Elizabeth Anne Holmes, former CEO of the now defunct Theranos company. Photo: Jason Doiy/ALM

SAN JOSE—The federal judge overseeing the criminal case against Theranos founder Elizabeth Holmes stopped short of granting a request from her lawyers at Williams & Connolly to force the prosecution team to hand over potential defense-friendly evidence held by government agencies.

But at a hearing on the defense motion Friday, U.S. District Judge Edward Davila of the Northern District of California indicated that if the agencies ultimately withhold material requested by Holmes' lawyers, he's likely to issue an order compelling them to pony up.

Holmes and her codefendant, former COO and president Ramesh “Sunny” Balwani represented by counsel at Davis Wright Tremaine, asked Davila to compel prosecutors to direct the Food and Drug Administration, the Center for Medicare and Medicaid Services, the California Department of Public Health, and the Securities and Exchange Commission to scour their files for potential evidence that might help them defend against the government's fraud and conspiracy charges. 

Federal prosecutors have indicated that they passed along the defendants' request for six different categories of information, including all the agencies' interactions with Wall Street Journal reporter John Carreyrou who chronicled the blood-testing company's regulatory struggles and the agencies' communications with rival clinical lab companies about Theranos.

Lawyers from the FDA and CMS have responded expressing concerns about the breadth of the requests and questioning whether they would produce information relevant and material to the case.

But at Friday's hearing, Davila said that it wasn't up to internal agency lawyers to decide what's relevant to former Theranos officials' defense. 

“They have to provide it and then we have a conversation and then I think the judge is the person that gets to make that call, the last time I checked,” Davila said.  

Davila held off granting the defense motion, but continued the hearing on the issue to Aug. 17. He said that he wanted to give the prosecution team time to convey his concerns to the agencies and give them a chance to respond to the defense requests before issuing an order. 

Holmes and Balwani were indicted in June 2018 on charges relating to an alleged multimillion-dollar scheme to defraud investors, doctors and patients while boasting of revolutionary blood-testing technology. Federal prosecutors say Holmes and Balwani knew Theranos' blood analyzer could not deliver on the public promises they were making.

On Friday, Davila set jury selection in the criminal case for July 28, 2020, with trial to follow Aug. 4. Williams & Connolly's Lance Wade said that the pending trial date added extra urgency to defense concerns about getting everything they need to make trial preparations.

“There's a little bit of a pattern here where we are kicking the can down the road, but now the end of the road has been set and it's coming fast,” Wade said. 

Federal prosecutor John Bostic said at Friday's hearing that the government was opposing the motion not because it didn't want the defense to have the documents, but because it didn't have access to them. He also pushed back against the defense team's suggestion that the agencies' doors were open to prosecutors when they were investigating the case but that they've been less cooperative when faced with the defense requests.

“In making these requests [to the agencies], we didn't make them with a wink. We weren't crossing our fingers when we passed them along,” Bostic said.

Davila said that he would consider the agency's progress in responding to the defense requests when deciding whether to issue an order when he takes the matter back up next month.