OPINION
Nоn-party Allied Irish Banks, p.l.c. (“AIB”), seeks reconsideration and reargument of this Court’s previous order dated August 9, 2000, pursuant to Federal Rule of Civil Procedure 60(b)(1) and (6), and Local Civil Rule 6.3., and to have that order vacated or, in the alternative, for permission to submit additional evidence. In the event its motion is denied, AIB seeks a stay of the order pending appeal, pursuant to Federal Rule of Appellate Procedure 8. Plaintiff Del Dietrich (“Dietrich”) opposes the motion. For the reasons set forth below, the motion will be granted for the limited purpose of clarification, and will otherwise be denied.
The Parties
The parties to this proceeding are set forth in this Court’s previous decision regarding this matter, familiаrity with which is presumed. See Dietrich v. Bauer, 95 Civ. 7051,
Prior Proceedings And Facts
The underlying facts and previous proceedings are set forth in this Court’s previous decision, familiarity with which is presumed. See Dietrich,
The instant motion was submitted on or about September 1, 2000, and was deemed fully submitted on October 18, 2000.
Discussion
A. The Standard Under Fеderal Rule of Civil Procedure 60(b) and Local Rule 6.3
Local Rule 6.3 provides in pertinent part: “There shall be served with the notice of motion a memorandum setting forth concisely the matters or controlling decisions which counsel believes the court has overlooked.” Thus, to be entitled to reargument and reconsideration, the movant must demonstrate that the Court overlooked controlling decisions or factual matters that were put before it on the undеrlying motion. See Ameritrust Co. Nat’l Ass’n v. Dew,
Local Rule 6.3 is to be narrowly construed and strictly applied so as to avoid repetitive arguments on issues that have been considered fully by the Court. In deciding a reconsideration and reargument motion, the Court must not allow a party to use the motion as a substitute for appealing from a final judgment. See Morser v. AT & T Info. Sys.,
Upon receiving such a motion, a court may do any of the following. First, the motion may be denied, thereby leaving the original decision, unaltered. See Lehmuller v. Incorporated Village of Sag Harbor,
Rule 60(b) provides in relevant part that “upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for ... (1) mistake, inadvertence, surprise, or excusable neglect.” Fed.R.Civ.P. 60(b).
Our Court of Appeals has instructed that Rule 60(b) is “extraordinary judicial relief’ and can be granted “only upon a showing of exceptional circumstances.” Nemaizer v. Baker,
B. The Order Will Not Be Vacated
AIB raises four arguments in support of its motion. First, AIB contends that it did not have nоtice of the “control” theory upon which the Court premised its previous order and, therefore, was a victim of unfair surprise within the meaning of Rule 60(b)(1). Second, AIB contends that this Court applied the wrong legal standard, and overlookеd controlling legal authority, in concluding that AIB has “control” over the documents sought by Dietrich. Third, AIB contends that this Court overlooked controlling facts or assumed erroneous ones. Finally, AIB contends that this Court wrongly absolved Dietrich of his burden tо demonstrate the ineffectiveness of letters rogatory in obtaining the documents sought.
1. Relief Is Not Warranted Under Rule 60(b)(1)
In the underlying proceedings, Dietrich sought an order pursuant to Federal Rule of Civil Procedure 45 compelling AIB to produce documents held by AIB Group (UK). This Court concluded that AIB has “control” over those documents within the meaning of Rule 45 and is therefore required to produce them. See Fed.R.Civ.P. 45(c)(1) (non-party must produce materials in its “possession, custody, or control”).
AIB contends that the “сontrol” theory that was the basis for the Court’s order was not advanced by Dietrich and, therefore, AIB did not have an opportunity to respond to that theory. However, in those proceedings Dietrich argued that AIB had the authority to direct AIB Group (UK) to produce the documents, and put forth facts regarding AIB’s ownership of AIB Group (UK). Thus, Dietrich did advance a “control” theory. AIB, for its part, argued inter alia that the documents sought were in the possession of AIB (UK) and insisted that AIB is not required tо produce the documents because AIB Group (UK) is a separate legal entity. The only “surprise” in the Court’s opinion was, conceivably, that the Court analyzed control specifically within the context of a parent-subsidiary relationship, and found control to exist on that basis. This is not the type of “surprise” that justifies relief under Rule 60(b)(1).
2. Reconsideration Will Be Granted For The Limited Purpose Of Clarification
AIB contends that this Court erred in defining control as the “legal right, authority, оr practical ability to obtain the materials sought upon demand,” Dietrich,
In Citric Acid, the Ninth Circuit rejected the plaintiffs’ argument that “control” may be defined as the “practical аbility to obtain the requested documents,” and emphasized that “[c]ontrol is defined as the legal right to obtain documents upon demand.”
Unlike this case, Citric Acid did not arise in the context of a parent-subsidiary relatiоnship. See
It is not always clear whether the decisions arising in the parent-subsidiary context are premised on a strict “legal right” standard or, as the languagе of some would indicate, on a somewhat more flexible “pragmatic approach.” DeSmeth v. Samsung America, Inc., No. 92 Civ. 3710,
What is well-established, however, is that a number of courts have found the requisite control by a parent corporation over documents held by its subsidiary. See id. at *3 (citing cases). It is noted that this line of case law was recognized and cited approvingly by the Third Circuit in Gerling Int’l Ins. Co. v. Commissioner, in which the сourt also employed the terminology of “legal right” in discussing the meaning of “control.” See
Dietrich offered sufficient evidence for this Court to find that AIB Group (UK) is a wholly-owned subsidiary of AIB, AIB oversees the divisions of its bank division, which includes AIB Group (UK), AIB establishes company-wide policies and exercises operational and financial control over the bank
3. AIB’s Arguments Regarding The Hague Convention Are Repetitive
This Court has already considered and rejected AIB’s argument that Dietrich was required to seek discovery through the Hague Convention or provide justification for its failure to do so. Therefore, reconsideration is not warranted on this basis.
4. A Stay Is Not Warranted
AIB does not offer grounds for its request for a stay under Rule 8(a)(1), other than to represent that it will seek to expedite such an appeal. It has been over eight months since AIB was served with Dietrich’s subpoena, and six months since the initial order granting Dietrich’s motion to compel.
5. AIB May Submit A Proposed Order Regarding Conñdentiality
AIB contends that this Court’s order fails to protect it from significant expense, as required by Federal Rule of Civil Procedure 45(c)(2)(B), or to protect the confidеntiality of the documents sought by Dietrich. Athough these arguments were not raised previously, and may therefore be rejected on that basis, this Court will consider a proposal regarding confidentiality. However, AIB is not excused on this ground from taking such steps as are necessary to comply with the production order, and is directed to do so immediately. Specifically, the parties are directed to attempt to reach an agreement within five (5) days of the dаte of this decision regarding a confidentiality order. If no agreement is reached, AIB and Dietrich may submit competing orders by the end of this five-day period, enabling resolution of this issue prior to the deadline for AIB’s compliance with the discovery order, as set forth below.
Conclusion
Therefore, for the reasons set forth above, •the motion for reconsideration is granted only for purposes of clarifying this Court’s previous opinion, and is otherwise denied. AIB is hereby ordered to produce the documents sought within ten (10) days of the date of this opinion. Any proposed orders regarding confidentiality must be submitted as directed above.
It is so ordered.
Notes
. AIB also relies on Rule 60(b)(6), which provides relief "for any other reason justifying [that] rеlief.” However, the Second Circuit has held that "Rule 60(b)(1) and 60(b)(6) are mutually exclusive, so that any conduct which generally falls under the former cannot stand as a ground for relief under the latter.” United States v. Cirami,
. AIB also contends that the test is "actual,” not "theoretical” control. However, this formulation appears to be another way of making the legal-practical distinction, since AIB’s argument is that it does not have actual control unless it has the legal right to obtain the documents on demand, and any apparently practical ability to obtain them is merely theoretical.
. Citric Acid is, of course, not controlling authority for this Court. However, because this Court identified no Second Circuit case exactly on point, it has looked to case law from other jurisdictions for their persuasive value.
. This statement was dictum because, as in Citric Acid, the parties in Petroleum & Indus. Workers— an international union and its locals — were not so related, nor were other grounds identified for concluding that control existed. See
. Obviously, the Court does not fault the litigants for any delay resulting from the Court's own deliberations.