Theranos destroyed crucial subpoenaed SQL blood test database, can't unlock backups, prosecutors say

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),” …

[Don Casey]

Sure thing

Any DBA worth his/her salt will tell you an untested backup is not a backup. This was in all likelihood intentional, and it is highly likely the court will direct any jury that they may infer same during deliberations.

[Neil Barnes]

Re: Sure thing

‘How often have I said to you that when you have eliminated the impossible, whatever remains,however improbable, must be the truth?’

[Anonymous Coward]

Re: Sure thing

That's a new meaning for disaster recovery - as in "how we could recover from our personal disaster? By destroying the database, of course!"

[Doctor Syntax]

Re: Sure thing

It's called being in a hole and digging.

[Peter2]

Re: Sure thing

From an IT point it's rather obvious what's going on here. The filing suggests that the cops have suspicions but proving that to the standard required in a court of law might be more difficult.

The defendants can always claim that they weren't intending to be deliberately obstructive, they were just incompetent.

[Tom 7]

Re: Sure thing

And yet if you lose your decryption key...

[Doctor Syntax]

Re: Sure thing

"The defendants can always claim that they weren't intending to be deliberately obstructive, they were just incompetent."

No guarantee of being believed.

[aspendougy]

Re: Sure thing

If you are just selling IT hardware or software, incompetence will not lead to much in the way of criminal charges. But with medical testing, with lives on the line, it is a different story.

[erikscott]

Re: Sure thing

Precisely! This almost certainly reaches the level of criminal negligence. It also quite likely will be considered obstruction of justice, and US courts have a tendency to punish that at a similar level as the original crime - _vis_ Andersen Consulting. Judges _hate_ being insulted like that.

(icon because this is going to be fun to watch from a very, very long way away and the local effects will be similarly devastating)

[aspendougy]

Re: Sure thing

One lady got a Theranos blood test which indicated that her cancer had come back with a vengeance. She was distraught, but had the good sense to get a 2nd opinion from a traditional lab company. That test was negative, and so she was fine and felt reassured. Thing is, that is medical malpractice concerning a life and death issue. So when Elizabeth Holmes had the gall to say, "We are the only lab company out there that is focused on being totally transparent", we are dealing with lying in connection with serious medical testing. Forget about the investors, this is life and death stuff.

[2Fat2Bald]

Re: Sure thing

Their data is totally transparent. In the sense that you can't see it at all.

[My-Handle]

Re: Sure thing

Yep. Transparent as in "Emperor's New Clothes".

[eamonn_gaffey]

Re: Sure thing

...and there are so many examples of such incompetence in IT, that this could be an entirely believable defence. However, there must be rules/law on corporate responsibility around things like DR that make a business a going concern that apply. At least, one would hope so...........

[J27]

Re: Sure thing

Of course it's intentional.

But I don't think they're lying about losing the key. I'm sure they made sure they lost all copies of it before they sent the backup in the first place.

[Persona]

Re: Sure thing

For the supremely incompetent even testing that data can be recovered holds no guarantee.

I worked with one chap who thought he was doing a backup to tape. When requested he was able to load a tape and restore deleted files perfectly, however as the month went on I noticed that only recent files were recoverable. It transpired that despite the fact he was changing the tape each day and had a robust tape cycling strategy the data never got to tape. Thanks to a tiny typo in his backup/restore script he was backing up to file instead of the tape device. The file was overwritten each day so recent files were recoverable but in reality there was no true backup and all the tapes he had been shuffling around were blank.

[Don Casey]

Re: Sure thing

Early in my career as a field support type with an unnamed (mainframe) database vendor (not IBM), I was called to an organization that couldn't get their backups to restore. Seems they were taking month-end financial backups, and then at end-of-year restoring in order to run year-end reports.

After some poking around and detective work I discovered there was a disconnect between our backup software and the (DOS) tape management software (EPAT) they were using. The result of that disconnect is instead of writing database blocks to tape, it was writing unused buffers to tape.

I sadly told them there was no way to get that data back. I left quickly (and silently).

Had they ever tried a restore, they would have seen this in time to fix things.

BTW; 'fault' was in EPAT making assumptions on where data is being written from is the same location as where the DTF was pointing at OPEN, our software was using (legal) facilities to change that, post-OPEN.

[Mike 137]

Why 'science'?

Not at all clear why this el Reg filed this under 'science'. Seems more like spoliation and attempting to pervert the course of justice. Of course that's just an honestly held personal opinion ...

[Brad Ackerman]

Re: Why 'science'?

¿Por qué no los dos? The company pretended to be in a scientific field. (Of course, there was nothing there but snake oil, but it's still a science story.) It could also be filed under 'legal', or possibly 'future Victorville residents'.

[Robert Grant]

Re: Why 'science'?

Blood test machine is engineering, not science :)

[Gordon 10]

Re: Why 'science'?

Make-believe Blood testing Machine is Science Fiction, not engineering :D

[Robert Carnegie]

Re: Why 'science'?

Another story elsewhere under "Technology": https://www.bbc.co.uk/news/technology-55613452

"Stickers supposed to protect users against mobile-phone radiation have no effect, scientists have found."

Scientists! So it counts as science!

Pope Francis

https://www.bbc.co.uk/news/world-europe-55617851

is a Catholic. (Scientists find.)

[Michael Wojcik]

Re: Why 'science'?

Though confirming the defecation habits of bears in arboreal habitats could be legitimate zoology. We'd allow that.

[ecofeco]

Digging that hole even deeper

Good job Holmes. Evidence tampering is really going to help your case.

Bwahahahahaahahaha

[amanfromMars 1]

A Reprehensible Crime ?

While lying in press releases and interviews is reprehensible, it’s not necessarily a crime. However, lying in presentations to people in order to pull in investment is.

And whenever those presentations result in one being elected into, and maintaining well paid public office?

[Anonymous Coward]

Re: A Reprehensible Crime ?

All of them never lie to their real investors - who are not those voting for them. After all you put a piece of paper into the ballot box, not money. Those putting their money into politicians careers ensure they get what they wish - those who lie to them don't last long.

[Potemkine!]

An obvious icon...

... when Holmes is involved.

[Mike 16]

Re: An obvious icon...

I submit that H. H. Holmes was a bit more thorough than Elizabeth.

https://en.wikipedia.org/wiki/The_Devil_in_the_White_City

That said, I'd prefer my construction be done by Mike Holmes

https://en.wikipedia.org/wiki/Mike_Holmes

[chuBb.]

Would lol to hard if next week el reg has headline of db found on unsecure s3 bucket....

[Version 1.0]

Stupidity vs Science?

I thought that the Theranos concept was weird when it was first published and became a product, reading about it in the medical journals it seems that it would be fantastic if it could be made to work but there were a lot of issues. Holmes was working on a theory, employees were trying to get it to work and the investors were busy sell the concept of huge sums of money in the future even though the predictions of success were poor - but this irrelevant to Venture Capitalists.

It looks like Homes was just trying to make a good idea work that couldn't because her theory was weak, while the corporate money makers were doing their job and profiting nicely - so Homes was a criminal while the Venture Capitalists are heroes? As for the database backup issue - there are two classes of users in the world, those who have lost data, and those who are going to.

[Anonymous Coward]

Re: Stupidity vs Science?

"Working on a theory" is fine, but lying through your teeth about the capabilities of your product isn't. And the core of the article is that the database destruction seems to be deliberate, with the intent of destroying evidence, rather than a simple "oops".

What reason would they have for dismantling their database system 3 months after a (not-yet-fulfilled) subpoena for it was issued, and then waiting until after the dismantling to discuss the need for the password, unless it was to make sure it was totally unreadable?

[JoeCool]

More accurately, Fraud masked as science

You can read the investigative reports. Tharanos were actively promoting an idea known to be un-workable. The perpetration of the fraud exends to everyone who understood the facts. That may include their lawyers and the board and the investorts, but someone has to be prosecuted first.

[Doctor Syntax]

Re: Stupidity vs Science?

"a good idea work ... her theory was weak"

That doesn't sound like a good idea. Wishful thinking, maybe; good idea, no.

[Antron Argaiv]

Re: Stupidity vs Science?

Maybe the fact that her theory was developed after a single year of attending Stanford, then quitting because she believed they couldn't teach her anything could be a reason for the failure?

Building on a poor foundation, as it were...

[My-Handle]

Re: Stupidity vs Science?

By the sound of it she might have been right. They couldn't teach her anything.

Not for the lack of things to teach or ability of the teachers, of course :)

[gnasher729]

Isn't there a general principle - if you are asked to provide information, and you don't or can't, then the judge can legally assume that the information would hurt your case?

[Stoneshop]

At the very least the judge can infer that to be so, and weigh it in passing the judgment.

[Jellied Eel]

At the very least the judge can infer that to be so, and weigh it in passing the judgment.

But IT. Or the UK's interpretation where failure to hand over passwords can result in lengthy jail time, regardless of whether the dog ate the post-it note the password was written on many years ago. Then again, being able to plausibly deny remembering any way to access evidence that may be used against you is a bit of a problem.

I've vaguely dreaded this approach though. Back in probably 2008, a friend sent me a string of digits for this exciting new currency called 'Bitcoin'. I remember being a bit curious about it, and one snag was at the time, 1 coin was worth a fraction of $1. Or possibly a fraction of 1c. But it intrigued me, and I remember slapping a bitcoin miner onto my PC(s) to run as a variation on Seti@home.

But that was then. I vaguely remember stopping at 50, 500, or 5000 coins because they still were worth burger all, and it was taking longer to mine each one. Now, they'd come in rather handy, but the disks they would have been on are long, long, gone*. Which on the plus side, also means I don't have to try to figure out what any tax liability may have been & at what point in time any tax liability may have arisen. And I'm certainly glad that HMRC can't (currently) establish any liability given I've had zero benefit, other than wear & tear on some long junked fans.

*as in copying what I wanted to keep off the old disks, then drillng a few holes in those and giving them a good blast with a blow torch. Damn my diligent data deletion directive!

[Doctor Syntax]

"At the very least the judge can infer that to be so, and weigh it in passing the judgment."

It's the jury that's the tribunal of fact. But the judge can guide them.

I suspect that if this is reported back to the judge who issued the subpoena he or she might decide it's contempt of court.

[Cynic_999]

"

Isn't there a general principle - if you are asked to provide information, and you don't or can't, then the judge can legally assume that the information would hurt your case?

"

No, there is no such general principle, and nor should there be. Otherwise an adversary could simply request you to provide something they know you cannot provide in order to have a court shift to a presumption of guilt.

Cannot provide the receipt for the TV you bought 5 years ago? In that case you must have stolen it ...

[Anonymous Coward]

Have you not met the UK fiction factory ^B^B^B^B^B^B Police?

[Kernel]

"Have you not met the UK fiction factory ^B^B^B^B^B^B Police?"

Or even a High Court bailiff - can't absolutely prove that TV is yours? - then we'll assume it belongs to our debtor that lived here 6 months ago.

[Anonymous Coward]

I don't think the judge can assume info would be harmful. I do know that if the court tells you to present evidence (or to preserve specifice evidence in case it may be subpoenaed later on, like in a litigation hold) and you subsequently destroy the evidence, things will not go well for you.

[TheManCalledStan]

Sharks Patrol These Waters!

Random factoid, Boise, Schiller and Flexner are the company law firm for Theranos, who litigated on behalf of our favourite the SCO group (the case of SCO vs IBM still isn't dead...)

[Charlie Clark]

Lying is usually a crime

While lying in press releases and interviews is reprehensible, it’s not necessarily a crime.

For companies it usually is, though there is leeway. Publically traded companies have to follows the rules of the SEC but even private ones can be held accountable by various agencies including, and probably most relevant here, the Food and Drugs Administration. Protecting patients should, hopefully, be considered more important than protecting investors.

[Anonymous Coward]

Re: Lying is usually a crime

That's called marketing and sales!

[uccsoundman]

Re: Lying is usually a crime

"Protecting patients should, hopefully, be considered more important than protecting investors."...

LOL! Investors would roast children over an open fire if it would protect their investments. Certainly compromising patient's health for shareholder returns is not a problem.

[Doctor Syntax]

"Holmes and Balwani face ... up to 20 years in prison if found guilty."

They might get a free sample fairly shortly if the judge decides this amounts to contempt of court.

[Anonymous Coward]

Simple Solution

Holmes should be ordered to decrypt the database and held for Contempt of Court until she does. Just like various password and locked phone cases.

N.B. I disagree with the basic concept of Contempt of Court in these cases but as long as it's there I can't think of a better defendant than Holmes to use it on. And it's not subject to bail.

N.B.B. Bwah-ha-ha.

[Do Not Fold Spindle Mutilate]

But it takes lots of work to look stupid

Lost a password or lost a unguessable password? Perhaps the government should release the encrypted version and put a reward on cracking the encryption. Anyone up for using John the Ripper? https://github.com/openwall/john

This is the reason why I removed my name from a companies software. I thought they were going to get sued and would go after the patsy dba. Left the company to y2k work.

[Anonymous Coward]

The Hilary Clinton Defense

"Did you wipe the server?"

"What, you mean with a cloth? "

Laughter ensues and everyone is forgiven.

[Chris 239]

" are not convinced this was an innocent mistake", masterful understatement you have there!

Here's hoping there's sufficient other evidence to lock up these fraudsters. If the judge has to make an judgement of deliberate destruction that could be a grounds for an appeal.

[Clunking Fist]

Should've used bleechBit

Jus' sayin'

[JMaldonado64]

I think the jury has more than enough reasons to condemn both. These two represent the most despicable, unscrupulous kind of people focused on making money without consideration for the health and lives of others.

[VulcanV5]

Holmes is so thoroughly in the mould of the orange-hued Fat Fantasist soon to be evicted from The White House I'm surprised she hasn't gone into US politics.

[Pat Harkin]

Every time I see the word "Theranos"...

...the voice in my head is The Hood from Thunderbirds saying "Kyrano! KYRANO!!!"

[Anonymous Coward]

Re: Every time I see the word "Theranos"...

Even worse than that, my brain thinks, "Hmm, that's a word I'm sure I've heard before", and then realises that I was thinking of Thanatos, the ancient Greek personification of death.

Perhaps not the sort of connection that the name of a "healthcare" company ought to give you... Usually companies try to think through all the potential nuances that their choice of name might have, before they make a final decision on it.

[Graham Negative]

It's a tough call as to which Holmes screwed more people: John or Elizabeth?