Xbox scratch suit goes on in MC in spite of federal judge who mocks claim

Steve Korris Dec. 11, 2009, 5:21am


Litigation against Microsoft Corporation that a Seattle judge buried under sarcasm has sprung to life in Madison County.

On Nov. 25, Circuit Judge Daniel Stack approved entry of depositions from the Seattle case into the record of a case pending before him.

He also signed a protective order allowing lawyer Emily Johnson of Alton to see 35,000 pages of Microsoft documents and electronic data that the public can't see.

Johnson sued Microsoft last year on behalf of Jason Johnson, complaining that his Xbox video game console scratched his game discs.

The suit seeks the cost of replacing the console and the discs, plus "any additional relief the court determines is proper and just."

Johnson did not file it as a class action, but it mirrored a suit awaiting class certification in federal court at Seattle.

Plaintiffs in Seattle claimed an Xbox might chuck a disc from a spindle and cause the disc to wobble and rub against the inside of the console.

The suit didn't pan out, however, for District Judge John Coughenour denied class certification this October.

He learned that an Xbox chucks a disc only when someone tilts the console.

He wrote that Microsoft places a sticker on each disc tray with an exclamation point and a warning: "Do not move console with disc in tray."

He wrote that a customer must remove the sticker in order to play a new game.

He wrote that the manual warns an owner to remove a disc before tilting a console.

He wrote that the defect manifested itself in fewer than one percent of Xboxes.

He wrote that in a few years, many satisfied owners will have replaced their Xboxes with a system that makes Xboxes obsolete.

He predicted that Xboxes will gather dust in basements next to Atari 2600 consoles, Nintendo entertainment systems and Sega Genesis machines.

In short, he wrote, the buyer received what he bargained for.

He made a mockery of causation.

"Some plaintiffs might have suffered scratched discs because a pet dog, waking from its sleep to see its master playing Dance Dance Revolution, rushed over to join in the fun, knocking the machine off a shelf in the process," he wrote.

"Other discs might have scratched when an overzealous Guitar Hero strummed the electronic chords too energetically, unwittingly striking the machine while living his fantasy of rock stardom," he wrote.

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