In hearings before the trial, lawyers from both sides agreed to refrain from discussing Ms. Holmes’s abuse allegations, deeming them harmful to the jury.
Another wrinkle in getting started? Finding jurors who had somehow missed the wall-to-wall coverage of Ms. Holmes’s trial. Over four days, lawyers questioned more than 100 potential jurors, dismissing many who said they were biased after consuming content about Theranos, before selecting a panel of 12, plus six alternates. One jurar has already been replaced by an alternate after reporting symptoms of Covid-19.
In opening statements before Judge Edward J. Davila, prosecutors indicated that they would rely on many of the same witnesses who testified at Ms. Holmes’s trial, including whistle-blowers from the company, business partners, investors and patients. (The first, called on Tuesday, was Erika Cheung, a whistle-blower who was also an early witness in Ms. Holmes’s case.)
Mr. Leach outlined several areas of alleged fraud that mirrored the government’s arguments in Ms. Holmes’s trial, including the abilities of Theranos’s blood-testing device, its financial statements, and its relationships with pharmaceutical companies, retail outlets and the military.
Mr. Balwani’s lawyers veered from the playbook of Ms. Holmes’s defense. In his opening statement by him, Mr. Cazares argued that patient individual patient testimony and test results were insignificant without all of Theranos’s considering data, which had been an encrypted database of nine million test results.
Theranos provided a copy of the database to federal prosecutors in 2018, after a grand jury subpoena, but the government was never given the encrypted key needed for access to the information. Theranos destroyed the database that same year.
Mr. Cazares argued that the government had neglected to analyze that data. His opening statement was likely to be opening the door to a broader argument over who was at fault for the loss of the database.
“Sometimes a small door can open to a wide pasture,” Judge Davila said.