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`UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF CALIFORNIA
`
`FINJAN, INC.,
`
`v.
`
`Plaintiff,
`
`ESET, LLC, a California Limited Liability
`and ESET SPOL. S.R.O., a Slovak
`Republic Corporation,
`
`Defendants.
`
`
`
` Case No.: 3:17-cv-0183-CAB-(BGS)
`
`ORDER DENYING MOTION TO
`STRIKE THE SUPPLEMENTAL
`EXPERT REPORT OF KEVIN ARST
`AND FOR SANCTIONS
`
`
`[Doc. No. 726]
`
`Before the Court is Eset’s motion to strike the supplemental report of Finjan’s
`
`expert Kevin Arst. [Doc. No. 726.] Having reviewed the filings of the parties, the Court
`
`finds this motion suitable for determination on the papers submitted and without oral
`
`argument in accordance with Civil Local Rule 7.1(d)(1).
`
`On October 16, 2019, the Court granted Eset’s motion to strike portions of Mr.
`
`Arst’s expert report that relied upon the opinions of Dr. Valerdi and Dr. Cole. Finjan was
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`afforded the opportunity to provide a supplemental report by Mr. Arst with a revised
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`opinion on damages. Finjan was directed that Mr. Arst’s new opinion could be based
`
`only on information he had previously considered and disclosed in his first report.
`
`Eset contends that Mr. Arst new opinion introduces new materials and therefore
`
`violates the restrictions the Court placed on Finjan’s opportunity to submit a revised
`
`1
`
`3:17-cv-0183-CAB-(BGS)
`
`
`
`Case 3:17-cv-00183-CAB-BGS Document 758 Filed 02/12/20 PageID.37112 Page 2 of 2
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`opinion on damages. Having reviewed the first report prepared by Mr. Arst [Doc. No.
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`468-1, sealed], with the supplemental report [Doc. No. 728, sealed], the Court disagrees
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`with Eset’s contention.
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`Mr. Arst’s initial report included his review of Finjan’s licensing policies and the
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`licensing history of the patents-at-issue. [Doc. No. 468-1, at 18-42.]1 He concluded the
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`licensing history of the patents-at-issue was less informative than his cost savings
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`approach. The Court however excluded his cost savings analysis, which relied on the
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`opinions of Drs. Valerdi and Cole.
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`In his supplemental report, Mr. Arst returned to the previously disclosed licenses
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`and revised his opinion based on Finjan’s licensing practices and what he extrapolated
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`from those license agreements. This does not violate the Court’s directive to provide a
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`revised opinion within the confines of Mr. Arst’s previously submitted report. It was
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`anticipated that he would have to provide further analysis of the licenses and would
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`necessarily reach a new revised opinion using that information. This is not the
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`introduction of new material that Eset had not previously received. Accordingly, the
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`16
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`motion to strike is DENIED.
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`17
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`Dated: February 12, 2020
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`1 Page references are to the page numbers assigned to the docket entry by CM/ECF.
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`2
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`3:17-cv-0183-CAB-(BGS)
`
`
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