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 the position there was no joint representation at all, such that the emails are subject only to corporate privilege—which has already been waived.

Magistrate Judge Nathaneal M. Cousins agreed with the government, finding that Holmes failed to establish a joint representation. The court applied the Graf test, a common test used to determine whether a corporate attorney was representing an executive in their personal capacity, as opposed to representing the corporation itself.  Notably, the Graf test put the burden on Holmes to show she had established in the communications that she was seeking legal advice personally, rather than as a Theranos executive. Among the factors the court considered, was that Holmes could not point to any financial records showing payments to BSF from her personal accounts.  Further, Holmes was unable to show that the communications with lawyers at BSF were strictly confidential, as other senior Theranos employees and in-house attorneys were copied on the email chains. It seems, moreover, that the fatal flaw for Holmes was the absence of an engagement letter relating to BSF’s alleged representation of the ex-CEO in her personal capacity.

This outcome serves as an important reminder of how privilege lines may become blurred when business disputes involving corporate executives arise.  In order to avoid these blurred lines and similar issues for you or your business, we recommend clear, well-drafted engagement letters being a top priority when retaining counsel. Likewise, firms can—and should—provide clients with distinct engagement letters to the extent representation extends to multiple, unrelated matters. As Holmes has likely learned, spelling out exactly who the client is and the scope of representation upfront can prevent major pitfalls later down the line.

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Photo of Alyson Tocicki Alyson Tocicki

Alyson Tocicki is an associate in the Litigation Department and a member of the Trials Practice Group. Alyson handles high-profile and complex litigation matters around the country, with a particular emphasis on product liability, false advertising, and intellectual property disputes.

Alyson has experience…

Alyson Tocicki is an associate in the Litigation Department and a member of the Trials Practice Group. Alyson handles high-profile and complex litigation matters around the country, with a particular emphasis on product liability, false advertising, and intellectual property disputes.

Alyson has experience representing clients at all stages of litigation, including: filing initial pleadings; coordinating discovery; briefing and arguing motions; assisting with key fact and expert witness depositions; writing jury addresses; drafting direct and cross examinations; and preparing witnesses for trial. She regularly represents Fortune 500 companies in the media and entertainment, consumer products, and pharmaceutical industries, as well as professional sports leagues and teams. Alyson leverages her experience to provide creative solutions and to manage her cases with an eye towards trial.

In addition, Alyson devotes significant time to pro bono matters, having been recognized at Proskauer’s 2023 Golden Gavel Awards for her substantial contributions to the Firm’s pro bono efforts. She also serves as a member of the Firm’s Associate Council and was selected to be a Protégée for Proskauer’s Women’s Sponsorship Program, an initiative for high-performing, mid-level lawyers that champions future leaders.

Prior to joining Proskauer, Alyson earned her J.D. from the UCLA School of Law, where she served as a Managing Editor of the UCLA Law Review and President of the Student Bar Association. While in law school, she also earned multiple Masin Family Academic Excellence Awards, advised first-year students on legal research and writing, and worked as a judicial extern for the Honorable Robert N. Kwan in the United States Bankruptcy Court for the Central District of California.