Ex-Theranos CEO Wants Too Much Discovery, Prosecutors Say
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Law360 (August 3, 2020, 9:13 PM EDT) — Prosecutors are urging a California federal judge to deny the bulk of former Theranos CEO Elizabeth Holmes’ request for information about the grand jury that indicted her, saying she should only get the master list from which the names were picked, not the individual jurors who were selected.
In a response filed Friday, prosecutors said Holmes’ bid for deeper discovery into the grand jury discovery process is a strategy becoming prevalent among defendants indicted during the COVID-19 pandemic, but that Holmes’ request is overly broad and alleges without basis that the jury was selected unfairly.
Holmes and Theranos’ former Chief Operating Officer Ramesh “Sunny” Balwani face separate charges of defrauding investors and uninsured patients by making false claims about the capabilities of their once high-flying company’s blood-testing technology.
Prosecutors filed a superseding indictment against Holmes in July, and Holmes asked U.S. District Judge Edward Davila to authorize discoveryinto the grand jury selection process, as California’s Northern District suspended grand juries in late April until an undisclosed date in June due to the pandemic.
Holmes argued that she has a right under the Sixth Amendment to a jury drawn from a “fair cross section of the community.” But changes to grand jury selection procedures that have occurred due to COVID-19 raise questions about whether her rights have been violated, she said.
In Friday’s response, prosecutors said she is not entitled to the bulk of her 21 requests under the Jury Selection and Service Act, which grants access to certain materials to defendants wishing to challenge the legitimacy of the grand jury that indicted them.
Under that act, the parties are entitled to a limited set of data, amounting to the county of residence, ZIP code, and race and age of the people on the master list from which the grand jury was selected, and prosecutors said Friday that this is all the information Holmes would need to challenge the indictment.
According to Friday’s filing, only the master list is needed because at issue isn’t the actual selection of the grand jury but whether they were selected at random from a fair cross section of the community.
Prosecutors pointed to a case in New York, U.S. v. Shader, in which the defendantsmade requests nearly identical to Holmes’, the bulk of which the court denied, deciding that the requested information was not necessary for the defendant to decide whether to challenge the selection procedure.
The government urged the court to deny the request except for the items allowed by the JSSA and, if the court allows Holmes to inspect the data, to enter a protective order to prevent the disclosure of personal identifying information of the people listed in the record.
A spokesperson for the government and an attorney for Balwani declined to comment Monday.
Representatives for Holmes could not immediately be reached for comment Monday.
The government is represented by John C. Bostic, Jeffrey Schenk, Robert S. Leach and Vanessa Ann Baehr-Jones of the U.S. Attorney’s Officefor the Northern District of California.
Holmes is represented by Kevin Downey, Lance A. Wade, Amy Mason Saharia and Katherine Trefz of Williams & Connolly LLPand John Cline.
Balwani is represented by Jeffrey B. Coopersmith, Steve Cazares, Walter F. Brown, Melinda Haag and Randall S. Luskey 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.
–Additional reporting by Dorothy Atkins, Kat Greene and Frank G. Runyeon. Editing by Brian Baresch.
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