approached about representing Theranos by Larry Ellison and another
investor, it was that overarching concern that had been communicated
to him. In other words, Boies’s assignment wasn’t just to sue Fuisz, it
was to investigate whether he was in league with Quest and LabCorp.
The reality was that Theranos was on neither company’s radar at that
stage and that, as colorful and filled with intrigue as Fuisz’s life had
been, he had no connection to them whatsoever.
Two months after Theranos filed its lawsuit, Keker & Van Nest, the
law firm John Fuisz hired to defend him, sent Boies several documents
that went a long way toward disproving Theranos’s accusations. One
of them was a declaration by Brian McCauley, McDermott’s records
manager, stating that a thorough search of the firm’s records
management and email systems had shown that neither John nor his
secretary had ever accessed any Theranos files. Attached to the
declaration were exhibits showing all the steps McCauley had taken to
arrive at his conclusion. But in a response five days later, Boies
dismissed the documents as “self serving” and “not...very persuasive.”
Richard Fuisz tried to appeal directly to the Theranos board by
sending its members several letters. In one of them, he included a
photo of Elizabeth as a child to make the point that the families had
once been on friendly terms and had known each other a long time.
With another, he enclosed a binder filled with copies of all the emails
he and his patent attorney had exchanged leading up to his April 2006
patent application to show that the patent stemmed from his own
work. He also offered to meet with the board members. The only
response he got was from Boies, who wrote back that Theranos was
“puzzled” as to why he thought the emails proved anything.
—
ALTHOUGH HE DIDN’T have a shred of evidence to prove that John
Fuisz had done what Theranos alleged, there were some things in
John’s past that Boies planned to use to sow doubts in the minds of a
judge or jury.
In 1992, when John was fresh out of law school, he had acted as a