MEMORANDUM DECISION

FRANK MAAS, United States Magistrate Judge

I. Introduction

Following a referral from Judge Mukasey, I resolved a series of discovery disputes in this action during a May 10, 2002 conference and in a memorandum decision dated July 23, 2002. Thereafter, both sides filed motions seeking reconsideration of certain aspects of my rulings. The motion filed by plaintiff Johnson Matthey, Inc. ("JM") asks me to reconsider my determination that information concerning a 1995 lawsuit between defendant Research Corp. ("Research") and Michigan State University ("MSU") (the "MSU litigation") need not be produced by Research. Research requests that I reconsider my ruling that certain of the documents on JM's privilege log constitute work product.

II. Discussion A. Applicable Law

The determination of a motion for reconsideration is a matter committed to the "sound discretion of the district court judge and will not be overturned on appeal absent an abuse of discretion." McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983).

Accord Baker v. Dorfman, 239 F.3d 415, 427 (2d Cir. 2000). Pursuant to Local Civil Rule 6.3, a party seeking reconsideration must set forth "concisely the matters or controlling decisions which counsel believes the court has overlooked." "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 re Integrated Res. Real Estate Ltd. Partnerships Secs. Litig., 850 F. Supp. 1105, 1151 (S.D.N.Y. 1993) (Sweet, J.). "A party making such a motion 'is not supposed to treat the court's initial decision as the opening of a dialogue in which that party may then use such a motion to advance new theories or adduce new evidence in response to the court's rulings.'" Polsby v. St. Martin's Press, Inc., 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000) (Mukasey, J.) (quoting De Los Santos v. Fingerson, 1998 WL 788781, at *1 (S.D.N.Y. Nov. 12, 1998) (Mukasey, J.)).

B. JM Motion

In its April 19, 2002 letter, JM originally sought the materials related to the MSU litigation because the limited available public record indicated that it concerned carboplatin and sought recovery for unjust enrichment, one of the legal theories that JM seeks to assert against Research here. (See letter from Michael M. Baylson, Esq. to Judge Mukasey, dated Apr. 19, 2002, at 6-7; May 10, 2002 Tr. ("Tr.") at 70-71). The complaint in the MSU litigation alleged that Research had breached its contract with MSU in various ways, including Research's failure to use enough of its income for scientific investigation and other contractually-specified goals. The complaint further alleged that the failure to expend its money for these purposes had unjustly enriched Research. (See letter from Stephen S. Madsen, Esq. to Judge Mukasey, dated April 29, 2002, at Ex. B).

During the May 10 discovery conference, I indicated that I would likely deny JM's request for documents related to the MSU litigation because neither of the specific claims raised there was at issue in this action. As I observed at the time, the mere fact that an unjust enrichment theory was advanced in both lawsuits was insufficient to establish the relevance of the MSU litigation. (Tr. at 75). Nevertheless, I agreed to review the complaint in the MSU litigation in further detail before making a final determination. (Id. at 74). My subsequent review of the complaint confirmed my initial conclusion. See Johnson Matthey v. Research Corp., 2002 WL 1728566, at *10 (S.D.N.Y. July 23, 2002) ("I adhere to my prior ruling.").

JM seeks reconsideration of my decision concerning the MSU litigation on two grounds. First, it argues that the Court overlooked Research's failure to supply certain materials for in camera review. (JM Mem. of L. at 2, 5-6). After the May 10 discovery conference, JM's counsel requested that I review the transcripts of certain depositions in camera before making a final determination regarding the discoverability of the documents concerning the MSU litigation sought by JM. (See letter from Mr. Baylson to the Court, dated May 15, 2002, at 1, 5). I rejected this application, adhering to the view I initially expressed at the May 10 conference that the issue was whether the lawsuits were "factually related," not simply whether they involved the same witnesses or legal concepts. (Tr. at 74-75).

Regrettably, in the course of editing my prior decision, my remarks concerning the MSU litigation found their way into a section which related to my in camera review of unrelated documents. In doing so, I apparently mistakenly conveyed to JM the belief that I had changed my mind and agreed to review — but had not actually obtained — additional documents concerning the MSU litigation. In fact, I have never departed from the belief that the MSU litigation is irrelevant to the subject matter of this case and that in camera review is unwarranted. There consequently is no reason to reconsider my prior ruling on the basis of my failure to review in camera any additional documents related to the MSU litigation.

JM further contends that I overlooked a controlling decision which "make[s] clear" that materials from the MSU litigation are discoverable. (JM Mem. of L. at 6). In Burda Media, Inc. v. Blumenberg, Judge Sweet held that "'any possibility' that the sought-after information may be relevant to the subject matter of the action will satisfy Rule 26(b)(1)'s requirements." 1999 WL 413469, at *3 (S.D.N.Y. June 21, 1999) (quoting Daval Steel Prods. v. M/V Fakerdine, 951 F.2d 1357, 1367 (2d Cir. 1991) (emphasis added)). This expansive language accurately summarizes the law as it stood at the time. Thereafter, however, Rule 26(b)(1) of the Federal Rules of Civil Procedure was amended to narrow the scope of relevancy from "subject matter" of the action to "claim or defense of any party." See Fed.R.Civ.P. 26(b)(1), adv. comm. note to 2000 amendment. In order to compel the production of information which is relevant only to the subject matter of an action, the Rule requires that the party seeking discovery demonstrate "good cause." See id.

Although the relationship between JM and Research began at MSU, the complaint in the MSU litigation establishes that it concerned matters which are in no way relevant to a claim or defense at issue here. JM also has failed to demonstrate good cause for expanding the scope of discovery to incorporate the materials generated in that lawsuit. JM's motion for reconsideration is therefore denied.

C. Research Motion

Following the discovery conference, both sides sent the Court a series of letters addressing issues raised at the conference and other issues that had never previously been raised. Included among these letters was a June 4, 2002 letter in which Research challenged JM's reliance on the work product doctrine as a basis for its failure to produce the documents numbered 52, 53, 171, 208-212 on JM's privilege log.

Research argued that JM "ha[d] not sustained its burden of showing that [these documents] were prepared by or for JM counsel in anticipation of litigation." (Letter from Mr. Madsen to the Court, dated June 4, 2002 ("Madsen Letter"), at 9). In its response, JM correctly observed that the relevant inquiry was whether these materials were prepared for litigation, not whether they were produced by or sent to an attorney.

(See letter from Mr. Baylson to the Court, dated June 6, 2002, at 5-6). With respect to that issue, JM's counsel represented to the Court that the documents "were prepared in anticipation of litigation." (Id. at 5).

In my memorandum decision, I agreed with JM that "[t]he fact that the privilege log does not list an attorney as an author or recipient of any of these documents does not mean that work product protection is unavailable." Johnson Matthey, 2002 WL 1728566, at *9 (citing Atlantic Richfield Co. v. Current Controls, Inc., 1997 WL 538876, at *3 (W.D.N.Y. Aug. 21, 1997)). Thus, I did not require the production of the disputed documents.

In its motion, Research does not dispute my conclusion that it is unnecessary that an attorney be the author or recipient of a document for it to constitute work product. Instead, it challenges the sufficiency of JM's showing in light of U.S. v. Constr. Prods. Research, Inc., 73 F.3d 464 (2d Cir. 1996). In that case, the Second Circuit noted that a party seeking to withhold a document on privilege grounds must ordinarily prepare a privilege log. Id. at 473. Additionally, where the information in the log is insufficient to establish a factual basis for the privilege, the proponent of the privilege bears the burden of showing its applicability, a gap which often is filled through an affidavit or deposition testimony. Id.

On closer inspection, it is apparent that Research's original objections to JM's assertion of a claim of work product may not have been limited to the fact that neither the author nor the recipient of the contested documents was an attorney. Rather, Research may have been raising the broader assertion that JM had not adequately demonstrated that these documents were prepared in anticipation of litigation. (See Madsen Letter at 8-12). Since this subtlety escaped the Court's attention, JM will be permitted to supplement the record through an affidavit from a person with personal knowledge describing the circumstances which led to the creation of the contested documents. In addition, JM will be required to submit the contested documents to the Court for in camera inspection.

III. Conclusion

JM's motion for reconsideration is denied. Research's motion for reconsideration is granted solely to the extent that JM will be required to submit to the Court within ten days (a) an affidavit establishing the purported factual basis for its claim that documents numbered 52, 53, 171, 208-212 on JM's privilege log constitute work product, and (b) copies of these documents for in camera review.

SO ORDERED.

DISCOVERY ORDER

My July 23, 2002 Memorandum Decision in this case directed plaintiff Johnson Matthey, Inc. to submit to the Court for in camera review any document written or received by its patent counsel, Ian Wishart, which had not been produced to the Defendants in response to their discovery requests. Having reviewed the in camera submission, for the reasons set forth in the Memorandum Decision, Johnson Matthey, Inc. is directed to produce to the Defendants within ten days documents numbered 63, 74, 121, 126, and 133.

SO ORDERED.