The federal judge overseeing the criminal fraud case against Elizabeth Holmes on Wednesday held off suspending an August trial date for the founder of blood-testing company Theranos. 

U.S. District Judge Edward Davila also took issue with the tone of a proposed order from Holmes' lawyers at Williams & Connolly, who asked that their work on the case be deemed "essential" so they could continue with her trial preparation.

Williams & Connolly's Lance Wade said during a telephonic hearing Wednesday that the proposed order was designed to allow Holmes' lawyers to do things such as arrange for service of trial subpoenas and travel, and that it wasn't meant to force the judge's hand into issuing an order allowing lawyers to violate state and local rules meant to curb the spread of the coronavirus.

"I assure you as someone who has a brother who is a first responder, I in no way seek to downplay this crisis," Wade said. "I in no way want to put the court in a difficult position."

U.S. District Judge Edward J. Davila/photo by Diego Radzinschi

Davila on March 20 severed Holmes' trial from her co-defendant, former Theranos president and COO Ramesh "Sunny" Balwani, but indicated that he planned to move forward with the Holmes trial as scheduled. Davila's order, which said there was "good cause" to sever the trials but did not elaborate further, was handed down after the Northern District of California closed its courtrooms to civil hearings and suspended the start of new trials until at least May in moves meant to address the coronavirus pandemic. 

Davila at Wednesday's hearing said the "tone" of the proposed order asked him to acknowledge the seriousness of the current pandemic while also giving lawyers the authority to violate the local rules designed to abate it.    

Wade and his colleagues initially asked for a September trial date, but had indicated that they would be able to prepare for a late July jury selection and early August trial if the government held to all applicable discovery deadlines. Wade said that because of government delays in document production and the complications of litigating during the ongoing pandemic, the defense team had "walked into Mt. Everest" and that it had become "close to impossible" to adequately prepare as scheduled.

Davila said that many of the complications that Holmes' lawyers are facing also face federal prosecutors, and that many of the tasks that need to be done can be accomplished remotely by reviewing documents digitally, and conducting meetings and witness interviews by videoconference. "Of course there's recognition of this pandemic and what it does and that's not lost on me," said Davila, adding that he had kept the trial date in hopes of keeping both the government and the defense lawyers making progress on preparing the case for trial.

Davila, however, said he worried that even in July potential jurors might be reluctant to sit in close quarters for the weeks that the trial is set to last. "What is our jury pool going to look like and be like in July?" Davila asked. "What's the national condition going to be given this current scourge that we are facing?"

The judge ultimately asked Holmes' lawyers and prosecutors to meet and confer about the feasibility of proceeding with the current trial date and report back to him in two weeks. 

"The landscape changes daily and the most important thing is everyone's health," the judge said.

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