ACC – Voice of the In-house Bar – Files Amicus Brief in Coquina v. TD Bank

Posted: Nov 29, 2012

WASHINGTON (November 29, 2012) –– The Association of Corporate Counsel (ACC), a global bar association representing more than 30,000 in-house counsel, recently filed an amicus curiae brief in the U.S. Court of Appeals for the Eleventh Circuit in the case of Coquina Investments v. TD Bank, N.A. In the brief, ACC argues that the sanctions order against TD Bank, N.A. should be overturned.

The brief states that in-house counsel will two suffer serious harms – establishment of precedent to sanction routine in-house counsel conduct and a restructuring of the corporate legal department to meet the lower court’s impossible standards. ACC clarifies the role of in-house counsel and legal departments, which was unrealistically portrayed in the lower court’s order.

“The wholly inappropriate one-size-fits-all conception of in-house practice imposed by the district court will not only fail to lead to better discovery practice, but it will also run roughshod over the efforts of in-house lawyers to better represent their clients across the wide spectrum of corporate activities,” said Amar Sarwal, ACC’s vice president and chief legal strategist. “The Eleventh Circuit should therefore make clear that discovery mistakes will not be presumed to be willful misconduct without extensive examination of the underlying facts and the context in which those alleged mistakes were made.”

ACC’s amicus brief reminds the court of appeals that the Federal Rule of Civil Procedure 37 — which served as the basis for the sanction — is not meant to force legal departments to restructure themselves to meet such a standard. To the contrary, the Federal Rules call for discovery to be cost effective, and for lawyers to do a reasonable job rather than a perfect one.

“Law departments are changing rapidly to meet the needs of their business clients in this new economic environment. From driving value with their outside counsel relationships to employing sound project management practices, in-house lawyers are experimenting with new ways of doing business. Unfortunately, without conducting a rigorous examination of how this — or any other, law department actually functions — the district court decided that the blunt instrument of a discovery sanctions order was appropriate,” added Sarwal.

The amicus filing is available at:

About ACC: The Association of Corporate Counsel (ACC) is a global bar association that promotes the professional and business interests of in-house counsel through information, education, networking opportunities and advocacy initiatives. The association, which is celebrating its 30th anniversary, has over 30,000 members employed by over 10,000 organizations in more than 75 countries. ACC connects its members to the people and resources necessary for personal and professional growth. For more information, visit and follow ACC on Twitter By in-house counsel, for in-house counsel.®

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