Thread by @eringriffith

🩸"Our Holmes Matter" continues.🩸 Full week of testimony in US v Holmes after last week's announcement that the prosecution is likely to rest soon.

Alan Eisenman, a Theranos investor, returns to the stand for x-exam.

Eisenman was a difficult witness for the defense lawyers. He refused to go along with some of Kevin Downey's yes/no questions and it got testy.

https://twitter.com/eringriffith/status/1458580903949570051

Eisenman's direct testimony also brought up some pretty wild emails between him and Holmes+Balwani. They basically treated him like a stalker for asking for more info and threatened legal action. And then, incredibly, he still invested more $$ after that!

https://twitter.com/eringriffith/status/1458580903949570051

The same dynamic is happening today. Downey asks about general rules around sharing information with investors and he pushes back about NDAs and the specific situation at Theranos. Downey strikes several attempted answers.

Eisenman testifies that he believes Holmes was hiding information from him. Downey tries to strike that, too, and the Judge says no - "that was his understanding of his opinion."

In 2020 Eisenman emailed Holmes asking why Larry Ellison was no longer on the board.

Holmes responded "there is no new information to be shared with our investor base."

Downey is trying to make the point that Eisenman was demanding special information.

He asked whether Eisenman knows that Theranos had no legal obligation to update him with "specific" and "individual" information he was requesting.

The email about Larry Ellison was meant to show that Theranos was providing general information to all investors. Eisenman pushes back there, too. "There was no communication to investors generally, either”

and "I don't think they communicated that to their investor base."

We see an email from Holmes to Eisenman from 2012, after he reached out to Don Lucas: “No, Alan it has been about that long since you decided to start harassing our chairman.”

Eisenman says that is a "total mischaracterization."

Eisenman also reached out to Bill Frist through his father-in-law, Joel Gordon, a wealthy political donor in Tenn. Downey asks why he wanted that outreach to be secret. Eisenman says that comment is "misleading."

Uh ohhh, Downey points out that Eisenman flew back to Houston after his initial testimony Wednesday evening and immediately violated his directive to not discuss the trial with anyone.

Downey: "How long did it take you to violate that directive? Was it less than about 15 hours?"

Eisenman: "I don't recall."
😬

We were going to see the email he sent to Agent Hernandez on the prosecution's team offering "some reflections" on his testimony, but prosecution objected to admitting evidence that was 90% redacted.

Agent Hernandez called Eisenman and said to not communicate with the govt about the substance of the trial.

Eisenman then apparently sent another email to the govt the next morning and the govt called *again* with Mr. Bostic, saying not to communicate with them.

Eisenman: "I'm a smart guy."
Downey: "Did the govt. agree with that smart judgement?"
(prosecution objects)

Over the weekend defense subpoenaed Eisenman for his notes about the Theranos investment and Downey demands he gives them to the court admin. Eisenman wants more info on the process.

Oops, already broke the thread.

https://twitter.com/eringriffith/status/1460309508459089923

It is not great to have examples of government agents telling Eisenman "do not contact us" juxtaposed with emails from Holmes telling him "do not contact us."

Lots of cross-talk chaos between Eisenman, Downey, the court reporter and Judge Davila, who jumps in: "Let's reset. It goes by question and answer. The lawyers get to ask the questions and it's your privilege to answer them."

Downey makes the point that Eisenman chose to invest more into Theranos, despite the fact that Balwani had "ignored or intimidated" him.

Another scathing email from Balwani. Eisenman emailed about a news article that says Theranos could become obsolete.

Balwani: “I think these emails are beyond ridiculous.”

https://twitter.com/eringriffith/status/1460313590854873091

During our break (is it too early for lunch?), the lawyers from both sides are going to review the notes that defense filed a subpoena for in a side room.

The lawyers are still going over the notes and I accidentally burst into a dead silent courtroom cackling over a PJs reference by @adamlashinsky vulture.com/article/succes…

Defense counsel Downey: "As I suspected there are some indications in the notes that the notes are not what Mr. Eisenman described in his direct examination. ... At some point add'l info has been inserted in a different color ink."

wait did the judge just compare the trial to A Moveable Feast?

Or is this another American Bird Association situation...

We are back to the legal boilerplate fight. Eisenman refuses to answer yes/no questions about it. And remember: legal disclaimers are there for a reason! They will be used against you in court!

Downey asked Eisenman about his relationship with the prosecution. He gives squirrely answers and we eventually see an email from 2018 where Eisenman says “You know that I am a faithful part of your team and will do all that I can to help your case."

Eisenman says "It's a little misleading - we are on the same page because I feel that I was lied to and cheated from the company."

Downey says that Eisenman has asked govt agents to look into a different investment where he lost money. Judge sustains objection and that is the end of cross-exam of Eisenman.

In redirect Eisenman speaks about the contrast between the Theranos hype - all their progress and demand in the market - and the legal disclaimers that come with investing (this is a high risk growth company, you could lose all your money etc etc).

The power of hype is strong!

In cross-exam Downey had discussed how much Eisenman's stock in Theranos was worth. In redirect, Bostic asks: What is your understanding that your stock in Theranos is worth today?

Eisenman: "It's not an understanding, it's a conclusion. It's worth zero."

We're not done with Eisenman as there is still a matter to debate about his notes. The defense wants a color copy so they can examine all the various inks used. 🎨

Ok that's it for today - short day. Buckling in for 4 more days of testimony!