EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, October 11, 2009

Wii Fit?: District Of Colorado Decides To Apply Colorado Privilege Law In Class Action Suit Against Nintendo For Defective Wiimote Wrist Straps

This summer, my wife and I purchased the Nintendo Wii, and we love it. My current favorite game is table tennis on Wii Sports Resort because, with the new Wii Motion Plus, I can put as much topsin on my forehand as Rafeal Nadal and as much slice on my backhand as Steffi Graf. After numerous attempts, I finally beat my nemesis, Lucia, and I am on my my way to breaking 2,000 points with my Mii. That said, before playing, I always make sure that the wrist strap on my Wiimote is tight because I have heard stories of Wiimotes slipping out of peoples' hands and destroying TVs. According to the plaintiffs in a class action suit against Nintendo, even this precaution is insufficient because the straps on Wiimotes are defective. At this point in the action, in Elvig v. Nintendo of America, Inc., 2009 WL 3048445 (D. Colo. 2009), however, the United States District Court for the District of Colorado merely had to determine which state's privilege law to apply.

In Elvig, plaintiffs, on behalf of themselves and others similarly situated, asserted that they suffered damages resulting from an alleged defective wrist strap attached to the Wiimotes for the Wii game system sold by Nintendo. Specifically, Nintendo has designed three different wrist straps for its Wiimotes, all of which the plaintiffs claim are defective. Strap I had a filament diameter of .6 mm, Strap II had a filament diameter of 1.0 mm and was intended to remedy the performance shortcomings of Strap I, and Strap III has a filament diameter of 1.0 mm, but also possesses a purportedly locking mechanism on the wrist strap 1.0 mm filament, presumably to address the safety and performance shortcomings of Straps I & II.

The class representatives are Molly Elvig from Colorado, Michael Hamilton from California, and Brian Katz from Florida. According to all of these individuals, they or their children were properly using their Wiimotes when their wrist straps broke, leading to shattered TV screens (you can find all of the details of their claims in their complaint at 2009 WL 2627664).

The issue that the United States District Court for the District of Colorado had to resolve in Elvig was which state's privilege law it had to apply in resolving privilege issues during the discovery process. The court first noted that, pursuant to Federal Rule of Evidence 501, it had to apply state privilege law because the action before it was a diversity action, not a federal question action. But which state's? Colorado? California? Florida? Or all three? Nintendo argued "that the claims raised in th[e] action [we]re governed by the law of each Plaintiff's home state (Colorado, California and Florida). The court disagreed, concluding that

While this Court may apply the law of each state to the issues raised in this within motion, it may also choose to apply the law of the state in which it sits....In the interests of judicial economy and because neither party objects, the Court will apply Colorado law to the issues (as appropriate) raised herein.



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I've just got the Nintendo Wii and I love it. I must be careful not to hit someone with the Wiimote when playing. I've never had any problem with the wrist strap.

Posted by: Sudoku | Dec 30, 2009 6:43:26 AM

The same thing happen to me. My wife and my kids enjoy playing this machine so much !

Posted by: wiipoint | Apr 18, 2010 4:08:45 AM

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