The case of the day is In re Request for Judicial Assistance from the Norrköping District Court (D. Colo. 2015). In connection with paternity proceedings in a Swedish court, the Swedish judge issued a letter of request under the Hague Evidence Convention to the US central authority, and the central authority (the Department of Justice) filed an ex parte application under § 1782 for an order appointing a commissioner to take DNA evidence from the putative father, who was found in Colorado.

The court easily granted the request, and the opinion itself is not that interesting. I note it for two reasons. First, it’s a good illustration of the mechanics of what happens when a foreign litigant proceeds by way of the Evidence Convention rather than by a direct application under § 1782. Second, I question the judge’s decision, once he determined that the statutory prerequistes under § 1782 were met, to undertake an Intel analysis to determine whether, in his discretion, to grant the application. Article 12 of the Evidence Convention provides:

The execution of a Letter of Request may be refused only to the extent that—

  1. in the State of execution the execution of the Letter does not fall within the functions of the judiciary; or
  2. the State addressed considers that its sovereignty or security would be prejudiced thereby.

It’s clear that neither exception can apply here, so does the judge really have discretion to refuse to grant the request? I’ve suggested before that in light of Article 12 the answer should be no. It seems to me that subject to constitutional objections, if the US central authority determines that a letter of request under the Convention should be executed, then assuming the statutory requirements under § 1782 are met, there should be no discretion to refuse to grant leave to take the discovery.