Recent Developments from Around the States

Quashing the ALJ's ruling, the court found that the discovery order, as accurately stated in Menke's petition, “'gives an agent of the Board carte blanche authorization to examine the hard drives it will duplicate from the computers Menke has been ordered to produce, combing through every byte, every word, every sentence, every data fragment, and every document, including those that are privileged or that may be part of privileged communications, looking for “any data” that may evidence communication between Menke and his accusers.'” Not only would this kind of overly broad discovery request expose confidential and privileged communications, but it would also uncover matters completely irrelevant to the present suit. The court acknowledged that the ALJ's order could expose privileged communications between Menke and his attorney about the underlying proceeding itself, and that Menke's Fifth Amendment rights might be implicated during such an unlimited review. Thus, the court determined that in case like this, “[w]here a need for electronically stored information is demanded, such searching should first be done by defendant so as to protect confidential information, unless, of course, there is evidence of data destruction designed to prevent the discovery of relevant evidence in the particular case.” Because there was no such evidence of potential data destruction here, the court found that the ALJ's order, in preventing Menke from both asserting his privilege in advance of disclosure to his employer's expert and asserting his Fifth Amendment right against self-incrimination and his right to privacy, must be quashed.

Video Game Creator Agrees to Pay $15.6 Million to Settle Overtime Claims

Electronic Arts (EA), the world's largest independent developer and publisher of interactive entertainment software for personal computers, agreed to pay $15.6 million in order to settle allegations that it failed to make overtime payments to a class of approximately 618 computer graphic artists. Kirschenbaum v. Electronic Arts, Inc., Cal. Super. Ct., No. 440876, settlement reached 10/5/05.

The class of “image production employees,” including animators, modelers, and artists, claimed that they were owed overtime under California law in that rather than exercising artistic and creative control over their work, as would managerial employees, they were merely responsible for installing, producing or copying images for EA computer games. Further, the employees claimed that they were under close supervision and control when creating images, and that their creativity was limited in that they were given specific instructions and models on which to base the finished product.

The agreement has yet to be approved by a California Superior Court judge in San Mateo, but if it is, the settlement will cover the class members' claims, plaintiffs' attorney fees, incentive payments to named plaintiffs, and all administrative costs associated with the agreement. Furthermore, any portion of the settlement that goes unclaimed will be distributed to the Jackie Robinson Foundation, a nonprofit organization providing college scholarships to minority students, especially those interested in pursuing studies in interactive entertainment. The company is facing two additional overtime lawsuits, one brought by engineers in a companion case in California, Hasty v. Electronic Arts Inc., (Cal. Super. Ct., No. 444821), and the other brought by artists and assistant artists in Florida, Tam Su v. Electronic Arts, Inc. (M.D. Fla., No. 6:05-cv-131-orl-19-JGG).

New York Employer Liable to Injured Employee for Lost Wages

The New York Appellate Division, Second Department has held that New York law requiring compensation of employees, including undocumented aliens, who are injured at work due to employer negligence or violation of workplace safety statutes is both compatible with and furthers Congressional policy deterring the hiring of undocumented aliens under the Immigration Reform and Control Act (8 U.S.C. ' 1324a et seq) (IRCA). Majlinger v. Cassino Contracting Corp., et al., 2005 WL 2292791 (N.Y. 2 Dept. Sept. 19).

ALJ's Order Commanding Wholesale Access to Employee's Computer Caused Irreparable Harm

A Florida court has found that an administrative law judge's order requiring an employee accused of misconduct to produce all computers in his household for purposes of providing discovery materials to employer's expert unlawfully failed to protect against disclosure of confidential and privileged information. Menke v. Broward County School Board, 2005 WL 2373923 (Fla. App. 4 Dist. Sept. 28).

Menke, a high school teacher in Broward County, was suspended upon accusations that he exchanged both sexually explicit e-mails and derogatory comments about school personnel and operations with his minor students. During the formal hearing of the charges, which was requested by Menke, the Broward County School Board requested that its computer expert be allowed to inspect all of the computers in Menke's household for messages communicated between him and his students. Over Menke's objection that such an broad search would violate his Fifth Amendment right against self-incrimination and his right to privacy, the ALJ granted the Board's request. Menke petitioned this court for certiorari from the ALJ's order, and the court granted the petition.

Quashing the ALJ's ruling, the court found that the discovery order, as accurately stated in Menke's petition, “'gives an agent of the Board carte blanche authorization to examine the hard drives it will duplicate from the computers Menke has been ordered to produce, combing through every byte, every word, every sentence, every data fragment, and every document, including those that are privileged or that may be part of privileged communications, looking for “any data” that may evidence communication between Menke and his accusers.'” Not only would this kind of overly broad discovery request expose confidential and privileged communications, but it would also uncover matters completely irrelevant to the present suit. The court acknowledged that the ALJ's order could expose privileged communications between Menke and his attorney about the underlying proceeding itself, and that Menke's Fifth Amendment rights might be implicated during such an unlimited review. Thus, the court determined that in case like this, “[w]here a need for electronically stored information is demanded, such searching should first be done by defendant so as to protect confidential information, unless, of course, there is evidence of data destruction designed to prevent the discovery of relevant evidence in the particular case.” Because there was no such evidence of potential data destruction here, the court found that the ALJ's order, in preventing Menke from both asserting his privilege in advance of disclosure to his employer's expert and asserting his Fifth Amendment right against self-incrimination and his right to privacy, must be quashed.

Video Game Creator Agrees to Pay $15.6 Million to Settle Overtime Claims

Electronic Arts (EA), the world's largest independent developer and publisher of interactive entertainment software for personal computers, agreed to pay $15.6 million in order to settle allegations that it failed to make overtime payments to a class of approximately 618 computer graphic artists. Kirschenbaum v. Electronic Arts, Inc., Cal. Super. Ct., No. 440876, settlement reached 10/5/05.

The class of “image production employees,” including animators, modelers, and artists, claimed that they were owed overtime under California law in that rather than exercising artistic and creative control over their work, as would managerial employees, they were merely responsible for installing, producing or copying images for EA computer games. Further, the employees claimed that they were under close supervision and control when creating images, and that their creativity was limited in that they were given specific instructions and models on which to base the finished product.

The agreement has yet to be approved by a California Superior Court judge in San Mateo, but if it is, the settlement will cover the class members' claims, plaintiffs' attorney fees, incentive payments to named plaintiffs, and all administrative costs associated with the agreement. Furthermore, any portion of the settlement that goes unclaimed will be distributed to the Jackie Robinson Foundation, a nonprofit organization providing college scholarships to minority students, especially those interested in pursuing studies in interactive entertainment. The company is facing two additional overtime lawsuits, one brought by engineers in a companion case in California, Hasty v. Electronic Arts Inc., (Cal. Super. Ct., No. 444821), and the other brought by artists and assistant artists in Florida, Tam Su v. Electronic Arts, Inc. (M.D. Fla., No. 6:05-cv-131-orl-19-JGG).

New York Employer Liable to Injured Employee for Lost Wages

The New York Appellate Division, Second Department has held that New York law requiring compensation of employees, including undocumented aliens, who are injured at work due to employer negligence or violation of workplace safety statutes is both compatible with and furthers Congressional policy deterring the hiring of undocumented aliens under the Immigration Reform and Control Act (8 U.S.C. ' 1324a et seq) (IRCA). Majlinger v. Cassino Contracting Corp., et al., 2005 WL 2292791 (N.Y. 2 Dept. Sept. 19).