PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

IN RE: LETTER OF REQUESTFROM THE

AMTSGERICHT INGOLSTADT, FEDERAL

REPUBLIC OF GERMANY

UNITED STATES OF AMERICA, No. 95-7116

Plaintiff-Appellee,

v.

KEITH MORRIS,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of West Virginia, at Elkins.

Frederick P. Stamp, Jr., Chief District Judge.

(MISC-89-50-E)

Argued: March 8, 1996

Decided: April 30, 1996

Before WILKINSON, Chief Judge, and HALL and LUTTIG,

Circuit Judges.

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Affirmed by published opinion. Chief Judge Wilkinson wrote the

opinion, in which Judge Hall and Judge Luttig joined.

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COUNSEL

ARGUED: John J. Pizzuti, CAMILLETTI, SACCO & PIZZUTI,

Wheeling, West Virginia, for Appellant. Helen Campbell Altmeyer,
Assistant United States Attorney, Wheeling, West Virginia, for

Appellee. ON BRIEF: William D. Wilmoth, United States Attorney,

Wheeling, West Virginia, for Appellee.

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OPINION

WILKINSON, Chief Judge:

This case involves a request of the Amtsgericht Ingolstadt, the

local court of Ingolstadt, Germany, for judicial assistance in obtaining

a blood sample from appellant Keith Morris in connection with a

paternity suit. Morris appeals from an order directing him to provide

the blood sample, arguing that the district court should have assessed

whether the German court's request was in compliance with German

rules of discovery. We disagree. The treaty and statute authorizing

United States courts to assist foreign tribunals in obtaining evidence

are grounded in considerations of comity, cooperation, and reciprocity. Second-guessing the evidentiary request of a foreign court based

on the foreign nation's own discovery rules would directly contradict

these important principles. Accordingly, we affirm the judgment of

the district court.

I.

On May 25, 1988, the Amtsgericht Ingolstadt requested assistance

in obtaining the blood sample from appellant Morris in a letter rogatory to the Department of Justice and the United States District Court

for the Northern District of West Virginia. Morris was then a resident

of West Virginia. The court sought the blood sample for use in a

paternity action in which Michael Hochkirch, a resident of Ingolstadt,

Germany, claimed that Morris was his father and sought maintenance

payments from him. In support of Hochkirch's allegation, the letter

reported the testimony of his mother, who stated that Morris was the

only person with whom she had sexual intercourse during the months

preceding Hochkirch's birth.

The letter rogatory was issued pursuant to the Convention on the

Taking of Evidence Abroad in Civil or Commercial Matters, T.I.A.S.

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No. 7444, 23 U.S.T. 2555, a multi-national treaty that was executed

on March 18, 1970. Article 1 of the Convention provides for the use

of letters rogatory to request the assistance of foreign courts in acquiring evidence. The procedures governing the response to such requests

are set forth in 28 U.S.C. § 1782(a), which reads:

The district court of the district in which a person resides or

is found may order him to give his testimony or statement

or to produce a document or other thing for use in a proceeding in a foreign or international tribunal. The order may

be made pursuant to a letter rogatory issued, or request

made, by a foreign or international tribunal or upon the

application of any interested person and may direct that the

testimony or statement be given, or the document or other

thing be produced, before a person appointed by the court.

. . . To the extent that the order does not prescribe otherwise,

the testimony or statement shall be taken, and the document

or other thing produced, in accordance with the Federal

Rules of Civil Procedure.

On June 6, 1989, pursuant to this provision, the district court

appointed a magistrate to assist the German court in obtaining the

blood sample from Morris.

After several years of procedural wrangling and a series of communications with the German court regarding the proper method of collecting the blood sample, the magistrate held a hearing on March 1,

1994, for Morris to show cause why he should not have to comply

with the letter rogatory. Unconvinced by Morris' arguments at the

hearing, the magistrate entered an order directing Morris to provide

the blood sample. The district court affirmed the magistrate's order.

This appeal followed.

II.

A district court's order under 28 U.S.C. § 1782 is reviewed for

abuse of discretion. Euromepa S.A. v. R. Esmerian, Inc., 51 F.3d

1095, 1097 (2d Cir. 1995). Morris' principal argument is that before

ordering him to comply with the German court's request, the district

court should have ensured that the blood sample was discoverable as

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a matter of German law. In our view, however, such a requirement

would compromise the purpose of both 28 U.S.C. § 1782 and the

Convention on the Taking of Evidence Abroad.

The Convention's preamble states an intention to"facilitate the

transmission and execution of Letters of Request" and generally to

"improve mutual judicial co-operation in civil or commercial matters." Similarly, 28 U.S.C. § 1782 reflects"the twin aims of providing

efficient means of assistance to participants in international litigation

in our federal courts and encouraging foreign countries by example

to provide similar means of assistance to our courts." In re Application of Malev Hungarian Airlines, 964 F.2d 97, 100 (2d Cir.), cert.

denied, 506 U.S. 861 (1992). Plainly, the treaty and the statute envision considerable cooperation with foreign courts' requests for assistance and a general practice of reciprocity.

According to Morris, United States courts should examine evidentiary requests arising from litigation in foreign tribunals for compliance with the foreign nation's discovery laws. Some courts, including

in the case principally relied upon by Morris, Lo Ka Chun v. Lo To,

858 F.2d 1564 (11th Cir. 1988), have adopted such a requirement

when facing requests from a private litigant. See In re Application of

Asta Medica, S.A., 981 F.2d 1 (1st Cir. 1992) (requiring that litigant's

request be examined under foreign tribunal's discovery rules). But see

In re Application of Gianoli Aldunate, 3 F.3d 54 (2d Cir.) (refusing

to require that litigant's request be examined under foreign tribunal's

discovery rules), cert. denied, 114 S. Ct. 443 (1993). The rationale for

assessing the discoverability of a private litigant's request under the

foreign nation's rules is to "prevent[ ] circumvention of foreign

restrictions on discovery and avoid[ ] offense to foreign tribunals."

Gianoli, 3 F.3d at 60.

However persuasive such concerns may be when a private litigant

seeks discovery, they are not at all implicated when, as here, a foreign

court requests assistance in obtaining discovery. After all, "the foreign court is, presumably, the arbiter of what is discoverable under its

procedural rules." In re Letter Rogatory from First Court, Caracas,

42 F.3d 308, 311 (5th Cir. 1995). "For an American court to doublecheck the foreign court's request to determine whether it is proper

under the foreign nation's rules would be exactly the kind of slight

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that § 1782 seeks to avoid." Id.; see In re Letter of Request from

Boras District Court, Sweden, 153 F.R.D. 31, 34 (E.D.N.Y. 1994)

("The fact that the [foreign court] found sufficient grounds to order

the blood test should end this court's inquiry in this regard."). And

applying the rule proposed by Morris would encourage similar resistance from foreign courts when United States courts seek their assistance.

In short, we agree with the Fifth Circuit, see Letter from First

Court, Caracas, 42 F.3d at 308, that United States courts should not

be in the business of second-guessing the evidentiary requests of foreign courts based on the foreign jurisdiction's own rules of discovery.

III.

Morris also suggests two other objections to the district court's

order, both of which lack merit. First, Morris contends that the district

court should have required an affidavit supporting the allegations in

the underlying paternity suit. Precisely the same argument, however,

has been rejected by other courts facing a request for a blood sample

in a foreign paternity action. See Letter from Boras District Court,

153 F.R.D. at 34. The statute does not require an affidavit, but only

that the taking of evidence comply with the Federal Rules of Civil

Procedure. 28 U.S.C. § 1782(a). Morris has not suggested that providing the blood sample conflicts with the federal rules. Nor could he;

good cause for ordering the blood test exists under Fed. R. Civ. P. 35.

See In re Letter Rogatory from Local Court, 154 F.R.D. 196, 200

(N.D. Ill. 1994).

Second, Morris asserts that the German court failed to comply with

Article 3 of the Convention, which requires that letters rogatory supply certain basic information regarding the underlying lawsuit and the

requested evidence.* The letter in this case, however, fully complied

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*Article 3 provides in pertinent part:

A Letter of Request shall specify --

(a) the authority requesting its execution and the authority requested

to execute it, if known to the requesting authority;

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with this provision: It stated the identity of the parties to the paternity

suit, the nature of the claim, the facts alleged to support the claim, and

the reasons for requesting the blood sample. Morris, though, suggests

that the letter was inadequate in failing to mention whether the paternity suit was a civil or criminal action, apparently in the belief that

a criminal case would implicate his Fifth Amendment rights. Blood

tests, however, ordinarily do not raise a Fifth Amendment issue, see

Schmerber v. California, 384 U.S. 757 (1966), and at any rate, the

paternity suit is civil in nature. Indeed, the Convention on the Taking

of Evidence Abroad in Civil and Commercial Matters, as its title verifies, applies only to civil and commercial cases.

IV.

The district court did not abuse its discretion under 28 U.S.C.

§ 1782 in requiring appellant to comply with the German court's

request. The judgment of the district court is hereby

AFFIRMED.

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(b) the names and addresses of the parties to the proceedings and

their representatives, if any;

(c) the nature of the proceedings for which the evidence is required,

giving all necessary information in regard thereto;

(d) the evidence to be obtained or other judicial act to be performed.

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