Thread by @doratki

I'm back at the federal courthouse in a blustery San Jose for Elizabeth Holmes' criminal fraud trial. It feels like a squall is brewing outside. Judge Davila is on the bench. Holmes is in the courtroom.

The parties say they think they'll finish examining Daniel Edlin today, and then the government plans to call ex-Pfizer scientist Shane Weber. Sounds like we'll go until 3 p.m. today.

Defense counsel reiterates their objection to an internal doc Weber prepared that concluded Pfizer shouldn't do biz w/ Theranos. Weber's conclusions are fair game, the document itself is not, the atty says. Prosecutors say the doc is relevant and the 'why' here is important.

Holmes' counsel says Weber's doc uses "really pejorative terms" (ie. she's "oblique, deflective or evasive") to describe Elizabeth Holmes and it would be "profoundly unfair" to show it to the jury. Prosecutor says that "proves the power of this doc" and why it can't be excluded.

Prosecutor notes that part of Holmes' defense is that pharma cos did work w/ Theranos, but "this is the proof that they didn’t validate the tech" and it's evidence of the falsity of the statements. Defense counsel says Weber only had a 1hr conference call w/ Holmes and her team.

Holmes' counsel says Weber was involved w/ Theranos for 3 months during a multi-year relationship w/ Pfizer, so he's not qualified to talk about her credibility. Prosecutor says he doesn't think they should "sanitize" the words Weber used to describe Holmes.

The judge held off on ruling. The jury is back in the courtroom and Daniel Edlin is on the stand. Holmes' attorney Kevin Downey is up on cross, which is expected to take up most, if not all, of the morning.

Downey begins by pointing to a string of emails w/ military officials about Theranos' study with the military in 2012 on deploying devices in Africa. Edlin agrees that the study went forward.

Downey brings up emails in which ex-Theranos VP Dan Young tested Theranos' devices to determine if it could withstand temps of 110 degrees in Africa and it could. (This counters the gov't's evidence yesterday that Theranos devices couldn't operate above 82 degrees.)

In June 2012, Col. Melissa Givens emailed Edlin and Young stating that Theranos' devices were deployed (but not used on patients) in Cameroon, Uganda and South Sudan. "The machine traveled well and functioned well. My only complaint is the touch screen - very frustrating."

Givens' email went on stating that b/c the machine "seemed to function well in the environment" she'll write a pre-proposal in hopes of gaining full funding. She also said she would send Theranos the devices that were deployed to be tested for internal quality control.

Edlin agrees that Theranos' devices passed the government's security checks, and he showed them to the military, but he says Balwani had the engineering team disable some reports so that the military couldn't do all the tests b/c Balwani said he was concerned about trade secrets.

Edlin says the military complained about the large size and weight of Theranos' devices. In a Feb 2013 email, he replied to military officials who asked for an update on the ship date that Theranos had to revalidate & retest new 4s devices in response to the military's feedback.

Holmes' counsel shows an Aug 2013 email Dan Edlin sent to Holmes stating that the device deployment to the military would be delayed until Aug 1 2014. Edlin agrees that he and Holmes were working hard, and the environment was "very hectic."

Holmes' attorney points out that Edlin asked the military for a list of assays it wanted Theranos' devices to conduct in Jan 2012, but over a year later the military was still modifying the assay list.

Shifting topics. Holmes' counsel gets Edlin to acknowledge that there were 10-15 people who worked on the team to do demos for investors and jouros. He also says sometimes they would travel for the demos and they wouldn't be at Theranos' HQ.

Holmes' counsel points to an Aug 2012 email in which Balwani wrote that a Walgreens exec told him he had his blood tested by his doctor's central lab after a Theranos demo, and the exec received "identical" results to Theranos' results.

Holmes atty tries to get Edlin to concede that demo participants would regularly give Theranos feedback that their Theranos results were the same as central lab results. Edlin says he "rarely" was involved in communications w/ test participants after a demo.

Holmes atty says says Edlin and others weren't trying to deceive anyone during demos and there were protocols they needed to follow depending on participants' requests. "None of this was about playing a trick in demos." Edlin says "correct" and "it was very in the moment."

Holmes' counsel Kevin Downey asks Dan Edlin about a Theranos patent that names him as a co-inventor for a "gripping" method. Edlin says he doesn't know the status of the patent.

Downey smiles and says he's happy to inform him that "it’s been granted."

Edlin: "Thank you."

Holmes' counsel points to Holmes' email to all employees on July 2015 announcing that it received its "First FDA clearance on our system and the first laboratory developed test we filed: HSV-1." Edlin says he didn't work on the FDA approval. Trial is taking a 30 minute break.

Before breaking, Judge Davila admonishes a "man in a blue shirt" in the courtroom whose personal device made noise multiple times this am. He said if it happens again he's going to make him leave or call the US Marshalls to turn it off. "They're v good at that," the judge says.

We're back! The parties are arguing over whether weekly reports with customer feedback should be shown to the jury. Prosecutor John Bostic says they'll give the jury an unbalanced view of customer feedback, especially b/c Holmes wants customer complaint logs excluded from trial.

Judge Davila says he hasn't looked at the reports, but he's "not likely" to introduce the info w/o parsing through the info in them and if it's general feedback about a patient's experience in a Walgreens stores getting tested.

Judge Davila says the jury has again complained about the noise of typing on keyboards that's coming from folks in the gallery. The judge says he's asked an official from the US Marshall's office to be present and that the CSO will ask people to leave if their keyboards are loud.

(I am in the overflow courtroom, so the noise ain't comin' from me!)

(Related, the value of the overflow courtroom's real estate is increasing as I type.)

Dan Edlin is back on the stand. Holmes' counsel points to a presentation he helped prepared for the investor, Mosley Family Holdings. Edlin agrees the slide was meant to convey that Theranos could process blood-samples more quickly than competitors and that led to better data.

Edlin agrees that he didn't compile the data in the slide himself. Holmes' counsel points to an email exchange in which Holmes said they need to qualify a claim in the slides to clarify refrigeration is needed to make sure the claim is accurate.

Another slide says Theranos' variance for the Vitamin D test was plus or minus 3.0. But ex-Theranos VP Dan Young wrote Theranos spokesperson Jeff Blickman "Variance is less than 10%, not sure where +/-3.0 came from."

Holmes' counsel points to a Dec 2012 meeting in which Theranos met with multiple PR firms and Edlin agrees the firms helped with Theranos' marketing and website. (Guessing this is all to counter evidence on direct that Holmes OK'ed website language despite objections by counsel.)

Holmes counsel points out that Grow Marketing Inc. gave Holmes marketing advice on how she should answer questions from journalists before her interview with WSJ writer Joseph Rago.

Holmes attorney pulls up an email that Grow Marketing's Tami Anderson wrote to Holmes in Aug 2013 before Rago's story published. The email wished Holmes luck and included an "updated Theranos story document w/ including stats."

In Nov 2013, Theranos PR guy Jeff Blickman wrote Holmes suggesting they add language on the website that “instead of a big intimidating needle," certified phlebotomist uses fingerstick. Blickman proposed adding a footnote that “Occasionally, a venipuncture may be required..."

Holmes replied that "if we are going to say something like this we need to own it and not contradict ourselves." She suggested removing the footnote and putting the “Occasionally, a venipuncture may be required.." into the graph itself.

The full asterisked phrase was "Occasionally, a venipuncture may be required, based on the lab order. This is uncommon, and we aim to eliminate this scenario entirely."

Holmes' atty points to a Sept 2013 email that Holmes brother Christian sent saying they should change language in Walgreens' brochure. He said they should replace statements that the devices could do all tests with a drop of blood with it could do "common/most frequent tests."

Holmes' counsel gets Edlin to acknowledge that Theranos had a valuable patent portfolio. The atty also tries to introduce Theranos' weekly reports on patient feedback, but the judge sustains the DOJ's prior objection and won't let the reports in.

Holmes counsel wraps Daniel Edlin's cross, somewhat anticlimactically. John Bostic is back up for the DOJ for some redirect.

Bostic asks Edlin if the military ever used Theranos' blood-testing devices on soldiers. Edlin says no. Bostic points out that the Theranos' burn study w/ the military only had 28 participants over four years and was ended due to "low enrollment."

Bostic points to Theranos' proposed "Africom" study on deploying the devices w/ the military in Africa. Edlin says "I don’t believe [the device] was capable of conducting all of the assays" that were listed in the study.

Edlin says Col. Melissa Givens never conducted individual tests on Theranos' devices and Theranos never provided more devices to the military as a part of the Africom study. We're taking another break. Back in 30!

We're back! Judge Davila notes that a juror can't be in court Friday, Nov 12 and Dec 3 and the judge has a conflict in November at some point due to a meeting in the Ninth Circuit committee. The jury is filing in, and prosecutors say they have about 30 min more of redirect.

Bostic pulls up the Army's Sept 2012 limited objective experiment (or LOE) partnership with Theranos, which had a goal of comparing Theranos' tech to other tests to see if it could be used on soldiers in the field.

Bostic points out that the devices were planned to be sent to the combined joint theater hospital at the Bagram air force base in Afghanistan, but gets Dan Edlin to acknowledge that Theranos never ended up sending testing devices there.

Bostic asks Edlin if he had a sense of how Balwani and Holmes split up work at Theranos. He says Balwani's expertise were in software, the clinical lab and "most of the Walgreens operations," and Holmes focused more on science and tech, R&D and marketing and communications

Bostic presses Edlin on his testimony that he didn't intend to deceive. Edlin clarifies "I was speaking about both about my intent as well as about other’s people’s intent." Bostic asks Edlin if he has the "ability to read minds" to determine if others intend deceive. He says no

Bostic presses Edlin on Theranos' practice of removing results during demos and not giving them to participants. Edlin's tone notably changes: "I think it relies on interpretation of the experts for certain results, and that’s part of the process of demonstrating the technology"

Bostic: Do you think that someone might want to know if results have been removed?

Edlin: "I personally don’t know. I can’t speak for them."

Bostic points out that Edlin never made the decisions to remove test results during demos or not share them with demo participants. Edlin agrees. (It seems apparent in this line of q that Edlin, who is generally even-keeled, wants to defend the company.)

Bostic asks Edlin about Theranos' claims of "superior accuracy" and points out they ended up on Theranos' website and in confidential investor presentations, including one given to Rupert Murdoch. Edlin notes that there was "some nuance" to the statements.

Bostic shows slides that Grown Marketing gave during a Theranos "media training." (As a reporter this is triggering) The slides say avoid unwelcome q's that are "needlessly controversial" by either explaining why you can’t answer or responding quickly and moving on or "shut down"

Bostic asks Edlin who made decisions about what Holmes could say publicly. He says he doesn't know if she consulted with anyone about those decisions.

Redirect wraps with Edlin saying he left Theranos b/c a year after the WSJ articles were published "they had multiple opportunities to disprove the claims.. they all were unsuccessful. I ultimately reached a conclusion... [the tech] couldn’t happen and they never could happen."

Kevin Downey is up on recross. Edlin's apparent even-keeled nature seems to be getting strained. His answers are short and at one point his response to a q sounded annoyed. Downey asked a bunch of q's about temp control in transporting devices to Uganda.

Both sides seem to be spending way too much time on what temperature Theranos' testing devices could operate in considering the rest of the allegations in this case.

Downey wrapped recross. We're not going to make it to the next witness. We'll be back here Friday morning at 9 a.m., and the judge says he "hopes" to go until 4 p.m. Friday. The jury heads out for the day.

The government says they'll have a witness Friday, but it may not be ex-Pfizer scientist Shane Weber -- sounds like it'll be a surprise! The judge notes that the jury says the typing sound has improved since the last break.

Judge Davila again reiterates his request for observers to use silent keyboards, and he again puts in a plug for folks to use the overflow courtroom. With that, we're out until Friday✌️.

Yesterday, jurors viewed emails showing that Elizabeth Holmes was coached by marketing firms about what to say to journalists and how to avoid unwelcome questions that are "needlessly controversial." Catch up on the latest before trial resumes tmr! law360.com/articles/14328…