More Lessons Learned From Theranos: Ensuring Privilege Protections

The prosecution of Elizabeth Holmes, founder of the infamous healthcare and life sciences company, Theranos, Inc., has sparked media attention around the country. With just a few months before trial is slated to begin, Holmes recently lost her pretrial battle over whether the attorney-client privilege precludes the introduction of certain emails with counsel.  While the emails at issue remain sealed from public view, related filings and hearings indicate Holmes and lawyers at Boies Schiller Flexner LLP ("BSF") attempted to prevent the Wall Street Journal from exposing the startup's impending collapse.

According to Holmes, BSF jointly represented both her and Theranos, beginning in 2011. She contended the joint representation continued for half a decade and covered a wide variety of topics, including her interactions with the media. As a result, Holmes argued the emails are subject to her individual attorney-client privilege. On the other hand, the government took