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.

_________________________________________________________________

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 reciproc-
ity. 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 roga-
tory 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 acquir-
ing 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 pro-
          ceeding 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 commu-
nications with the German court regarding the proper method of col-
lecting 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 mat-
ters." 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 Applica-
tion of Malev Hungarian Airlines, 964 F.2d 97, 100 (2d Cir.), cert.
denied, 506 U.S. 861 (1992). Plainly, the treaty and the statute envi-
sion considerable cooperation with foreign courts' requests for assis-
tance and a general practice of reciprocity.

According to Morris, United States courts should examine eviden-
tiary requests arising from litigation in foreign tribunals for compli-
ance 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 for-
eign 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 double-
check 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 resis-
tance from foreign courts when United States courts seek their assis-
tance.

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 for-
eign 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 provid-
ing 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 sup-
ply certain basic information regarding the underlying lawsuit and the
requested evidence.* The letter in this case, however, fully complied
_________________________________________________________________
*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 pater-
nity 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 veri-
fies, 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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