With one of the two remaining plaintiffs withdrawing their case against Apple in the lawsuit charging antitrust violations, the defense is seeking to discredit the remaining party. Apple wants evidence the individual purchased an iPod product during the three-year period in which DRM was used to deny iTunes competitors access to Apple MP3 players.

The class-action lawsuit seeks $350 million in damages from Apple for the company's use of digital rights management (DRM) software between September 2006 and March 2009. Apple says it prevented non-iTunes music from syncing with iPod devices to prevent malicious files from being uploaded to the device.

The plaintiffs asserted that the denial of third-party syncing services violated California's antitrust laws. Furthermore, iTunes is accused of deleted imported music without notifying users.

The case against Apple may be thrown out if the remaining plaintiff fails to produce evidence that she purchased an iPod during the three-year period in which Apple is accused of violating the antitrust laws.

Apple traced the serial number of an iPod owned by Marianna Rosen, the remaining plaintiff, and found that the device was purchased a few months after the period in question. The onus is now on Rosen and her council to produce evidence of the purchase of another Apple product that falls within the three-year term.

"[Ms.] Rosen testified in court today that she had also purchased an iPod nano in the fall of 2007," states Apple's filing (PDF via the New York Times). "Apple has been unable to verify any purchase of an iPod nano by Ms. Rosen at any time, including the fall of 2007. Apple has requested that plaintiffs' counsel immediately provide Apple with any evidence reflecting any purchase by Ms. Rosen of an iPod Nano, as well as the serial number of the nano."

Judge Yvonne Gonzalez Rogers said she is concerned that she there isn't a plaintiff in the case and "that's a problem." The case is being heard in U.S. District Court in the Northern District of California.

If Rosen fails to produce evidence that she purchased an iPod during the term in question, the plaintiffs could bring in one of the other 8 million individuals who purchased an Apple MP3 player during the time covered by the lawsuit. And there appears to be a substitute ready and waiting.

Jeffrey Kowalski, of Michigan, is said to have reached out to the judge, indicating that he purchased an iPod Touch around May 2008.

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