Bryan Pringle v. William Adams Jr et al

Filing 216

Objection in support re: MOTION for Summary Judgment 159 Evidentiary Objections to the Declaration of David Gallant filed by Defendants David Guetta, Frederick Riesterer, Shapiro Bernstein and Co. (Miller, Donald)

1 DONALD A. MILLER (SBN 228753)
[e-mail]
2 BARRY I. SLOTNICK (Pro Hac Vice)
[e-mail]
3 TAL E. DICKSTEIN (Pro Hac Vice)
[e-mail]
4 LOEB & LOEB LLP
10100 Santa Monica Boulevard, Suite 2200
5 Los Angeles, California 90067-4120
Telephone: [phone]
6 Facsimile: 310-282-2200
7 Attorneys for SHAPIRO, BERNSTEIN
& CO., INC., FREDERIC
8 RIESTERER, AND DAVID GUETTA
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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

13 BRYAN PRINGLE, an individual,
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Plaintiff,
v.

16 WILLIAM ADAMS, JR.; STACY
FERGUSON; ALLAN PINEDA; and
17 JAIME GOMEZ, all individually and
collectively as the music group The
18 Black Eyed Peas, et al.,
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Defendants.

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Case No. SACV 10-1656 JST(RZx)
Hon. Josephine Staton Tucker
Courtroom 10A
EVIDENTIARY OBJECTIONS TO
THE DECLARATION OF DAVID T.
GALLANT IN OPPOSITION TO
MOTION FOR SUMMARY
JUDGMENT BY DEFENDANTS
SHAPIRO, BERNSTEIN & CO,
INC., FREDERIC RIESTERER AND
DAVID GUETTA [DOC. 193]
Complaint Filed: October 28, 2010
Trial Date: March 27, 2012
Hearing Date: January 30, 2012
10:00 AM

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EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

Pursuant to Rule 56 of the Federal Rules of Civil Procedure and the Court’s

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2 Initial Standing Order at 11(c)(iii), Defendants Shapiro, Bernstein & Co, Inc.
3 (“Shapiro Bernstein”), Frederic Riesterer and David Guetta (collectively,
4 “Defendants”) respectfully submit these Evidentiary Objections to the Declaration
5 of David T. Gallant in Opposition to Defendants’ Motion for Summary Judgment
6 (Doc. 193).
GENERAL OBJECTIONS

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8 A.

Gallant Is Not A Fact Witness, And Thus His Statements Lack

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Foundation And Are Hearsay.
The majority of statements in Gallant’s declaration simply recount alleged

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11 events that took place concerning Mr. Pringle’s computer equipment and Pringle’s
12 destruction thereof. These statements are not offered for the purpose of conducting
13 any scientific testing or expert analysis, but merely to try to lend some aura of expert
14 credibility to Pringle’s own testimony. Gallant is thus improperly being offered as a
15 fact witness even though he has no first-hand knowledge of the events described in
16 his Declaration. Gallant’s Declaration is therefore inadmissible under Fed. R. Evid.
17 104, 602 (lack of foundation, speculation), 801-802 (hearsay), and 403 (confusion of
18 the issues and cumulative presentation of evidence). See Paddack v. Dave
19 Christensen, Inc., 745 F.2d 1254, 1261-62 (9th Cir. 1984) (“Rule 703 merely
20 permits such hearsay, or other inadmissible evidence, upon which an expert properly
21 relies, to be admitted to explain the basis of the expert's opinion. It does not allow
22 the admission of the reports to establish the truth of what they assert.”); U.S. v. 0.59
23 Acres of Land, 109 F.3d 1493, 1497 (9th Cir. 1997) (“[I]nadmissible evidence under
24 the Rules of Evidence cannot be properly admitted simply by attachment to an
25 appraiser's report”); Fed. R. Evid. 703 Advisory Committee Notes (2000) (“Rule
26 703 has been amended to emphasize that when an expert reasonably relies on
27 inadmissible information to form an opinion or inference, the underlying
28 information is not admissible simply because the opinion or inference is admitted.”)
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EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1 C.

Gallant’s Declaration is Inadmissible As A Result Of Pringle’s

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Spoliation Of Evidence.

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Gallant’s testimony is offered to authenticate computer files that purportedly

4 show that Pringle created “Take a Dive” (Dance Version) in 1999. But because
5 Pringle spoliated computer evidence that would directly undercut the authenticity of
6 that evidence, Gallant’s incomplete and necessarily unreliable testimony must be
7 stricken. (Frederiksen-Cross Dep. Tr. 104:10-109:1, 118:20-24-120, 122-123, 1288 130.)
9

A Court may impose sanctions as part of its inherent powers that are governed

10 not by rule or by statute but by the control necessarily vested in the Court to manage
11 its own affairs so as to achieve the orderly and expeditious disposition of its cases.
12 See Ruben Perez v. Vezer Industrial Professionals, 2011 US Dist. LEXIS 136827
13 (E.D. Cal. Nov. 29, 2011). If a party breaches its duty to preserve evidence, the
14 opposite party may move the court to sanction the party destroying evidence. Perez,
15 citing, In RE Napster, Inc. Copyright Litigation, 462 F. Supp.2d 1060, 1066 (N.D.
16 Cal. 2006).
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Any attempt by Pringle or his lawyers to side-step the seriousness of this

18 misconduct, which undercuts the integrity of the evidence central to Pringle’s claim
19 and which Gallant purports to authenticate, should be rejected. Pringle received
20 repeated direct demands to preserve all of his computer equipment. (Dickstein
21 Decl., Ex. J.) Defendants’ July 24, 2010 preservation letter stated in pertinent part:
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I hope you share our genuine concerns regarding the computer files Mr.
Pringle is using to try to convince you (and us) that his dates are what he is
holding them out to be. I am sure you are aware that there are easy ways
for Mr. Pringle to modify the Creation, Accessed and Modified dates of his
computer files, There are software programs available on the internet that
permit it, and there are articles all over the web with step by step
instructions on how to alter these dates.

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EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

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Since he is an unsolicited client from Texas that you have never represented
before or met before, I'm not sure how you can confront Mr. Pringle with
this information without running the risk of him altering or tampering with
computer files in the future or trying to fix things. Given that you have
advanced a claim on his behalf, I am sure you have already advised Mr.
Pringle of his duty to preserve all computer records. Out of caution, before
Mr. Pringle is confronted with the topic of potential altered dates, et cetera,
it is likely appropriate for you to have an independent forensic computer
person image his entire hard drive, et cetera, to capture and preserve
everything on his system before you confront him. It will be something
we will necessarily request in discovery should this case ever reach a filed
action. I leave the preservation mechanism to your choice as long as there
is a mechanism put in place to preserve the evidence before he is alerted to
concerns over his file dating practices and inconsistencies. (emphasis
added)

12 Plaintiff’s counsel then agreed to preserve the evidence in July 2010, but none of
13 Pringle’s computer experts were ever asked to make a forensic copy of his hard
14 drives. Pringle’s computer expert David Gallant, who was was retained in May
15 2010, testified:
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Q. Are you aware that certain of Mr. Pringle's
03 3 hard drives that were used in 2010 and 2011 were
04 4 discarded?
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A. Yes.
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Q. Okay. And it would be accurate to say that you
07 7 were never asked to make a forensic copy of those hard
08 8 drives before they were discarded.
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MR. DICKIE: Objection. Asked and
10 10 answered repetitively. Now it's just into harassment.
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A. As I've stated, I have never been asked to make
12 12 a forensic copy of any hard drive belonging to
13 13 Mr. Pringle.
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Q. Have you ever gone and looked at any of
15 15 Mr. Pringle's computer equipment?
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A. No.
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Q. Have you ever visited Mr. Pringle's home to see
18 18 any of his computer equipment?
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A. No.
(emphasis added).
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TO GALLANT DECLARATION

1 (See also Cross Dep. Tr. 84:6-15) (acknowledging that no image copies of Pringle’s
2 computer hard drives were ever made).
Pringle first discarded a hard drive in January 2011.1 This was during the

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4 time that Defendants’ counsel were trying to obtain information from Pringle’s
5 counsel about the status of Pringle’s ESI during a Rule 26(f) meeting. Pringle’s
6 lawyers had an obligation to participate in this conference in good faith, and they
7 had a duty to candidly inform the Court and opposing counsel about the status of
8 Mr. Pringle’s ESI, including any that had been destroyed. See Keithley v.
9 Homestore.com, Inc., 629 F. Supp. 2d 972, 977 (N.D. Cal. 2008).
The Court was informed of Plaintiff’s counsel’s lack of cooperation in

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11 discovery relating to ESI, including computer hard drives:
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Defendants submit that there has not been the required Rule 26(f) conference
on the topic of Mr. Pringle’s ESI, thereby making it impossible to formulate
appropriate ESI procedures. Without a full discussion of these issues and
implementation of appropriate ESI procedures, Defendants’ ability to obtain
important evidence without engaging in expensive and time-consuming
motion practice (which Plaintiffs’ proposal would entail), will be impaired.

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This hard drive was used between Jan 2010 and January 2011 when Pringle
removed it and sent it to the manufacturer for replacement. (Frederiksen-Cross Dep.
Tr. 118:20-24-120.) This is the hard drive that was in existence when Pringle
sought a TRO and when questions regarding backdating of computer files were
raised. (See Doc. 15, TRO Declaration.) The computer hard drive disposed of in
January 2011 was the computer hard drive that was in existence when the “correct”
NRG file surfaced for the first time. This is also the computer hard drive that was in
use when the deposit copy was created, and this is the hard drive that Pringle had
when Pringle made isolated Guitar twangs for Stewart and Rubel. From Jan 2010 to
Jan 2011 Beatport stems and remixes using Beatport stems were available for
download at various places on the Internet. Pringle testified that he downloaded
remixes from this competition. This relates directly to the issue of Pringle copying
Defendants.

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TO GALLANT DECLARATION

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In particular, Defendants believe that metadata for many files will be
required, and that in addition to sound and music files, there are other
categories of ESI in Mr. Pringle’s possession, that will need to be produced
in native form or forensically examined. Moreover, Plaintiff’s counsel has
refused to even confirm the existence of certain categories of ESI,
including (i) computer equipment and files related to Mr. Pringle’s alleged
creation of the works at issue in 1998 and 1999, (ii) back up discs, old hard
drives or other ESI related to Mr. Pringle’s alleged creation of these
works, and (iii) computer systems used by Mr. Pringle subsequent to his
alleged creation of the works at issue, which may contain evidence refuting
the alleged creation dates and showing that Mr. Pringle had access to
Defendants’ works prior to creating his own works. Plaintiff’s refusal to
engage in a meaningful discussion of these ESI issues has made it impossible
for Defendants to know what additional categories of ESI will need to be
produced in native format or forensically examined, or to assess the timing
or costs involved in possible review of native files or forensic examination.
(emphasis added).

13 (Joint Rule 26(f) Report to Court, Doc. 110 at 10-11) It was improper for Plaintiff
14 and his counsel during the Rule 26(f) meeting not to disclose the fact that Pringle
15 had discarded one of his hard drives in January 2011. See Keithley, 629 F. Supp.
16 2d at 977.
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On February 24, 2010, the Court “declined at [that] time to order the parties

18 to conduct staged discovery or to formally modify the manner in which depositions
19 are scheduled. However, the Court “expect[ed] counsel to meet and confer
20 regarding discovery issues, including both scheduling and efficient ordering of
21 discovery.” (Doc. 115.)
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Notwithstanding the Court’s Order, counsel continued to conceal Mr.

23 Pringle’s disposal of his hard drive in January 2011. Because that disposal was not
24 disclosed until August 2011, eight months later, the Court and Defendants are now
25 faced with Mr. Pringle’s professed “lack of recollection” as to exactly what he did
26 with this discarded hard drive. (Pringle Dep. Tr. 34:2-35:13.)
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EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

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Pringle’s concealment of his destruction of computer evidence continued. In

2 March 2011, Defendants served Interrogatories and Document Requests concerning
3 information residing on Pringle’s hard drives, including information used to create
4 variations of “Take A Dive” Dance Version in 2010. Neither Pringle (who verified
5 the responses) nor his counsel disclosed the fact that Pringle had discarded the his
6 hard drives.
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In July 2011, as part of the meet and confer process, the Plaintiff’s lawyers
8 expressly offered up an inspection of Mr. Pringle’s then existing hard drive, still
9 concealing the fact that two of the relevant hard drives had already been discarded,
10 one in January 2010, and another in January 2011. (See Dickstein Decl., Ex. J.) On
11 the eve of the scheduled inspection, on August 1, 2011 Pringle removed yet another
12 computer hard drive and allegedly sent it back to the manufacturer for replacement.
13 Pringle saved only the files he deemed “important” to him and his case. Defendants
14 were not offered the same opportunity.
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Pringle’s disposal of the computer hard drives destroys material evidence
16 relevant to this case.
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• All experts agree that Pringle’s NRG files do not contain a creation date for
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the underlying music files placed on this CD ROM. (Gallant Dep. Tr.

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204:12-24-206:1-3.)

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• All experts agree that the NRG image files can be backdated, manipulated or

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set to any date a person may want. (Gallant’s Dep. Tr. 50:15-53:24;

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Frederiksen-Cross Dep. Tr. 53-66, 140:19-141:22.)

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• All experts agree that, when you are trying to determine if a file has been
backdated, analysis of the computer that was used to make the disk thought
to be backdated, should be evaluated. (Gallant Dep. Tr. 215:20-216:10, 221222; Frederiksen-Cross Dep. Tr. 40:3-49, 65-67, 97-102, 109-118.)

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EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

Through his destruction of his computer hard drives, Pringle has willfully

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2 destroyed evidence relevant to the very basis for his claim. This Court has the
3 authority under Rule 26 and Rule 37 Fed. R. Civ. P. to sanction Pringle by dismissal
4 of his claim, or exclusion of evidence (such as the NRG file and all testimony
5 regarding the same). Defendants submit that dismissal is appropriate in this case,
6 but at a minimum Pringle should be precluded from presenting expert testimony
7 supporting his theory of the dating of the computer files. The sanction is
8 appropriate because Pringle has made the opinions of his own experts unreliable and
9 incomplete.
10 D.

Gallant’s Declaration, Attempting To Date Music Files, Should Be

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Precluded Because It Is Based Upon Incomplete Data.

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The Ninth Circuit has observed that the trial court’s ‘special obligation’ to

13 determine the relevance and reliability of an expert’s testimony [] is vital to ensure
14 accurate and unbiased decision-making by the trier of fact. Elsayed Mukhtar v. Cal.
15 State Univ., Hayward, 299 F. 3d 1053, 1063-64 (9th Cir. 2002).
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As discussed above, Pringle destroyed evidence that all experts agree would

17 be important to review in determining the true date of Pringle’s “Take a Dive”
18 (Dance Version) creation files:
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Okay. So if you were -- Strike that.
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If you wanted to determine whether Mr. Pringle had
4 backdated a computer file and CD in 2010, what would you
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MS. KOPPENHOEFER: I'm just going to object
7 as to it's an incomplete hypothetical and it calls for
8 speculation and it assumes facts not in evidence.
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A. In a hypothetical where you said someone had
10 created a file in 2010 that was backdated, I -- I'd need to
11 know when in 2010 just to be -- be clear, but I'm assuming
12 that let's point -- let's pick an arbitrary point. The
13 middle of 2010. Is that okay for with respect to my answer?
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Q. No. Let's pick January of 2010 through December

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TO GALLANT DECLARATION

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15 15 31st, 2010.
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A. Okay. In those specific time frames if you
17 17 suspected someone had, in this case Mr. Pringle, had
18 18 backdated a file, you would want to look at whatever
19 19 information was available with respect to that file starting
20 20 with the file itself, the media it was incorporated upon,
21 21 the surrounding files, and then whatever other information
22 22 you had available with respect to that, the history of that
23 23 file's creation, handling or deletion. Anything that
24 24 touched that file.
So to the extent that you're looking at a file
02 2 that's created in 2010, you would want to look at anything
03 3 from that point forward in time that might be available to
04 4 you that could help answer that question.
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Q. Such as?
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A. The file itself, the media it's on. Certainly you
07 7 might want to look at the testimony regarding the file.
08 8 If -- if you knew the system the file had been created on
09 9 and that system were available, you might want to look at
10 10 that.
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If you had any -- any other evidence that was in
12 12 existence about that file's creation, to do a thorough
13 13 evaluation you'd want to look at whatever was available.
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Q. And when you say if you knew the system it was
15 15 created on you'd want to look at that, are you talking about
16 16 the computer?
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A. Assuming that the file was created on a computer.
18 18 And I think that's your hypothetical, is that this is a file
19 19 created by Mr. Pringle on a computer at some point in 2010.
20 20 So, yeah, you would want to look at -- at whatever computer
21 21 he used to create that if it were available. (emphasis added).

22 (Frederiksen-Cross Dep. Tr. 65-67, 109-110; Gallant Dep. Tr. 215:20-216:10, 22123 222.)
24

The evidence on the Pringle hard drives, made unavailable by Pringle, is also

25 material to whether Pringle copied the guitar twang sequence from the re-mixed
26 versions of “I Gotta Feeling” and inserted it into his prior song. Pringle admitted
27 accessing and obtaining remixed versions of “I Gotta Feeling” from the Beatport
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1 competition and other sources. (Pringle Dep. Tr. at 25-29.) Frederiksen-Cross
2 admitted that Pringle could have added the guitar twang to his song Take a Dive in
3 2009 or 2010:
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Are you saying that it's absolutely impossible
3 that in 2009 or 2010 Mr. Pringle added the guitar twang
4 sequence to Take A Dive to create the (Dance Version)?
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A. An absolute impossibility?
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Q. Yes.
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A. No, I've seen no evidence to suggest that. But I
8 would not say that it is an absolute impossibility.
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Q. So it is possible that that could have been done?
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A. Again, I see no evidence to suggest that it was
11 but in theory, at least, given the right set of hypothetical
12 facts it -- it's plausible that it could have been given the
13 right set of -- of facts.

13 (Frederiksen-Cross Dep. Tr. 190) In fact Frederiksen Cross explained in detail how
14 Pringle could do this using an ASR-10 and computer. (Id. at 190-197.) She also
15 admitted that Pringle could have inserted the Beatport guitar twang stem, or a re16 mixed version of “I Gotta Feeling” into “Take a Dive” (Dance Version). (Id. at 19617 201 (“Assuming for a moment that he had obtained the specific Beatport stem with
18 the guitar twang sequence and assuming that he had the other hardware
19 configurations set up, that is one possible scenario where he could have input into
20 the ASR-10 a guitar twang sequence that could then be merged to his existing
21 song.”)
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To permit Gallant to proffer opinions regarding the dates of Pringle’s music

23 files based upon the “available” evidence, knowing that the evidence destroyed by
24 Pringle held evidence that was material to that analysis, would be a failure to serve
25 the Court’s “critically important…gatekeeping function” to ensure “the reliability
26 and relevancy of expert testimony.” Jinro America Inc. v. Secure Investments, Inc.,
27 266 F.3d 993 (9th Cir. 2001) (quoting Kumho Tire Co., Ltd. V. Carmichael, 526
28 U.S. 137, 152 (1999) and citing Daubert, 509 U.S. at 594–95); Primiano v. Cook,
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1 2010 WL 1660303, at *4 (9th Cir. April 27, 2010); DSU Medical Corp. v. JMS Co.
2 Ltd, 296 F.Supp.2d 1140, 1146 (N.D. Cal. 2003); MySpace Inc. v. Graphon Corp.,
3 2010 WL 4916429, at *13 (N.D. Cal. Nov. 23, 2010) (citing Daubert v. Merrell
4 Dow Pharms., Inc., 509 U.S. 579, 579-80 (1993)).
As a result of Pringle’s disposal of his hard drives, the Gallant opinion

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6 regarding the purported dates of the computer files is based upon incomplete data,
7 and is inadmissible. See, U.S. v. City of Miami, Fla., 115 F.3d 870, 873-74 (11th
8 Cir. 1997) (reversing trial court’s adoption of expert testimony that was based on
9 incomplete data); Viterbo v. Dow Chemical Co., 826 F.2d 420, 423 (5th Cir. 1987)
10 (excluding expert opinion based on incomplete data); Brown v. Parker–Hannifin
11 Corp., 919 F.2d 308, 311-12 (5th Cir. 1990) (expert had incomplete data about the
12 specific occurrence in question and, while expert's theory might have explained the
13 occurrence, other theories explain it equally well; therefore, expert testimony
14 amounts to speculation and is of no assistance to the jury, and was properly
15 excluded by the trial court); Dreyer v. Ryder Automotive Carrier Group, Inc., 367 F.
16 Supp. 2d 413, 446 (W.D.N.Y. 2005) (excluding expert testimony because it was it
17 was “founded upon unverified and therefore potentially incomplete and inaccurate
18 data” and “lack of compliance with Rule 702's requirement that data upon which a
19 proposed expert's testimony is based be ‘sufficient’”).
20 E.

Gallant’s Declaration Is Inadmissible As A Result Of Plaintiff Bryan

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Pringle’s Failure To Disclose, To Supplement, An Earlier Response, Rule

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37 Fed. R. Civ. P.

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Rule 37 of the Federal Rules of Civil Procedure prevents a party from

24 refusing to provide evidence during discovery and then attempt to us that withheld
25 evidence in opposition to a summary judgment motion. In this case, Pringle was
26 served with Interrogatory No. 19 which asked Pringle to provide his knowledge of
27 the actual creation dates for the NRG files he was asserting were his creation files.
28 Pringle objected to providing HIS knowledge and instead merely the expert
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1 testimony of David Gallant. Gallant in turn attempts to rely upon hearsay
2 conversations with Bryan Pringle that were not disclosed in response to the
3 interrogatory. Plaintiff’s failure to provide an answer to interrogatory No. 19 bars
4 his ability to present that evidence now through the declaration of Gallant.
5 F.

Gallant’s Report Is Inadmissible Under Daubert For Lack Of Reliability.

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The admissibility of expert testimony is governed by Rule 702 of the Federal

7 Rules of Evidence, which provides:
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If scientific, technical or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a fact
in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify thereto in the form
of an opinion or otherwise, if (1) the testimony is based upon
sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the
principles and methods reliably to the facts of the case.
Fed. R. Evid. 702. District courts exercise a “critically important…gatekeeping
function” to ensure “the reliability and relevancy of expert testimony.” Jinro
America Inc. v. Secure Investments, Inc., 266 F.3d 993 (9th Cir. 2001) (quoting
Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152 (1999) and citing Daubert,
509 U.S. at 594–95). Primiano v. Cook, 2010 WL 1660303, at *4 (9th Cir. April 27,
2010); DSU Medical Corp. v. JMS Co. Ltd, 296 F.Supp.2d 1140, 1146 (N.D. Cal.
2003); MySpace Inc. v. Graphon Corp., 2010 WL 4916429, at *13 (N.D. Cal. Nov.
23, 2010) (citing Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 579-80
(1993)).
Rule 702 “sets forth three distinct but related requirements: (1) the subject
matter at issue must be beyond the common knowledge of the average layman; (2)
the witness must have sufficient expertise; and (3) the state of the pertinent art or
scientific knowledge permits the assertion of a reasonable opinion.” Mesfun v.
Hagos, 2005 WL 5956612 (C.D. Cal. 2005) (citing United States v. Finley, 301 F.3d
1000, 1007 (9th Cir. 2002) and United States v. Morales, 108 F.3d 1031 (9th Cir.

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1 1997)). As the proponent of the expert testimony, Plaintiff, bears the “burden to
2 show that [its] expert [is] ‘qualified to testify competently regarding the matters he
3 intend[ed] to address; [] the methodology by which the expert reach[ed] his
4 conclusions is sufficiently reliable; and [] the testimony assists the trier of fact.”
5 McCorvey v. Baxter Healthcare Corp., 298 F.3d 1253,1257 (11th Cir. 2002)
6 (alterations in original) (quoting Maiz v. Virani, 253 F.3d 641, 662 (11th Cir.
7 2001)).
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The inquiry as to whether an expert is qualified is distinct from the

9 determination of reliability. United States v. Barrera-Medina, 139 Fed.Appx. 786,
10 793 (9th Cir. 2005) (holding that district court erred when it failed to inquire at
11 hearing on motion-in-limine as to reliability and failed to “make any later reliability
12 finding on the record”).
13

In determining the reliability of the opinion, the Daubert Court “set out four

14 factors to be reviewed when applying Rule 702:(1) whether the theory or technique
15 can be or has been tested, (2) whether the theory or technique has been subjected to
16 peer review, (3) whether the error rate is known and standards exist controlling the
17 operation of the technique, and (4) whether the theory or technique has gained
18 general acceptance.” Cooper v. Brown, 510 F.3d 870, 880 (9th Cir. 2007) (quoting
19 United States v. Benavidez-Benavidez, 217 F.3d 720, 724 (9th Cir. 2000)).
20

Under Daubert, expert testimony is only admissible if it will “assist the trier

21 of fact.” Daubert, 509 U.S. at 591. To meet the assistance prong of Daubert, the
22 testimony must concern matters that are beyond the understanding of the average lay
23 person. Mesfun v. Hagos, 2005 WL 5956612 (C.D. Cal. 2005) (citing United States
24 v. Finley, 301 F.3d 1000, 1007 (9th Cir.2002) and United States v. Morales, 108
25 F.3d 1031 (9th Cir. 1997)). “Proffered expert testimony generally will not help the
26 trier of fact when it offers nothing more than what lawyers for the parties can argue
27 in closing arguments.” United States v. Frazier, 387 F.3d 1244, 1262-63 (11th Cir.
28 2004) (citing 4 Weinstein’s Federal Evidence § 702.03[2][a].
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EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

In this case Gallant does not meet the Daubert standard for admissible

2 evidence.
3

First, Gallant’s testimony does not assist the trier of fact nor does his opinion

4 employ specialized knowledge or expertise or provide something that the average
5 lay person could not ascertain by themselves through their own evaluation of
6 admissible evidence. The dates Gallant proffers as creation dates are simply the
7 dates shown on the properties field of the CD-ROM, something the average lay juror
8 can read for themselves, should the disc become authenticated and admitted into
9 evidence. The other information that Gallant attempts to reference in connection
10 with his “opinion” on the creation dates is non-scientific information that the
11 average lay person/juror can evaluate without expert assistance if such information
12 meets the standards for admissibility. For example no specialized knowledge is
13 required to know that the photos were taken with a certain model camera. Thus
14 Gallant’s proffered testimony offers nothing more than what Pringle’s lawyers can
15 argue in closing arguments if the information gets admitted into evidence. United
16 States v. Frazier, 387 F.3d 1244, 1262-63 (11th Cir. 2004) (citing 4 Weinstein’s
17 Federal Evidence § 702.03[2][a]).
18

Second, neither Pringle nor his lawyers can attempt to use an expert to try to

19 place before the jury information that is otherwise inadmissible for lack of
20 foundation, authenticity, hearsay, or otherwise. See Rule 703 Fed.R.Evid. Advisory
21 Committee notes. Pringle is required to authenticate and date his own computer
22 files (something he has refused to do in response to Headphone Junkie’s
23 Interrogatory No. 19) in violation of Rule 26, and Rule 37 Fed.R.Civ.P. and is
24 required independently enter into evidence all other alleged items of alleged
25 information he claims supports his contention regarding the dating of his CD ROM.
26 Gallant cannot get this information admitted into evidence, nor can he discuss it
27 with the jury.
28
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EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Third, Gallant and his opinions fail to meet the reliability prong of the

2 Daubert test. Gallant testified that the dates shown in the properties files of the new
3 CD ROM are dates that are easily changed or set to any date. (Gallant Dep. Tr.
4 126:15-127.) Gallant testified that the operating system used to create the CD Rom
5 is information that is required to be considered in order to determine if the files were
6 created on a date not shown on the CD ROM. (Id. at 50:7-57.) Notwithstanding
7 Gallant’s knowledge and expertise telling him that this analysis was necessary in
8 order to reliably date the Pringle NRG files, Gallant never asked to inspect Pringle’s
9 Hard Drives and neither he nor Pringle took steps to preserve the evidence. (Id. at
10 193:16-193:24.) Worse, Pringle has now discarded the hard drives, making it
11 impossible to use the information on the hard drives to reliably date the NRG files or
12 to negate that Pringle created the files and then back dated them.
13
INDIVIDUAL OBJECTIONS

14
15

Even if this Court does not disregard the entirety of the Gallant Declaration,

16 various portions are objectionable and inadmissible as specified below.
17
18

Gallant Declaration

19

I have personal
knowledge of the facts set forth in
this Declaration. If called as a
witness I could and would testify
competently to the following facts.

20
21
22
23
24
25
26
27
28

1.

Evidentiary Objections
Inadmissible Hearsay. Fed. R. Evid.
801,802.
Lacks Foundation/Speculative. Fed. R.
Evid. 104, 602.

2.
I am president of Gallant
Computer Investigative Services
(GCIS), LLC. GCIS is licensed as a
Private Investigations Company by
the Texas Private Security Bureau
(A15633). I have over 23 years
investigative experience, including
over 15 years dedicated primarily to
computer related crimes and

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EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

2

computer forensics. I served as a
federal agent in the US Air Force
with the Air Force Office of Special
Investigations (AFOSI) for almost 15
years, and was the case agent on
numerous significant investigations
and provided computer forensics
support and/or consultation to
hundreds of investigations.
Following my retirement from the
Air Force in 2001, I entered the
corporate computer
forensics/computer security industry
with a startup company, and helped
build it into an internationally
recognized leader in computer
forensics, incident response, and
incident response training. I am an
AccessData Certified Instructor and
AccessData Certified Examiner, as
well as a contract instructor for
AccessData Corp., for whom I teach
an introductory computer forensics
course to both law enforcement and
corporate investigators. I have
trained hundreds of federal, state and
local law enforcement officials, as
well as IT security personnel in the
proper methodology for securing and
analyzing computer evidence. I am a
Certified Information Systems
Security Professional (CISSP), an
internationally recognized computer
security certification. I am a contract
instructor for New Horizons
Computer Learning Center, where I
teach CISSP preparatory courses to
IT security personnel. I have
multiple computer forensics

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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15

EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

2

certifications and have published
numerous articles on computer
forensics, e- discovery, and other
computer security-related matters.
Specific information regarding my
qualifications is contained in my CV
as appended to my August 6, 2011
Expert Report (“Report”), a true and
correct copy of which is attached as
Exhibit 1 to this Declaration.
3.
I was retained by the
Gould Law Group on May 7, 2010,
as a computer forensics expert, to
analyze a CD-ROM that contained
the creation file of the derivative
version Bryan Pringle’s song, “Take
a Dive,” to determine the date(s) the
file(s) were created, as well as the
date the CD-ROM was created
(burned).

3
4
5
6
7
8
9
10
11
12
13
14
15
16

Evidentiary Objections

Pursuant to Rule 106 Fed.R.Evid. this
Court should consider the following
deposition testimony of David Gallant pp.
22-24 (given the wrong NRG file).
Pursuant to Rule 601 Fed.R.Evid. Gallant
lacks foundation to state that the CD-Rom
given to him in May 2010 contained the
music file, because he did not listen to the
music files. (Gallant Dep. Tr. 43-44.)
Pursuant to Rule 201 Fed.R.Evid. this
Court should take judicial Notice of the
fact that both Mr. Pringle and Mr. Gallant
previously provided declarations under the
penalties of perjury that turned out to be a
false identification of the alleged CD ROM
and alleged Creation Dates for the music
files at issue in this case. See Dkt. 15

17
18
19
20
21
22
23
24
25
26
27
28

4.
On December 21, 2010,
Mr. Pringle personally delivered to
me one CD-ROM for analysis. The
disc was a white Verbatim brand, and
the serial number was 9E24F22 1861.
It was hand marked, “PROMO
PHOTOS/ 1999 ENSONIQ.NRG
FILES.” (A copy of the disk’s label

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Unauthenticated CD Rom is inadmissible
and does not become admissible by
providing to an expert. Fed.R.Evid. 703,
advisory Committee notes.
Hearsay 801-802 Fed.R.Evid. as to what
Pringle told him.

16

EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

2

is appended to my Report.) Mr.
Pringle informed me he was the
person who labeled the disk. I
initialed, dated, and initiated chain of
custody on the evidence (Tag 2).
a.
Mr. Pringle stated he
created the music files contained on
Tag 2 in 1999 using an ASR-10
keyboard and saved the files to an
external SCSI hard drive. He then
took the SCSI hard drive and
connected it to a Windows computer
(he believed a Windows 98 system)
and used Ensoniq Disk Manager
(EDM) software to create the .NRG
images. (Mr. Pringle stated he no
longer possesses the hardware or
software he used to create Tag 2 due
to a burglary of his storage facility
located in Abilene, TX, in October
2000, in which over $12,000 worth of
equipment was stolen. Pringle
provided a copy of the police report
with is attached to this report). The
.NRG image files not only contained
the various parts to the music, but
also contained the operating system
files needed to boot the ASR-10
keyboard. These images appear to be
Nero Image files (.NRG) (based
solely on the file extension “NRG”).
Mr. Pringle explained he used Nero
to extract the image files to create a
new CD-ROM to boot the ASR-10.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Evidentiary Objections

Lack of Foundation as to the creation of
the music files Fed.R.Evid. 601-602
Hearsay 801-802 Fed.R.Evid. as to what
Pringle told him.
Lack of foundation 601-602 Fed.R.Evid.
and Hearsay and Hearsay within Hearsay
801-802, 805 as to Police Report.
Inadmissible information does not become
admissible by having an expert testify.
Fed.R.Evid. 703, Advisory Committee
notes. Paddack v. Dave Christensen, Inc.,
745 F.2d 1254, 1261-62 (9th Cir. 1984)
(“Rule 703 merely permits such hearsay,
or other inadmissible evidence, upon
which an expert properly relies, to be
admitted to explain the basis of the expert's
opinion. It does not allow the admission of
the reports to establish the truth of what
they assert. . . . Upon admission of such
evidence, it then, of course, becomes
necessary for the court to instruct the jury
that the hearsay evidence is to be
considered solely as a basis for the expert
opinion and not as substantive evidence”)
(citations omitted); U.S. v. 0.59 Acres of
Land, 109 F.3d 1493, 1497 (9th Cir. 1997)
(“[I]nadmissible evidence under the Rules
of Evidence cannot be properly admitted
simply by attachment to an appraiser's
report”).

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EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

Evidentiary Objections

2
Improper testimony under 702 Fed.R.Evid.
as no specialized knowledge necessary to
view the properties files shown.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

b.
I copied the file,
“DISK05.NRG” to the desktop of a
forensic computer running Windows
XP Pro (64 bit), and burned this file
as an image to a new CD-ROM using
Nero Burning ROM Ver 6.6.0.3. I
initiated chain of custody on this
newly burned CD-ROM (Tag 3). Mr.
Pringle then took this CD-ROM, and
under my direct observation, booted
an Ensoniq ASR- 10 keyboard that
had an external CD-ROM drive
attached. He demonstrated how the
keyboard works, and played for me
his song, “Take a Dive” from the
ASR-10 keyboard. After the
demonstration, I maintained control
and custody of this CD-ROM.

18
19
20
21
22
23
24
25
26
27
28

5.
On January 3, 2011, I
created a forensic copy of both CDROMs (Tags 2 and 3) using Forensic

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To the extent that this is submitted to
establish the truth of what is asserted it is
improper under rule 703 Fed.R.Evid. No
authenticity has been established for the
CD-Rom and the demonstration referenced
is Hearsay 801-802 Fed.R.Evid.
Inadmissible information does not become
admissible by having an expert testify.
Fed.R.Evid. 703, Advisory Committee
notes. Paddack v. Dave Christensen, Inc.,
745 F.2d 1254, 1261-62 (9th Cir. 1984)
(“Rule 703 merely permits such hearsay,
or other inadmissible evidence, upon
which an expert properly relies, to be
admitted to explain the basis of the expert's
opinion. It does not allow the admission of
the reports to establish the truth of what
they assert. . . . Upon admission of such
evidence, it then, of course, becomes
necessary for the court to instruct the jury
that the hearsay evidence is to be
considered solely as a basis for the expert
opinion and not as substantive evidence.”)
(citations omitted); U.S. v. 0.59 Acres of
Land, 109 F.3d 1493, 1497 (9th Cir. 1997)
(“[I]nadmissible evidence under the Rules
of Evidence cannot be properly admitted
simply by attachment to an appraiser's
report”).
Lack of Foundation 601-602 Fed.R.Evid.;
Hearsay 801-802 Fed.R.Evid.

18

EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

Evidentiary Objections

2

Toolkit Imager, Version 3.0.0.1443,
and processed them with FTK
Version 3.2.0.32216 (License
number: 1-1205090). The CD’s (Tag
2) volume name was
“990909_0118.” This appears to be
the default disk name that is used by
most CD writing software. It
typically corresponds to the date and
time the CD is created. In this case,
that would mean Sept 9, 1999 at
1:18.

Relevance 401-402 Fed.R.Evid. and
misleading and prejudicial under Rule 403
Fed.R.Evid. The dates set forth are not
dates of the underlying music files on the
CD; See, and under Rule 106 Fed.R.Evid.
this Court should consider Gallant
Testimony at page 204:12-24 through page
206:1-3:

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

Q. And you say I can see the file creation
dates.
12 12 Can you tell me what the file
creation dates are?
13 13
A. The file creation dates of
the NRG files.
14 14
Q. So that would be the -- the
creation date of
15 15 the image file?
16 16
A. Yes, the NRG image files.
17 17
Q. But not necessarily the
underlying data within
18 18 those files.
19 19
A. There's no way to
determine dates for the
20 20 underlying data in the NRG files.
They don't exist.
21 21
Q. And you determined that
how?
22 22
A. From Mr. Giebler's
interview. (Emphasis added)
As to the dates of the image files,
Foundation under Rule 601-602;
Relevance 401-402 Fed.R.Evid. and
Misleading and prejudicial under Rule 403
Fed.R.Evid.
Under Rule 106 Fed.R.Evid. this Court
should consider Gallant’s testimony at
page 50:15-24 through page 53:1-24.

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EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

2

Evidentiary Objections
Quoting page 53:1-24:

3

Q. Is it possible to set the clock back and
select
09 9 a particular date when you're
creating an image file?
10 10
MR. DICKIE: Object to
the form of the
11 11 question.
12 12
A. Yes, it's possible.
13 13
Q. The specific image files that
are at issue in
14 14 this case on the disk that Mr.
Pringle gave you in
15 15 December of 2010, is it possible
with respect to the
16 16 image files to select a particular
date for those files?
17 17
A. Theoretically possible, yes.
18 18
Q. And is it possible for -- the
disk that was
19 19 provided to you in May of 2010, is
it possible for those
20 20 image files that a specific date
could have been
21 21 selected when those files were
saved?
22 22
MR. DICKIE: Objection.
Calls for
23 23 speculation again.
24 24
A. It's theoretically possible.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

Inadmissible information does not become
admissible by having an expert testify.
Fed.R.Evid. 703, Advisory Committee
notes. Paddack v. Dave Christensen, Inc.,
745 F.2d 1254, 1261-62 (9th Cir. 1984)
(“Rule 703 merely permits such hearsay,
or other inadmissible evidence, upon

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TO GALLANT DECLARATION

1

Gallant Declaration

2

Evidentiary Objections
which an expert properly relies, to be
admitted to explain the basis of the expert's
opinion. It does not allow the admission of
the reports to establish the truth of what
they assert. . . . Upon admission of such
evidence, it then, of course, becomes
necessary for the court to instruct the jury
that the hearsay evidence is to be
considered solely as a basis for the expert
opinion and not as substantive evidence.”)
(citations omitted); U.S. v. 0.59 Acres of
Land, 109 F.3d 1493, 1497 (9th Cir. 1997)
(“[I]nadmissible evidence under the Rules
of Evidence cannot be properly admitted
simply by attachment to an appraiser's
report”).

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

a.
Forensic analysis of Tag
2 determined there were two
“sessions” written to the disk. This
means that groups of files were saved
to the disk on two different
occasions. Session one contained
one directory named “promo photos”
which contained 134 digital
photographs. This files were all
dated 9-8-1999. The second session
contained four files present as
follows: “DISK02.NRG,”
“DISK03.NRG,” “DISK04.NRG,”
and “DISK05.NRG.” These files
were all dated 8-22-1999. There was
also a directory named “promo
photos.” Cursory analysis metadata
associated with each of the 134
images contained in the “promo
photo” directory disclosed the images
were all taken on 09-06-1999 and 09-

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Lack of Foundation 601-602 Fed. R. Evid;
Hearsay 801-802 Fed.R.Evid.
Lack of Foundation 601-602 Fed.R.Evid. ;
Relevance 401-402 Fed.R.Evid.;
Misleading 403 Fed.R.Evid. Under Rule
106 Fed.R.Evid. the Court should consider
Gallant deposition testimony page 214:724:
Q. So a person could take music files
and photo
07 7 files today and burn an image of
those files setting the
08 8 clock in their computer to any date
and that would be
09 9 the creation date for that image file.
10 10
MR. DICKIE: Object to
the form of the
11 11 question.
12 12
Q. Wouldn't it, sir?
13 13
MR. DICKIE: Object to

21

EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

Evidentiary Objections

2

08-1999 with an Olympus
C900Z/D400Z digital camera.
According to the Olympus website
(http://www.olympusglobal.com/en/cordhistory/camera/popup/digital_c900z_movie.cfm), this
camera was released in 1998.

the form of the
14 14 question. It's an improper
hypothetical not asking the
15 15 witness about what the evidence
that he's actually
16 16 referred to is all about.
17 17
Q. You can answer my
question.
18 18
A. Anything is possible with
the right technology.
19 19 Anything is possible.
20 20
Q. And would that scenario,
that hypothetical that
21 21 I gave you, would that be
possible?
22 22
A. I believe that falls -23 23
MR. DICKIE: Same
objection.
24 24
A. -- under the category of
anything.

3
4
5
6
7
8
9
10
11
12
13
14
15
16

Inadmissible information does not become
admissible by having an expert testify.
Fed.R.Evid. 703, Advisory Committee
notes. Paddack v. Dave Christensen, Inc.,
745 F.2d 1254, 1261-62 (9th Cir. 1984)
(“Rule 703 merely permits such hearsay,
or other inadmissible evidence, upon
which an expert properly relies, to be
admitted to explain the basis of the expert's
opinion. It does not allow the admission of
the reports to establish the truth of what
they assert. . . . Upon admission of such
evidence, it then, of course, becomes
necessary for the court to instruct the jury
that the hearsay evidence is to be
considered solely as a basis for the expert
opinion and not as substantive evidence.”)
(citations omitted); U.S. v. 0.59 Acres of

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19
20
21
22
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25
26
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TO GALLANT DECLARATION

1

Gallant Declaration

2

Land, 109 F.3d 1493, 1497 (9th Cir. 1997)
(“[I]nadmissible evidence under the Rules
of Evidence cannot be properly admitted
simply by attachment to an appraiser's
report”).

3
4
5
6
7
8
9
10

Evidentiary Objections

b.
The file named
“DISK05.NRG,” which, according to
Mr. Pringle, is the creation file
containing the derivative version of
Pringle’s song “Take a Dive,” has a
creation date of 8-22-1999, with a
last modified time of 12:54 p.m.

11
12

Lack of Foundation 601-602 Fed.R.Evid.;
Hearsay 801-802 Fed.R.Evid. as to what
Mr. Pringle told him.
Relevance 401-402: The dates proffered
are not dates of the music files. See, and
under Rule 106 Fed.R.Evid. this Court
should consider Gallant Testimony at page
204:12-24 through page 206:1-3:
Q. And you say I can see the file creation
dates.
12 12 Can you tell me what the file
creation dates are?
13 13
A. The file creation dates of
the NRG files.
14 14
Q. So that would be the -- the
creation date of
15 15 the image file?
16 16
A. Yes, the NRG image files.
17 17
Q. But not necessarily the
underlying data within
18 18 those files.
19 19
A. There's no way to
determine dates for the
20 20 underlying data in the NRG files.
They don't exist.
21 21
Q. And you determined that
how?
22 22
A. From Mr. Giebler's
interview. (Emphasis added)

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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TO GALLANT DECLARATION

1

Gallant Declaration

2

Evidentiary Objections
As to the dates of the image files,
Foundation 601-602; relevance 401-402;
Misleading/speculation 403 Fed.R.Evid.
Under Rule 106 Fed.R.Evid. this Court
should consider Gallant’s testimony at
page 50:15-24 through page 53:1-24.
Quoting page 53:1-24:

3
4
5
6
7

Q. Is it possible to set the clock back and
select
09 9 a particular date when you're
creating an image file?
10 10
MR. DICKIE: Object to
the form of the
11 11 question.
12 12
A. Yes, it's possible.
13 13
Q. The specific image files that
are at issue in
14 14 this case on the disk that Mr.
Pringle gave you in
15 15 December of 2010, is it possible
with respect to the
16 16 image files to select a particular
date for those files?
17 17
A. Theoretically possible, yes.
18 18
Q. And is it possible for -- the
disk that was
19 19 provided to you in May of 2010, is
it possible for those
20 20 image files that a specific date
could have been
21 21 selected when those files were
saved?
22 22
MR. DICKIE: Objection.
Calls for
23 23 speculation again.
24 24
A. It's theoretically possible.

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Under Rule 106 Fed.R.Evid. the Court

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EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

2

should consider Gallant deposition
testimony page 214:7-24:

3
4

Inadmissible information does not become
admissible by having an expert testify.
Fed.R.Evid. 703, Advisory Committee
notes. Paddack v. Dave Christensen, Inc.,
745 F.2d 1254, 1261-62 (9th Cir. 1984)
(“Rule 703 merely permits such hearsay,
or other inadmissible evidence, upon
which an expert properly relies, to be
admitted to explain the basis of the expert's
opinion. It does not allow the admission of
the reports to establish the truth of what
they assert. . . . Upon admission of such
evidence, it then, of course, becomes
necessary for the court to instruct the jury
that the hearsay evidence is to be
considered solely as a basis for the expert
opinion and not as substantive evidence.”)
(citations omitted); U.S. v. 0.59 Acres of
Land, 109 F.3d 1493, 1497 (9th Cir. 1997)
(“[I]nadmissible evidence under the Rules
of Evidence cannot be properly admitted
simply by attachment to an appraiser's
report”).

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Evidentiary Objections

c.
I also examined the
original CD-ROM (Tag 2) with a
utility called NerolnfoTool, which
determined that the content of this
particular CD-ROM was created on
“9 September 1999” (i.e. the CDROM was burned September 9,
1999). This corresponds to the CD
volume name described above.
NeroInfoTool is a free “non-forensic”
application that identifies when a
CD-ROM was burned, as well as

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Foundation 601-602; Hearsay 801-802;
Relevance 401-402;
Misleading/Speculation 403 Fed.R.Evid.
Pursuant to Rule 106 Fed. R. Evid. This
Court should consider the following
testimony of David Gallant:
Q. Okay. So the September 9th, 1999,
Nero
03 3 InfoTool report date is not a
forensic form of proof?
04 4
A. No, I never said that it was a

25

EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

Evidentiary Objections

2

other information concerning the
computer’s CD-ROM drives.

forensic form of
05 5 proof, but we don't need to use -always use forensic
06 6 tools to help us draw conclusions
with our, you know,
07 7 forensic cases.
08 8
Q. Did you determine any
forensic way to prove
09 9 that September 9, 1999 date was a
true date?
10 10
A. The only way he was able
to establish that was
11 11 with Nero InfoTool.
12 12
Q. Which is not a forensic
tool?
13 13
A. It doesn't have to be a
forensic tool to be of
14 14 value to us.
15 15
Q. But it's not a forensic tool,
is it?
16 16
A. No, it's not a forensic tool.
Gallant Dep. Tr. at 199.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

The dates set forth are not dates of the
underlying music files on the CD; See,
and under Rule 106 Fed.R.Evid. this Court
should consider Gallant Testimony at page
204 ln 12-24 through page 206 ln 1-3.

18
19
20
21

As to the dates of the image files,
Foundation under Rule 601-602;
Relevance 401-402 Fed.R.Evid. and
Misleading and prejudicial under Rule 403
Fed.R.Evid.
Under Rule 106 Fed.R.Evid. this Court
should consider Gallant’s testimony at
page 50 ln 15-24 through page 53 ln 1-24.
Quoting page 53 ln 1-24:

22
23
24
25
26
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EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

2

Evidentiary Objections
Q. Is it possible to set the clock back and
select
09 9 a particular date when you're
creating an image file?
10 10
MR. DICKIE: Object to
the form of the
11 11 question.
12 12
A. Yes, it's possible.
13 13
Q. The specific image files that
are at issue in
14 14 this case on the disk that Mr.
Pringle gave you in
15 15 December of 2010, is it possible
with respect to the
16 16 image files to select a particular
date for those files?
17 17
A. Theoretically possible, yes.
18 18
Q. And is it possible for -- the
disk that was
19 19 provided to you in May of 2010, is
it possible for those
20 20 image files that a specific date
could have been
21 21 selected when those files were
saved?
22 22
MR. DICKIE: Objection.
Calls for
23 23 speculation again.
24 24
A. It's theoretically possible.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

Inadmissible information does not become
admissible by having an expert testify.
Fed.R.Evid. 703, Advisory Committee
notes. Paddack v. Dave Christensen, Inc.,
745 F.2d 1254, 1261-62 (9th Cir. 1984)
(“Rule 703 merely permits such hearsay,
or other inadmissible evidence, upon
which an expert properly relies, to be
admitted to explain the basis of the expert's

23
24
25
26
27
28
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EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

2

opinion. It does not allow the admission of
the reports to establish the truth of what
they assert. . . . Upon admission of such
evidence, it then, of course, becomes
necessary for the court to instruct the jury
that the hearsay evidence is to be
considered solely as a basis for the expert
opinion and not as substantive evidence.”)
(citations omitted); U.S. v. 0.59 Acres of
Land, 109 F.3d 1493, 1497 (9th Cir. 1997)
(“[I]nadmissible evidence under the Rules
of Evidence cannot be properly admitted
simply by attachment to an appraiser's
report”).

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

Evidentiary Objections

d.
As stated, there were
only two sessions written to this disk,
with the last session written on
September 9, 1999. Due to this fact,
no additional data was added to the
CD-ROM, and thus none of the
existing tiles on the CD-ROM,
including “DISK05.NRG” were
modified after September 9, 1999.
This means that the guitar twang
sequence existed in the original
“DISK05.NRG” file and could not
possibly have been added to the file
contained on the CD-ROM after
September 9, 1999 (i.e. Mr. Pringle
could not have gone back and later
added the guitar twang sequence to
the “DISK05.NRG” file contained on
the CD-ROM, after he heard “I Gotta
Feeling”).

Lack of Foundation 601-602; Hearsay 801802; Relevance 401-402 Fed.R.Evid;
Misleading/Speculation 403 Fed. R. Evid.
The dates set forth are not dates of the
underlying music files on the CD; See,
and under Rule 106 Fed.R.Evid. this Court
should consider Gallant’s testimony at
page 204:12-24 through page 206:1-3.
As to the dates of the image files,
Foundation under Rule 601-602;
Relevance 401-402 Fed.R.Evid. and
Misleading and prejudicial under Rule 403
Fed.R.Evid.
Under Rule 106 Fed.R.Evid. this Court
should consider Gallant’s testimony at
page 50:15-24 through page 53:1-24.
Quoting page 53:1-24:
Q. Is it possible to set the clock back and
select
09 9 a particular date when you're
creating an image file?

26
27
28
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28

EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

2

Evidentiary Objections
10 10
MR. DICKIE: Object to
the form of the
11 11 question.
12 12
A. Yes, it's possible.
13 13
Q. The specific image files that
are at issue in
14 14 this case on the disk that Mr.
Pringle gave you in
15 15 December of 2010, is it possible
with respect to the
16 16 image files to select a particular
date for those files?
17 17
A. Theoretically possible, yes.
18 18
Q. And is it possible for -- the
disk that was
19 19 provided to you in May of 2010, is
it possible for those
20 20 image files that a specific date
could have been
21 21 selected when those files were
saved?
22 22
MR. DICKIE: Objection.
Calls for
23 23 speculation again.
24 24
A. It's theoretically possible.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

Inadmissible information does not become
admissible by having an expert testify.
Fed.R.Evid. 703, Advisory Committee
notes. Paddack v. Dave Christensen, Inc.,
745 F.2d 1254, 1261-62 (9th Cir. 1984)
(“Rule 703 merely permits such hearsay,
or other inadmissible evidence, upon
which an expert properly relies, to be
admitted to explain the basis of the expert's
opinion. It does not allow the admission of
the reports to establish the truth of what
they assert. . . . Upon admission of such
evidence, it then, of course, becomes

20
21
22
23
24
25
26
27
28
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29

EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

2

Evidentiary Objections
necessary for the court to instruct the jury
that the hearsay evidence is to be
considered solely as a basis for the expert
opinion and not as substantive evidence.”)
(citations omitted); U.S. v. 0.59 Acres of
Land, 109 F.3d 1493, 1497 (9th Cir. 1997)
(“[I]nadmissible evidence under the Rules
of Evidence cannot be properly admitted
simply by attachment to an appraiser's
report”).

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

6.
On January 3, 2011, I
contacted Verbatim Americas, LLC,
via their customer support web page
and requested they research their
records to determine the date the CDROM disc (Tag 2) (serial number
9E24F221861) was manufactured
and sold in the United States. On
March 17, 2011, Verbatim Customer
Support advised by telephone, then
via email, that this particular CDROM was manufactured in Taiwan
on February 24, 1999 and this type of
CD-ROM has been out of production
since late 1999. The last shipment to
a distributor was December 29, 2003.
A copy of their email is appended to
my report.

23
24
25
26
27

Foundation 601-602 Fed.R.Evid. Hearsay
801-802 Fed.R.Evid.
Inadmissible information does not become
admissible by having an expert testify.
Fed.R.Evid. 703, Advisory Committee
notes. Paddack v. Dave Christensen, Inc.,
745 F.2d 1254, 1261-62 (9th Cir. 1984)
(“Rule 703 merely permits such hearsay,
or other inadmissible evidence, upon
which an expert properly relies, to be
admitted to explain the basis of the expert's
opinion. It does not allow the admission of
the reports to establish the truth of what
they assert. . . . Upon admission of such
evidence, it then, of course, becomes
necessary for the court to instruct the jury
that the hearsay evidence is to be
considered solely as a basis for the expert
opinion and not as substantive evidence.”)
(citations omitted); U.S. v. 0.59 Acres of
Land, 109 F.3d 1493, 1497 (9th Cir. 1997)
(“[I]nadmissible evidence under the Rules
of Evidence cannot be properly admitted
simply by attachment to an appraiser's
report”).

28
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30

EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

Evidentiary Objections

2

7.
On March 15, 2011, Mr.
Pringle forwarded to me an email
from Mr. Gary Giebler, Giebler
Enterprises, in which Mr. Giebler
informed him he (Pringle) purchased
EDM on May 18, 1999. The serial
number for his copy of EDM was
“3998.” A copy of his receipt is
attached to my report.

Foundation 601-602 Fed.R.Evid. Hearsay
801-802 Fed.R.Evid.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

8.
On March 17, 2011, I
purchased a copy of EDM from
Giebler Enterprises and discussed
with Mr. Giebler how the software
created the .NRG files. He advised
he wrote the EDM program, as well
as the ASR-10 operating system.
The ASR-10 operating system is not
compatible with any other operating
system, and it had to be booted using
an EDM created disk. The EDM
files are a ‘proprietary” .NRG format

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Inadmissible information does not become
admissible by having an expert testify.
Fed.R.Evid. 703, Advisory Committee
notes. Paddack v. Dave Christensen, Inc.,
745 F.2d 1254, 1261-62 (9th Cir. 1984)
(“Rule 703 merely permits such hearsay,
or other inadmissible evidence, upon
which an expert properly relies, to be
admitted to explain the basis of the expert's
opinion. It does not allow the admission of
the reports to establish the truth of what
they assert. . . . Upon admission of such
evidence, it then, of course, becomes
necessary for the court to instruct the jury
that the hearsay evidence is to be
considered solely as a basis for the expert
opinion and not as substantive evidence.”)
(citations omitted); U.S. v. 0.59 Acres of
Land, 109 F.3d 1493, 1497 (9th Cir. 1997)
(“[I]nadmissible evidence under the Rules
of Evidence cannot be properly admitted
simply by attachment to an appraiser's
report”).
Foundation 601-602 Fed.R.Evid. Hearsay
801-802 Fed.R.Evid.
Inadmissible information does not become
admissible by having an expert testify.
Fed.R.Evid. 703, Advisory Committee
notes. Paddack v. Dave Christensen, Inc.,
745 F.2d 1254, 1261-62 (9th Cir. 1984)
(“Rule 703 merely permits such hearsay,
or other inadmissible evidence, upon
which an expert properly relies, to be
admitted to explain the basis of the expert's

31

EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

Evidentiary Objections

2

that are compatible with Nero for the
purposes of creating a bootable CDROM or floppy disk. He advised that
since I was able to extract the
DISK05.NRG file from Tag 2, burn a
new CD- ROM with Nero that was
able to boot the ASR-10 keyboard,
that .NRG file could ONLY have
been created with EDM. I was able
to use EDM to view the contents of
the various .NRG files. When asked
if there would be dates associated
with the ASR-10 operating system
that might help “date” the .NRG files,
he advised there were not and that the
best indicator of the original date of
the files would be the dates on the
CD-ROM. He also stated there was a
possibility that the licensee and
license number might be located
within the _NRG files. Analysis of
the .NRG files to locate this
information pertaining to Mr.
Pringle’s license information was
unsuccessful.
9.
Based on the analysis of
the data provided to me, August 22,
1999, at 12:54 pm was the last time
the “DISK05.NRG” file, which
contains the creation file for the
derivative version of “Take a Dive,”
was modified. Additionally, my
analysis concludes the CD-ROM that
contained this file was created
(burned) on September 9, 1999, and
could not have been subsequently
burned (i.e. no new material could
have been added) after that date. The
totality of the information available

opinion. It does not allow the admission of
the reports to establish the truth of what
they assert. . . . Upon admission of such
evidence, it then, of course, becomes
necessary for the court to instruct the jury
that the hearsay evidence is to be
considered solely as a basis for the expert
opinion and not as substantive evidence.”)
(citations omitted); U.S. v. 0.59 Acres of
Land, 109 F.3d 1493, 1497 (9th Cir. 1997)
(“[I]nadmissible evidence under the Rules
of Evidence cannot be properly admitted
simply by attachment to an appraiser's
report”).

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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Foundation 601-602 Fed.R.Evid. Hearsay
801-802 Fed.R.Evid.
Relevance 401-402 Fed.R.Evid.
Misleading/Speculation 403 Fed.R.Evid.
The dates set forth are not dates of the
underlying music files on the CD; See,
and under Rule 106 Fed.R.Evid. this Court
should consider Gallant’s testimony at
page 204:12-24 through page 206:1-3.
Q. And you say I can see the file creation
dates.
12 12 Can you tell me what the file

32

EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

Evidentiary Objections

2

to me supports Mr. Pringle’s claim of
creating the DISK05.NRG file and
CD-ROM in 1999. The
manufacturing date of the CD-ROM
itself (Feb 1999) and the date of his
purchase of EDM (May 1999) along
with my forensic findings, support
this conclusion. None of the data or
information I reviewed supports any
other conclusion or otherwise refutes
the authenticity of Mr. Pringle’s
claim.

creation dates are?
13 13
A. The file creation dates of
the NRG files.
14 14
Q. So that would be the -- the
creation date of
15 15 the image file?
16 16
A. Yes, the NRG image files.
17 17
Q. But not necessarily the
underlying data within
18 18 those files.
19 19
A. There's no way to
determine dates for the
20 20 underlying data in the NRG files.
They don't exist.
21 21
Q. And you determined that
how?
22 22
A. From Mr. Giebler's
interview. (Emphasis added)

3
4
5
6
7
8
9
10
11
12
13
14

As to the dates of the image files,
Foundation under Rule 601-602;
Relevance 401-402 Fed.R.Evid. and
Misleading and prejudicial under Rule 403
Fed.R.Evid.
Under Rule 106 Fed.R.Evid. this Court
should consider Gallant’s testimony at
page 50:15-24 through page 53:1-24.
Quoting page 53:1-24:

15
16
17
18
19
20
21

Inadmissible information does not become
admissible by having an expert testify.
Fed.R.Evid. 703, Advisory Committee
notes. Paddack v. Dave Christensen, Inc.,
745 F.2d 1254, 1261-62 (9th Cir. 1984)
(“Rule 703 merely permits such hearsay,
or other inadmissible evidence, upon
which an expert properly relies, to be
admitted to explain the basis of the expert's
opinion. It does not allow the admission of

22
23
24
25
26
27
28
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33

EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

2

Evidentiary Objections
the reports to establish the truth of what
they assert. . . . Upon admission of such
evidence, it then, of course, becomes
necessary for the court to instruct the jury
that the hearsay evidence is to be
considered solely as a basis for the expert
opinion and not as substantive evidence.”)
(citations omitted); U.S. v. 0.59 Acres of
Land, 109 F.3d 1493, 1497 (9th Cir. 1997)
(“[I]nadmissible evidence under the Rules
of Evidence cannot be properly admitted
simply by attachment to an appraiser's
report”).

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

10. I have also reviewed the
Declaration of Erik Laykin dated
November 14th, 2011, as well as the
draft transcript of his deposition
dated December 7, 2011, and offer an
opinion as to some of the comments
he made. A true and correct copy of
my December 16, 2011 Rebuttal
Report (“Rebuttal”) containing those
opinions is attached to this
Declaration as Exhibit 2.
11. Mr. Laykin stated in his
declaration (page 4, paragraph 12)
that Mr. Pringle reported his
computer stolen in 2000 yet claimed
he burned the music image to CD on
May 17, 2001, thus could not have
burned the CD-Rom containing his
“Take a Dive” song at that time. Mr.
Laykin seems to be basing the CD
burn date of May 2001 from my
declaration dated November 18,
2010. That burn date pertained to the
first CD-Rom (Tag 1) analyzed and
reported in that declaration. In my

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To the extent that Gallant attempts to offer
his prior inadmissible statements regarding
dates by quoting his prior report, the same
objections set forth with respect to his
original report apply.
Foundation 601-602 Fed.R.Evid. Hearsay
801-802 Fed.R.Evid.
Relevance 401-402 Fed.R.Evid.
Misleading/Speculation 403 Fed.R.Evid.
The dates set forth are not dates of the
underlying music files on the CD; See,
and under Rule 106 Fed.R.Evid. this Court

34

EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

Evidentiary Objections

2

subsequent report dated August 6,
2011, in which I reported my
findings for Tag 2, the CD-Rom
containing the “Take a Dive” song, in
paragraph 4C I stated:

should consider Gallant’s testimony at
page 204:12-24 through page 206:1-3.

3
4
5
6
7
8
9
10
11
12
13
14
15

“I also examined the original CDROM (Tag 2) with a utility called
NeroInfo Tool, which determined
that the content of this particular CDROM was created on “9 September
1999” (i.e. the CD- ROM was burned
September 9, 1999). This
corresponds to the CD volume name
described above. NeroInfo Tool is a
free “non-forensic” application that
identifies when a CD-ROM was
burned, as well as other information
concerning the computer’s CD-ROM
drives.”

16
17
18
19
20
21
22
23
24
25
26
27
28

12. This burn date predates
the theft of Mr. Pringle’s property. I

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As to the dates of the image files,
Foundation under Rule 601-602;
Relevance 401-402 Fed.R.Evid. and
Misleading and prejudicial under Rule 403
Fed.R.Evid.
Under Rule 106 Fed.R.Evid. this Court
should consider Gallant’s testimony at
page 50:15-24 through page 53:1-24.
Inadmissible information does not become
admissible by having an expert testify.
Fed.R.Evid. 703, Advisory Committee
notes. Paddack v. Dave Christensen, Inc.,
745 F.2d 1254, 1261-62 (9th Cir. 1984)
(“Rule 703 merely permits such hearsay,
or other inadmissible evidence, upon
which an expert properly relies, to be
admitted to explain the basis of the expert's
opinion. It does not allow the admission of
the reports to establish the truth of what
they assert. . . . Upon admission of such
evidence, it then, of course, becomes
necessary for the court to instruct the jury
that the hearsay evidence is to be
considered solely as a basis for the expert
opinion and not as substantive evidence.”)
(citations omitted); U.S. v. 0.59 Acres of
Land, 109 F.3d 1493, 1497 (9th Cir. 1997)
(“[I]nadmissible evidence under the Rules
of Evidence cannot be properly admitted
simply by attachment to an appraiser's
report”).
Foundation 601-602 Fed.R.Evid. Hearsay
801-802 Fed.R.Evid.

35

EVIDENTIARY OBJECTIONS
TO GALLANT DECLARATION

1

Gallant Declaration

2

also reviewed the police report Mr.
Pringle provided to me. He did not
report his computer stolen, but rather
“several items of music equipment”
were stolen. The major items that
were stolen were very specifically
identified in the report, and it would
be logical that if a computer had been
stolen, Mr. Pringle would have listed
it in the report. Mr. Pringle informed
me that among the “several items of
music equipment” were removable
hard drives that contained the
original compilations of the “Take a
Dive” song. I also reviewed an
excerpt of Mr. Pringle’s deposition
dated August 24, 2011, page 155,
line 21 where he specifically stated
he didn’t recall if they stole his
computer in 2000.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Evidentiary Objections
Relevance 401-402 Fed.R.Evid.
Misleading/Speculation 403 Fed.R.Evid.
The dates set forth are not dates of the
underlying music files on the CD; See,
and under Rule 106 Fed.R.Evid. this Court
should consider Gallant’s testimony at
page 204:12-24 through page 206:1-3.

Q. And you say I can see the file creation
dates.
12 12 Can you tell me what the file
creation dates are?
13 13
A. The file creation dates of
the NRG files.
14 14
Q. So that would be the -- the
creation date of
15 15 the image file?
16 16
A. Yes, the NRG image files.
17 17
Q. But not necessarily the
underlying data within
Q.
So the hard drive that 18 18 those files.
was taken along with the ASR-10 19 19
A. There's no way to
that was stolen, what was on that determine dates for the
hard drive?
20 20 underlying data in the NRG files.
They don't exist.
A.
Well, there was many
21 21
Q. And you determined that
hard drives. It was instrumentation,
how?
MIDI 13:19:06 sequences, samples.
22 22
A. From Mr. Giebler's
I don’t recall if they stole my
interview. (Emphasis added)
computer too, but there was a lot of
different drives and removable drives As to the dates of the image files,
that were taken and basically just
Foundation under Rule 601-602;
(demonstrating)
Relevance 401-402 Fed.R.Evid. and
Misleading and prejudicial under Rule 403
Fed.R.Evid.
Under Rule 106 Fed.R.Evid. this Court
should consider Gallant’s testimony at
page 50:15-24 through page 53:1-24.

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Inadmissible information does not become
admissible by having an expert testify.
Fed.R.Evid. 703, Advisory Committee
notes. Paddack
v. Dave Christensen, Inc., 745 F.2d 1254,
1261-62 (9th Cir. 1984) (“Rule 703 merely
permits such hearsay, or other inadmissible
evidence, upon which an expert properly
relies, to be admitted to explain the basis
of the expert's opinion. It does not allow
the admission of the reports to establish the
truth of what they assert. . . . Upon
admission of such evidence, it then, of
course, becomes necessary for the court to
instruct the jury that the hearsay evidence
is to be considered solely as a basis for the
expert opinion and not as substantive
evidence.”) (citations omitted); U.S. v.
0.59 Acres of Land, 109 F.3d 1493, 1497
(9th Cir. 1997) (“[I]nadmissible evidence
under the Rules of Evidence cannot be
properly admitted simply by attachment to
an appraiser's report”).

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13. Mr. Laykin goes to great
lengths to discuss the possibility of
finding evidence Mr. Pringle
downloaded the song, “I Gotta
Feeling” from the Internet on the
hard drive Mr. Pringle returned to the
manufacturer due to defects. Mr.
Pringle informed me he purchased
his current computer in July 2004.
He upgraded various hardware
components on this computer through
the years. It originally had a 200 GB
hard drive which he upgraded to a
640 GB hard drive on/about May 18,

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With respect to what Pringle told Gallant,
hearsay 801-802 Fed.R.Evid.; Foundation
601-602 Fed.R.Evid. Improper subject of
expert testimony 702-703 Fed.R.Evid.
With respect to what may or may not have
transferred from computer hard drive to
computer hard drive, Lack of Foundation
601-602 Fed.R.Evid.. Gallant has never
inspected any hard drive or computer of
Mr. Pringle
Pursuant to Rule 106 Fed.R.Evid. this
Court should consider the following from
the deposition of Mr. Gallant, page 57:24-

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2009. At that time he reinstalled the
operating system (Windows XP)
from the original installation CDROM and transferred his data to the
new drive. This would create a
pristine installation without any
residual system files (including
Internet history) remaining from the
previous hard drive. He also
reinstalled the programs he
commonly used and transferred data
to the new hard drive. Again, this
would not have transferred any
system files (to include Internet
history) to the new drive. On January
5, 2010, he purchased two new hard
drives (500 GB each) and installed
one in this system and believes he
gave one to a friend. Again he
reinstalled the operating system into
the computer and transferred his data
and programs to the new drive in the
same manner as described above. No
system files (including Internet
history) would have transferred. In
July/August 2011, Mr. Pringle began
experiencing intermittent hardware
issues with the computer and
believed the issue may have been the
hard drive he purchased in January
2010. On August 1, 2011, after
receiving an return merchandise
authorization (RMA) number from
Western Digital, he returned the drive
for an exchange after copying his
data to an external source. He
provided two copies of this data to
me for safeguarding, and I provided
one of these copies to Mr. Daniel

58:6:

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Q. And it would be fair to say
that you did not do
any analysis of Mr. Pringle's hard drive
that was used
02 2 in 2010 in connection with any of
your opinions?
03 3
MR. DICKIE: Objection.
Asked and
04 4 answered multiple times.
05 5
A. Yes. As I've said, I have not
had access to
06 6 any hard drive from Mr. Pringle.
See also page 31:16-19 of Gallant Dep.
Tr.:
16
Q. Were you ever asked to make a
forensic copy of
17 17 any hard drive of Mr. Pringle's
in connection with your
18 18 work in this case?
19 19
A. No.

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Aga on August 8, 2011. Western
digital shipped Mr. Pringle a
replacement drive on August 9, 2011.
14. Internet browsers are
typically configured by default to
clear their internet history on a
scheduled basis. Users can also
manually delete the history at will, or
set their browser to delete the history
more or less frequently than the
default settings, or automatically
when they exit the program. These
actions typically do a decent job of
clearing the temporary internet files
and cookies, but do on occasion leave
remnants of files that can be
forensically analyzed depending on
how the remote web site was
configured. For instance, sites that
use the hypertext transfer protocol
secure (HTTPS) protocol are
designed to transmit the data in an
encrypted format and the data that
remains on the computer is
encrypted. Sites that typically use
the IMPS protocol are banking sites,
most of the commonly used online
email sites, or sites that accept credit
card transactions. Computer
forensics can not decrypt that data
into clear text. In addition to history
deletions, browsers now have an
optional privacy function that
prevents any browsing history from
being written to the computer. This
action thwarts computer forensics on
systems unless they are forensically
imaged on site while running since
any remnant data that may remain

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Evidentiary Objections

With respect to what may or may not have
occurred on Pringle’s hard drives, or what
could have been copied on Pringle’s hard
drives:
Lack of Foundation 601-602 Fed.R.Evid..
Gallant has never inspected any hard drive
or computer of Mr. Pringle
Pursuant to Rule 106 Fed.R.Evid. this
Court should consider the following from
the deposition of Mr. Gallant, page 57:2458:6:
24 24
Q. And it would be fair to say
that you did not do
any analysis of Mr. Pringle's hard drive
that was used
02 2 in 2010 in connection with any of
your opinions?
03 3
MR. DICKIE: Objection.
Asked and
04 4 answered multiple times.
05 5
A. Yes. As I've said, I have not
had access to
06 6 any hard drive from Mr. Pringle.
See also page 31:16-19 of Gallant Dep.
Tr.:
16
Q. Were you ever asked to make a
forensic copy of
17 17 any hard drive of Mr. Pringle's
in connection with your
18 18 work in this case?
19 19
A. No.

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will reside only in RAM. When a
computer is turned off, for all intents
and purposes, RAM is cleared of all
data.

Moreover Pringle discarded hard drives
(requested in discovery and which had
been requested to be preserved) during the
pendency of this litigation. Pursuant to
Rule 37 Fed.R.Civ. P. Gallant should be
barred from testifying as to what may or
may not have been shown on the discarded
hard drives.

15. According to the web
site www.beatport.com
(http://www.beatport.com/search?query=i%20gotta%20feeling&facets[1=fieldType: track), the
song, “I Gotta Feeling” was first
released on the site April 13, 2010. If
Mr. Laykin’s theory was accurate,
then the Internet history for the
transaction would likely have been
deleted either automatically or
manually by Mr. Pringle through the
course of normal computer activity.
Also, if Mr. Laykin was accurate in
portraying Mr. Pringle as a
meticulous computer genius who was
perpetrating a fraud, then one would
expect him to not use his personal
computer to download and create the
music files, hut would rather expect
him to use an unknown computer.
Mr. Laykin’s theory is not consistent.

With respect to what may or may not have
been preserved on Pringle’s hard drives,
or what could have been copied on
Pringle’s hard drives:

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Lack of Foundation 601-602 Fed.R.Evid..
Gallant has never inspected any hard drive
or computer of Mr. Pringle
Pursuant to Rule 106 Fed.R.Evid. this
Court should consider the following from
the deposition of Mr. Gallant, page 57:2458:6:

25

24 24
Q. And it would be fair to say
that you did not do
any analysis of Mr. Pringle's hard drive
that was used
02 2 in 2010 in connection with any of
your opinions?
03 3
MR. DICKIE: Objection.
Asked and
04 4 answered multiple times.
05 5
A. Yes. As I've said, I have not
had access to
06 6 any hard drive from Mr. Pringle.

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See also page 31:16-19 of Gallant Dep. Tr.

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Q. Were you ever asked to make a
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forensic copy of
17 17 any hard drive of Mr. Pringle's
in connection with your
18 18 work in this case?
19 19
A. No.

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Moreover Pringle discarded hard drives
(requested in discovery and which had
been requested to be preserved) during the
pendency of this litigation. Pursuant to
Rule 37 Fed.R.Civ. P. Gallant should be
barred from testifying as to what may or
may not have been shown on the discarded
hard drives.

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Evidentiary Objections

16. Additionally, the four
available Black Eyed Peas’
downloads all require the user
purchase the download. In order to
purchase the download, the user
would need to create an account, log
in and finalize the transaction with a
credit card. As stated in paragraph 6
above, details of the credit card
transaction would have been
encrypted. Since the details of the
credit card transaction, if it had been
conducted, would be encrypted on
Mr. Pringle’s defective hard drive
(per Mr. Laykin’s theory), an
investigator would alternatively be
able to obtain evidence of the
purchase and download from
Beatport.com. In my opinion, it
would be better evidence to show a
credit card purchase by Mr. Pringle
to prove he actually downloaded the
music - regardless of what computer
he may have used. Additionally,

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Lack of Foundation 601-602 Fed.R.Evid.
Based on incomplete data; Gallant did not
investigate whether the isolated “I Gotta
Feeling” music stems, including the guitar
twang sequence, was available elsewhere
on the Internet.
With respect to what may or may not have
been preserved on Pringle’s hard drives,
or what could have been copied on
Pringle’s hard drives:
Lack of Foundation 601-602 Fed.R.Evid..
Gallant has never inspected any hard drive
or computer of Mr. Pringle
Pursuant to Rule 106 Fed.R.Evid. this
Court should consider the following from
the deposition of Mr. Gallant, page 57:2458:6:
24 24
Q. And it would be fair to say
that you did not do
any analysis of Mr. Pringle's hard drive

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“Beatport” would likely have
transaction logs that would show Mr.
Pringle created an account that could
he traced back to the Internet
Protocol address of his computer. I
left two messages (11-29-11 and 125-11) for Beatport to contact me to
discuss these records - they did not
return my calls.

that was used
02 2 in 2010 in connection with any of
your opinions?
03 3
MR. DICKIE: Objection.
Asked and
04 4 answered multiple times.
05 5
A. Yes. As I've said, I have not
had access to
06 6 any hard drive from Mr. Pringle.

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See also page 31:16-19 of Gallant Dep.
Tr.:

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16
Q. Were you ever asked to make a
forensic copy of
17 17 any hard drive of Mr. Pringle's
in connection with your
18 18 work in this case?
19 19
A. No.

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Moreover Pringle discarded hard drives
(requested in discovery and which had
been requested to be preserved) during the
pendency of this litigation. Pursuant to
Rule 37 Fed.R.Civ. P. Gallant should be
barred from testifying as to what may or
may not have been shown on the discarded
hard drives.

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17. On page 8, paragraph
28, Mr. Laykin stated, “ In my
experience, it is not uncommon for
individuals who use CD Rom discs
on a regular basis, such as those in
the electronic music industry, to
retain a number of unused CDs, and
to burn data to those old CDs years
later. CD Rom discs are often
purchased in bulk, for instance in
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2

discs. Indeed, Mr. Pringle testified to
having repeatedly sent out demo CDs
in batches as large as 200 at a time,
over a period of many years. Pringle
thus likely had access to old CDs
from the late 1990s which he could
have used to burn the NRG discs in
2009 or 2010.”
18. CD-Rom technology has
evolved over the years. In the 1999
era, the technology was not reliable,
the cost per disk was comparatively
high, and most importantly, the
successful burn rate was extremely
low. I can attest to a success rate
during that time frame of less than
50% and sometimes even lower.
There is nothing unreliable about a
CD-Rom that was able to be
successfully burned. The issue was
that it took many attempts and many
CD-Roms before one could be
burned successfully.
19. On page 8, paragraph
27, Laykin stated, “Similarly, older
digital storage media such as CDs,
which are also readily available for
purchase, have been known to be
used to make it more difficult to
determine the true date of back-dated
files.”
20. Contrary to Mr.
Laykin’s claim, “old digital storage
media” from circa 1999 is NOT
readily available for purchase.” I
conducted a search on E-Bay for the
Verbatim model 94328 CD-Rom
used by Mr. Pringle to save the music
files in question. There were NO

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Evidentiary Objections

With respect to the success rate lack of
foundation 601-602 Fed.R.Evid. Hearsay
801-802 Fed.R.Evid. Inadmissible under
703 Fed.R.Evid. See Advisory Committee
notes.

Hearsay 801-802 Fed.R.Evid.; Relevance
401-402; Inadmissible under 703
Fed.R.Evid. See Advisory Committee
notes.

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vendors who could provide these
CD-Rows. I then conducted a
Google search for the Verbatim
94328 CD-Rom. None of the sites
that Google identified had any of
these disks in inventory. I sent
queries to some of the sites and they
all responded that the particular CDRom was not available.
21. During his deposition on
December 7, 2011, Mr. Laykin also
discusses a theory that Mr. Pringle
may have backdated the NRG files in
question as well as the date the CDRom was burned. He stated that in
order to attempt to prove that theory,
a computer forensic examiner would
need to have access to the computer
used to perpetrate this fraud and that
he had no proof to support this
theory. He acknowledged in his
deposition that he had no evidence to
support his theory of backdating including his analysis of the two CDRoms I provided to him via Mr.
Danial Aga on August 8, 2011.

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Evidentiary Objections

During the pendency of this litigation
Pringle discarded two computer hard
drives that had been requested in discovery
and which had been requested to be
preserved prior to the commencement of
the litigation.
Pursuant to Rule 106 Fed.R.Evid. this
Court should consider the following page
and line numbers of the Deposition of
Gallant, page 34:2-19:
Q. Are you aware that certain of Mr.
Pringle's
03 3 hard drives that were used in 2010
and 2011 were
04 4 discarded?
05 5
A. Yes.
06 6
Q. Okay. And it would be
accurate to say that you
07 7 were never asked to make a
forensic copy of those hard
08 8 drives before they were discarded.
09 9
MR. DICKIE: Objection.
Asked and
10 10 answered repetitively. Now it's
just into harassment.
11 11
A. As I've stated, I have never
been asked to make
12 12 a forensic copy of any hard drive

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Evidentiary Objections
belonging to
13 13 Mr. Pringle.
14 14
Q. Have you ever gone and
looked at any of
15 15 Mr. Pringle's computer equipment?
16 16
A. No.
17 17
Q. Have you ever visited Mr.
Pringle's home to see
18 18 any of his computer equipment?
19 19
A. No.
(emphasis added)

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Pursuant to Rule 37 Fed. R. Civ. P.
Plaintiff and Gallant should be estopped
and barred from asserting arguments that
there is “no evidence of backdating
Pringle’s computer files”.
Fed.R.Evid 106 this court should consider
the following deposition testimony of Mr.
Gallant:
Page 215:
Q. All right. Directing your attention
back to
20 20 Exhibit 59A, and the response
from Mr. John Zeke
21 21 Thackray. He states, Hi, David.
As always, the
22 22 obvious is to consider what was
the date and time stamp
23 23 of the system creating the CDROM, but you will have no
24 24 doubt considered that. Do you see
that sentence?

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A. Yes, I do.
02 2
Q. What is the system creating
the CD-ROM?
03 3
A. That would be the computer

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Evidentiary Objections
that created the
04 4 CD-ROM.
05 5
Q. And so that -- there isn't a
computer that you
06 6 were able to -- to analyze.
07 7
A. The computer from 1999
was not available to me.
08 8
Q. And the computers from
current dates were also
09 9 not made available to you.
10 10
A. That's correct.

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Pursuant to Rule 106 Fed.R.Evid. the
Court should consider pages 221-222 of
the deposition of Gallant.

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Q. If -- and this is a hypothetical -- Mr.
Pringle
18 18 did not create the files in the 1999
time frame, but
19 19 created it in the 2009/2010 time
frame and then
20 20 manipulated to appear they were
created earlier, would
21 21 the computer system that he used
during that 2009/2010
22 22 time frame potentially have
metadata that should be
23 23 reviewed?
24 24
MR. DICKIE: Object to
the form of the question. Calls for
speculation, and it's an incomplete
02 2 hypothetical which doesn't identify
the computer, the
03 3 systems -- the operating systems or
any of the other
04 4 important information which would
go into such a
05 5 hypothetical question.

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06 6
Q. You can answer my
question.
07 7
A. It's possible. I don't know
without examining
08 8 the computer or running tests on
other computers that -09 9 in the same scenario with the
same hardware, same
10 10 software, same versions, same CD
brands, same type of
11 11 CD.
Q. But it starts with evaluating the
computers
13 13 that were in use by Mr. Pringle
during the 2009/2010
14 14 time frame?
15 15
A. No. I would say it starts
with a computer used
16 16 by Mr. Pringle in 1999, if that was
available, and start
17 17 from there.
18 18
Q. Okay. But you would also
not -- not look at
19 19 the 2009/2010 computer, would
you?
20 20
MR. DICKIE: Objection.
Misstates his
21 21 testimony in which he specifically
disagreed with you on
22 22 what he would do.
23 23
Q. Please answer my question.
24 24
A. Could you repeat the
question?

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MS. CENAR: Please read it back for

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the
02 2 witness.
03 3
(Requested portion was

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read.)
04 4
A. I would look at any
computer that was made
05 5 available to me.

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(emphasis added).

6

Everyone was deprived of reviewing the
computers because Mr. Pringle discarded
them during the pendency of the litigation.

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10 Dated: January 9, 2012
11

LOEB & LOEB LLP

12

By: /s/ Tal E. Dickstein
Donald A. Miller
Barry I. Slotnick
Tal E. Dickstein

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Attorneys for Defendants
SHAPIRO, BERNSTEIN & CO., INC.,
FREDERIC RIESTERER and DAVID
GUETTA

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