Judge scrutinizes BigLaw firm in ruling on evidence from blood-testing company Theranos that may be 'irretrievably' lost

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Former Theranos CEO and founder Elizabeth Holmes. Photo by Krista Kennell/Shutterstock.

The founder of blood-testing company Theranos can’t exclude government evidence at her fraud trial on the basis of lost, purportedly exculpatory evidence because her company was responsible for the destruction, a federal judge in San Jose, California, has ruled.

U.S. District Judge Edward J. Davila of the Northern District of California ruled against former Theranos CEO Elizabeth Holmes in an Aug. 4 order, report Law360, Bloomberg and CNBC.

Davila said Theranos turned over the laboratory database to prosecutors without mentioning that the database was encrypted and that prosecutors would need a key for access. Nor did the company mention that the database would be dismantled four days later, Davila said.

The database, known as the Laboratory Information System, included test results and quality control data.

Lawyers from Wilmer Cutler Pickering Hale and Dorr represented Holmes at the time.

“It appears that Theranos and WilmerHale’s actions frustrated the government’s efforts” to obtain access to the database, Davila wrote. “Internal Theranos emails and email exchanges with WilmerHale demonstrate that neither Theranos nor WilmerHale were concerned about the actual functionality of the … database copy.”

Davila cited an email from WilmerHale suggesting, “We should just give DOJ the database and let them figure it out. … They won’t know what to do with it and … the people who do are in India.”

For all intents and purposes, the database produced to the government can’t be accessed without the private key, and the information “is lost—perhaps irretrievably,” Davila said.

Prosecutors allege that Holmes and a co-defendant knew that the company’s proprietary blood analyzer couldn’t consistently produce accurate and reliable results for certain blood tests, yet they claimed that it was more accurate, reliable and faster than traditional testing methods.

Holmes wanted to suppress evidence of Theranos customer complaints, patient test results and a federal report on the company’s technology by the Centers for Medicare & Medicaid Services. She claimed that the lost database could have been used to assess the accuracy of test results.

But Davila said the lost database “would not provide a conclusive determination of whether the Theranos blood tests were accurate, and it could just as likely contain incriminating evidence to the contrary. Any exculpatory value is therefore speculative in nature.”

Spokespeople for WilmerHale did not immediately reply to an ABA Journal request for comment.

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