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The court stated that to address the conflicting requirements faced by individuals in cases

where there are strict confidentiality laws, a good faith test should sometimes be

employed. The essential elements are that the order was proper and not an abuse of

process, the appropriateness of the subpoena, and, perhaps most important is whether the

individual(s) use of the foreign jurisdiction was solely to defeat any requirement to

produce information.34

Of note, however, the court was clear in stating ”We do not say that this ruling would

apply to every situation where a party is restricted by law from producing documents

over which it is otherwise shown to have control35

This approach by the Supreme Court would ameliorate an otherwise extremely difficult

situation. The difficulty is evidenced in the view of the Grand Court of the Cayman

Islands in the case of In Re An Application by ABC Ltd. Under the Confidential

Relationships (Preservation) (Amendment) Law 1979.36 In this case the Cayman bank

official who was in possession of information that he perceived would be the subject of a

compelled waiver asked the court for direction. The court opined, “consent given under

compulsion is merely submission to force.”37 It has been suggested that the reason the

34 Good faith is only relevant to he determination of sanctions for noncompliance, which is a procedural issue. See Societe Internationale, 357 U.S. 208 (discussing the district court’s power to impose sanctions under Rule 37(b) In order to have made the requisite good faith efforts at compliance, the party resisting production must have made efforts to the maximum of its ability to comply with the United States order. 357 at 205. Because the plaintiff in Societe Internationale had acted in good faith, he was entitled to a hearing on the merits of his claim. See 357 U.S. 211-212.

35 36 37 Id at 205-206 Judgment of July 24, 1984, Grand Court, Cayman Islands, July 24, 1984 (Cause No. 269) Id at 2. The court admitted that it is only concerned with the position in its jurisdiction of such a consent directive compelled by a foreign court. Both under United States law and British common law indicate that the Cayman Grand Court’s definition of consent is neither the only, nor even the predominant, interpretation of consent. Under British common law, the term has no uniform definition. See e.g. Whittaker v Campbell (1983) 3 All E.R. 582 (consent of automobile owner to another use of his automobile not vitiated by fraudulent misrepresentation) Barton v Armstrong 1976 A.C. 104, 121 (P.C. 1973) absence

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