Theranos founder Elizabeth Holmes wants trial preparations exempted from safety orders

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Former Theranos CEO Elizabeth Holmes (left) appears in federal court for a status hearing on July 17, 2019 in San Jose, Calif. - Kimberly White/Getty Images North America/TNS

SAN JOSE, Calif. — Theranos founder Elizabeth Holmes wants the judge overseeing her criminal fraud case to order her legal team’s trial preparations essential and exempt from coronavirus safety restrictions so lawyers and their agents can perform tasks that they say may provoke hostility.

“While we are hesitant to encourage any person to undertake actions that are contrary to advice and directions from public health officials or impose any burdens on health care professionals or institutions, we must adhere to the direction provided by this court regarding the time and manner in which it wishes to proceed with this case,” Holmes’ team said in a court filing this week.

“Trial-preparation tasks will require members of the defense team or agents we retain to undertake actions that public health officials have deemed to be inadvisable and/or unlawful.”

On March 20, the court ordered the fraud cases of Holmes and former Theranos president Sunny Balwani to be separated, with Holmes’ trial to go ahead as scheduled Aug. 4 after jury selection starting July 28.

Holmes, a Stanford dropout, was indicted along with Balwani in June 2018 on 11 felony fraud counts, with federal prosecutors accusing her of misleading doctors, patients, government agencies, business partners and the company’s own board with claims that Theranos’s purportedly revolutionary blood-testing systems could conduct a full range of tests using just a few drops of blood.

As her team prepares for trial, travel for meetings may break orders passed in response to the pandemic, the filing said. Her lawyers and their agents will also need to serve subpoenas and interact with witnesses, bringing them into contact with health care professionals, labs and testing companies, the filing 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 the filing made Monday in federal court in San Jose.

Holmes’ lawyers said in the filing that they’re seeking an order from Judge Edward Davila directing them to continue their preparations and to make plain that those preparations are “essential activities, so that we stay in compliance with all state and local laws and so we may use that order with state and local authorities and in dealings with witnesses and other third parties who may object to the manner in which we are proceeding.”

The downtown San Jose federal courthouse where Holmes’ case is being heard was shut down in mid-March 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.

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©2020 The Mercury News (San Jose, Calif.)