Skillz Platform Inc. v. AviaGames Inc.

Background

The court had reopened discovery to investigate AviaGames’ alleged use of “bots,” meaning non-human, non-real-time players. Skillz made allegations that AviaGames had engaged in a crime or fraud by using and concealing bots. AviaGames executives Vickie Chen and Peng Zhang then retained separate criminal-defense counsel.

During an October 20, 2023 deposition, Chen invoked her Fifth Amendment privilege—the right not to give testimony that could incriminate her. Her newly retained criminal-defense counsel had advised her to do so after reviewing the large and complex collection of documents in the case, including documents in Mandarin. After Chen retained additional Mandarin-fluent counsel, she notified counsel on December 22, 2023, that she intended to withdraw the privilege assertion. AviaGames filed the motion on January 4, 2024.

The Motion

AviaGames asked the court to permit Chen to withdraw her prior assertion and testify fully at trial. It also asked the court to bar Skillz from mentioning that prior assertion under Federal Rule of Evidence 403, which permits exclusion of relevant evidence when its value is substantially outweighed by risks such as unfair prejudice, confusion, misleading the jury, or undue delay. AviaGames also proposed making Chen available for another deposition before trial. Skillz opposed the motion.

Withdrawal of the Privilege

The court found that Chen’s assertion and withdrawal were made on the advice of competent, diligent counsel and were not tactical or abusive. The court rejected Skillz’s arguments that Chen’s English proficiency or access to AviaGames’ Mandarin-speaking patent counsel showed that her conduct was tactical. The court stated that it would not speculate about how Mandarin-fluent criminal counsel would have advised Chen.

The court found that Skillz would be significantly prejudiced by the timing of Chen’s withdrawal because trial was close and Skillz would need time and money to investigate and incorporate new evidence. But the court concluded that the prejudice was not undue because it could be remedied without preventing Chen from testifying. The court permitted Chen to withdraw her assertion on the condition that she appear for an in-person deposition within 10 days or on another date before trial agreed upon by the parties.

The deposition may cover any subject and may last up to eight hours, with the time limit assuming that Chen will use an interpreter. If Chen asserts the Fifth Amendment privilege during the new deposition, the deposition must end and no further testimony may be taken. AviaGames must pay the reasonable costs and attorneys’ fees for the deposition.

Prior Assertion at Trial

The court deferred deciding whether Skillz may introduce evidence of Chen’s earlier privilege assertion at trial. It agreed that the earlier assertion does not concern the substantive patent issues, but it could be relevant to Chen’s credibility if her answers at the new deposition are inconsistent with her withdrawal. Because Chen had not yet been redeposed, the court found AviaGames’ request to exclude the prior assertion premature.

The court stated that if Chen does not assert the privilege at the new deposition, it is inclined to grant AviaGames’ request to exclude evidence of her prior assertion. However, the order formally deferred that ruling.

Disposition

The court granted in part and deferred in part AviaGames’ motion in limine. It permitted Chen to withdraw her Fifth Amendment assertion subject to the new deposition conditions, and it deferred ruling on whether her prior assertions may be excluded from trial under Rule 403. The court also stated that it would not accept further dispositive motions or motions in limine, although evidentiary objections could be made at trial.