[U] Nothing New On Martin (Yet), But Dow Jones Has Won A Broad UNSEALING Victory, On Holmes’ Court Filed Materials…

UPDATED: 08.28.2021 — Here is what the unsealed motion to separate the trials of Sunny and Ms. Holmes alleges (among other matters): sexual abuse by Mr. Balwani. End update.

We are perhaps a week or more away from seeing any written outcome from yesterday’s settlement conference in Manhattan on the civil antitrust matters (re Daraprim^®)… but as expected, a free press argument just prevailed this afternoon, in San Jose’s federal courthouse — to unseal almost all of Ms. Holmes’ previously sealed documents on file there, with jury selection beginning next week.

Here is that:

“…Court hears argument regarding Dkt. Nos. [929], [930], [931], [932], [934], [938] and GRANTS the Motion [881] of Dow Jones & Company to Intervene for Limited Purpose of Seeking to Unseal Judicial Records in the Court’s File. Court to issue order….”

Now you know — and we deeply appreciate the sacrifices made by our troops and their loved ones… in Kabul this week (and all over the globe, over the last two decades, minimum). We also look with more than a little trepidation, at Ida — as it barrels in toward the Big Easy (thinking of extended fam, there) all as we fade into the high Rockies for ten or so days…. may be scarce here. Smiling just the same….

Whilst We Wait… We Turn To Ms. Holmes’ Matter… Shocking Actual Patient Data Emerging…

Hard to see how she doesn’t get convicted, on the below, alone. I cannot even imagine what it would be like to be told (falsely, it turns out — due to a non-working Theranos “prototype”) that one is HIV+. That was the risk of getting / using / believing a Theranos assay, at your local Walgreens — in Arizona in 2017. This is an FBI interview summary Full USDC public filed court document here.

Of course, Ms. Holmes has demanded the entire medical history and records of the patient whose name is redacted below (she won’t get them):

As I say… hard to see how she avoids prison now. This is the “preview” of the evidence she will face — now that we are days away from formal jury selection next week. To be fair, here is how her defense team frames the above — disclosed by Ms. Holmes, herself.

Onward… grinning.

The AUSAs File In Support Of Broad Unsealings In Holmes Matter — Especially As To Her Mental Health Defense — If She Doesn’t Withdraw It Very Promptly.

The able AUSAs office in San Jose filed papers overnight to urge the Court to unseal most of Ms. Holmes previously sealed filings. We are on the eve of trial — and if she doesn’t want her mental health issues (whatever those might entail) laid bare… she needs to withdraw that line of defense.

Here’s the main daggerish thrust of it all:

…There are currently no reasons to shroud from the public’s view documents and hearings that relate to several key aspects of this criminal case, including filings and hearings relating to severance and filings and hearings relating to Defendant Holmes’s Federal Rule of Criminal Procedure 12.2 defense. First and foremost, we are now on the eve of Defendant Elizabeth Holmes’s trial. If Defendant Holmes is going to raise her Rule 12.2 defense — as she has repeatedly insisted — then the parties will need to address the underlying topics in mere weeks during voir dire and opening statements. Indeed, the Court indicated at the August 16, 2021, status conference that it intends to ask jurors questions during voir dire that are connected to the topics of the Rule 12.2 defense. 8/10/2021 Hearing Transcript at 31:4–21.

Thereafter, both sides may choose to ask follow-up questions to potential jurors, will ask witnesses questions related to Defendant Holmes’s Rule 12.2 defense, and it would be inappropriate for defense counsel to request the Court to close the courtroom during portions of witnesses’ testimony — or for the entirety of specific witnesses’ testimony — simply to maintain the sealed nature of this potential defense. Given the potential effect on the parties’ trial preparation, the government urges the Court to resolve this motion promptly and before the start of jury selection for Defendant Holmes’s trial. The underlying information will soon be made public, to the extent it is not already public, and thus there is no longer any reason to keep the broad topics shielded from public scrutiny. Similarly, with Defendant Balwani’s trial set to begin shortly after Defendant Holmes’s trial, there is no longer any reason to keep the motion to sever the trials under seal….

We are far afield from the Court’s original intention expressed in its initial sealing order and the public has been kept in the dark for long enough….

With respect to proceedings and filings connected to Defendant Holmes’s Rule 12.2 defense, the government is respectful of Defendant Holmes’s privacy and acknowledges that some details may require redaction. But courts have long acknowledged that privacy interests are best protected and balanced against the First Amendment considerations by narrowly tailoring any sealing from the public, such as through the use of redactions rather than wholesale sealing. See United States v. Carpenter, 923 F.3d 1172, 1179–80 (9th Cir. 2019)….

Now this will be… fascinating — her team has perhaps only a few days to withdraw the defense, before the able Judge Davila enters an order agreeing with Dow Jones, and unseals essentially all of it.

Stay tuned. G’night, all…. final concert of the Summer was simply… outstanding. Grin.

[Tangent:] Merck’s Keytruda® Is Being Studied With a Wide Range Of Next-Gen Candidates, In Solid Tumor Immuno-Oncology: The “HOWL” Edition…

“I didn’t start the howl. . . you started it. . .” Reference, Zootopia. [We are still killing time here, loading some content from another of our properties, as it relates to life-sciences.]

I must confess — I love that this company’s ticker symbol is “HOWL”. I also am very hopeful that the delivery of its recombinant IL-2 in solid tumor patients (now in clinical trials). . . will mitigate the off-target effects more than occasionally seen in such patients, as a combination therapy with Merck’s juggernaut.

In any event, this is a big boost for Dr. Isaacs’ thesis, at Werewolf:

. . .“Werewolf Therapeutics is delighted to be partnering with Merck to study the combination of KEYTRUDA and WTX-124, a molecule designed to deliver IL-2 preferentially to the tumor microenvironment and the first of Werewolf’s INDUKINE portfolio to enter the clinic,” said Randi Isaacs, M.D., Chief Medical Officer of Werewolf Therapeutics.

“The clinical benefit of targeting IL-2 as a treatment for cancer has long been established; however, its utility has been limited by challenging toxicities. We believe WTX-124 has the potential to enhance therapeutic options for cancer patients as a monotherapy and when combined with checkpoint inhibitors like KEYTRUDA. . . .”

Onward, and thanks go to our erstwhile long term anonymous commenter for this head’s up — back into the power alley material! Grinning. . . ever grinning — STEM again, on fleek. . .

नमस्ते

[U] In Three Hours, The Right Of The Free Press — To See Judicial Documents Filed By Elizabeth Holmes (via Dow Jones)… Will Be Tested.

UPDATED [Live Blogging]: The able USDC Judge Davila is explaining “how difficult administratively” it is to unseal voluminous criminal filings in the ECF docketing software (once sealing was granted). And this matter has… voluminous filings. There will be redacted government filed matters that will now be unsealed, as redacted.

But Judge Davila will also take the matter under advisement, with an instruction to Ms. Holmes’ counsel, to get redacted versions on file, for judicial review. He seems more and more likely to do it on a rolling basis, as trial approaches. But he’s clear that redacted versions must be on file, available to the public, as the documents are introduced by counsel, at trial. He did say that he expects it all to be done BEFORE September 7.

Counsel for Dow Jones is now noting that his client has an indication that there is also (under seal) motion practice related to re-adding Sunny to Elizabeth’s trial, and additional briefing on disqualifying Ms. Holmes’ proposed mental health expert testimony.

Judge Davila thinks he will get something out by end of week, on a rolling basis, at least. End update — 11:58 AM EDT. Next status call on August 16, at Noon Eastern.

Ms. Holmes has waived her right to be personally present, when the motion to unseal her filings is argued by Zoom this morning, at 11 AM EDT.

[Ed. Note: I’ll likely live blog it, since the shutdowns / ground stops all last night, at O’Hare (for tornadoes) meant I cannot make it, in time — for the West Coast sports surgery, on my son. So… I won’t now be on a plane, afterall.]

I will listen in at 8 AM PDT, as this, too — this… is important. The media specifically, and the people, generally — do have a right to know what federal felony criminal indictees are claiming, to try to avoid responsibility for vast securities frauds and wire frauds. [And putting experimental patient lives at risk, allegedly.]

It is highly likely that some part of the now over 30 sealed documents are NOT ALL strictly private health information — and even if they are, once trial begins, and she puts her mental state in issue, by claiming it excuses some or all of her conduct in some fashion, all these records will be unsealed, and open — as public trials (and the giving of evidence) are a 240 year tradition in the United States. So, at best — she only delays the… inevitable.

Unless she (wisely, I might intone) abandons those defenses, at trial, of course. They almost never help… much. [C’mon — no older man “made” her do anything, at all.]

Onward, keeping a very positive karmic vibe today and into tomorrow. Grin.

Elizabeth Holmes Has Filed At Least Five Recent Motions, To Limit The AUSAs’ Evidence At Trial…

She is certainly getting the best legal defense vast wealth… can buy.

However, it is unlikely to matter (much).

I will not link all of them, or even report on the back and forth — but here is one more example, of what I’m talking about. I won’t bother, because there is a veritable… cornucopia, of indisputably devastating evidence that WILL be admitted.

And while we wish her fine infant, Will, all the best in his new life, it will be especially tough to grow up without daily access to his mother — whatever else she might be, she will be a mother… and “a mother’s love… is a mother’s love….”

There is quite literally… nothing that will substitute. And this particular Will… will be undoubtedly somehow smaller, for her choices.

Wrong — but true.

Out.

[U] Welcome, William Holmes Evans — Born, July 10, 2021… In Redwood City, California.

I will withhold all other comment, since all new life ought to be celebrated — on arrival.

That is all you will read here.

Welcome, young William. Welcome.

That — for first born boys… is quite an auspicious date, indeed. Know that (and that is all I will say about that).

Onward, grinning… [UPDATED, late this evening, and perhaps as if to strike back at the MSM outlets (ABC had it first, I think) having published a birth certificate found as a public record, in Redwood City… Team Holmes has now filed a lengthy, if not terribly weighty motion to strike the testimony of an ex-Theranos lab director named Das. The claim here is the government identified him too late — around one month before trial. This is one of her own direct hires… I think he’ll be allowed to testify.]

Sorry — couldn’t help myself. G’night.

Today, Holmes Loses — Completely — On Her Motion To Suppress Evidence From Patients, And Customer Complaints

All the complaints may come in; as may any patient data that was in error. The below obfuscation, from lawyers who already knew the government had placed a do not destroy evidence directive with the company… both aided in, and encouraged, making that data so inaccessible as to have effectively destroyed evidence.

Here is the able USDC Judge Davila’s 18 page order, and a bit of it, below.

I think WilerHale ought to be embarrassed by this sort of open gamesmanship (bordering on lawlessness):

“…On June 5, 2018 — one day after the grand jury subpoena seeking a copy of the LIS database issued — counsel from WilmerHale emailed Taylor “to touch base on LIS” and suggested that “we should just give DOJ the database and let them figure it out. . . . [T]hey won’t know what to do with it and. . . the people who do are in India. Our experts are the only ones who understand it, and we don’t want to make them percipient witnesses. Is there anyone left at the Company who could assist us in actually getting the database to the government?” Saharia Decl., Ex. 90, Dkt. No. 732-4 at WH000002107; see also Wade Decl., Ex. 10, Dkt. No. 855-1 at 3, 5–6. Subsequent emails between WilmerHale attorneys and Theranos inhouse counsel discussed what was necessary to produce a copy of the LIS database to the Government. Saharia Decl., Ex. 112, Dkt. No. 736-7 (June 13, 2018 email from Xan White to two WilmerHale attorneys, discussing obligations regarding document preservation and the “ongoing litigation hold,” in addition to the need to “potentially transfer the preserved material to counsel for the individual defendants whose actions may be unresolved at the moment the company ceases to exist”); Leach Decl., Ex. 64, Dkt. No. 681-28 (June 27, 2018 email from a WilmerHale attorney to an unknown recipient stating that “we think it is a better strategy to just dump the entire bespoke database on the Government”). Internal emails between Theranos employees revealed that the LIS database copy would be encrypted and require not only a password but also a private key to access the information in the database….

WilmerHale’s email to the Government attaching the transmittal letter included the password, but failed to mention that a private key would also be necessary to access the LIS database. Leach Decl., Ex. 71, Dkt. No. 681-35. In subsequent communications with the Government, WilmerHale confirmed that it was unaware of any additional information or software that would facilitate government access to the LIS database information. Saharia Decl., Ex. 101, Dkt. No. 735-2 at 2; Brady Ltr. at 23. Immediately after production of the LIS database copy, Theranos began moving to decommission the original LIS database at its Newark facility….

…[T]he Court DENIES Holmes’s request to suppress evidence of customer complaints, testing results, and the CMS Report.

And so — being an absolute a-hole… also turns out to violate the law.

Congrats, Sunny and Elizabeth… you’ve won the felony indictment awards 2018.

Onward, grinning… this trial will indeed be a barn-burner. [She should have delivered by now.]

Martin’s Notice Of Appeal Was Bounced This Morning, For Technical Errors. Must Re-File.

Here’s the latest, in the largely preposterous ongoing comedy of errors, related to Martin’s upset with the idea of a receiver selling what were his shares in Phoenixus AG:

…The filing is deficient for the following reason(s): the order/judgment being appealed was not selected. Re-file the appeal using the event type Corrected Notice of Appeal found under the event list Appeal Documents – attach the correct signed PDF – select the correct named filer/filers – select the correct order/judgment being appealed. [USDC Court Staff 08.02.2021]….

Of course she may re-file, and correct the error. But as we’ve said over the weekend — it is not at all clear that this is yet a final order, to appeal from. The Receiver candidate is still deciding whether he will accept the statutory fee (one he knew would be the rule, when he let Martin put his name in the ring).

Moreover, this would be an appeal from an appointment of a person Martin himself chose. That nearly dooms it, but then there is the posture: a clear statute grants Dr. Koestler the right to a turnover and receiver, as a long jilted judgment creditor, where all appeals on the merits of the judgment have lapsed, years ago now — but the debtor (Martin) hasn’t paid, despite a very substantial, and well-identified asset — in government custody, to boot — both the asset, and the debtor.

It is hard to imagine a set of invented facts that Martin might aver (since his trial counsel has offered no case- or statutory- law to suggest that the appointment was in any manner irregular or unconstitutional), to thwart a statutory remedy — one for which he was allowed to choose the actor.

In a word — doomed, to failure.

Onward — grinning, on a cool clear August Monday morning.