Thread by @doratki

Good morning from San Jose! It's day 2357209??!😂 in Elizabeth Holmes' criminal fraud trial. Judge Ed Davila is on the bench. We'll be going until 3 p.m. today. It's unclear who's on deck after ex-Cravath partner Daniel Mosley's exam wraps, so stay tuned...

Holmes' counsel wants to exclude a patient - called B.B. - from testifying about a platelet complete blood count test, b/c the test wasn't mentioned in the initial indictment and the DOJ dropped a dr. witness from testifying about the test. "It's a notice issue," she says.

Judge Davila doesn't seem convinced. He says the defense was given notice in the superseding indictment and bill of particulars, and prosecutors had identified B.B. as a potential witness. Prosecutor John Bostic agrees the defense had notice.

After arguments, Judge Davila shifts gears and says he "may very well" grant the defense's motion on limiting B.B.'s testimony, b/c he's concerned it may be at odds with his pretrial order on patient testimony, but he says he'll issue an order. He's calling in the jury.

The jury is in the courtroom. Judge Davila tells the jury that yesterday it was "oppressively hot" due to the court's HVAC system and he knows it's difficult to focus when it's warm, so they'll take standing breaks today. He adds "don't be shy" about requesting "fatigue breaks."

Former Cravath partner Dan Mosley is back on the stand. Holmes' counsel Lance Wade is up on cross, asking him about representing Stavros Niarchos Foundation president and Greek shipping heir Andreas Dracopoulos.

Mosley says he traveled to Theranos w/ the Niarchos Foundation and he "certainly did introduce them to Elizabeth" but didn't represent the foundation. Defense counsel asks why he asserted atty-client privilege over his Niarchos emails. He says he didn't, but his atty might have.

Holmes' atty pulls up a chart w/ Mosley's clients & friends of Henry Kissinger who Mosley introduced to Holmes & who invested in Theranos. The chart includes the Oppenheimer family, which were friends of Kissinger - not a client - and invested $20M. In total, $403M was invested.

Holmes' atty pulls up Mosley's Sept 2, 2014 email to Holmes that he wrote after reviewing Theranos' materials and preparing a memo on Theranos. "I could not be more impressed with what you have accomplished and what lies ahead for Theranos," he wrote.

Holmes' attorney referred to Henry Kissinger as "Mr. Kissinger," and Mosley corrected him, saying he's "Dr. Kissinger."

Holmes' counsel points out that Mosley's Sept 2014 email acknowledges Holmes offered to meet for a briefing, but he held off so that he could first meet w/ the Stavros Niarchos Foundation. Mosley never updated his Theranos memo after he went to Theranos' HQ, the atty says.

Holmes' atty Lance Wade is flipping through the binder of material that Theranos gave to Mosley to review. Wade points to a line about "epidemiological models," but he fumbles saying the word "epidemiological." Mosley tries to correct him, but also struggles to pronounce it.

Wade presses Mosley on Walgreens. Mosley agrees that he assumed Walgreens did due diligence of Theranos b4 entering a contract. He adds he "obviously reviewed the Johns Hopkins report," which seemed to be commissioned by Walgreens, and it was important to his decision to invest.

Wade gets Mosley to acknowledge that he didn't go back and clarify who drafted the validation report that Theranos provided him, which had a Pfizer logo on top of each page.

Wade pulls up a Sept 2013 press release titled "Theranos selects Walgreens as a long-term partner through which to offer its new clinical laboratory service." Wade points out the PR release says blood samples are taken by fingerstick "or a micro-sample" via "traditional methods"

Mosley says he doesn't remember reading the press release, but if he did, he didn't focus on that specific phrase and even if he did, he wouldn't have necessarily known what it meant. He adds that he prepared his Theranos memo over a weekend.

Wade suggests Mosley's memo indicates that he knew that Theranos used blood drawn from samples taken not only from finger-stick, but also venously. Mosley disagrees. "I didn’t know that at the time and I’m not sure [my memo] says that," he says.

Wade gets Mosley to acknowledge that he doesn't remember if he discussed Theranos' revenue projections with Sunny Balwani or Elizabeth Holmes. (Probably hinting here that Holmes claims Balwani was to blame for the overblown financial targets.)

Wade says Theranos' July 2014 financial projections included ~$169M in deferred revenue. He also notes that Holmes' shares had more voting power, so she could put herself ahead of other investors in the event of liquidation. Mosley: "That’s not my understanding of the law."

Trial is taking a 30 minute break. Brb!

We're back! The judge just had a sidebar with the attorneys and then disappeared into chambers. We're waiting for him and the jury. Wade is still at the podium so I'm guessing there won't be any surprise celebrity witnesses interrupting Mosley's cross.

Mosley is back on the stand. Wade pulls up a letter Mosley wrote to Kissinger in Sept 2014 that was included w/ his Theranos memo. Mosley told Kissinger that if he shared his memo w/ anyone, they should sign an NDA.

Wade asks Mosley about Theranos' FDA approval. Mosley admits he's not a regulatory expert "by any means," but he says "my understanding was that FDA approval was not needed," and Holmes said Theranos intended to get FDA approval "because that is a gold standard."

Wade gets Mosley to acknowledge that he met Elizabeth Holmes for the first time at the BDT conference thrown by Byron Trott's firm, which Wade called "the Woodstock" for private business dealings for high-net worth families. "I wouldn’t describe it that way," Mosley replies.

Wade wants to admit a document with a list of all the different speakers at the 2014 BDT conference and "breakout sessions," but the judge says it's not all relevant, but he'll allow the jury to see the hour-long panel that Holmes spoke on called "Game Changers."

Mosley says he attended the panel and some of his clients were at the conference, but he doesn't know if they attended Holmes' session.

Wade moves on to another topic - @rparloff's article in Fortune Magazine. Wade is reading excerpts from the article comparing Elizabeth Holmes to Steve Jobs. fortune.com/2014/06/12/the…

Wade hasn't yet mentioned that when you look at the article on Fortune Magazine's website now, it has an "author’s note" that on December 17, 2015, Parloff published a "protracted correction to this article." fortune.com/2015/12/17/how…

The takeaway from Wade's q's about the Fortune Mag article appears to be that Henry Kissinger and Stanford prof Channing Rex Robertson were both quoted saying highly complementary things about Holmes' intelligence and leadership capabilities.

Wade pulls up an Oct 2014 email to Holmes in which Mosley wrote "I am happy that each of the potential investors from the Walton, Cox, DeVos and Niarchos families are proceeding very well as I would expect." (Maybe it's just me, but this testimony seems to be pretty redundant.)

Wade is going through a series of emails b/w Mosley and Holmes. Wade didn't mention this, but in one email from Oct 2014, Mosley wrote Holmes that Richard DeVos "is a terrific person" and tells Holmes she should meet him. Richard died in 2018 at 92. nytimes.com/2018/09/06/obi…

Wade asks the judge when the break is. The judge seems super annoyed and says he thought they were going to finish with Mosley's exam today. Wade agrees they will. We're taking a 30 minute break.

We're back with an hour left on the trial clock! Wade pulls up a Nov 2014 email pointing out that Mosley sent an Oppenheimer family rep an NDA and in another email introduced him to Holmes. The gov't objects to the 2nd email on relevance grounds.

Judge Davila has Wade move on to something else, and he'll later take a break to review the doc. Wade turns to Theranos' mandatory redemption provision that gave board members the option to buy back shares based on what they thought was their fair market value.

Wade notes Mosley objected to the provision and worked with Theranos' attorney David Boies to discuss terms exempting Mosley and his clients from it. Mosley says he's known Boies probably since before 1987.

Mosley says he spoke to David Boies before investing in Theranos and Boies told him Theranos' technology was "absolutely sound and performing well," and it's "largest risk was with the rollout," and whether it would perform well when it was rolled out in many locations.

Wade is walking through the Theranos website, which has footnotes stating that Theranos tests may use venous draws, which Wade says uses smaller needles. Mosley replies: "I don’t know when I learned that or if a learned that honestly."

Wade has finished with cross, except for a few q's on a doc that prosecutors object to. They're having a sidebar in chambers to discuss the objection, and likely the timing. The judge seems annoyed we haven't gotten to another witness today.

We're back. Judge Davila sustained the objection to admitting the documents, but lets Wade ask Mosley q's. Wade gets Mosley to acknowledge he introduced Alice Walton to Holmes and "said nice things" about Holmes. W/ that, Wade wrapped cross.

Redirect was quick. Mosley says he may have written he "recommended" his clients invest in Theranos but that was "loose language" and he never encouraged his clients to invest. He adds that "these were highly sophisticated parties w/ sophisticated staff" to vet investments.

Dan Mosley was excused and trial broke for the day. We'll be back here tomorrow at 9:30 a.m. for a full day of testimony. Peace out.

Ex-Cravath partner Dan Mosley testified today that David Boies - who was a Theranos board member at the time - told him Theranos' technology was sound before Mosley invested $6M into the startup. My recap! law360.com/articles/14373…