Businesses scramble to meet social distancing deadline; Theranos legal team denied exempt status from virus rules.
Holmes' lawyers wanted to be considered an essential service
Theranos founder Elizabeth Holmes asked the federal court judge overseeing her criminal fraud case to order her legal team's work essential and exempt from coronavirus safety restrictions so that her lawyers and their agents could perform tasks they say might provoke hostility. But U.S. District Court Judge Edward Davila on Wednesday wasted no time attacking the request.
“You're asking the court to violate other orders in the midst of a national crisis,” Davila said in a case-status meeting held by conference call because of shelter-in-place orders. “I guess I'm just concerned about the tone of your order. The tone of it is, ‘Well, Judge, if you want us to go forward with this hearing you're going to have to order us to violate other jurisdictions' orders and that's what we're asking you to do in a very publicly filed way.'”
Davila went on to accuse Holmes' defense team of seeking an order that would let them violate local coronavirus restrictions and then point a finger at a federal court and say, “They're making us do it.”
Holmes' attorneys argued in court filings this week that the restrictions imposed to protect public health amid the pandemic would get in the way of preparation for her trial, scheduled to start this summer.
Holmes, a Stanford dropout who founded Palo Alto blood-testing startup Theranos, was indicted in June 2018 on 11 felony fraud counts, with fed
eral prosecutors accusing her of misleading doctors, patients, government agencies, business partners and the company’s own board with claims that Theranos’ purportedly revolutionary blood-testing systems could conduct a full range of tests using just a few drops of blood. Davila last month ordered the fraud cases of Holmes and former Theranos president
Sunny Balwani to be separated, with Holmes’ trial to start as scheduled Aug. 4.
But her legal team argued that as they prepare for trial, travel for meetings could break orders passed in response to the pandemic. Her lawyers and their agents would also need to serve subpoenas and interact with witnesses, bringing them into contact with health care professionals, labs and testing companies, her team said.
“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,” said one of the filings.
Holmes’ lawyers said in a filing that they sought an order to make plain that their preparations are “essential activities.”
Lance Wade, a lawyer for Holmes, said Wednesday he did not intend to downplay the coronavirus crisis, but that he and his legal team needed “protection from some of these laws” in order to “perform tasks that are necessary.”
Davila suggested, “Let’s just cut to the chase,” and said, “What you’re saying, Sir, is that because of the current crisis it’s almost impossible for you to do what you need to do.”
After confirming with Wade that Holmes’ legal team has been abiding by shelter in place rules, the judge noted that meetings with witnesses could be done via videoconference. The federal government has been serving subpoenas over the past two weeks amid pandemic-related restrictions, and also has issues with meetings but is “pushing through,” prosecutor Robert Leach said on the call.
Davila, emphasizing that he did not want to delay Holmes’ trial, nevertheless suggested that might occur. “We’re in a different landscape now because of the crisis,” Davila said. “It’s just a terrible, terrible situation that we’re all facing across this country and across the globe.”
The downtown San Jose federal courthouse where Holmes’ case is being heard was shut down in midMarch after someone who visited it three times was subsequently treated for COVID-19. The judge issuing that order, Phyllis Hamilton, said the closure would be in effect until April 7 but could be extended. Hamilton had earlier issued an order closing to most of the public all federal courthouses in the Northern District of California and postponing jury trials until May 1.