United States v. Holmes

2021 WL 2309980 (2021)

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Nature of the Case

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Facts

In 2011, Boies Schiller Flexner LLP (BSF) began representing D and Theranos in an intellectual property dispute. BSF continued to offer D and Theranos a variety of legal services in relation to Theranos' patent portfolio, press interactions, and inquiries from government agencies and departments. D and BSF did not sign an engagement letter or establish any formal guidelines describing the scope of BSF's legal representation. D never paid BSF from her own funds for the work done. D believed that BSF and BSF partner, David Boies, were her attorneys up to the point when she retained separate counsel to represent her in the Securities and Exchange Commission and Department of Justice investigations into Theranos in 2016. The United States (P) served D with its Exhibit List for trial, which included thirteen documents that D claims implicate her attorney client privilege. D's claim for attorney client privilege is predicated on her understanding that Boies and BSF jointly represented Theranos and D as an individual, not as a representative of the company. P contests this assertion, insisting that there was no joint representation, so the documents are subject only to corporate privilege. P moved for an order establishing that D lacks an individual privilege interest in Theranos' corporate documents. P argued that the court should apply U.S. v. Graf 610 F.3d 1148 (9th Cir. 2010). D argues that the Court should not use the Graf test because it does not apply to this case.