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Biotech Businesses

Theranos Destroyed Crucial Subpoenaed SQL Blood Test Database, Can't Unlock Backups (theregister.com) 148

An anonymous reader quotes a report from The Register: Failed blood-testing unicorn Theranos trashed vital incriminating evidence of its fraud, prosecutors said on Monday. The imploded startup's extensive testing data over three years, including its accuracy and failure rate, was "stored on a specially-developed SQL database called the Laboratory Information System (LIS)," according to a filing [PDF] in the fraud case against Theranos's one-time CEO Elizabeth Holmes and COO Sunny Balwani. The database "even flagged blood test results that might require immediate medical attention, and communicated this to the patient's physician," we're told.

Theranos claimed to have perfected technology that would allow industry standard blood tests to be run at great speed and with just a drop of blood, revolutionizing the health industry, and causing the business to be valued at $10bn. The reality, however, was that for one set of tests, the failure rate was 51.3 per cent. What does that mean? Prosecutors explain: "In other words, Theranos's TT3 blood test results were so inaccurate, it was essentially a coin toss whether the patient was getting the right result. The data was devastating."

So devastating that the database was subpoenaed by a grand jury digging into fraud claims against Holmes and Balwani. But when investigators turned to take a copy of the database, guess what? From the filing: "On or about August 31, 2018 -- three months after a federal grand jury issued a subpoena requesting a working copy of this database -- the LIS was destroyed. The government has never been provided with the complete records contained in the LIS, nor been given the tools, which were available within the database, to search for such critical evidence as all Theranos blood tests with validation errors. The data disappeared."

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Theranos Destroyed Crucial Subpoenaed SQL Blood Test Database, Can't Unlock Backups

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  • Assume the worst.

    • Destroyed 3 months after subpoena, with the only version now being an encrypted backup that you don’t know the key for... That sure should pretty sketch. Considering the scope, maybe they can convince some cryptocurrency miners to turn their hashing power towards breaking in. That is however assuming that it’s a real backup and not just “dd if=/dev/urandom of=/mnt/usb/database_backup.sql”
      • by cusco ( 717999 )

        If the prosecutor had half a brain they'd subpoena the DBA and the Sys Admin for the backup password, and if they wouldn't cough it up threaten them with Contempt. Unfortunately for most lawyers AOL is still the cutting edge of technology.

    • by nitehawk214 ( 222219 ) on Tuesday January 12, 2021 @10:34AM (#60932872)

      Assume the worst.

      Isn't that how destruction of evidence works? Wasn't this part of the Enron fraud?

      And if a lawyer advised them to destroy evidence, even if being guilty of destroying evidence is less than being guilty of whatever was in the evidence; isn't the lawyer in some deep shit?

      • by v1 ( 525388 )

        Aren't you generally allowed to assume deliberately destroyed evidence would have proven what you are charged with?

        That being the case, the only logical reason to obviously destroy evidence is if you're guilty of additional things you don't want the prosecution to discover while gathering evidence of what they already suspect you of?

        Make one wonder what else they're guilty of, that's so bad they're willing to basically surrender the defense of what they're already charged with?

        • by Zak3056 ( 69287 ) on Tuesday January 12, 2021 @01:10PM (#60933756) Journal

          Aren't you generally allowed to assume deliberately destroyed evidence would have proven what you are charged with?

          In state court, that is up to the state. In criminal courts, probably not. In federal civil trials specifically, yes (more or less). Rule 37(e) of the FRCP states:

          (e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

          (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

          (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

          (A) presume that the lost information was unfavorable to the party;

          (B) instruct the jury that it may or must presume the information was unfavorable to the party; or

          (C) dismiss the action or enter a default judgment.

      • by LostMyAccount ( 5587552 ) on Tuesday January 12, 2021 @12:20PM (#60933432)

        I was involved with a situation that involved lawyers and smart phones.

        I asked the lawyer if I could erase the phone, do a factory reset and wipe on it. He told me that wasn't something he could discuss, but that phones get lost or destroyed all the time.

        I think they can't advise you about destroying evidence, but they can kind of educate you on when destruction of evidence becomes presumed to be "destruction of evidence" and not just a coincidental destruction of something that is evidence.

        I took the lawyer's statement as the advice that I could legally wipe the device, sell it, destroy it, etc, because the contact we had with law enforcement was extremely limited -- basically getting voicemails and us not responding to them, and we had no reason to believe we were under formal investigation and there had been no demands to examine any property, so we were free to do whatever we wanted vs. being compelled to preserve the device.

        He actually said the best thing at this point was just keep ignoring them, and that it was slightly disadvantageous for us to even pay him a retainer and have him tell the cops to leave us alone and talk to him (the lawyer), as this often piques their interest and can move informal inquiries into more formal investigations because they smell blood in the water.

        My involved situation ended, thankfully, with my one meeting with the lawyer but I think it becomes a more formal risk of being accused of destroying evidence once you are under some kind of formal investigation and this has been communicated to you, even if you are not charged (yet).

  • Corrected Headline (Score:5, Insightful)

    by drinkypoo ( 153816 ) <drink@hyperlogos.org> on Tuesday January 12, 2021 @08:08AM (#60932072) Homepage Journal

    "Theranos willfully destroys evidence, refuses to provide copies of evidence"

    Throw the book at 'em from the top down.

    • Indeed. Boot them off of social media!

    • Throw the book at 'em from the top down.

      Using what laws, exactly? Courts aren't allowed to lock up rich people without long legal arguments.

      • by Dracolytch ( 714699 ) on Tuesday January 12, 2021 @08:59AM (#60932274) Homepage

        Well, destruction of evidence, for one.

        • First you have to prove it was done deliberately, not just a hard drive failure.

          • I love keyboard lawyers. I'm afraid you're wrong on this.

            The proper term is "Spoilation of Evidence" (https://en.wikipedia.org/wiki/Spoliation_of_evidence). The precedent case is Brookshire Brothers, Ltd. v. Aldridge, where a man who slipped in a grocery store and hurt his back sued for damages after reporting it 5 days later. The corporate policy was not to keep any surveillance video footage after 30 days, so when it came to court the surveillance video footage was not available. The judge then in

    • by leonbev ( 111395 )

      I'm curious how big this database was. If it was over a TB in size and hosted on a cloud hosting service like AWS, it was probably costing Theranos a pretty penny to keep it.

      Unless Theranos was contractually obligated to save it, I'm not sure why they would.

      • by drinkypoo ( 153816 ) <drink@hyperlogos.org> on Tuesday January 12, 2021 @09:03AM (#60932292) Homepage Journal

        I'm curious how big this database was. If it was over a TB in size and hosted on a cloud hosting service like AWS, it was probably costing Theranos a pretty penny to keep it.

        Nothing prevented them from downloading it to a local disk.

        Unless Theranos was contractually obligated to save it, I'm not sure why they would.

        Because if you're under investigation and you start deleting things it looks a lot like destruction of evidence.

        However, TFA provides the information you're "looking" for, which is to say, willfully avoiding looking for, emphasis mine:

        On or about August 31, 2018 - three months after a federal grand jury issued a subpoena requesting a working copy of this database - the LIS was destroyed. The government has never been provided with the complete records contained in the LIS, nor been given the tools, which were available within the database, to search for such critical evidence as all Theranos blood tests with validation errors. The data disappeared [theregister.com].

        So in short, this is an extremely clear case of willful destruction of evidence.

        • by leonbev ( 111395 )

          Ah, I missed the part where they deleted the database after it was subpoenaed. Yeah, that's not legal.

      • They were legally obligated to hand it over, and they continued paying to host it for 3 months after they knew this was required of them. It would have cost nothing extra to let someone in to make a copy during that time.

      • by necro81 ( 917438 )

        Unless Theranos was contractually obligated to save it, I'm not sure why they would.

        A subpoena obliges them to save it.

      • by tlhIngan ( 30335 )

        I'm curious how big this database was. If it was over a TB in size and hosted on a cloud hosting service like AWS, it was probably costing Theranos a pretty penny to keep it.

        Unless Theranos was contractually obligated to save it, I'm not sure why they would.

        Once the lawsuits start, there is a general order to not destroy any potential evidence - even if you think it's useless. It's no longer for you to determine - everything up to that point should be preserved.

        Second, the subpoena was issued for that data

    • Re: (Score:2, Offtopic)

      Well, Hillary Clinton did the same thing (willfully destroyed evidence) after having previously "lost" other evidence which mysteriously termed up after the statute of limitations expired (Rose Law records).
      • by cusco ( 717999 )

        She did that at the recommendation of Powell and Rice, who had done the same thing. People forget that, but it's utterly relevant. Several tens of millions of Iraq Fiasco-era emails that were "accidentally destroyed with no backup" just recently turned up as being "misidentified"for the last decade-plus.

    • > Throw the book at 'em from the top down.

      Not going to happen - they're protected.

      Theranos was an intelligence startup meant to gather a comprehensive DNA database on everybody. They bet that with enough money they actually could develop the technology before they got caught - they were wrong. And it seems like technologies like ClearView have satisfied their lust for biometrics by now.

      Henry Kissinger, Emissary of Death, doesn't just sit on any young lady's startup's Board of Directors.

      In some ways, t

      • by gweihir ( 88907 )

        > Throw the book at 'em from the top down.

        Not going to happen - they're protected.

        Theranos was an intelligence startup meant to gather a comprehensive DNA database on everybody.

        That makes a lot of sense. That also explains why Holmes got hyped beyond all sanity.

        Also nicely shows that money and power cannot make everything happen. They screwed up massively there. Even the "intelligence" people are pretty dumb on average. (Yes, I mean _you_, I know you are reading this. With apologies to any non-intelligence people.)

    • by gweihir ( 88907 )

      "Theranos willfully destroys evidence, refuses to provide copies of evidence"

      Throw the book at 'em from the top down.

      Indeed. Otherwise this will become a common approach to things.

  • Kids these days...
  • I feel like it's probably in there for some reason.
  • Theranos (Score:4, Funny)

    by trabby ( 4123953 ) on Tuesday January 12, 2021 @09:46AM (#60932542)

    Thanos... er Theranos has data disappear in a snap, news at 11.

  • While it's almost certain that the database was forcibly / intentionally corrupted, it's worth looking into the cause of the fault. It's possible, although unlikely it was a truly unexpected failure, and since almost no one keeps backups (even thou every IT person preaches the backup gospel), it might be just bad timing.
    • The subpoena was 3 months old. It doesn't take 3 months to copy a database to comply with a subpoena.

      • That doesn't matter, you can take as much time as you want unless it's time stamped for delivery by X.
    • by cusco ( 717999 )

      The title says "Can't unlock backups", which means "The court can't unlock the database without the credentials that the company refuses to provide." Admittedly the backup might be gibberish rather than the real thing, but that seems unlikely.

      • Right, they can't access the backups but it's worth knowing how the database itself failed. I know a company who deleted the encryption passphrases for a number of encrypted VM's and then were shocked that some random IT guy didn't back the phrases up. While it's unlikely they don't know the how to unlock the backups, there is the slight chance it's a real issue, and it would be interesting to know what happened to the original DB.
        • by pjt33 ( 739471 )

          I read TFA (but it was before it was posted to /., so it's ok). The original database was deliberately decommissioned while it was under subpoena, and prosecutors have e-mail trails proving this, including the IT guy's arse-covering e-mail saying "If we do this, we probably won't be able to restore it later". They also have e-mails involving the company's internal lawyers discussing the idea of supplying a copy of the data without any of the executables necessary to interpret it, because apparently they wer

  • It's called spoliation of evidence, and the court will have remedies for this behavior that Theranos won't like.

  • Lol âoeCanâ(TM)tâ unlock
  • by backslashdot ( 95548 ) on Tuesday January 12, 2021 @12:29PM (#60933514)

    It was obvious BS that it could detect pathogens in a drop of blood. In many clinically relevant infections, the patient can have as low as one pathogen per milliliter. References: https://jcm.asm.org/content/36... [asm.org] and https://cmr.asm.org/content/31... [asm.org] (note: a CFU is a single viable bacteria) --and doctors need to be able to detect that. Note also, indirect methods such as checking for antibodies, which is unreliable anyway, won't reveal active infection. A drop of blood is only about 10 microliters (10 microliters is 1/100th of a milliliter). Basic math shows that the chance of Theranos detecting an infection with 1 per mL is low. So how did Theranos get $1 billion for making up shit?

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