Skillz Platform Inc. v. AviaGames Inc., 4:21-cv-02436, No. 586 (N.D.Cal. Jan. 12, 2024) (2024)

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`Case 5:21-cv-02436-BLF Document 586 Filed 01/12/24 Page 2 of 6
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`on October 3, 2023. Id.
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`During Chen’s deposition on October 20, 2023, she invoked her Fifth Amendment right
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`not to testify, in part because her newly retained criminal defense counsel, who worked diligently
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`to familiarize himself with the matter, was “not able to familiarize [him]self sufficiently with the
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`case” due to the large number of documents, the large number of documents in Mandarin, and the
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`complexity of the matter. ECF No. 581-3 at 12:14–19. On November 21, 2023, Chen hired
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`additional Mandarin-fluent counsel, who reviewed the documents in this case. ECF No. 577-4
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`(“Liu Decl.”) ¶¶ 3–5. On December 22, 2023, Chen notified her counsel that she intended to
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`withdraw her prior invocation of the Fifth Amendment privilege. Id. ¶ 5. On the same day,
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`Chen’s counsel notified AviaGames’ counsel, who notified Skillz’s counsel. ECF No. 577-2
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`(“Wang Decl.”) ¶ 6. AviaGames brought this motion on January 4, 2024.
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`II. LEGAL STANDARD
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`A. Withdrawal of Fifth Amendment Privilege
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`The Court has discretion to allow a litigant to withdraw an assertion of the Fifth
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`Amendment privilege. See Evans v. City of Chicago, 513 F.3d 735, 742 (7th Cir. 2008). “[A]
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`party may withdraw its assertion of the Fifth Amendment privilege, even at a late stage in
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`litigation, if circ*mstances indicate that (1) the litigant was not using the privilege in a tactical,
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`abusive manner, and (2) the opposing party would not experience undue prejudice as a result.”
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`Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 548 (5th Cir. 2012), as revised (Jan. 12, 2012).
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`B. Rule 403
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`Federal Rule of Evidence 403 permits the Court to “exclude relevant evidence if its
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`probative value is substantially outweighed by a danger of one or more of the following: unfair
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`prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly
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`presenting cumulative evidence.” Fed. R. Evid. 403.
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`III. DISCUSSION
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`A. Whether Chen May Withdraw Her Assertion of Her Fifth Amendment Privilege
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`First, the Court finds that Chen’s assertion and withdrawal of her Fifth Amendment
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`privilege were not tactical or abusive. At Chen’s October 20, 2023 deposition, Chen’s criminal
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`Case 5:21-cv-02436-BLF Document 586 Filed 01/12/24 Page 3 of 6
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`defense counsel—who had been retained only two weeks prior—advised Chen to assert her Fifth
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`Amendment privilege due to the large number of documents, many of which were in Mandarin,
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`and the complexity of the case. ECF No. 581-3 at 12:14–19. After Chen retained additional
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`Mandarin-fluent counsel, that counsel was able to review these documents within one month and
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`advise Chen regarding her rights. See Liu Decl. ¶¶ 3–5. Given the complexity of this case and the
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`seriousness of Skillz’s allegations, the Court finds that Chen’s assertion and withdrawal of her
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`Fifth Amendment privilege was at the advice of competent, diligent counsel and was not tactical
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`or abusive.
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`Skillz argues that Chen’s assertion and late withdrawal of her Fifth Amendment privilege
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`are tactical and abusive because she has sufficient English language proficiency and has had the
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`assistance of Mandarin-speaking counsel from the beginning of the case. Opp. at 2. Although
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`Skillz points to evidence that Chen can speak English under certain circ*mstances, the Court does
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`not find the evidence sufficient to question Chen’s need for an interpreter when testifying as a
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`witness in a patent case with high financial stakes and involving allegations with criminal
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`implications. More importantly, the fact that Chen can speak English is of limited relevance to
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`whether her assertion and withdrawal of her Fifth Amendment privilege were made in good faith.
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`To the extent that Skillz suggests that Chen had the advice of Mandarin-speaking counsel since the
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`start of the case, the Mandarin-speaking counsel to which Skillz refers are counsel for AviaGames,
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`not Chen, and are patent attorneys, not criminal defense attorneys. Skillz seems to suggest that
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`Chen was aware that documents were in Mandarin and that she should have hired Mandarin-fluent
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`criminal counsel before her October 20, 2023 deposition. See Opp. at 2. However, the Court will
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`not speculate as to how Mandarin-fluent counsel would have advised Chen in these circ*mstances.
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`Thus, Skillz fails to identify evidence that Chen’s assertion or withdrawal of her Fifth Amendment
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`privilege were tactical or abusive.
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`Second, although the Court finds that Skillz will be significantly prejudiced by the timing
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`of the withdrawal, the Court does not find undue prejudice because any prejudice to Skillz can be
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`remedied short of denying Chen the opportunity to testify. “Generally, withdrawing the Fifth
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`Amendment privilege at a late stage places the opposing party at a significant disadvantage
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`United States District Court
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`Case 5:21-cv-02436-BLF Document 586 Filed 01/12/24 Page 4 of 6
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`because of increased costs, delays, and the need for a new investigation.” Davis-Lynch, 667 F.3d
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`at 548. Fact discovery in this case had already been reopened and closed on October 24, 2023.
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`Chen chose to withdraw her assertion on December 22, 2023, and AviaGames filed this motion on
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`January 4, 2024. Trial is only three weeks away. The Court finds that Skillz would be prejudiced
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`by the time and costs required to factor new evidence into its trial strategy on the eve of trial. See
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`United States v. Certain Real Prop. & Premises Known as 4003-4005 5th Ave., Brooklyn, N.Y., 55
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`F.3d 78, 86 (2d Cir. 1995) (presuming prejudice where a litigant’s assertions of his Fifth
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`Amendment privilege created a lengthy delay and based on the timing of the litigant’s
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`withdrawal). However, this prejudice is mitigated by the Court’s approval of Skillz’s ability to re-
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`take Chen’s deposition. See Martinez v. City of Fresno, No. 1:06CV-00233 OWW GSA, 2010
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`WL 761109, at *4 (E.D. Cal. Mar. 3, 2010) (holding that prejudice from a litigant’s withdrawal of
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`a prior assertion of the Fifth Amendment privilege was cured by the re-opening of discovery,
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`including redeposition of the litigant); see also Andrews v. Plains All Am. Pipeline, L.P., No.
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`CV154113PSGJEMX, 2021 WL 8742782, at *4 (C.D. Cal. Nov. 9, 2021) (permitting witnesses
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`that previously asserted their Fifth Amendment privilege to testify at trial if they sat for
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`redeposition). The Court will further mitigate the cost to Skillz by ordering AviaGames to pay
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`reasonable costs and attorneys’ fees for the deposition. Finally, the Court will not place any
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`subject-matter restrictions on the deposition and will allow Skillz 8 hours to depose Chen. This
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`lengthy time allotment assumes the use of an interpreter.
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`B. Whether Skillz May Introduce Chen’s Prior Assertions of the Fifth Amendment
`at Trial
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`AviaGames argues that Skillz should not be permitted to refer to Chen’s prior assertion of
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`her Fifth Amendment privilege at trial because such evidence is irrelevant and highly prejudicial
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`to AviaGames. See Mot. at 5 (citing Fed. R. Evid. 403). Skillz argues that other courts permitting
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`the withdrawal of the Fifth Amendment privilege prior to trial have held prior assertions of the
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`privilege are admissible. See Opp. at 5 (collecting cases).
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`Although the Court agrees that whether Chen previously asserted her Fifth Amendment
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`privilege does not have anything to do with the substantive patent issues in this case, Chen’s prior
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`Northern District of California
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`United States District Court
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`Case 5:21-cv-02436-BLF Document 586 Filed 01/12/24 Page 5 of 6
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`deposition testimony might be relevant to Chen’s credibility if her answers at her redeposition are
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`inconsistent with a withdrawal of her Fifth Amendment privilege. For example, in Harris v. City
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`of Chicago, 266 F.3d 750 (7th Cir. 2001), the Seventh Circuit noted that whether evidence of a
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`witness’s prior assertions of the Fifth Amendment privilege was properly excluded under Rule 403
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`turned on the timing of the withdrawal. Id. at 752–54. If the withdrawal was made before trial
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`and the opposing party had an adequate opportunity to obtain discovery on the issues related to
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`trial, then exclusion under Rule 403 would have been appropriate. See id. at 754. However, the
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`witness’s withdrawal of the Fifth Amendment privilege in Harris was “tantamount to allowing
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`[the witness] to avoid discovery altogether” because it occurred shortly before trial and the witness
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`did not supplement or amend his interrogatory responses or produce further discovery. Id. at 754–
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`55. Because Chen has not yet sat for redeposition, Skillz has not yet had the opportunity to obtain
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`discovery from her on the issues about which she previously claimed her Fifth Amendment
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`privilege, and the Court finds AviaGames’ request to exclude Chen’s prior assertion of the
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`privilege premature.
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`Thus, the Court DEFERS ruling on the broad admissibility of Chen’s prior assertion until
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`after Chen’s redeposition. If Chen does not assert the Fifth Amendment privilege at her
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`redeposition, the Court is inclined to GRANT AviaGames’ motion and exclude evidence of
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`Chen’s prior assertion of her Fifth Amendment privilege at trial.
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`IV. ORDER
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`For the foregoing reasons, IT IS HEREBY ORDERED that:
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`1.
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`Defendant AviaGames Inc.’s Motion in Limine to Permit Vickie Chen to Testify in
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`Full and for Related Relief (ECF No. 557) is GRANTED IN PART and DEFERRED IN PART.
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`2.
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`Vickie Chen will be permitted to withdraw her assertion of her Fifth Amendment
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`privilege on the condition that she make herself available for an in-person deposition to occur
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`within the next 10 days or on date prior to trial to which the parties mutually agree. In the event
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`that Chen asserts her Fifth Amendment privilege at the redeposition, the deposition shall
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`terminate, no further testimony will be taken, and Skillz may renew its request that all of Chen’s
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`assertions of her Fifth Amendment privilege be admitted if she testifies at trial.
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`United States District Court
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`Case 5:21-cv-02436-BLF Document 586 Filed 01/12/24 Page 6 of 6
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`3.
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`The deposition shall occur in person at a place mutually agreed between the parties,
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`there will be no restrictions on the subject matter of the deposition, and the length of the
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`deposition is not to exceed 8 hours. The 8-hour limit assumes that Chen will be using interpreter
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`services. AviaGames SHALL pay the reasonable costs and attorneys’ fees for the deposition.
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`4.
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`The Court DEFERS ruling on whether Chen’s prior assertions of her Fifth
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`Amendment privilege shall be excluded from trial under Rule 403.
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`5.
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`The Court does not see the need for, nor will it accept further dispositive motions
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`or motions in limine. Evidentiary objections may be made at trial.
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`Dated: January 12, 2024
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`______________________________________
`BETH LABSON FREEMAN
`United States District Judge
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`Northern District of California
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`United States District Court
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