The Midnight Dump On Sunny Balwani

Now that Elizabeth Holmes has gone from the genius waif of Theranos fame to convicted scammer, it was time for the government to take down Theranos’ COO and her ex-boyfriend, Ramesh “Sunny” Balwani. Holmes argued that it was Balwani, now her, who caused investors to be defrauded. She was the face but he was the brains.

Holmes claimed Sunny was “physically, emotionally and sexually abusive,” which sought to play into juror bias. The jury didn’t buy it.

Now it’s Balwani’s turn for trial. Then came the dump.

On April 2, 2021, Mr. Balwani requested that the government produce the fruits of its search of electronic devices belonging to potential witness Viswanathan “Shekar” Chandrasekaran. Declaration of Amy Walsh, Just after 5:00 pm on March 8, 2022, almost a year later and on the eve of Mr. Balwani’s jury selection, the government informed defense counsel that it planned to turn over all of what was seized from Mr. Chandrasekaran’s home, consisting of about 20 terabytes of data, the equivalent of around 130 million pages.

It’s not that the government didn’t know of its duty to disclose. It’s not that the government didn’t have the ability to disclose. It’s not that the defendant didn’t ask for disclosure, or that the government forgot about it because, oops, sorry. Regardless of any excuse, part of the responsibility that goes with prosecuting someone is fulfilling the duty under Rule 16 and Brady to disclose. It’s just part of the deal, and the government knows it.

And they know that the defense, on the eve of jury selection, after which trial will start, is busy. When the government does nothing for a year, and then, “after 5:00 pm on March 8, 2022,” alerts defense counsel that it’s about to turn over “20 terabytes of data, the equivalent of around 130 million pages,”

But the kicker here is that the midnight dump is hardly unusual. Whether the prosecution is trying to game the defense by waiting until the last minute to turn over discovery material knowing that it presents a huge burden to the defense to process it, meaning to read it, digest it, investigate it and incorporate whatever comes of it into the defense of the case, depriving the defense of an opportunity to adequately prepare for trial, or whether the prosecution just didn’t bother to deal with it, is unclear.

Much as one might suspect that the prosecution knows exactly what it’s got, it’s not unusual for prosecutors, who are working on other cases as well as the one about to go to trial, didn’t bother to take a hard look into the voluminous discovery, particularly when they don’t have any expectation that it will serve their purposes of furthering a conviction. The last thing they want to spend time doing is going through discovery that hurts their case, or at least doesn’t help.

But what distinguishes this case is the sheer volume. 20 Terabytes? About 130 million pages? This is the sort of discovery that typically gets farmed out to a business that vets the content for words and phrases that might be relevant, a decidedly inadequate way to review discovery since it’s impossible to know what to look for when you don’t know what you might find. But even these services take time to perform a half-assed review of such an enormous volume of discovery. And even if it could be accomplished, it still leaves the defense with the job of reviewing whatever comes back as relevant, which could still be a volume of discovery so huge as render any possibility of human review impossible.

On the bright side, at least Sunny Balwani has the financial ability to have a chance to deal with it, a reality that few defendants, and certainly not the defense lawyers, share. But it’s not just a money issue, but a matter of physical possibility. Did the prosecution not realize this?

This was not a case of inadvertent noncompliance with the government’s responsibilities.
The government has had the data since it seized Mr. Chandrasekaran’s devices on December 9, 2020. Rather than produce any of that data then or even close in time to the seizure, the government inexplicably sat on the material until the eve of Mr. Balwani’s trial when it notified defense counsel that it would dump an enormous and undifferentiated volume of data on defense counsel that will be physically impossible to review in time to use during the trial.

The March 8 email from the government estimated that it would take about three weeks just to load the data on several hard drives it has asked the defense to provide. It is unclear whether the government has reviewed any of this material, but evidently it believes that it contains or may contain material it must turn over to the defense under the applicable rules. The untimeliness and breadth of this disclosure violate both Rule 16 and Mr. Balwani’s Fifth Amendment rights under Brady v. Maryland, 372 U.S. 83 (1963), and its progeny, because Mr. Balwani cannot review the huge trove of data in time to meaningfully assess whether to use it in trial.

As the defense properly asserts, this isn’t just the  routine prosecutorial effort to undermine a defendant’s ability to prepare for trial, but a “constitutional violation of immense proportions.” And, indeed, it reduces the efficacy of trial preparation, and trial itself, to a joke. If it’s going to take the government three weeks just to load the data on drives, what are the chances the defense can process it in time for trial?

The defense moves for dismissal of the indictment, or in the alternative, to “exclude all evidence and argument related to the patient-fraud counts, which turn on the government’s allegation about accuracy, because the Chandrasekaran data may well be material to the LIS and its destruction, and therefore to the allegations about accuracy.”

On the one hand, this isn’t the sort of midnight dump that judges will typically pooh-pooh away with usual, “I’m sure a skilled lawyer such as yourself will have no problem handling this,” covering their backsides on appeal by faux flattery. But then, the alternative of dismissal, or effective dismissal by preclusion of evidence necessary for the case to survive, is a hard thing for a judge to do. Then again, this isn’t the defense’s fault, but the prosecution’s for having played the midnight dump game. This may be the time when there is no legitimate alternative but that the government, for once, loses the game.