-FBS In re: Request For Judicial Assistance From the District Court in Svitavy, Czech Republic, No. 2:2010mc00009 - Document 15 (E.D. Va. 2010)
Court Description: OPINION and ORDER granting petitioner's 1 Application for Order Under 28 U.S.C. 1782; denying respondent's 8 Motion for Entry of an Order Refusing the Request for Judicial Assistance; directing that William Ford Fitzkee (1) submit to th e United States Attorney's Office an affidavit setting forth his response to the inquiries made by the Svitavy Court, and (2) present himself for the purpose of providing a tissue sample via buccal swab at a location to be identified by the United States Attorney's Office within the next ten business days. Signed by Magistrate Judge F. Bradford Stillman and filed on 9/17/10. (mwin, )
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-FBS In re: Request For Judicial Assistance From the District Court in Svitavy, Czech Republic Doc. 15 FILED UNITED FOR THE STATES DISTRICT EASTERN DISTRICT SEP 1 7 2010 COURT OF VIRGINIA Norfolk Division IN RE: REQUEST ASSISTANCE COURT IN FOR JUDICIAL FROM THE SVITAVY, c. f DISTRICT CZECH REPUBLIC Action No. 2:10mc9 OPINION AND ORDER This matter comes before the Court on Petitioner's Application for Order Under 28 U.S.C. Motion for Assistance Court § Entry (Document GRANTS 1782, of an § Order No. 8). Petitioner's DENIES 1782 (Document No. Refusing For the Motion questions and provide a for Judicial stated below, Order Under 28 the U.S.C. for Entry of an Order Refusing the Request for Judicial Assistance, answer for and Respondent's Request reasons Application Respondent's the 1) and DIRECTS the Respondent to DNA sample (by buccal swab) in compliance with the Request for Examination issued by the District Court in Svitavy, Czech Republic I. Pursuant application to FACTUAL 28 AND U.S.C. requesting this 1782, United the to Assistance Republic [hereinafter "Svitavy Court"] On this March Request 12, 2003, are as Ex. B). HISTORY Court the 2 PROCEDURAL Judicial underlying from § (Document No. respond District Court States to in on June 7, a filed Request Svitavy, 2010. Czech follows: Gabriela the Defendant, for The facts Zemanova brought an action determination of paternity in the District Court of Svitavy, she alleged that an William Ford Fitzkee for where ("Fitzkee"), Dockets.Justia.com was the father of her child born that year in Svitavy. {Mem. Appl. had Ex. B, Document No. 2). Zemanova and Fitzkee intercourse in Annapolis, Maryland in March 2002. Id. Supp. sexual The Svitavy Court attempted to secure an affidavit from Fitzkee in 2004 but did not have current his current address, the address. Svitavy Court United States Department Exhibit B to Id. the Once secured Fitzkee's requested assistance of Justice. Memorandum it from the Request for Id. in Support of the Judicial Assistance details the request from the Svitavy Court that Fitzkee Court respond and to present specimen. On June certain himself 9, 2010, questions for an the propounded purpose Order was of by the purpose the District Convention Matters. of Court on rendering judicial in Evidence Taking Czech Abroad a entered appointing assistance Svitavy, Svitavy obtaining undersigned to serve as Commissioner pursuant to 28 for the Republic, in Civil An Order to Show Cause issued on June 18, U.S.C. as § DNA the 1782 requested by under or 2010, the Hague Commercial directing Fitzkee to appear before the Court to show cause why he should not be compelled to answer questions and provide a DNA sample by buccal swab. On July 16, 2010, the Court entered an Order directing Fitzkee to file a motion raising all issues he desired the Court to address in this matter pursuant to the Request for Judicial Assistance. Fitzkee filed a motion asking the Court to refuse the request for judicial briefed assistance and a on July hearing 2010. place took 28, on This August motion 20, was 2010. fullyAt the hearing, Joel Wilson, Esq. , appeared on behalf of the United States and Brandon official Zeigler, Esq., appeared court reporter was behalf of Fitzkee. The Sue Ash. II. A. on DISCUSSION Statutory Requirements to Grant Judicial Assistance 28 U.S.C. § 1782(a) states: 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, including criminal investigations conducted before formal accusation. The order may be made issued, or pursuant request to made, a letter by a rogatory 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. Pursuant assistance are to to a satisfied: § 1782, foreign "(1) this Court tribunal the person resides or is found in the if is three from authorized to provide threshold requirements whom discovery is (2) the discovery is for use in a proceeding before a foreign tribunal; and (3) or [Eastern District of Virginia]; sought the application is made by a foreign or international tribunal %any interested person.'" 188, 192 (S.D.N.Y. Fitzkee In re Microsoft Corp. . 428 F. Supp. 2d and is 2006). concedes that he resides in this district subject to the Reply to U.S. jurisdiction of Opp'n 1, this Document No. Court 12). in this matter. Furthermore, (Mem. it is clear that the discovery being sought is to be used in a paternity action initiated in the Svitavy Court, Appl. Ex. B, Document No. 2) . a foreign Finally, tribunal. (Mem. Supp. the application for judicial assistance was made by a judicial tribunal in the Czech Republic.1 (See id.) All therefore, B. three prongs this Court has of district court 1782 have been the authority to grant Discretionary Factors "[A] § is satisfied, and the application. for the Court's Consideration not required to grant a § 1782(a) discovery application simply because it has the authority to do so." Intel Corp. (2004). to v. its Assistance. § 17 82 Micro Devices This Court therefore has exercise Rather Advanced . "This . . in efficient authority means of of grant twin assistance the U.S. Request however, courts must the 542 241, 264 the discretion to decide whether discretion, district light to Inc.. exercise aims to of is for not Judicial boundless. their discretion under the statute: participants in ^providing international litigation in our federal courts and encouraging foreign countries by example to provide similar means of assistance to our 1 The Court notes that the application was filed on behalf of the Svitavy Court by the United States, pursuant to its obligations under the Hague Convention Civil or Commercial Matters, U.S.T. 2555 (1972) on the Taking of Evidence opened for signature Mar. [hereinafter Hague Convention], http://www.hcch.net/upload/conventions/ txt20en.pdf Sept. 14, 2010). Abroad 18, in 1970, 23 available at (last accessed courts . . . .'" Schmitz v. F.3d 77, 79 {2d Cir. F.2d 97, 100 1997), <2d Cir. LLP. 376 (quoting In re Metallaesellschaft AG. F.3d 79, 84 (2d Cir. 2004) Bernstein Liebhard & Lifshitz. 121 and In re Malev Hungarian Airlines. 964 1992)). The Supreme Court set forth a series of factors in its Intel decision for the district courts to consider when exercising their discretion under James Wm. 2010) . Moore These § et 1782. al., factors See Intel, Moore's include: 542 Federal (1) U.S. at Practice whether the 264; § see also 26.08 person (3d from ed. whom discovery is sought is a participant in the foreign proceeding; the nature of the foreign tribunal, the character of the 6 (2) foreign proceedings, and the receptivity of the foreign entity to judicial assistance; (3) circumvent of a whether the request conceals foreign proof-gathering restrictions foreign country or the United States; an Supp. at 264; 2d at see also Schmitz. 376 F.3d at and 84; to or other policies (4) requested information is unduly intrusive or burdensome. U.S. attempt whether the Intel, 542 Microsoft. 428 F. 194. C. The Four Intel Factors 1. Participant in the foreign proceeding The first factor this Court will consider is whether Fitzkee is a "participant" in the foreign proceeding for § 1782 purposes. It is clear that Fitzkee is, at minimum, proceeding pending before the Svitavy Court. a nominal party to the The Svitavy Court's Request for Judicial Assistance identifies Fitzkee as defendant" in the action pending before it Document refers No. 2), and to Fitzkee as Typically, this assistance, Fitzkee's would because militate w [a] evidence." in tribunal 542 U.S. at itself Document No. granting has and can itself order Intel. Opposition Opp'n 1, against foreign those appearing before it, produce (Mem. "second (Mem. Supp. Appl. Ex. B, Memorandum "Defendant" the the 9). requested jurisdiction over [the respondent] to Concomitantly, if 264. Fitzkee were a "nonparticipant, " this would typically weigh in favor of granting the requested discovery. See id. Fitzkee opposes the request, but in an unusual twist, he argues that he argues, is 9; Mem. a "participant" the request should be personal not for § 1782 purposes. Rather, for assistance in obtaining discovery from him denied because the Svitavy jurisdiction over him. Reply to U.S. Court (See Mem. Opp'n 6-7, does not Opp'n 6-7, Document No. have clear, the fundamental purpose of § proper Document No. 12.) Fitzkee's jurisdictional argument misses the point. makes he 1782 is to As Intel authorize "federal-court assistance in gathering evidence for use in foreign tribunals." § 1782 foreign Intel. assistance proceeding 542 is U.S. required may be -jurisdictional reach: hence, States, may be at unobtainable 247. In its most because outside typical "nonparticipants the foreign form, in the tribunal's their evidence, available in the United absent § 1782 (a) aid." Id. at 264 {emphasis added). fact does not If Fitzkee is correct, have proper personal and the Svitavy Court in jurisdiction over him, this actually militates in favor of granting the request for assistance. In any event, a "participant" presented in although this factor was originally expressed as versus Intel. "nonparticipant" the true analysis question at under hand is the facts whether the requested discovery is available to the foreign tribunal without the assistance of this Court. See Microsoft. 428 F. Supp. 2d at 194 ("The relevant inquiry is whether the evidence is available to the foreign tribunal."); see also In re Clerici. (11th Cir. (indeed, 2007) the assistance was {holding plaintiff) that, in although a unable to Clerici Panamanian justified because Clerici Panamanian Court was 481 F.3d 1324, enforce was a proceeding, had left its 1334-35 own party § 1782 Panama and the order to produce information). Based on Fitzkee's representations of Affidavit counsel (Document No. 10) and the at hearing and in Fitzkee's Memorandum in Opposition (Document No. 9) and Memorandum in Reply to the United States' Opposition (Document No. 12), and in the absence of any assertion to the contrary by the United States or the Svitany Court, it appears Fitzkee has therefore that, no other than the underlying connection whatsoever appears to this Court that, nominal party to the paternity action, to paternity dispute, the Czech Republic. although Fitzkee may It be a the Svitavy Court is unable to compel Fitzkee to respond to its discovery requests without the assistance of this Court, provided pursuant to § 1782. Accordingly, the first Intel factor weighs in favor of granting the Request 2. for Judicial Assistance. Nature of the foreign tribunal, character of and receptivity of the foreign tribunal the proceedings, to judicial assistance The second factor the Court will consider is whether anything concerning the nature of the foreign tribunal, foreign proceedings, and the receptivity of the character of the the foreign entity to judicial assistance suggests that the Request should not be granted. Clearly, this Court, by the the Svitavy Court is receptive to the assistance of considering that the Request for Judicial was initiated Svitavy independently. Court Cf. itself, Schmitz. not by a litigant 376 F.3d at 84-85 operating {denying assistance sought by litigants over the opposition of the foreign tribunal); Microsoft. 428 F. Moreover, Supp. 2d at 194 (same). other than Fitzkee's personal jurisdiction argument, there is nothing to suggest that the nature of the Svitavy Court or the character granting this of the proceedings before it should weigh against request. Fitzkee argues only that he lacks sufficient minimum contacts with the Czech Republic for the Svitavy Court to properly exercise personal jurisdiction over him, proceedings that this before Court's the and thus Svitavy Court are any paternity or support so fundamentally unfair assistance in obtaining discovery pursuant 8 to § 1782 would be a violation of Fitzkee's due process rights. in Opp'n 4-6, Document Document No. 12.) No. 9; Mem. in Reply to U.S. (Mem. Opp'n 4-6, Fitzkee argues that having a court from the Czech Republic determine paternity and issue a potential judgment against him violates his due process rights personal jurisdiction over him. to deny the Svitavy court's because Therefore, request for that court has no Fitzkee asks this Court discovery based upon a determination that the Svitavy Court lacks personal jurisdiction. But a personal determination jurisdiction as over to whether Fitzkee this Court's review under § 1782. through which participants the assistance of the reach of this Court. a foreign Indeed, are of the the tribunal tribunal discoverability for would be would be the an under judicial Conditioning this of the has scope of litigation may secure in accessing evidence beyond but within the jurisdiction of To delve into the merits of litigation pending before a breach paternity even foreign court. assistance. § 1782 action greater international that comity. the district the similarly technical foreign Court's of instructed to refrain from delving into merits Court Section 1782 provides a mechanism federal courts foreign Svitavy simply beyond in international the Supreme Court has request is the laws in Intel. considering 542 U.S. courts question a § at assistance on an analysis pending interference before in the the 1782 263. of the Svitavy jurisdiction Court of a That is not to say that the jurisdiction of a foreign tribunal is never an appropriate inquiry, but this Court is not obliged to involve itself in the technical question of personal jurisdiction under Czech law, and there is nothing here to suggest that providing the Svitavy Court with assistance in obtaining prejudice Fitzkee's due process rights. 1977). acknowledges In particular, that he 555 F.2d 720, the Court notes should be able will See Shin v. United States (In re Request for Judicial Assistance). Cir. discovery to 723-24 (9th that Fitzkee himself successfully contest the registration and enforcement of a foreign support order against him under the Uniform Interstate Family Support Act in Opp'n 9, Document No. 9.) Ann. § 20-88.71) sets ("UIFSA").2 (Mem. Indeed, Section 606 of UIFSA (Va. Code forth the procedure for contesting registration of a foreign support order if filed with a local court, 2 UIFSA has been adopted, in one form or another, by all fifty states and the District of Columbia. See Uniform Interstate Family Support Act (2008) (adopted by three states), available at http://www.law.upenn.edu/bll/archives/ulc/uifsa/2008final.pdf (last accessed (2001) Sept. 14, (adopted available at by 2010); 20 Uniform states and Interstate the Family District of Support Act Columbia), http://www.law.upenn.edu/bll/archives/ulc/uifsa/ final2001.pdf (last accessed Sept. 14, 2010); Uniform Interstate Family Support Act (1996) (adopted by 27 states and the Virgin Islands), available at http://www.law.upenn.edu/bll/archives/ulc/ fnact99/1990s/uifsa96.pdf (last accessed Sept. 14, 2010). The Commonwealth of Virginia has adopted the 2001 Act. Ann. §§ 20-88.32 et sea. (2008). The Court notes, See Va. however, Code that Fitzkee is employed as an officer in the United States Navy, and that since 2002, he apparently has resided in Massachusetts and Florida, as well as Virginia, so it is conceivable that Fitzkee may be found in some jurisdiction other than Virginia when a UIFSA proceeding is initiated against him, if one is initiated at all. 10 and Section 506 of UIFSA (Va. Code Ann. § 20-88.64:5) sets forth the procedure for contesting enforcement of a foreign support order if submitted directly to the respondent's employer for garnishment of his or her wages. 88.72), lack of Under Section 607 of UIFSA (Va. Code Ann. personal jurisdiction by the foreign § 20- court is grounds for vacating or staying enforcement of the foreign support order. No. See also Division of Child Support Enforcement v. 0718-93-3, 1994 WL 259269 (Va. Ct. App. June 14, Forbes. 1994) (denying enforcement of a foreign support order under RURESA (predecessor to UIFSA) where the foreign court lacked personal jurisdiction) . Even if Fitzkee does not challenge the jurisdiction of the Svitavy Court in that court's own proceedings, it is clear that Fitzkee will have an any opportunity to do so before foreign support order can be enforced against him within the United States. Likewise, to the extent determined by non-judicial 49.1(B) that means, paternity see, e.g. . is Va. not conclusively Code Ann. § 20- (providing that paternity may be established conclusively without a court order by genetic testing or by written agreement), Fitzkee should Svitavy Court be able to challenge determination of any preclusive parentage in effect connection of a with registration and enforcement proceedings, as provided by Section 301 of UIFSA (Va. Code Ann. § 20-88.46). Fitzkee further acknowledges not, as a matter of course, that a United States recognize 11 and enforce court will a judgment rendered by a foreign court without personal jurisdiction. in Opp'n 8, Document No. 113 (1895), 9.) upon which Fitzkee relies, rendered without personal here, v. As noted in Hilton v. Guvot. jurisdiction, 640 F.2d 77, of personal jurisdiction in the court in this country "it [foreign tribunal] .") . an order obligation, it 1981) a ("Absence would prevent a judgment rendered in the So to the extent that the Svitavy Court does determining is (7th Cir. [foreign tribunal] in fact lack the requisite personal enter can have no validity Id. at 184; see also Koster 81 n.3 from enforcing 159 U.S. where a foreign judgment is even of a prima facie character." Automark Indus.. (Mem. clear jurisdiction over Fitzkee parentage or establishing a to support that Fitzkee will have an opportunity to contest personal jurisdiction in a United States court before it can be enforced against him. Finally, to the extent that Fitzkee is concerned response to questions and submission of a buccal swab that for genetic testing may constitute a waiver of his jurisdictional defenses the Svitavy Court proceedings, his in the Court notes that any responsive action performed by Fitzkee pursuant to an order of this Court would not constitute a voluntary response to discovery. cases in Property (Tex. Ct. App. discussing & the Casualty Co. App. 3d 522, 1999), 528 issue v. of Dow Chevrolet-Olds. and Chitwood v. (1971). possible (Mem. waiver, 10 Prudential S.W.3d County of Los Angeles. Reply to U.S. 12 Fitzkee cites two Opp'n 3, 97, 101 14 Cal. Document No. 12.) Both discovery, order, of these cases involve the voluntary and both are therefore inapposite. issued pursuant to 28 U.S.C. § 1782, buccal swab and answer certain questions, before the Svitavy Court, nor will of Upon this Court's Fitzkee will provide a which will be forwarded to the Svitavy Court via the United States government. not be required to make an appearance, answering Fitzkee will either general or limited, he be required to correspond directly with the Svitavy Court or any other litigant before it. Accordingly, the second Intel factor weighs in favor of granting the Request for Judicial Assistance. 3. The Circumvention of third Assistance is factor an foreign or United States policy examines attempt to whether circumvent the Request foreign for Judicial proof-gathering restrictions or any other foreign or United States policy. Fitzkee does not argue that the Request for Judicial Assistance attempts to circumvent Czech proof-gathering restrictions or Czech policies. Svitavy Moreover, Court the fact that the request was initiated by the itself, rather than a private litigant, provides sufficient assurance that the request does not attempt to circumvent Czech discovery rules or Czech policy. 82 F.3d at See Amtsaericht Inaolstadt. 592. Fitzkee does argue, however, that the Assistance is an attempt to circumvent UIFSA. under UIFSA, he should not be subject 13 to a Request for Judicial Fitzkee argues that, foreign support order adjudicated by a foreign tribunal without personal jurisdiction over him. (Mem. Opp'n 7, in Opp'n 7-10, Document No. Document No. 9; Mem. in Reply to U.S. 12.) As noted above, UIFSA has been adopted in all fifty states and the District of Columbia. UIFSA itself provides a mechanism for Fitzkee to challenge the personal jurisdiction of any order issued by the Svitavy Court, once presented to a United States court or to his employer for registration or enforcement. Accordingly, the third Intel factor weighs in favor of granting the Request for Judicial Assistance. 4. Unduly intrusive or burdensome The fourth factor is whether the requested evidence is unduly intrusive or burdensome. The Svitavy Court has requested this Court's assistance in obtaining answers to certain questions and a DNA sample, to be provided by buccal paternity action pending before it. swab, in connection with a This is a simple request for the production of evidence that is routinely provided in support of paternity actions abroad; it is not unduly intrusive or burdensome. See, e.g.. 130 F.R.D. In re Letter of 363, 366 (w.D. Request Mich. from Local 1989) Court <"[T]he of Pforzheim. requirement of providing a blood sample in a paternity action is a routine one."); see also F.3d 590 District In re Letter of (4th Court. Cir. 216 Request 1996); F.R.D. In 277 from Amtscrericht re Letter (S.D.N.Y. 14 Roaatorv 2003); Inaolstadt. from In re 82 Nedenes Letter of Request from Boras District Court. 153 F.R.D. 31 (E.D.N.Y. In re Letter Rogatorv from Local Court of Ludwiasbura. 196 (N.D. Fitzkee 111. to 1994). provide a Indeed, DNA the sample Court by notes buccal that swab is 1994); 154 F.R.D. requiring a method substantially less invasive than the oft-approved production of a blood sample. Accordingly, the fourth Intel factor weighs in favor of granting the Request for Judicial Assistance. D. Fitzkee#s Article 11 Objection Fitzkee notes that Article 11 of the Hague Convention permits him to object to the requested discovery insofar as he has a privilege to refuse to give evidence under the laws of the United States.3 (Mem. in Opp'n 13-14, Document No. presented by counsel in the case of Spies v. 150 (1887), "privilege 9.) Quoting argument Illinois. 123 U.S 131, Fitzkee then argues that his right to due process is a and immunity of a citizen of the United States," and therefore this Court should deny the Request for Judicial Assistance based on his due process argument.4 3 The Court notes that § 1782 effectively incorporates the provisions of Article 11, providing that * [a] person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege." 28 U.S.C. § 1782(a). 4 Fitzkee mistakenly attributes the quote to Justice Harlan, to whom the original petition for writ of error was addressed. The quoted language is actually taken from argument presented by John Randolph Tucker, counsel for petitioners in the Spies case. 15 First, for the reasons previously stated in this opinion, Fitzkee's due process rights will not be violated by granting the Request for Judicial Assistance, as he should have ample opportunity to oppose registration and enforcement issued by the Svitavy Court of to pursuant any substantive UIFSA, order including the assertion of his objection that the Svitavy Court lacked personal jurisdiction over him. Second, the only privileges or rights protected by Article 11 of the Hague Convention, against and by § 1782 itself, self-incrimination and the unreasonable searches and seizures. Local Court of Plon. 29 F. Supp. right are the privilege to be 201 Ct^, (N.D. 153 111. 1994); F.R.D. recognized that 31, 2d 776, 779-80 (E.D. Mich. F.R.D. 29 F. 34-35 providing at 201; Supp. 1998); 154 F.R.D. In re Letter of Request from Boras Dist. (E.D.N.Y. a blood 1994). sample in Courts have connection paternity action abroad would not violate these rights. of Plon, from In re Letters Roaatorv from the In re Letter Roaatorv from Local Court of Ludwiasbura. 196, free with Ct.. 153 F.R.D. at 34-35. a Local Court 2d at 779-80; Local Court of Ludwiasbura. Boras Dist. long 154 Providing a buccal swab likewise would not violate these rights. III. CONCLUSION For the foregoing reasons, its authority and discretion Assistance pursuant to § 1782. the Court FINDS that it is within to grant the The Court 16 Request for Judicial further FINDS that all four of the factors for consideration identified by the Supreme Court of the United States in Intel Corp. v. Advanced Micro Devices Inc.. 542 Court's U.S. 241 Request Application (2004), weigh for Judicial for Order in favor Assistance. Under 28 U.S.C. of granting the Svitavy Therefore, § 1782 is Petitioner's GRANTED and Respondent's Motion for Entry of an Order Refusing the Request for Judicial Assistance is DENIED. This Court ORDERS that Fitzkee (1) submit to the United States Attorney's Office an affidavit setting forth his response to the inquiries made by the Svitavy Court, and (2) present himself for the purpose of providing a tissue sample via buccal swab at a location to be Attorney's Office within the next IT IS SO identified ten business Virginia September ' ( the United States days. ORDERED. UNITED Norfolk, by 2010 17 STATES MAGISTRATE JUDGE
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