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

Lawyers for Elizabeth Holmes are asking the court to push back the trial date in the federal fraud case against the founder of defunct blood testing company Theranos.

During a Zoom hearing Monday, Holmes' lawyers told U.S. District Judge Edward Davila of the Northern District of California that going to trial anytime soon will be difficult. Williams & Connolly's Lance Wade said proceeding in the midst of a pandemic would come at great risk given that the trial could last up to three months, and that a number of the 170 witnesses are coming from COVID-19 hot spots, such as Arizona, Texas and Florida. Wade suggested pushing back the Oct. 27 trial date to April.

"As we think through these steps and think about the way this trial will proceed over three months, what happens if I wake up with a sore throat, or one of the jurors, or a member of the court?" Wade asked.

Davila asked Wade about the prospect of trial by video, and the attorney said he wouldn't be comfortable in a case such as this for a number of reasons, including confrontation rights. Either way, he said, the whole trial could not be completed remotely. "We conferred with the government on this topic, and we did not see a workable solution in a case of this size," he said.

The government, represented by Assistant U.S. Attorney Robert Leach, indicated it is ready to proceed with the case now, but recognized the hurdles caused by the COVID-19 pandemic. Leach pointed to the "real changes and unique challenges" to this case, such as that at least 16 of the government's witnesses are above the age of 65 and would have to travel to California from high-risk areas. However, he said April 2021 is too long, and recommended a trial date of February 2021.

Davila said the pandemic is a "real shadow that looms over the work we do and the country we love," and that everyone's new responsibility is to make sure the virus doesn't spread, a responsibility that is not lost on him as he considers how to best protect the parties and his own staff.

"I'm sitting in the ceremonial courtroom alone, and I look out and try to envision what a jury trial for three months would look like here, maybe 12 jurors and 5 alternates, maybe more," he said. The judge said he is trying to envision how the juror's placement in the "cheap seats" of the courtroom as opposed to the jury box could affect the trial.

He said that an October trial date might be a bit "ambitious," but that ideally the parties would be ready for trial by then, so that they're just waiting on a safe time to hold the trial.

"I'm hopeful we can get the case tried in Q1 next year, but what that exact date is, I don't have the information to set that date today," he said.

Davila also heard arguments on a motion to dismiss superseding information, which charges Holmes with wire fraud and conspiracy to commit wire fraud, doubles the time frame of the alleged conspiracy and includes additional categories of victims.

Williams & Connolly's Amy Saharia said it is important to grant the motion even though the government filed a second superseding indictment on July 14, because leaving the superseding information on the docket could toll the statute of limitations for certain charges.

She said the government filed the information in the first place "to create a way around the statute of limitations, around certain counts that might be time-barred by the time it was able to return a second superseding indictment."

The government argued that the motion to dismiss the superseding information is moot after it filed the latest indictment. "The court should not dismiss superseding information," said Leach. "If the government filed an information and followed up with an indictment, the ordinary course would be to litigate the indictment and allow the information to sit there."

Davila indicated interest in deferring ruling on the matter until he hears arguments regarding the second superseding indictment.

Read more:

Elizabeth Holmes' Lawyers Object to Government's Decision to Amend Charge by Information, Rather Than Indictment

Lawyers for Elizabeth Holmes Urge Pushback of August Trial Date, Prosecutors Endorse October Start

Despite COVID-19, Judge in Elizabeth Holmes Fraud Case Pushes Forward With Summer Trial Date

Theranos Judge Boots Claims Related to Doctors and Non-Paying Patients, but Lets Most Criminal Charges Proceed