR. I'M NOT SURE WHAT ORDER THOSE WITNESSES WILL COME IN BECAUSE THAT'S UP TO THE GOVERNMENT, BUT I WANTED TO RAISE THEM NOW SO THAT THE COURT COULD BE AWARE OF POTENTIAL ISSUES THAT MIGHT COME UP. THE MOST SUBSTANTIVE ONE IS ON CERTAIN TEXT MESSAGES THAT WE EXPECT THE GOVERNMENT TO SEEK TO INTRODUCE THROUGH A WITNESS NAMED JUSTIN OFFEN. WE EXPECT THE GOVERNMENT -- YESTERDAY AFTERNOON WE RECEIVED NOTICE OF CERTAIN PARTICULAR TEXT MESSAGES THAT THE GOVERNMENT WOULD SEEK TO INTRODUCE THROUGH MR. OFFEN. IT SHOULD BE NO SURPRISE TO THE COURT THAT WE HAVE SOME OBJECTIONS TO CERTAIN OF THOSE TEXT MESSAGES. WE'VE BEEN -- WE'VE DONE OUR BEST TO GO THROUGH THEM PROMPTLY, BUT SINCE WE RECEIVED THE DISCLOSURE YESTERDAY AFTERNOON, WE HAVE NOT HAD THE CHANCE TO FULLY PUT SOMETHING BEFORE THE COURT TO IDENTIFY THE OBJECTIONS.
WE THOUGHT THAT SINCE MOST OF THOSE OBJECTIONS ARE TO RELEVANCE ON 403 GROUNDS OR, YOU KNOW, TO COMPLETENESS, THEN WE THOUGHT IT WOULD BE MOST EFFICIENT TO HAVE THE CHANCE TO KIND OF PROVIDE THAT INFORMATION TO THE COURT IN ADVANCE OF THE ACTUAL MESSAGES BEING INTRODUCED AND SHOWN TO THE JURY SIMPLY BECAUSE THIS PARTICULAR WITNESS CANNOT RESOLVE -- THIS WITNESS IS A CUSTODIAL WITNESS FROM PRICEWATERHOUSECOOPERS AND CANNOT RESOLVE THE ISSUES WITH RESPECT TO RELEVANCE OR PREJUDICE OR COMPLETENESS. WE HAVE PROPOSED TO THE GOVERNMENT SOME PARTICULAR MESSAGES TO WHICH WE DON'T OBJECT THAT THE GOVERNMENT MIGHT USE IN ITS EXAMINATION OF MR. OFFEN. IT SOUNDS LIKE FROM COUNSEL ABOUT 15 OR 20 MINUTES AGO THAT THEY WOULD LIKE TO PRESENT A BROADER SET, AND I JUST WANTED TO RAISE THIS WITH THE COURT AND, YOU KNOW, PROVIDE KIND OF A SUGGESTED PROCEDURE FOR HOW WE MIGHT DO THAT.
JUDGE DAVILA: OKAY. WELL, THANK YOU. THANKS FOR BRINGING IT TO MY ATTENTION. LET ME ASK, IT SOUNDS LIKE THERE WILL NOT BE ANY ISSUE OF AUTHENTICITY UNDER 902 OR ANY OF THOSE -- IT SOUNDS LIKE THAT'S GOING TO -- THAT'S NOT WHAT THE ISSUE IS, AUTHENTICITY, BUT RATHER ANY OTHER COLLATERAL OBJECTIONS LIKE YOU'VE INDICATED UNDER 403, 401 OR OTHERS.
MS. TREFZ: THE AUTHENTICITY WE HAVE, YOUR HONOR, IS THESE MESSAGES WERE COMPILED INTO A SPREADSHEET THAT CAME FROM A BUNCH OF DIFFERENT SOURCES. WE DO NOT HAVE OBJECTIONS TO AUTHENTICITY OF THE INDIVIDUAL MESSAGES INSOFAR AS THEY ARE MESSAGES FROM, YOU KNOW, MS. HOLMES TO MR. BALWANI OR VICE VERSA ON A PARTICULAR DATE OR A PARTICULAR TIME.
JUDGE DAVILA: PARDON ME FOR INTERRUPTING YOU, BUT ARE WE TALKING ABOUT TEXT MESSAGES FROM A CELLULAR DEVICE TO ANOTHER CELLULAR DEVICE?
MS. TREFZ: IT'S A COMBINATION OF IMESSAGES, SKYPE MESSAGES, AND SMS MESSAGES, AND THEY'VE BEEN COMPILED INTO A SPREADSHEET BY DATE AND TIME IS OUR UNDERSTANDING.
JUDGE DAVILA: I SEE.
MS. TREFZ: AS WE INFORMED THE GOVERNMENT, WE DON'T HAVE AN OBJECTION TO THE INDIVIDUAL MESSAGES. WHAT WE DO HAVE AN OBJECTION TO IN TERMS OF AUTHENTICITY, AND I THINK IT'S A 403 ISSUE, IS KIND OF HOW THEY'RE EXPECTED TO BE PRESENTED TO THE JURY. THE GOVERNMENT'S SUGGESTION IS TO TAKE BASICALLY EXCERPTS FROM THE SPREADSHEET, REDACT EVERYTHING EXCEPT FOR THE TEXT MESSAGES AT ISSUE. AND OUR REQUEST INSTEAD WOULD BE TO HAVE THE GOVERNMENT JUST SHOW AND JUST INTRODUCE THE MESSAGES THAT ARE ADMITTED ON A SEPARATE SHEET OF PAPER. THE REASON WHY THAT IS IMPORTANT TO US IS BECAUSE WE BELIEVE THAT PRESENTING THE MESSAGES AS A WHOLE OR SUGGESTING THAT THEY ARE PART OF A WHOLE IS -- MISLEADINGLY SUGGESTS THAT THIS IS THE COMPLETE SET OF MESSAGES BETWEEN THESE TWO INDIVIDUALS, AND WE KNOW THAT THERE ARE LARGE GAPS IN THE TIME PERIODS AND STUFF LIKE THAT.
JUDGE DAVILA: OKAY. MR. LEACH.
MR. LEACH: THANK YOU, YOUR HONOR. ROBERT LEACH ON BEHALF OF THE UNITED STATES. I JUST WANT TO BE CLEAR WHAT WE'RE TALKING ABOUT. MR. OFFEN IS GOING TO TESTIFY THAT AS PART OF HIS WORK AT PWC ON BEHALF OF WILMER HALE AND THERANOS HE GENERATED VERY LENGTHY SPREADSHEETS OF TEXTS, IMS AND OTHER MESSAGES, FROM THREE DEVICES OR FROM SIX DEVICES GATHERED FROM THE DEFENDANT. IN CONNECTION WITH THE TRIAL I RECEIVED A RULE 17 SUBPOENA TO ESSENTIALLY PRODUCE THOSE DOCUMENTS AGAIN, WHICH HE DID FROM A SUBSET OF THOSE DEVICES, AND HE'LL EXPLAIN ALL OF THAT. THE DOCUMENT IS QUITE LONG. IT'S 447 PAGES. IT CONSISTS OF 12,000 TEXTS. NOT ALL OF THEM ARE RELEVANT. THE GOVERNMENT SEEKS TO ADMIT A SUBSET OF THEM. TO FACILITATE THAT, THE GOVERNMENT HAS REDACTED ALL BUT THE MESSAGES THAT IT INTENDS TO OFFER. WE'RE DOING THAT IN THE DOCUMENT THAT THE DEFENDANT CREATED -- OR THAT THE WITNESS OVERSAW THE CREATION OF AND CAN EXPLAIN WHAT IT IS.
SO WHATEVER CONCERNS THEY HAVE THAT THERE MIGHT BE OTHER DEVICES OUT THERE, HE CAN EXPLAIN ALL OF THOSE, WHICH I THINK RESOLVES ANY 403 ISSUE. WE DO WANT TO PRESENT SOME OF THEM IN THE MOMENT AS HE'S TESTIFYING. WE WANT TO AVOID THE NEED FOR A CUSTODIAL WITNESS TO COME BACK AS FURTHER ONES ARE ADMITTED. I THINK THE COURT IN ITS ORDER ON THE MOTION IN LIMINE REVIEWED MANY OF THE EXCERPTS OR AT LEAST SIX OF THE EXCERPTS THAT WE INTEND TO PRESENT TODAY AND ASSESS THAT THEY'RE RELEVANT IN ITS MOTION IN LIMINE ORDER. SO I SEE NO REASON WHY THOSE CANNOT BE PRESENTED TODAY. I THINK THE REMAINDER THAT WE CAN DEMONSTRATE THE RELEVANCE THROUGH EVENTS THAT DANISE YAM TESTIFIED ABOUT, EVENTS THAT ERIKA CHEUNG -- DANISE YAM OR SO HAN SPIVEY TESTIFIED ABOUT. SO WE WOULD LIKE TO PRESENT SOME OF THEM TODAY. I BELIEVE THOSE OBJECTIONS CAN BE -- IF THERE'S A RELEVANCE OBJECTION, IT CAN BE RESOLVED IN THE MOMENT. I HEAR WHAT MY COLLEAGUES ARE SAYING ABOUT COMPLETENESS.
I DON'T THINK THAT'S A REASON NOT TO ADMIT A TEXT MESSAGE. THAT'S A REASON TO ADMIT ADDITIONAL TEXT MESSAGES AND IF THE DEFENSE HAS MORE THEY WANT TO OFFER, WE'RE WILLING TO CONSIDER THEIR PROPOSALS THERE. SO WE HAVE THOUGHT ABOUT A NUMBER OF DIFFERENT WAYS TO HANDLE THIS. I -- ONE WAY WOULD BE TO ADMIT THE REDACTED VERSION THAT WE HAVE PREPARED FOR MR. OFFEN SUBJECT TO ANY 403 OR RELEVANCE OBJECTIONS THAT THEY WANT TO RAISE DOWN THE ROAD. I'M ONLY GOING TO DISPLAY TODAY A SUBSET OF THEM, AND I'M NOT SURE WE'RE GETTING TO THEM TODAY, BUT EITHER TODAY OR TOMORROW, AND WE'RE HAPPY TO PROCEED WHICHEVER WAY THE COURT WISHES.
JUDGE DAVILA: THANK YOU. I HEAR MS. TREFZ SAYING THAT IT SOUNDS LIKE IT'S THE PRESENTATION, ONE OF THE ISSUES IS THE PRESENTATION. AND I THINK THERE IS -- I DON'T KNOW WHAT THIS SPREADSHEET IS, HOWEVER, THERE ARE 55 TEXTS ON ONE LINE AND WITH CORRESPONDING DATES AND THEN THE MESSAGE TO AND FROM, ET CETERA. MS. TREFZ, ARE YOU SAYING THAT IF THE GOVERNMENT JUST PUTS ONE -- DISPLAYS ONE TEXT MESSAGE BUT EVEN REDACT ALL OF THE OTHERS, THAT WOULD BE AN UNTOWARD PRESENTATION THAT WOULD GIVE SOME TYPE OF NEGATIVE PRESENTATION TO THE JURY?
MS. TREFZ: YES, YOUR HONOR. WE'VE PROVIDED THEM WITH AN EXAMPLE OF WHAT WE WOULD DO WITH A MESSAGE EXCHANGE THAT WE DON'T HAVE ANY OBJECTION TO. I'M HAPPY TO GIVE THE COURT AN EXAMPLE, AND EVERYBODY ELSE AN EXAMPLE, OF WHAT WE WERE PROPOSING THAT THEY DO INSTEAD.
JUDGE DAVILA: SURE.
MS. TREFZ: WE THOUGHT THAT THIS WOULD BE APPROPRIATE.
JUDGE DAVILA: SURE. YOU'VE SEEN THIS, MR. LEACH?
MR. LEACH: I HAVE SEEN THIS. MAY I HAVE ONE MOMENT, YOUR HONOR?
JUDGE DAVILA: CAN WE GET ANOTHER COPY?
MS. TREFZ: OH, SURE.
(PAUSE IN PROCEEDINGS.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. SO, MS. TREFZ, THIS IS YOUR SUGGESTION OR IT LOOKS LIKE AN EXAMPLE OF THREE MESSAGES, BUT MY SENSE IS THAT THESE THREE ARE RELATED?
MS. TREFZ: CORRECT, YOUR HONOR. WHAT WE HAVE DONE IN THAT EXAMPLE IS TO TAKE WHAT THE GOVERNMENT DESIGNATED AND WE DON'T HAVE A RELEVANCE OR A COMPLETION -- OR A COMPLETENESS OR 403 OBJECTION TO THOSE MESSAGES, AND SO OUR SUGGESTION IS WHY WOULD THEY NOT JUST BE PRESENTED LIKE THAT. WE ALSO DON'T HAVE AN AUTHENTICATION PROBLEM WITH THOSE MESSAGES, AND OUR SUGGESTION IS THAT THAT'S MORE LIKE A FAIR AND EFFICIENT WAY TO PRESENT THE MESSAGES.
JUDGE DAVILA: MR. LEACH.
MR. LEACH: I THINK IT'S AN ODD SOLUTION TO AN AUTHENTICITY OBJECTION WITH A SEPARATE TEXT TAKEN OUT OF CONTEXT. SO IF WE CAN DISPLAY WHAT THE GOVERNMENT PREPARED. I THINK THE BETTER APPROACH, YOUR HONOR, IS TO SIMPLY REDACT THE RELEVANT MATERIAL.
JUDGE DAVILA: I WANTED TO SEE BOTH VERSIONS.
MR. LEACH: I REGRET, I DON'T HAVE A HARD COPY HANDY. WE'RE TRYING TO PULL UP THE GOVERNMENT'S PROPOSAL UP ON THE SCREEN.
JUDGE DAVILA: AND I THINK MS. TREFZ'S POSITION IS THAT, JUDGE, IF THE JUDGE SEES THIS BIG SHEET THAT HAS 57, 60 REDACTIONS AND THEN ONLY 4 OR 5 LINES OF THE TEXT, IT MIGHT SUGGEST THAT THERE'S SOMETHING ELSE THERE, BUT HIDDEN FROM THE JURY OR SOMETHING. IT COULD BE, MS. TREFZ, THAT THE JURY IS GOING TO THINK THAT, GEE, WITH ALL OF THAT SPACE AND THESE ARE THE ONLY THINGS THAT THEY CAN FIND THAT ARE NEGATIVE.
MS. TREFZ: THAT'S POSSIBLE, YOUR HONOR.
MR. LEACH: SO WE HAVE AN EXAMPLE ON THE SCREEN.
JUDGE DAVILA: RIGHT. SO, MS. TREFZ, TELL ME WHAT IS THE ISSUE WITH THIS, WITH THE WAY IT'S PRESENTED.
MS. TREFZ: THE ISSUE WITH THIS IS SEVERAL FOLD. ONE IS THAT IT SAYS PAGE 8 OF 449.
JUDGE DAVILA: OH, I SEE.
MS. TREFZ: ANOTHER IS THAT IT'S HEAVILY REDACTED EXCEPT THIS ONE PARTICULAR LINE. AND THEN WITH RESPECT TO THIS ONE PARTICULAR -- THIS PARTICULAR EXAMPLE, WE DO HAVE RELEVANCE AND COMPLETENESS OBJECTIONS TO IT.
JUDGE DAVILA: SURE.
MS. TREFZ: BUT THAT'S NOT THE --
JUDGE DAVILA: WE'RE TALKING ABOUT FORM NOW. SO IF THE PAGE AND NUMBERS ARE REDACTED ON THE BOTTOM, IS THAT SOMETHING THAT YOU COULD DO, MR. LEACH?
MR. LEACH: YEAH, THAT'S FINE, YOUR HONOR.
MS. TREFZ: YOUR HONOR, WE STILL HAVE AN ISSUE WITH THE FACT THAT IT'S BASICALLY ENTIRELY REDACTED EXCEPT FOR ONE LINE, BUT, YOU KNOW -- SO THAT'S WHY WE SUGGESTED THIS ONE WAY.
JUDGE DAVILA: SURE.
MS. TREFZ: WE WOULD ALSO, AS I NOTED, SUGGEST THAT THE PARTIES GIVE THE COURT A CHANCE TO LET THIS PLAY OUT A LITTLE BIT IN TERMS OF, YOU KNOW, WE JUST RECEIVED THESE YESTERDAY AND IT'S A SELECTION, BUT IT'S 122 PAGES, AND SO WE'VE DONE OUR BEST TO DO THIS ON SHORT NOTICE BUT --
JUDGE DAVILA: THIS IS TRIAL. THIS IS TRIAL, MS. TREFZ.
MS. TREFZ: AS OUR EMAIL TIME STAMPS WILL ACKNOWLEDGE, WE HAVE BEEN WORKING HARD. BUT WE THOUGHT THE COURT WOULD APPRECIATE GETTING THE OPPORTUNITY TO UNDERSTAND KIND OF SEEING IT LAID OUT OVER OF COURSE OF A COUPLE OF DAYS.
JUDGE DAVILA: ALL RIGHT. WELL, THANK YOU FOR BRINGING IT TO MY ATTENTION. AS MR. LEACH SUGGESTS, WE MAY NOT GET TO THIS WITNESS TODAY, OR IF WE DO, IT SOUNDS LIKE IT MAY ONLY CAPTURE THE SIX OR SEVEN TEXTS THAT YOU TALK ABOUT THAT SEEM TO BE OBJECTIONABLE.
MR. LEACH: I'LL BE GUIDED BY THE COURT, YOUR HONOR. I THINK THERE'S SIX THAT THE COURT CONSIDERED IN THE MOTION IN LIMINE. THERE'S A SLIGHTLY BROADER UNIVERSE THAT I THINK THE RELEVANCE IS MANIFEST BASED ON THE TESTIMONY THAT HAS ALREADY COME IN. I WOULD LIKE TO DO THOSE WITH MR. OFFEN IN THE MOMENT. MY INTEREST IS JUST MAKING SURE HE DOESN'T HAVE TO COME BACK FOR FURTHER AUTHENTICITY ISSUES.
JUDGE DAVILA: SURE.
MR. LEACH: IF I COULD JUST RESPOND BRIEFLY. I DO THINK THAT WE CAN INSTRUCT THE JURY TO IGNORE REDACTIONS. WE CAN INSTRUCT THE JURY, YOU KNOW -- SO I REALLY DON'T SEE WHY BLANK SPACES ARE PREJUDICIAL. BUT THERE'S ALSO -- YOU KNOW, THE FACT THAT MS. HOLMES AND MR. BALWANI ARE COMMUNICATING SO FREQUENTLY AND SO REGULARLY, REGARDLESS OF THE SUBSTANCE, HAS SOME RELEVANCE TO THEIR CLOSENESS, THE EXISTENCE OF A CONSPIRACY. I, FRANKLY, DON'T SEE THE PREJUDICE BETWEEN -- THAT CAN BE DRAWN FROM THAT THEY TALKED ALL OF THE TIME. IT'S A SIMPLE MATTER OF INSTRUCTION TO SAY THAT NOT ALL OF THESE ARE RELEVANT OR PERTINENT TO THE ISSUES OF THE CASE FOR REASONS THAT YOU DON'T NEED TO BE CONCERNED ABOUT. I DON'T WANT TO HAVE A CREATE A SEPARATE DOCUMENT.
JUDGE DAVILA: RIGHT.
MR. LEACH: I REALLY DON'T SEE A NEED.
JUDGE DAVILA: THANK YOU. I WAS THINKING, AS I WAS LOOKED AT IT, I WAS CURIOUS WHAT THE PRESENTATION WOULD BE. THE DARK REDACTIONS, IT SUGGESTS SOMETHING, I SUPPOSE. BUT THE COURT COULD AND WOULD INSTRUCT THE JURY THAT THIS IS SHOWN AS A DEMONSTRATIVE, AND THIS IS THE MOST EFFICIENT WAY TO CAPTURE IT, AND THEY SHOULD NOT BE GUIDED BY ANY REDACTION. WHAT IS IMPORTANT ON THIS DOCUMENT IS WHAT IS NOT REDACTED, AND ANYTHING ELSE IS PURELY BY CONSTRUCTION FOR EASE OF PRESENTATION. I DON'T THINK -- I DON'T THINK THAT WE'LL -- AND IF WE REDACT THOSE PAGE AND THINGS ON THE BOTTOM, TALKING ABOUT CONFIDENTIALITY AND PAGES OF 455 PAGES, ET CETERA. I THINK PEOPLE UNDERSTAND THAT IN TRIAL DOCUMENTS ARE PRESENTED AS BEST THEY CAN BE, AND WHAT IS RELEVANT TO THEM IS WHAT IS SHOWN, THAT IS, THE WRITTEN, THE WRITTEN LANGUAGE, NOT THE REDACTION. THAT'S JUST A FUNCTION OF PRESENTATION THAT SHOULD HAVE NO IMPACT ON THEIR JUDGMENT AS TO HOW TO WEIGH THE EVIDENCE.
MS. TREFZ: IF IT IS A MATTER OF JUST PRESENTATION, YOUR HONOR, THEN I WOULD REQUEST THAT ONE ADDITIONAL COMPROMISE MIGHT BE THAT WHEN THEY'RE EXAMINING ABOUT PARTICULAR MESSAGES, IF THEY BLOW IT UP LIKE WE ALL HAVE SEEN ON THE TRIAL GRAPHIC SOFTWARE YOU'RE ALLOWED TO DO SO THE JURY IS NOT FOCUSSED ON THE DARK SPACE, BUT IS FOCUSSED ON THAT PART. I ASSUME THEY WILL DO THAT ANYWAY, BUT I JUST WANTED TO MAKE THAT --
JUDGE DAVILA: I EXPECT THAT THEY WILL.
MR. LEACH: WE'RE HAPPY TO DO IT THAT WAY, YOUR HONOR. OUR INTEREST IS NOT IN DRAWING TO THE BLACK. WE WANT TO FOCUS ON THE SUBSTANCE.
JUDGE DAVILA: OKAY. GREAT. WELL, LET'S DO THAT TO START WITH AND LET'S SEE HOW THAT WORKS. MY SENSE IS THAT'S A GOOD PROTOCOL TO ENGAGE.
MS. TREFZ: IN TERMS OF THE SUBSTANCE THAT WE HAVE WITH THE TEXT MESSAGES, HOW IS THAT TO BE PRESENTED?
JUDGE DAVILA: WELL, I WAS CURIOUS, MR. LEACH, THAT'S WHY I ASKED WHETHER YOU THOUGHT WE WOULD GET INTO THIS TODAY OR NOT. THAT'S DEPENDENT ON YOUR COLLEAGUE SITTING AT THE END OF THE TABLE AND HOW MUCH LONGER HE HAS TO GO, MS. TREFZ, AND I DON'T KNOW THE ANSWER TO THAT.
MS. TREFZ: NEITHER DO I, YOUR HONOR.
JUDGE DAVILA: AND MAYBE HE DOESN'T. THAT WILL GUIDE US AS TO THE WITNESSES TODAY AND WHO FOLLOWS. SO, I DON'T KNOW, MR. LEACH, MAYBE YOU'RE IN THE BEST POSITION TO TELL US IF YOU THINK THAT WE'LL GET TO THE TEXT MESSAGES.
MR. LEACH: I THINK THERE'S AN OUTSIDE CHANCE LATER IN THE DAY HE'LL BE CALLED. IT REALLY DOES DEPEND ON THE CROSS OF MS. GANGAKHEDKAR. WE HAVE TWO RELATIVELY BRIEF WITNESSES BEFORE THAT. I'M PREPARED TO LIMIT IT TO THE MESSAGES THAT THE COURT HAS SEEN BEFORE AND THE ONES THAT I THINK YOUR HONOR WILL BE ABLE TO RULE IN THE MOMENT BASED ON WHAT YOU HEARD FROM MS. YAM AND MS. CHEUNG.
JUDGE DAVILA: THANK YOU FOR THAT. SO MY SENSE IS THAT WE'LL START WITH THE WITNESS, OF COURSE, WHO IS ON THE STAND NOW AND FINISH HER CROSS AND ANY REDIRECT. IT MAY BE THAT THAT WILL TAKE US TO A BREAK TIME, AND YOU'LL HAVE TO TELL ME WHAT YOU SUGGEST FOR A BREAK THIS MORNING, AND THEN MAYBE YOU CAN REASSESS WHERE THINGS ARE.
MR. LEACH: OKAY.
JUDGE DAVILA: AND THEN IF YOU HAVE ADDITIONAL EMAILS THAT YOU WISH TO SHARE WITH MS. TREFZ TO RESOLVE THIS ISSUE IF YOU CAN, AND THAT WILL BE HELPFUL, TOO. WE'LL TAKE A BREAK OF ABOUT 45 MINUTES OR SOMETHING. I DON'T MEAN TO DEPRIVE YOU OF NOURISHMENT, BUT THAT MAY BE A GOOD TIME TO DISCUSS SOME THINGS. I THINK WE CAN WORK IT OUT TODAY. AND THEN THAT WILL GIVE YOU SOME TIME THIS AFTERNOON TO LOOK AT IT, MS. TREFZ, AND WE CAN MEET AGAIN TOMORROW MORNING IF WE NEED TO.
MS. TREFZ: OKAY. THANK YOU, YOUR HONOR.
MR. LEACH: THANK YOU, YOUR HONOR.
MS. TREFZ: WE HAVE TWO MUCH SMALLER ISSUES, I BELIEVE.
JUDGE DAVILA: SURE.
MS. TREFZ: ONE IS ASIDE FROM MR. OFFEN, THE OTHER TWO WITNESSES WHO ARE COMING TODAY, WE UNDERSTAND AFTER MS. GANGAKHEDKAR ARE A PATIENT AND HER NURSE PRACTITIONER. WITH RESPECT TO THOSE INDIVIDUALS, WE ASSUME THAT THE GOVERNMENT INTENDS TO ABIDE BY THE RULING ON THE CUSTOMER IMPACT IN THE MOTION IN LIMINE ORDER, BUT WE WONDERED IF THEY COULD, YOU KNOW, TELL US WHETHER THEY'VE INSTRUCTED THE WITNESSES NOT TO KIND OF VOLUNTEER, IN RESPONSE TO A QUESTION, INFORMATION THAT IS BARRED UNDER THAT ORDER. YOU KNOW, WE OBVIOUSLY SOUGHT THE ORDER IN ORDER TO AVOID HAVING TO DO IT IN FRONT OF THE JURY.
JUDGE DAVILA: SO LET ME ASK MR. LEACH IF HE INTENDS TO FOLLOW THE COURT'S ORDER.
MS. TREFZ: I EXPECT THAT HE DOES, YOUR HONOR. MY QUESTION WAS ABOUT THE WITNESS AND IF HIS WITNESSES ARE --
JUDGE DAVILA: SURE. MR. LEACH, CAN YOU HELP US OUT?
MR. LEACH: THE ANSWER IS YES. IN ADDITION, YOUR HONOR, THE GOVERNMENT ADMONISHED BOTH DR. ZACHMAN AND MS. GOULD ABOUT THE COURT'S ORDER. WE'VE ADMONISHED THEM ABOUT THE SUBSTANCE OF THE ORDER AND HAVE EVERY REASON TO BELIEVE THAT THEY UNDERSTAND IT AND WILL ABIDE BY IT.
JUDGE DAVILA: GREAT. OKAY.
MS. TREFZ: THAT RESOLVES THAT. AND THEN THE LAST ISSUE, YOUR HONOR, IS THAT WE UNDERSTAND THAT TWO OF THE EXHIBITS THAT WERE DISCLOSED TO US LAST NIGHT WITH RESPECT TO -- WE BELIEVE WITH RESPECT TO THE PATIENT ARE TWO EXHIBITS THAT -- EXHIBITS 5262 AND 5263 WHICH WE BELIEVE PRESENT ISSUES UNDER THE COURT'S ORDER WITH RESPECT TO VOIDED TESTS. THESE ARE CORRECTED TEST REPORTS THAT WERE PROVIDED TO THE DOCTOR'S OFFICE IN 2016, YOU KNOW, IN CONNECTION WITH THE CMS ACTIONS. WE BELIEVE THAT THE COURT'S ORDER IN THE MOTION IN LIMINE AND THAT RULE 407 WOULD BAR THOSE. WE ALSO BELIEVE THAT THERE IS OTHER EVIDENCE TO WHICH WE HAVE INDICATED NO OBJECTION THAT THEY CAN USE TO GET THE SAME INFORMATION.
MR. LEACH: YOUR HONOR, IT WAS NOT OUR INTENTION TO INTRODUCE VOIDED TEST RESULTS THROUGH THESE PARTICULAR WITNESSES. I DO THINK THE ISSUE OF VOIDED TESTS IS GOING TO COME UP AT A SUBSEQUENT POINT, BUT IT'S NOT OUR INTENTION TO INTRODUCE THE FACT THAT CERTAIN TESTS WERE VOIDED THROUGH THESE TWO WITNESSES. I THINK THERE'S SOME POSSIBILITY THAT THE DOCUMENT MAY BE NECESSARY TO REFRESH SOMEBODY'S RECOLLECTION, BUT WE CAN DO IT IN A WAY THAT DOESN'T ELICIT THE FACT THAT TESTS WERE VOIDED AT THE END OF THE DAY. THIS IS GOING TO COME UP LATER ON I ANTICIPATE, BUT I DON'T THINK IT'S AN ISSUE FOR TODAY.
JUDGE DAVILA: OKAY.
MS. TREFZ: THAT SHOULD BE SUFFICIENT, YOUR HONOR.
JUDGE DAVILA: GREAT. ANYTHING FURTHER FROM YOUR SIDE, MR. LEACH?
MR. LEACH: NO, YOUR HONOR, THANK YOU.
JUDGE DAVILA: MS. TREFZ?
MS. TREFZ: NO.
JUDGE DAVILA: WHAT TIME SHOULD WE BREAK THIS MORNING FOR OUR BREAK?
MS. TREFZ: 11:00 O'CLOCK.
JUDGE DAVILA: ALL RIGHT. IS THAT OKAY?
MR. LEACH: YES.
JUDGE DAVILA: AND I'LL ASK OUR JURY IF WE CAN STAY TOMORROW UNTIL 3:00, AND ALSO FRIDAY PERHAPS UNTIL 3:00 OR MAYBE LATER. WE'LL SEE WHAT THEIR FEELING IS. I KNOW I INQUIRED ABOUT STARTING EARLIER, AND I THINK ONE OF OUR JURORS HAS A DAYCARE/CHILDCARE ISSUE THAT PRECLUDES THAT, SO I DON'T THINK WE'LL BE ABLE TO START EARLIER THAN OUR 9:00 O'CLOCK START. BUT WE CAN SEE IF WE CAN EXTEND THE DAY.
MS. TREFZ: THANK YOU, YOUR HONOR.
MR. LEACH: THANK YOU.
COURT CLERK: COURT IS IN RECESS.
(RECESS FROM 8:56 A.M. UNTIL 9:04 A.M.)
(JURY IN AT 9:04 A.M.)
JUDGE DAVILA: ALL RIGHT. THANK YOU. WE'RE BACK ON THE RECORD IN UNITED STATES VERSUS ELIZABETH HOLMES. ALL COUNSEL AND THE DEFENDANT IS PRESENT. OUR JURY AND ALTERNATE ARE PRESENT. GOOD MORNING, LADIES AND GENTLEMEN. BEFORE WE START AND BEFORE I INVITE THE WITNESS TO COME FORWARD, LET ME JUST ASK YOU A QUESTION THAT I PROMISED YOU I WOULD ASK YOU EACH TIME WE START. DURING OUR BREAK, HAVE YOU OR ANY OF YOU -- DID ANY OF YOU SEE, LISTEN, HEAR OR HAVE ANY ATTENTION DRAWN TO ANYTHING ABOUT THIS CASE, EITHER IN MEDIA OR CONVERSATIONS OR OTHER TYPE OF INFORMATION? IF SO, IF YOU COULD PLEASE RAISE YOUR HAND SO I COULD KNOW THAT. I SEE NO HANDS. ALL RIGHT. THANK YOU VERY MUCH, LADIES AND GENTLEMEN. I'LL ASK THE WITNESS TO COME FORWARD, PLEASE. GOOD MORNING, MS. GANGAKHEDKAR. IF YOU COULD PLEASE TAKE THE STAND AGAIN AND MAKE YOURSELF COMFORTABLE. ADJUST THE MICROPHONE AS YOU NEED. I'LL ENCOURAGE YOU TO SPEAK DIRECTLY INTO THE MICROPHONE. I'LL REMIND YOU YOU'RE STILL UNDER OATH. IF YOU COULD PLEASE STATE YOUR NAME.