Theranos founder Elizabeth Holmes has lost her latest bid to keep communications involving her and her company's former law firm, Boies Schiller Flexner, out of her upcoming fraud trial on the grounds that they are shielded by attorney-client privilege.
U.S. District Judge Edward Davila in San Jose, California, on Thursday overruled an objection Holmes lodged last month, leaving in place a magistrate judge's finding that the disputed documents were not privileged.
Lance Wade and Kevin Downey of Williams & Connolly, lawyers for Holmes, did not immediately respond to requests for comment. Nor did the office of the U.S. Attorney for the Northern District of California, which is prosecuting the case.
Prosecutors say that Holmes and former Theranos chief operating officer Ramesh "Sunny" Balwani defrauded investors and customers by falsely claiming to have developed technology that could run a wide range of tests on a single drop of blood. The defendants have pleaded not guilty.
Holmes has repeatedly sought to exclude communications with Boies Schiller Flexner and its top attorney David Boies from her trial, scheduled to begin next month. The disputed materials include communications between Theranos personnel, including Holmes, and the firm, but none exclusively between Holmes and the firm, according to court documents.
U.S. Magistrate Judge Nathanael Cousins in June found that the documents were not privileged because Boies and his firm represented Theranos, not Holmes.
In her objection to that order, Holmes said that, while she never officially retained the Boies firm, it appeared as counsel of record for her in court proceedings.
Davila, however, said that was not enough to overturn the magistrate judge's order.
"Given the lack of personal engagement letter or retainer agreement presented and conflicting statements made about David Boies and Boies Schiller's representation of Theranos and Holmes, the scope and length of the representation remains unclear," he wrote. "Thus, the court does not find there was clear error committed in relation to the evidence considered when evaluating the scope of Holmes' attorney-client relationship with Boies Schiller."
Holmes has also fought, so far unsuccessfully, to keep other key evidence out of the trial, including customer complaints about Theranos tests and a 2016 report from the U.S. Centers for Medicare and Medicaid Services finding extensive quality control issues at the company.
Before its collapse, Theranos was valued at $9 billion and made Holmes, a Stanford University dropout who founded the company in 2003 at age 19, a Silicon Valley star.
The case is U.S. v. Holmes, U.S. District Court, Northern District of California, No. 18-cr-00258.
For the government: Assistant U.S. Attorney Jeff Schenk
For Holmes: Lance Wade and Kevin Downey of Williams & Connolly
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