The rise and fall of Theranos and its founder, Elizabeth Holmes, was a gripping corporate drama. The resulting prosecution of Holmes and a co-defendant is now generating issues of interest for white-collar practitioners, as we discussed not long ago. See Elkan Abramowitz and Jonathan S. Sack, The Importance of ‘Particulars’ in Criminal Fraud Cases, N.Y.L.J. (March 3, 2020).

In this article, we address a dispute between the government and Holmes which concerns the admissibility of communications between Holmes and outside company counsel, Boies, Schiller Flexner (Boies). The government seeks to admit 16 documents to which Holmes has objected on the grounds of attorney-client privilege. The government has argued that Boies had an attorney-client relationship with the company, not with Holmes. Holmes has argued that Boies represented her personally, and consequently she retains a privilege that she will not waive.