During a hearing held via Zoom, U.S. District Judge Edward Davila said the October trial date is "just not going to happen," but he's "hopeful" to get the case tried in the first quarter of 2021. However, he refused to officially scrap the October trial date outright, explaining that he wants the parties to stay on pace to get their pretrial motions filed and litigated so they're ready for trial.
The judge's comments came during a hearing on multiple motions that are pending in criminal cases against Holmes and Theranos' former chief operating officer Ramesh "Sunny" Balwani. The pair face charges of defrauding investors and uninsured patients by making false claims about the capabilities of their once high-flying startup's blood testing technology.
After the indictment was filed in 2018, Judge Davila this year cut some charges and severed Holmes' trial from Balwani's case. He set Holmes' trial for August and Balwani's for April 2021, but in the spring the judge pushed back Holmes' trial to October due to the pandemic.
On Monday, Holmes' counsel, Lance A. Wade of Williams & Connolly LLP, asked the judge to push her trial to April 2021, arguing that the length of the trial and amount of witnesses will pose unique challenges and health risks, and it wouldn't be safe to hold it in October.
Wade noted that the government has identified roughly 170 witnesses it plans to call, and many will have to travel from hot-spot states, including Arizona, Florida, Texas and Georgia, to testify. He also opposed holding the trial virtually and pointed out that at least some of it will have to take place in court.
Prosecutor Robert S. Leach said repeatedly that the government is prepared to go to trial in October, but he also said it would agree to push back the trial date to February 2021 at the latest. He added that there are only a handful of witnesses over the age of 65 who could testify via video deposition if necessary.
Judge Davila recognized the challenges posed by the coronavirus, and ordered the parties to meet and confer to come up with a potential new schedule.
Aside from discussing the trial schedule, the judge heard arguments on multiple motions, including one to dismiss the government's information sheet and another to exclude certain testimony from doctors who are expected to testify on their concerns about the accuracy of Theranos' devices.
Holmes' and Balwani's counsel generally argued that the government's allegations and evidentiary notices were too broad and must be more specific, but prosecutors argued that the defense teams are trying to hold the government to a heightened pleading standard as though this were a civil fraud case.
After hearing arguments on the motions, Judge Davila questioned whether the motions were either premature or mooted by a superseding indictment that the government filed last week, particularly since the defendants said they plan to file a motion to dismiss the new indictment in part.
The judge said he wouldn't rule on the outstanding motions until after the parties meet and explain to the judge how the superseding indictment impacts the issues discussed in the motions. He added that he's "not inclined to grant" the motion to exclude the witness testimony.
As of Monday, the judge had not yet set the date for the next case management conference.
The government is represented by John C. Bostic, Jeffrey Schenk, Robert S. Leach and Vanessa Ann Baehr-Jones of the U.S. Attorney's Office for the Northern District of California.
Holmes is represented by Kevin Downey, Lance A. Wade, Patrick J. Looby, Amy Mason Saharia and Seema Mittal Roper of Williams & Connolly LLP, and John Cline.
Balwani is represented by Jeffrey B. Coopersmith, Steve Cazares and Amanda McDowell of Orrick Herrington & Sutcliffe LLP.
The case is U.S. v. Holmes et al., case number 5:18-cr-00258, in the U.S. District Court for the Northern District of California.
--Editing by Adam LoBelia.
For a reprint of this article, please contact reprints@law360.com.