Ex-Theranos CEO Wants Trial Prep OK'd Amid Pandemic

By Jody Godoy
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Law360 (March 31, 2020, 7:09 PM EDT) -- Former Theranos CEO Elizabeth Holmes told a Northern California federal judge that preparing for her upcoming trial means travel, meetings and serving up to 100 subpoenas — actions she says the judge should deem essential in light of various local orders telling people to stay indoors.

Holmes' attorneys at Williams & Connolly wrote to U.S. District Judge Edward J. Davila on Monday asking for an order giving them carte blanche to travel, serve subpoenas and meet with potential witnesses, which they noted would include health care professionals and testing laboratories.

"We expect many subpoena recipients and/or witnesses to respond with hostility to receipt of subpoenas or other contacts during this time, and to question the lawfulness of our actions," they wrote.

Holmes is scheduled to stand trial in August for allegedly defrauding investors and uninsured patients by making false claims about the capabilities of Theranos' blood testing technology. Judge Davila set the trial date last year.

Judge Davila recently cut some charges from the case, ordered the government to offer specifics on its allegations and severed the trial from that of former Theranos Chief Operating Officer Ramesh "Sunny" Balwani. In the severance order on March 20, the judge said Holmes' trial would go forward as scheduled.

Now, Holmes' attorneys want the judge to take a variety of measures to ensure they are prepared to go to trial even though life in the U.S. has been upended by the deadly coronavirus pandemic.

"While we are hesitant to encourage any person to undertake actions that are contrary to advice and directions from public health officials or impose any burdens on health care professionals or institutions, we must adhere to the direction provided by this court regarding the time and manner in which it wishes to proceed with this case," they wrote.

In addition to a blanket order approving travel and witness meetings, Holmes' attorneys asked the judge for permission to issue their own subpoenas in order to cut down on trips to his San Jose courtroom. Under the court's local rules, defendants can ask judges to issue subpoenas in order to gather evidence ahead of trial. Such subpoenas require a judge's sign off.

Prosecutors said in a status update on Monday that they dispute the basis for Holmes' request and would reply to her motion.

Judge Davila is scheduled to hold a hearing in the case on Wednesday.

The government is represented by John C. Bostic, Jeffrey Schenk, Robert S. Leach and Vanessa Ann Baehr-Jones of the U.S. Attorney's Office for the Northern District of California.

Holmes is represented by Kevin Downey, Lance A. Wade, Amy Saharia and Katherine Trefz of Williams & Connolly LLP and John Cline.

The case is U.S. v. Elizabeth Holmes et al., case number 5:18-cr-00258, in the U.S. District Court for the Northern District of California.

--Editing by Amy Rowe.

For a reprint of this article, please contact reprints@law360.com.

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