After lunch there was argument as to whether or not Dr. Jacobson's testimony should be stricken as a result of new evidence being introduced to counsel very late.
Plaintiffs began by apologizing to the Court and to counsel, and Mr. Reynolds stated that he had only today learned that Dr. Jacobson had discovered new evidence in the "data log" to which Dr. Jacobson alluded. He argued that the decision on whether or not to strike testimony was at the discretion of the court citing as precedent one of Judge Davis' old cases reviewed by the 8th circuit. He argued that the new introduction of evidence did not undermine the remainder of testimony and urged that the rest of the testimony remain on the record.
Defendants used the same case pointing out the discretion of the court and urged that they also remove from evidence the screenshot of the list of files which Dr. Jacobson spoke about which he claimed the file times indicated the files likely came from another hard drive, based on the file dates.
[Ed. Note: I always, even in the first trial, found this argument to make little sense. The file dates didn't seem too far out of the ordinary to have come from ripped CDs, and the file dates did show larger date gaps between albums, which would not happen if they were transferred from another hard drive, unless the transfer of each album was conducted seperately. The report also did not list what kind of date was used (file creation, modification, access, etc.) and there was no testimony or evidence to show that a transfer from another hard drive would affect these dates. In my opinion further research would be needed to demonstrate exactly what transfer methods would produce what type of changes in each of these dates stored with the file meta-data to form a qualified opinion on their origin. -M.W.B. ]
Plaintiffs argued that this exhibit was not relevant to the new evidence of another attached hard drive and that it existed and was admissable before such evidence came to light. It was from this exhibit that Dr. Jacobson formed his opinion so his later futher discovery of evidence would not affect it.
After some argument on this point counsel was instructed to draft a motion which stated that the testimony about an external hard drive had no basis and the jury must not use it in their deliberation. The rest of Dr. Jacobson's testimony, including the exhibit of files, remain.
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