United States v. Holmes

Elizabeth A. Holmes (defendant) was the founder of Theranos, a health-technology company. Beginning in 2011, the law firm of Boies Schiller Flexner LLP (BSF) represented Holmes and Theranos for a variety of legal issues. In 2016, the federal government (plaintiff) launched an investigation into Theranos and Holmes. Holmes believed that, between 2011 and 2016, BSF had jointly represented Theranos and Holmes in her individual capacity based on BSF’s prior representation of Holmes in her capacity as a representative of Theranos. However, Holmes and BSF never signed an engagement letter, and Holmes did not pay BSF from her personal accounts. The government ultimately filed criminal charges against Holmes. At trial, the government sought to introduce several Theranos corporate documents reflecting conversations between Holmes, BSF, and other Theranos employees related to matters concerning Theranos. Holmes objected, arguing that, because BSF had jointly represented Theranos and Holmes in her individual capacity, the documents were subject to the attorney-client privilege held by Holmes. Holmes further argued that the court should apply the subjective-belief test and therefore that, because Holmes had believed that she held an individual-privilege interest, her belief was controlling for whether such an interest existed. Conversely, the government argued that BSF had represented Holmes only in her capacity as a representative of Theranos and therefore that there was no joint representation by BSF of Holmes and that only Theranos had a privilege interest in the documents, which it had waived. Furthermore, the government argued that, to determine whether Holmes held an individual privilege interest, the court should apply the test from U.S. v. Graf, 610 F.3d 1148 (9th Cir. 2010) (the Graf test), which requires that several factors be met for such a privilege interest to exist.