Skillz Platform Inc. v. AviaGames Inc.
- Beth Freeman
- 5:21-cv-02436
- U.S. District Court · Northern District of California
- 3
In Skillz Platform v. AviaGames, Judge Freeman granted AviaGames’ motion to exclude evidence of Vickie Chen’s earlier Fifth Amendment assertions.
AviaGames Inc. and its CEO, Vickie Chen, benefit from excluding evidence and argument about Chen’s prior Fifth Amendment assertions; Skillz Platform Inc. may not use those prior assertions at trial, although any privilege invocation during trial will be considered separately.
What happened
Skillz Platform Inc. v. AviaGames Inc. concerned whether the trial could include evidence that AviaGames CEO Vickie Chen had previously invoked her constitutional privilege against self-incrimination. Chen later withdrew that assertion and answered all questions during an additional deposition.
Skillz argued that Chen’s earlier assertions should be admitted, including to challenge her credibility. The court distinguished a case in which a witness withdrew the privilege while effectively avoiding discovery. Here, Chen had completed an unrestricted deposition of up to eight hours, so Skillz received the answers it was entitled to receive. The court found that using the earlier assertions would unfairly prejudice AviaGames.
Judge Beth Labson Freeman granted AviaGames’ motion in limine to the extent it sought to exclude evidence and argument about Chen’s earlier privilege assertions. The court said any invocation of the privilege by Chen or another witness during trial would be considered separately.
The detailed version
- Skillz Platform Inc. v. AviaGames Inc. · No. 5:21-cv-02436
- Beth Freeman
- Jan. 26, 2024
Background
The court considered AviaGames Inc.’s motion in limine, a request to decide before trial whether particular evidence or argument may be presented to the jury. The request concerned prior assertions by AviaGames CEO Vickie Chen of her Fifth Amendment privilege against self-incrimination.
In an earlier order, the court allowed Chen to withdraw her privilege assertion and testify fully because it found that neither her assertion nor her withdrawal was tactical or abusive. The court also ordered Chen to attend another deposition, lasting no more than eight hours, without subject-matter limits, at AviaGames’ expense. The court postponed deciding whether the parties could mention Chen’s earlier assertions at trial. The parties later informed the court that Chen had completed the additional deposition and answered every question.
Discussion
The court had previously found that Chen’s earlier privilege assertion was unrelated to the substantive patent issues in the case. Skillz argued that the assertions should nevertheless be admitted, citing a Seventh Circuit decision involving a witness whose withdrawal of the privilege effectively allowed the witness to avoid discovery. In that decision, the court concluded that excluding evidence of the witness’s earlier silence under Federal Rule of Evidence 403 was an abuse of discretion.
The court found this case different. Although Chen withdrew her assertion about one month before trial, she completed the court-ordered additional deposition, which had no subject-matter restrictions. The parties agreed that she did not invoke the privilege during that deposition. The court therefore found that Chen had not avoided discovery and that Skillz had obtained the responses to which it was entitled. The court concluded that evidence and argument about Chen’s earlier assertions would be unfairly prejudicial to AviaGames under Rule 403.
Ruling
The court granted AviaGames’ motion in limine (ECF No. 557) to the extent it requested exclusion at trial of evidence and argument regarding Chen’s prior Fifth Amendment assertions. The court separately reserved consideration of any Fifth Amendment invocation by Chen or another testifying witness during trial. Judge Beth Labson Freeman issued the order on January 26, 2024.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.