SAN JOSE, Calif. — With her criminal trial set to start in two months, Theranos founder Elizabeth Holmes has lost her bid to block the jury from seeing communications between herself, people at the company, and the law firm of superstar attorney David Boies.
Holmes had argued that the communications with attorneys at Boies Schiller Flexner were protected by attorney-client privilege, a legal rule that maintains confidentiality of interactions between clients and their lawyers. The judge overseeing the case in San Jose U.S. District Court ruled that attorney-client privilege did not apply to the 13 documents prosecutors have said they plan to introduce as evidence against her at trial.
Boies led the federal government’s successful anti-trust prosecution of Microsoft, and also led the legal battle that overthrew California’s same-sex-marriage ban. He unsuccessfully represented former presidential candidate Al Gore in his U.S. Supreme Court Florida-recount dispute with former President George W. Bush over the 2000 presidential election, and he represented Harvey Weinstein in 2015 after the disgraced Hollywood producer was accused of sexual misconduct, but before he was charged with rape and convicted.
In a December court hearing, a lawyer for Holmes said many of the 13 documents concerned Boies Schiller Flexner’s representation of Theranos and Holmes in a “dispute” with the Wall Street Journal before the paper’s publication of articles critical of Holmes and her now-defunct Palo Alto blood-testing startup.
“The Boies Schiller firm was considering potential legal action against The Wall Street Journal on behalf of Ms. Holmes,” her lawyer Lance Wade told the judge.
Holmes, a Stanford University dropout who founded Theranos in 2003, is charged with a dozen counts of felony fraud. The federal government alleges Holmes, now pregnant and expecting a baby this month, bilked investors out of hundreds of millions of dollars. They claim she defrauded patients and doctors with false claims that the company’s machines could conduct a full array of tests using just a few drops of blood, when she knew the technology had accuracy and reliability problems. Holmes and her co-accused, former company president Sunny Balwani, have denied the claims. Boies was one of several high-profile people who served on Theranos’ board.
Holmes lawyer Wade told the court in December that Boies and his firm had represented Holmes and Theranos jointly, so she held an individual right to attorney-client privilege. “There’s nothing nefarious in any way about a defendant asserting her rights with respect to a privilege,” Wade said.
San Jose U.S. District Court Judge Edward Davila, in his decision last week that was just made publicly available, ruled that “the disputed documents chronicling communications between Holmes, individuals at Theranos, and Boies Schiller attorneys are subject only to corporate privilege,” so Holmes can’t block them from her trial.
The judge added that because no “personal engagement letter or retainer agreement” between Holmes and Boies and his firm had been introduced in the case, and because the court had been presented with “conflicting statements made about David Boies and Boies Schiller’s representation of Theranos and Holmes,” the scope and length of the firm’s representation of her and Theranos “remains unclear.”
Holmes’ trial is scheduled to start Aug. 31, with Davila presiding. She faces maximum penalties of 20 years in prison and a $2.75 million fine, plus possible restitution, the Department of Justice has said.
