*1 I write to resolve a dispute among the parties concerning defendants' document production.

This is a diversity action arising out of the parties' unsuccessful efforts to negotiate the sale of a portfolio of life insurance policies from defendant EEA Life Settlements, Inc. (“EEA Inc.”) to plaintiff. According to the complaint, plaintiff and defendant had entered into negotiations with the goal of entering into a definitive agreement for the sale of the portfolio. Plaintiff claims that defendant engaged in “a pattern of fraudulent, bad faith conduct” to frustrate the formation of a definitive agreement and thereby obtain both additional fees for managing the portfolio and the death benefits of the insureds who died during the pendency of the negotiations. As a result of the foregoing alleged conduct, plaintiff has asserted claims for breach of contract and fraud.

According to defendants, EEA Inc. is a wholly owned subsidiary of EEA Life Settlements Master Fund II Limited (“Master Subsidiary II”), and Master Subsidiary II is, in turn, a wholly owned subsidiary of EEA Life Settlements Holdings Limited (“EEA Holdings”). EEA Holdings is a wholly owned subsidiary of EEA Life Settlements Fund PCC Limited (the “Fund”). The Fund has an investment management agreement with EEA Fund Management (Guernsey) Limited (the “Guernsey Manager”) which manages the Fund, EEA Holdings, Master Subsidiary II and EEA Inc. Plaintiff has not offered any evidence controverting the relationships described above. According to plaintiff, another entity, EEA Fund Management Limited (“EEA UK”) also manages the Fund and EEA Inc.

In their First Amended Initial Disclosures, served pursuant to Fed.R.Civ.P. 26(a)(1), defendants identified as witnesses that defendants may use in support of their defenses, officers/employees of Guernsey Manager, the Fund, EEA UK and other individuals. Defendants' First Amended Initial Disclosures also state:

Plaintiff's current application seeks to compel EEA Inc. to search for and produce responsive, non-privileged documents from the Guernsey Manager, the Fund, EEA UK and EEA Holdings. Despite their statement of intent to rely on witnesses and documents from the Guernsey Manager, the Fund and EEA UK, defendants have taken the position that they do not have access to documents from these entities or EEA Holdings and cannot, therefore, produce such documents in discovery.

*2 I heard oral argument on plaintiff's application on March 8, 2018 during which defendants' counsel stated that defendants are not able to obtain documents from Guernsey Manager, the Fund, EEA UK and EEA Holdings and that, despite their initial disclosures, defendants will not be relying on any documents from these entities that are not obtained through formal, Hague Convention procedures.

Rule 34 of the Federal Rules of Civil Procedure requires a party to produce documents and other tangible objects that are within the party's “possession, custody or control.” Tiffany (NJ) LLC v. Qi Andrew, 276 F.R.D. 143, 147 (S.D.N.Y. 2011) (collecting cases), aff'd sub nom., Tiffany (NJ) LLC v. Andrew, No. 10 Civ. 9471 (WHP), 2011 WL 11562419 (S.D.N.Y. Nov. 14, 2011) (Pauley, D.J.). A document or tangible object is within a party's control if the party has the practical ability to obtain the document or object. In re NTL, Inc. Sec. Litig., 244 F.R.D. 179, 195 (S.D.N.Y. 2007) (Peck, M.J.) (“Under Rule 34, control does not require that the party have legal ownership or actual physical possession of the documents at issue; rather, documents are considered to be under a party's control when that party has the right, authority, or practical ability to obtain the documents from a non-party to the action.” (internal quotation marks and citations omitted)), aff'd sub nom., Gordon Partners v. Blumenthal, 02 Civ. 7377 (LAK), 2007 WL 1518632 (S.D.N.Y. May 17, 2007) (Kaplan, D.J.). “The burden of demonstrating that the party from whom discovery is sought has the practical ability to obtain the documents at issue lies with the party seeking discovery.” Tiffany (NJ) LLC v. Qi Andrew, supra, 276 F.R.D. at 148; accord In re Namenda Direct Purchaser Antitrust Litig., 15 Civ. 7488 (CM)(JCF), 2017 WL 3822883 at *6 (S.D.N.Y. Aug. 30, 2017) (Francis, M.J.); Golden Trade S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 n.7 (S.D.N.Y. 1992) (Dolinger, M.J.) (“In the face of a denial by a party that it has possession, custody or control of documents, the discovering party must make an adequate showing to overcome this assertion.”). A parent-subsidiary relationship may, but does not necessarily, demonstrate the existence of sufficient control to warrant an order directing production. In re Namenda Direct Purchaser Antitrust Litig., supra, 2017 WL 3822883 at *6; In re Vivendi Universal, S.A. Sec. Litig., 02 Civ. 5571 (RJH)(HBP), 2009 WL 8588405 at *3 (S.D.N.Y. July 10, 2009); S.E.C. v. Credit Bancorp, Ltd., 194 F.R.D. 469, 472 (S.D.N.Y. 2000) (Sweet, D.J.).

Given the scant nature of defendants' document production to date, the nature of the relationships among EEA Inc. and its affiliates and the representations in defendants' 26(a)(1) disclosures, I understand plaintiff's skepticism with respect to defendants' claim. Nevertheless, I cannot assume that defendants' counsel was dissembling when he represented on the record in open court that the defendants do not possess and do not have the practical ability to obtain documents in the possession of Guernsey Manager, the Fund, EEA UK and EEA Holdings. I conclude that plaintiff's motion to compel should be denied, without prejudice to renewal, provided that within 14 days of the date of this Order, defendants provide an (1) affidavits or declarations pursuant to 28 U.S.C. § 1746 from all defendants confirming the representations made by counsel at the March 8 oral argument and (2) affidavits or declarations pursuant to 29 U.S.C. § 1746 from Guernsey Manager, the Fund, EEA UK and EEA Holdings confirming that these entities do not permit EEA Inc. to have access to their documents in the regular course of their business and that they have not and will not provide any documents to EEA Inc. in connection with this litigation unless compelled to do so as a result of formal discovery proceedings.

*3 Finally, although discovery concerning discovery is generally disfavored, it is appropriate where an “adequate factual basis” for such discovery has been shown. Winfield v. City of New York, 15 Civ. 5236 (LTS)(KHP), 2018 WL 840085 at *3 (S.D.N.Y. Feb. 12, 2018) (Parker, M.J.). Given the factors cited in the preceding paragraph and the fact that the entities from which discovery is sought all appear to be involved in the same business, plaintiff may conduct discovery concerning the issue of defendants' access to the documents of Guernsey Manager, the Fund, EEA UK and EEA Holdings.[1]