## Facts

- Federal prosecutors in a criminal case against Elizabeth A. Holmes listed 13 Theranos documents as proposed trial exhibits reflecting communications involving Boies Schiller Flexner LLP lawyers.
- Theranos had ceased operations and assigned its rights to an assignee responsible for liquidation; the assignee informed the government it would not assert Theranos’s corporate attorney-client privilege over certain materials.
- Holmes sought to bar use of the 13 documents by asserting an individual attorney-client privilege, claiming Boies Schiller jointly represented both Theranos and her personally.
- Boies Schiller initially represented Holmes and Theranos in a 2011 intellectual property dispute and later provided various legal services connected to Theranos’s patents, press matters, and government inquiries.
- Holmes acknowledged there was no engagement letter memorializing personal representation, and fees were paid from Theranos corporate accounts rather than Holmes’s personal accounts.
- Holmes retained separate counsel in 2016 for investigations involving the SEC and DOJ.

## Issues

1. Whether a corporate officer may assert an individual attorney-client privilege over corporate documents involving company counsel based on an alleged joint representation.
2. Whether the Ninth Circuit’s five-factor test for individual privilege claims to corporate counsel communications governs, or whether a “reasonable subjective belief” standard suffices.
3. Whether the 13 disputed communications were confidential and concerned Holmes’s individual legal interests rather than corporate affairs.

## Decision

- The court granted the government’s motion for an order establishing that Holmes lacked an individual privilege interest in the 13 corporate documents.
- The court applied the Ninth Circuit’s *United States v. Graf* framework and rejected reliance on Holmes’s asserted reasonable subjective belief of personal representation.
- Under *Graf*, Holmes failed to establish key requirements, including that she clearly sought advice in an individual capacity, that the communications were confidential attorney-client exchanges solely with her, and that the subject matter concerned her individual legal interests rather than corporate affairs.
- Because any privilege in the documents belonged to Theranos and Theranos’s assignee declined to assert it, the documents were not protected from use on an individual-privilege theory.
- The magistrate judge’s ruling remained in effect after the district judge overruled Holmes’s objections.

## Legal Principles

- A corporate officer claiming an individual attorney-client privilege in communications with company counsel must satisfy the *Graf* factors: seeking legal advice; clearly doing so in an individual capacity; counsel’s acceptance of the individual capacity despite potential conflicts; confidentiality; and subject matter outside the company’s general affairs.
- A litigant’s asserted reasonable subjective belief that company counsel also represented the officer personally is insufficient where governing circuit law requires the *Graf* showing.
- Communications that include multiple corporate participants and address company business or the officer’s role as an executive are ordinarily corporate in character, not individualized privilege communications.
- When a corporation (or its successor/assignee) declines to assert corporate privilege, an executive cannot prevent disclosure absent an independently established individual privilege.

## Conclusion

The court held that Holmes could not block the government’s use of Theranos corporate communications with company counsel because she did not satisfy the Ninth Circuit’s requirements for proving an individual attorney-client privilege, and the company’s privilege was not asserted by its assignee.


United States v. Holmes, No. 5:18-cr-00258-EJD-1, 2021 WL 2309980 (N.D. Cal. June 4, 2021)