Theranos founder Elizabeth Holmes in a special hearing Friday lost her bid to force a key prosecution witness, who showed up at her home months after her felony fraud conviction, to hand over emails about his testimony against her.
Dr. Adam Rosendorff, the former lab director at Holmes’ now-defunct Palo Alto blood-testing startup, appeared at Holmes’ residence in August and talked with her partner Billy Evans. Holmes’ lawyers in court filings have cast Rosendorff as remorseful over his testimony, and they have suggested federal prosecutors possibly engaged in misconduct regarding his testimony at her trial. Her team has asked the judge in her case to order a new trial on the basis of Rosendorff’s visit. Rosendorff subsequently provided to the court a sworn declaration standing by his testimony, and Judge Edward Davila has set a hearing for Monday, Oct. 17 to hear from Rosendorff.
In advance of the hearing, Holmes’ legal team had issued a subpoena to Rosendorff demanding he provide emails or other communications he had with anyone about his testimony, and communications with the prosecution about the case.
Rosendorff on Wednesday filed a motion in court asking Davila to quash the subpoena and invalidate the demand for communications.
Davila, who had emphasized that the hearing Monday on Rosendorff would be “limited” and not a “fishing expedition” for Holmes’ defense team, on Friday granted the doctor’s request, calling the subpoena “excessive” and “unreasonable,” and saying, “I don’t find that the requested information is necessarily relevant for the purpose of the limited scope of the hearing.”
In the special videoconference, Davila said he believed visit deserved “some scrutiny” and that he has “some specific questions,” but that he likely agreed with a statement by Rosendorff’s lawyer that all that needed to be determined was whether the doctor stood by his sworn declaration. The judge said he would allow Holmes’ legal team to question Rosendorff in a “limited examination.”
Holmes, 38, was convicted in January by a jury of defrauding investors out of more than $144 million. Theranos had purported to be able to conduct a full range of blood tests using only a few drops of blood, but the technology never worked as promised and jurors heard damning evidence that Holmes affixed pharmaceutical company logos to internal Theranos reports to falsely suggest the firms had validated the technology.
Rosendorff told the jury at her trial that Theranos had “valued PR and fundraising over patient care,” and that he felt “obligated from a moral and ethical perspective to alert the public” about inaccurate test results. A lawyer for Holmes sought during the proceedings to pin problems at the company on Rosendorff’s alleged “incompetence.”
Lawyers for Rosendorff, in his motion this week to quash the subpoena, provided an explanation for his attendance at her home. That day in August, he visited Theranos’ former headquarters in Palo Alto and the Walgreens drug store in Palo Alto where the startup held its first commercial launch, according to the motion, and he noted that the headquarters building had been torn down and replaced with a residential complex, and that the drug store had been replaced by a rug shop.
“Dr. Rosendorff wanted to move on too,” the motion said. “He suddenly felt that a conversation with (Holmes) was the missing piece. He wanted to be able to forgive her for the pain and suffering her actions have caused in his life. He wanted to be able to express his condolences that her child may grow up without a mother if (she) receives a lengthy prison sentence.”
Rosendorff drove to Holmes’ residence and spoke with Evans, according to the motion, but he does not recall saying, as Evans claimed in a memo filed in court, that he felt guilty or that prosecutors in Holmes’ trial “made things sound worse than they were,” the motion claimed, adding that those alleged statements did not “accurately describe” how he felt the day of his visit or in the present.
Holmes’ sentencing date has been delayed twice, but was set this week for Nov. 18. Legal experts expect she will receive a multi-year prison sentence.
