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Boies, Kissinger, Mattis Make Witness List in Holmes Prosecution

Aug. 30, 2021, 9:56 AM

Theranos Inc. founder Elizabeth Holmes’ criminal trial is set to begin Tuesday with a who’s-who list of prominent witnesses that could testify about the spectacular rise and fall of the blood-testing startup.

The trial in a federal court in San Jose, Calif. will focus on the events that led to the collapse of the company under its CEO, Holmes. The would-be billionaire faces fraud and conspiracy charges for lying about Theranos’ ability to perform a wide range of tests on a small sample of blood.

The demise of Theranos spurred a legal ethics debate over the conduct of the company’s lawyers, including David Boies, among the country’s best-known litigators and co-founder of Boies Schiller Flexner. He is one of several prominent names to appear on a list of witnesses included at the end of a juror questionnaire filed with the court in August.

Boies declined to comment on his work for Holmes and the possibility of taking the witness stand. He told Bloomberg Law generally that he believes in “zealously” representing clients within ethical boundaries, regardless of any public criticism.

“A lawyer’s responsibility first is to the justice system, second is to the client and nineteenth or twentieth is to themselves,” Boies said. “If you ever get to the point where you’re more interested in what people are saying about you than what they are saying about your client, you ought to find a new line of work.”

Holmes, the daughter of former Enron Corp. executive Christian Holmes IV and his wife, Noel, a former congressional aide, faces nearly a dozen counts of wire fraud and conspiracy to commit wire fraud. She is now represented by lawyers from Williams & Connolly.

Other A-listers who could take the stand at Holmes’ trial are diplomat-turned-geopolitical consultant Henry Kissinger, former Defense Secretary James Mattis, and media mogul Rupert Murdoch.

Boies has previously defended his actions advising Holmes and Theranos, for which he was reportedly paid in part in company stock. He told the New York Times in 2018 that his firm ended that relationship after it became clear that Holmes was no longer taking his advice and had delayed independent testing meant to verify that the company’s blood-testing technology worked.

Boies could be called to testify on false and misleading representations that Holmes allegedly made to Theranos’ board of directors, of which he was once a member, as well as a “culture of secrecy” created by non-disclosure agreements and threats allegedly made to doctors, journalists, and patients wishing to talk about negative experiences or disclose negative events involving the company, according to court filings.

“Facing David as a lawyer is difficult, facing him as the witness was challenging,” said Charles Stillman, a white-collar litigator at Ballard Spahr who questioned Boies on the stand in a nearly two decades-old fraud case.

Stillman represented former Tyco International Ltd. CEO L. Dennis Kozlowski in a case that saw Boies testify against Kozlowski. Stillman called Boies a great lawyer but cautioned that courtroom abilities do not necessarily translate to the witness stand.

“Any witness has the task of trying to honestly answer the question asked,” said Stillman, a former head of Ballard Spahr’s New York office. “But the lawyer as witness can’t help but try to be a lawyer and analyze the question before being a witness.”

Lawyers May Take Stand

The witness list in Holmes’ case also includes former Theranos general counsel Heather King, who returned to Boies Schiller as a litigation partner in 2016 after spending a year-and-a-half as the company’s legal chief.

Karen Dyer, another former Boies Schiller litigator who left the firm earlier this year for Cadwalader, Wickersham & Taft, is also on the witness list.

Neither King or Dyer responded to requests for comment.

Bloomberg News, citing recently unsealed court filings, reported Saturday that Holmes’ current legal team intends to base part of her defense on “a decade-long campaign of psychological abuse” she suffered during a relationship with former Theranos president and COO Ramesh “Sunny” Balwani.

The witness list in Holmes’ case includes practicing lawyers, both in-house and outside counsel, as well as other attorneys who have left the law behind.

Alexander “Xan” White: A former in-house counsel at Theranos, White went on to work for the Health and Human Services Department, according to records on file with the State Bar of California.

Daniel Mosley: The former head of the trusts and estates practice at Cravath, Swaine & Moore lost $6 million investing in Theranos, according to the Wall Street Journal. Mosley is now a partner at BDT & Co. LLC, an investment firm founded by Byron Trott, Warren Buffett’s longtime banker. The Walton family, heirs to the Walmart Inc. fortune, lost a reported $150 million in Theranos’ failure.

David Taylor: The former Munger, Tolles & Olson associate joined Theranos as senior litigation counsel in 2016. He was subsequently promoted to acting general counsel, general counsel, and, finally, CEO in 2018 after Holmes stepped down from the role. Taylor subsequently launched his own crisis management firm before joining San Francisco’s Keller Benvenutti last year. He now leads the crisis management practice at the firm.

James Topinka: A veteran Bay Area corporate lawyer, Topinka has been a partner at Davis Wright Tremaine in San Francisco since 2015. The firm represented Balwani, whose criminal trial is set for next year. Jeffrey Coopersmith, a former Davis Wright partner who joined Orrick in 2019, represents Balwani in that case.

Jan Stern Reed: The former general counsel at Walgreens Boots Alliance Inc., Reed is now a board member at AngioDynamics Inc. and Avita Medical Ltd. Walgreen sued Theranos in 2016 over a blood-testing partnership it signed with the company three years earlier. Walgreens terminated its agreement with Theranos in mid-2016, shuttering 40 testing centers in its retail stores.

Kimberly Summe: The general counsel of Sequoia Capital Global Equities previously served as legal chief for Partner Fund Management LP, which settled two lawsuits with Theranos in 2017 over its investment in the company.

Michael Mugmon, Matthew Benedetto, Katie Moran, and S. Zubin Gautam: The foursome worked together at Wilmer Cutler Pickering Hale and Dorr, which in late 2016 began taking over most of Theranos’ litigation and corporate work from Boies Schiller. Mugmon and Benedetto are partners at WilmerHale, while Moran is special counsel. Gautam, a former senior associate, left the firm in 2019.

Mona Badani Ramamurthy: A former lawyer at Morgan, Lewis & Bockius, she worked in-house at Theranos as an employment counsel and head of human resources for the company.

Robert Shapiro: The former general counsel at G.D. Searle & Co., a current subsidiary of Pfizer lnc., is now a managing director and co-founder of Chicago-based venture fund Sandbox Industries LLC. The Journal reported that Sandbox bought a stake in Theranos, which put Shapiro on its board.

Rochelle Gibbons: A staff attorney who helps run Immigration Services of Mountain View in California, she is also the widow of Ian Gibbons, a former biochemist and chief scientist at Theranos. Ian Gibbons reportedly committed suicide in 2013 before being called to testify in a patent case.

Roger Parloff: The Yale Law School graduate and longtime senior reporter for The American Lawyer and Fortune wrote a 2014 feature story about Holmes and Theranos. In December 2015, Parloff detailed how Theranos misled him.

S. Brad Arington: A former associate at Fenwick & West and Proskauer Rose who spent nearly five years in-house at Theranos, Arington handled legal, compliance, privacy, and regulatory affairs for the company. He now works for Axiom Global Inc.

The lawyers listed above either declined or didn’t respond to requests for comment except for White, who couldn’t be reached.

To contact the reporter on this story: Brian Baxter in New York at bbaxter@bloomberglaw.com

To contact the editor responsible for this story: Chris Opfer at copfer@bloomberglaw.com;
John Hughes at jhughes@bloombergindustry.com

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