In re Letter of Request from the Boras District Court

153 F.R.D. 31, 28 Fed. R. Serv. 3d 1122, 1994 U.S. Dist. LEXIS 5706, 1994 WL 48534
CourtDistrict Court, E.D. New York
DecidedFebruary 4, 1994
DocketMisc. No. MC-93-055 (MDG)
StatusPublished
Cited by6 cases

This text of 153 F.R.D. 31 (In re Letter of Request from the Boras District Court) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re Letter of Request from the Boras District Court, 153 F.R.D. 31, 28 Fed. R. Serv. 3d 1122, 1994 U.S. Dist. LEXIS 5706, 1994 WL 48534 (E.D.N.Y. 1994).

Opinion

MEMORANDUM AND ORDER

GO, United States Magistrate Judge:

Before me1 is a request for an order pursuant to 28 U.S.C. § 1782 to execute a letter rogatory issued by the District Court of Bo-ras, Sweden on June 12, 1992 to the United States Department of Justice (the “Letter Rogatory”) under the Convention of Taking Evidence in Civil or Commercial Matters dated March 18, 1970 and entered into force October 7, 1972, TIAS 7444, 23 UST 2555 (the “Hague Convention”). The Boras District Court requested judicial assistance in obtaining a blood sample from Edward Nev-ins (the “respondent”) in connection with a paternity action pending in that court.

For the following reasons, the request for judicial assistance is granted.

BACKGROUND

The United States of America (“the petitioner”) moved on behalf of the Boras District Court by order to show cause on April 1, .1993 for an order requiring respondent to comply with the Letter Rogatory. Respondent had previously refused to comply with a request voluntarily to provide a blood sample fob the purposes stated in the Letter Rogato-ry.' In support of its motion, petitioner submitted a memorandum of law and declaration of Millieent Y. Clarke, Assistant United States Attorney dated April 1, 1993, to which a copy of the Letter Rogatory was attached. The Letter Rogatory states that there is a [33]*33case pending to determine the paternity of a Timothy Von Schedvin, who resides in Boras with his mother, Christina von Schedvin. Because respondent has denied paternity, the Boras District Court ordered that a blood sample be obtained from him. By letter dated October 1, 1993, Assistant U.S. Attorney Clarke submitted “a seven-page document in English which purports to be a translation of the Summons Application, the Report of Investigation and a Writ of Summons issued against Edward [Nevins] in this action. These documents were forwarded to the United States Department of Justice by Judge Claes Theorin of the Boras District Court, Sweden.”

DISCUSSION

The procedures to be utilized in a request for judicial assistance from a foreign tribunal are set forth in 28 U.S.C. § 1782, which provides in pertinent part:

(a) 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. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. 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.

When Congress amended section 1782 in 1964, it intended to modify procedures to facilitate the rendering of judicial assistance. As the Senate Judiciary Committee explained in its report:

Enactment of the bill into law will constitute a major step in bringing the United States to the forefront of nations adjusting their procedures to those of sister nations and thereby providing equitable and efficacious procedures for the benefit of tribunals and litigants involved in litigation with international aspects.
It is hoped that the initiative taken by the United States in improving its procedures will invite foreign countries similarly to adjust their procedures.

S.Rep. No. 1580, 88th Cong., 2d Sess. (1964), reprinted in 1964 U.S.C.C.A.N. 3782, 3783.

Consistent with this legislative intent, the Second Circuit has interpreted section 1782 expansively in two recent rulings. In In re Application of Malev Hungarian Airlines, 964 F.2d 97, 100 (2d Cir.), cert. denied sub nom. United Technologies Int'l v. Malev Hungarian Airlines, — U.S.—, 113 S.Ct. 179, 121 L.Ed.2d 125 (1992), the Second Circuit reversed the decision of the district court, which had denied discovery to a litigant before a Hungarian court on the grounds that the litigant had never made any discovery request to the Hungarian court. Refusing to read a “quasi-exhaustion doctrine” into section 1782, id. at 100, the Second Circuit determined that the plain language of the statute entitled a litigant to discovery in aid of its case in a foreign court. Id. at 101. The court characterized the 1964 amendments as having “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.” Id. at 100. The Second Circuit concluded that district courts should not add conditions to Section 1782 not found in its text, but, instead, should liberally favor assistance to foreign courts.

In Application of Aldunate, 3 F.3d 54 (2d Cir.1993), the Second Circuit rejected the requirement imposed by other circuits that the material requested be discoverable in the foreign court. Examining the language of [34]*34the statute and relying upon Malev, the court held:

Given that the statutory language is silent and the legislative history indicates that “[i]n exercising its discretionary power, the court may take into account the nature and attitudes of the government of the country from which the request emanates and the character of the proceedings in that country,” Senate Report at 3788 (emphasis added), we find it difficult to believe that Congress actually intended section 1782 to have an implicit requirement that any evidence sought in the United States be discoverable under the laws of the foreign country.

3 F.3d at 59.

Respondent argues that the petition must be denied because petitioner has not submitted an affidavit of Christina Von Schedvin stating that she had sexual intercourse with respondent during the period of conception. He contends this prima facie showing of paternity is required under New York State law, Commissioner of Social Services on behalf of Smith v. O’Neil, 94 A.D.2d 480, 464 N.Y.S.2d 889 (4th Dep’t.1983), and must be met before the blood test sought here may be ordered. However, nothing supports respondent’s assumption that the requesting party must meet such an evidentiary requirement under the local law of the executing jurisdiction. Since Aldunate

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153 F.R.D. 31, 28 Fed. R. Serv. 3d 1122, 1994 U.S. Dist. LEXIS 5706, 1994 WL 48534, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-letter-of-request-from-the-boras-district-court-nyed-1994.