01/30/86
Model Litigation Report Outline and Guidance
January 30, 1986
MEMORANDUM
SUBJECT: Model Litigation Report Outline and Guidance
FROM: Richard Mays
Senior Enforcement Counsel
TO: Associate Enforcement Counsels
Headquarters Program Enforcement Division Directors
Regional Counsels
Regional Program Division Directors
Attached are the Model Litigation Report Outline and the Model
Litigation Report Guidance. All litigation reports referred to OECM or the
Department of Justice after March 1, 1986, should follow the Outline in
regard to format and the Guidance in regard to content. The purposes of
these two documents are (1) to create a common understanding among Agency
personnel and DOJ attorneys as to what the report needs to cover and (2) to
make the litigation report's form consistent. These two documents have been
prepared by a workgroup consisting of Jack Winder, OECM-Water; Bill Quinby,
OECM-Policy; Mike Vaccaro, Region III; Robert Schaefer, Region V; and Tom
Speicher, Region VIII. They also reflect extensive review and input from
the Regions, OECM, and the Environmental Enforcement Section of the
Department of Justice.
While we anticipate that the Model Guidance will be particularly
useful to the less experienced attorney, it will also serve as a reference
for the experienced attorney. The Outline will be of use to all Agency
enforcement personnel as it will serve as a checklist to determine if all
the parts of the package are complete and in the correct format. By
utilizing the models in preparing litigation referral reports, we will be
able to expedite the referral process.
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If you have any questions regarding these two documents, please
contact Bill Quinby of the Legal Enforcement Policy Division. He can be
reached on FTS 475-8781, his mail code is LE-130A, and his E-Mail Box is
2261.
cc: Chief, Land and Natural Resources Division, DOJ
OFFICE OF ENFORCEMENT AND COMPLIANCE MONITORING
Model Litigation Report - Outline
Any section of this outline may be addressed in the litigation report by the
entry of "not applicable N/A" if the section is not relevant to the
referral, or by "see section ______" if the specific information requested
in the outline has been fully supplied in another section. In addition,
this outline is not applicable to Section 107 CERCLA cost recovery cases; to
CERCLA Section 106, TSCA Section 7 or RCRA Section 7003 cases.
1. Cover Page:
a. Region, Act involved and judicial district.
b. Name and address of defendant.
c. Name and address of facility.
d. Regional contacts (program/legal).
e. Stamp date Region refers report on cover page.
2. Table of Contents.
3. Synopsis of the Case.
4. Statutory Bases of Referral:
a. Applicable statutes; cross-media coordination.
b. Enforcement authority; jurisdiction and venue.
c. Substantive requirements of law.
5. Description of Defendant:
a. Description of facility.
b. State of incorporation of defendant.
c. Agent for service of process.
d. Defendant's legal counsel.
e. Identity of other potential defendants.
6. Description of Violations:
a. Nature of violations.
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b. Date and manner violations identified.
c. Dates and duration of violations.
d. Pending regulatory changes.
e. Environmental consequences (past, present and future).
7. Enforcement History of Defendant and Pre-referral
Negotiations:
a. Recent contacts with defendant by EPA/Region, ( e.g., AOs, permits,
grants ).
b. Pre-referral negotiations.
c. Contacts with defendant by state, local agencies and citizens, and
actions taken.
d. Prior enforcement history of defendant.
8. Injunctive Relief:
a. Steps to be taken by defendant to achieve compliance.
b. Feasible alternatives.
c. Cost and technology considerations.
9. Penalties:
a. Proposed civil penalty and legal authority.
b. Penalty analysis/calculation.
c. Present financial condition of defendant.
10. Major issues:
a. Issues of national or precedential significance.
b. Bankruptcy Petitions.
11. Significance of Referral:
a. Primary justification for referral.
b. Program strategy.
c. Agency priority.
d. Program initiatives outside of stated strategy.
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e. Relation of referral to previous or concurrent cases or actions.
12. Litigation Strategy:
a. Settlement potential/plan for settlement.
b. Need for interrogatories and requests for admissions.
c. Potential for summary judgment.
d. Need for preliminary injunction.
e. Identity of potential witnesses.
f. Elements of proof and evidence and need for additional evidentiary
support.
g. Anticipated defenses (legal and equitable) and government
responses.
h. Resource commitments.
i. New evidence.
13. Attachments, where applicable:
a. Index to attachments.
b. Draft complaint.
c. Draft discovery.
d. Draft consent decree.
e. Draft motions.
f. Table of Violations.
g. Documentation of violations.
h. Permits and contracts.
i Significant correspondence between EPA, defendant and/or state.
j. Penalty analysis/calculation; BEN printout.
k. Diagram of facility.
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l. Case Plan.
m. Dun and Bradstreet report; SEC Form 10K; Annual Report; Papers
relating to corporate status from Secretary of State's office; ABEL
printouts and legal description of property, as necessary and if
obtainable.
n. Other relevant information.
OFFICE OF ENFORCEMENT AND COMPLIANCE MONITORING
Model Litigation Report - Guidance
Any section of this outline may be addressed in the litigation report by the
entry of "not applicable N/A" if the section is not relevant to the
referral, or by "see section ______" if the specific information requested
in the outline has been fully supplied in another section. In addition,
this guidance is not applicable to Section 107 CERCLA cost recovery cases;
to CERCLA Section 106, TSCA Section 7 or RCRA Section 7003 cases.
1. Cover Page:
a. Region, Act involved and judicial district.
b. Name and address of defendant.
Include names, addresses and telephone numbers of
all defendants (corporate/individual).
c. Name and address of facility.
Include names, addresses and telephone numbers of
all facilities subject to the referral. Include county
for venue purposes.
d. Regional contacts (program/legal).
Include names, addresses and telephone numbers of the
regional program-technical and legal contacts who prepared
the report.
e. Stamp date Region refers on cover page.
2. Table of Contents
Include headings, all sub-headings and page numbers.
3. Synopsis of the Case:
Limit this synopsis to two pages (double-spaced), when possible.
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The synopsis should contain a summary or brief description of (1) the
facts (causes) which led to the violation, (2) the legal basis of the
violation and its environmental seriousness, and (3) the proposed relief.
Indicate need for expedited filing here.
4. Statutory Bases of Referral: 1/
1/ Careful cross-media regional review should ensure that all available
causes of action are included. OECM recognizes that in some cross-media
cases, the initial cause(s) of action may be ready for referral, but
that a secondary cause of action under a different statute may be a low
priority matter or require substantial development before the case is
ready for referral. Where the secondary cause of action is minor, or
where the case development will take a substantial amount of time, the
case should be referred with the excluded secondary cause of action
clearly identified. However, if the secondary cause of action is major,
or if development will not unreasonably delay the referral, all such
causes of action should generally be referred together.
a. Reference all applicable federal statutes by USCA citation and by
section of the Act. State whether coordination across media has
occurred. Discuss reasons for including or omitting cross media
claims.
b. Summarize the enforcement authority and the jurisdiction and venue
provisions of applicable statutes. If there is reason to file the
action in a district other than where the facility is located, note
each available district and indicate the reasons for filing there.
c. Present the substantive requirements of the law (federal/state) and
applicable regulations and permits. Pertinent excerpts from
federal/state laws and regulations should be identified and set
forth here or attached to the report.
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5. Description of Defendant:
a. Description of facility.
1) Describe the violating corporation or individual and the particular
facility in question. Note any relevant corporate or personnel
interrelationships or subsidiaries. Indicate if the violator is a
governmental entity. If these is a question as to whether the
corporation has been dissolved or subsumed into a different entity,
ascertain status of corporation and attach Dun and Bradstreet
report and corporation papers from Secretary of State's Office
under section 13 m.
2) Briefly discuss the business of the defendant providing details
about the facility in question. When the defendant is a
manufacturer, describe what is produced. Emphasis should be on the
particular process that is causing the problem. Describe the plant
and processes used. Include legal description of the property
under section 13 m., if needed. Reference and attach diagrams to
the litigation report. Photographs and video tapes of the source
may be helpful in that they often improve the "show" quality of a
case should it reach court.
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If defendants include corporate officers, discuss facts indicating
participation of the corporate officers in the activities resulting in the
violations.
b. State of incorporation of defendant.
Include state of incorporation and the principal place of business.
c. Agent for service of process.
Include name, address and telephone number of agent for service of
process.
d. Defendant's legal counsel.
Include full name, address and telephone number of legal counsel.
If corporate counsel, so state.
e. Identity of other potential defendants.
If it is not immediately clear who should be named defendants,
discuss all potential defendants including the state, and their relation
to other potential defendants and to their potential liability for the
violations that give rise to the referral. Cover all of the facts
having a bearing on which potential defendants should be named and
evaluate all reasonable options.
6. Description of Violations:
a. Nature of violations.
Discuss the types of pollutants being discharged. Also indicate
the sources of the pollutants, their nature, quantity or size, and
the relation to the statutory, regulatory or permit provisions
violated.
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b. Date and manner violations identified.
Indicate earliest date when violation became known to EPA and
manner in which it was discovered (e.g., inspection, notice from
state, etc.).
c. Identify dates and duration of violations, any mitigating actions
by defendant to reduce or correct violations and any recalcitrance.
Include Table of Violations at section 13 f.
Describe all EPA/State site inspections, sampling and other
investigative activities, the dates of the activities and the
conclusions drawn. Attach inspection reports under 13 g.
State present compliance statute of the defendant: in compliance,
in violation, unknown.
d. Pending regulatory changes.
Identify pending regulatory changes which do or may impact the
enforcement action, e.g., requests for SIP revisions, variance
applications, pending revisions to NPDES permits, pending RCRA
permit applications or challenges to applicable regulations.
e. Environmental consequences (past, present and future).
Indicate briefly what environmental damage, if measurable, has
occurred in the past, is now happening or will occur in the future
if not abated. Include reasonable estimates of total damage to
human health and to the environment as a consequence of the
violations.
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Although the seriousness of the violation is not technically a
requirement of proof in enforcement of certain statutes, it is sometimes
relevant to the assessment of penalties and equitable relief.
Consider the following factors in assessing the seriousness of the
violation (a) the release of toxics or mutagens or carcinogens is more
serious than the release of so-called conventional pollutants; (b) the
release of large quantities of pollutants is more significant than the
release of small quantities; (c) bioaccumulative wastes posing long-term
threats are more serious than biodegradable wastes; (d) the release of
pollutants in an area not attaining primary ambient air quality standards is
more significant than the release in an area not meeting secondary
standards; (e) the release of pollutants which directly and demonstrably
affect health or the environment is more serious that those which have no
direct or obvious effect; (f) ongoing present violations which the
government seeks to stop are more significant than episodic violations which
have ceased, and (g) a violation which undermines the ability of the Agency
to make sound regulatory judgments (e.g., the submission of fraudulent
toxicity data in support of a pesticide registration) is more serious than a
single instance of false reporting.
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7. Enforcement History of Defendant and Pre-referral Negotiations:
Attach copies of relevant documents referenced below, if available,
under section 13 g.
a. Recent contacts with defendant by EPA/Region and actions taken
including administrative actions.
Indicate recent contacts and enforcement actions taken by
EPA/Region, e.g., letters, oral communications, administrative
requests/orders, etc. Include recent actions in all media and
under all statutes. Include any related or pending administrative
enforcement proceedings e.g., ( CAA Section 120, TSCA Section
16(a), RCRA Section 3008, FIFRA Sections 13 or 14(a), and MPRSA
Section 105(a) proceeding ). State defendant's responses.
Also indicate recent contacts by/with permits and grants staff,
if any. With regard to grants, indicate likelihood source will
obtain grant, compliance schedule associated with proposed grants,
relationship of grants to financial capability and any problems in
grant history that may affect injunctive relief or penalties.
b. Pre-referral negotiations.
Include a brief summary of all attempts at negotiating a
settlement prior to referral of the case, including attempts by
state. Fully describe attempts at compromise and why process
failed. Consider use of Alternative Dispute Resolution (third
party neutrals) as method of resolving case.
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c. Contacts with defendant by state, local agencies and citizens, and
actions taken.
Include recent contacts or actions taken or anticipated by
state, local agencies and citizens. In particular discuss history
of state involvement including any state civil or criminal
enforcement actions taken or pending, if state met timely and
appropriate criteria, and if state anticipates additional
enforcement actions.
d. Prior enforcement history of defendant, if available and practical.
This item relates to all prior actions and results other than
those noted above taken by any governmental entity against the
violator. (Include citizens' suits or notices of intent to file).
In some cases compilation of this history will be impractical. If
so, include only the most recent or most significant actions taken
under any environmental statute.
8. Injunctive Relief:
a. Steps to be taken by defendant to achieve compliance.
Indicate in general terms what affirmative relief should be
requested. Consider use of an environmental audit (compliance and
management) as an element of the remedy. If a series of acts are
required, so state. Also include basic but not elaborate technical
information, if available, to support the proposed remedy.
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Specify technology which will meet regulatory requirements, and
indicate the time requirements for a schedule of compliance which
considers time necessary for design, contracting, construction and
start-up. ( This is not inconsistent with EPA policy of not
prescribing specific compliance technologies. This information may
be necessary in court to illustrate what remedy will bring the
source into compliance and/or to demonstrate technical feasibility
if contested by the defendant. ) If no known technology can assure
compliance, describe what in particular EPA expects the source to
do, including plant closure where applicable. Indicate if another
source has adopted the recommended control technology.
b. Feasible alternatives
Describe alternative remedies if appropriate and discuss why the
primary remedy and/or sanction was selected. Consider "studies" by
defendant as a remedy where a precise course of action cannot be
defined at time of referral.
c. Cost and technology considerations
Indicate cost of compliance of the remedy. Base these costs on
the Region's best estimates. Indicate technological feasibility
problems.
9. Penalties:
a. Proposed civil penalty and legal authority.
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1) Bottom line and opening negotiation figure.
Include two figures here (1) the proposed bottom line or
the amount for which EPA will agree to settle. Calculate this
figure by use of the appropriate medium-specific penalty
policy (see section b. below), and (2) the proposed figure
with which EPA will open any negotiations or settlement talks.
This second figure will be higher than the bottom line figure
but will be related to it.
2) Statutory maximum amount.
Include amount, how calculated and legal authority for the
statutory maximum amount.
b. Penalty analysis/calculation.
Include here a brief summary of the penalty analysis and
calculation, including a specific estimate ( based on BEN ) of
economic benefit of non-compliance. Attach the actual detailed
analysis and calculations using the appropriate medium-specific
penalty policy under section 13 j.
c. Present financial condition of defendant.
Indicate known financial condition of defendant, ability to pay
penalties and meet other objectives of litigation and source of
information. ABEL, a computer model that evaluates a defendant's
financial ability to comply and pay penalties, may be of assistance
here. The model will be available in the spring of 1986. Include
necessary bonding requirements and reasons therefor, if applicable.
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If there is a question as to defendant's financial capability,
include Dun and Bradstreet report, ABEL computer printouts, SEC
Form 10K and Annual Report, if obtainable, under section 13 m.
10. Major issues
a. Issues of national or precedential significance.
Indicate if referral is case of first impression or has other
legal, national or precedential significance.
b. Bankruptcy Petitions.
Describe the status of bankruptcy petition, if any, including
(1) whether Chapter 7, 11 or 13, (2) whether reorganization plan
filed, and (3) bar date for proof of claim.
11. Significance of Referral:
a. Primary justification for referral.
If a case does not present obvious "serious" health effects or
environmental harm, but is compelling for some other reason, e.g.,
deterrence of continued, blatant violations of the law, this should
be indicated. A defendant with a history of violations is usually
more worthy of attention than a first time offender.
b. Program strategy.
Indicate if the case is part of the national program's stated
strategy and briefly show how it fits into that strategy. Indicate
if violator is in SNC.
c. Agency priority.
Indicate briefly if the violator is of a class listed in the
program strategy for priority monitoring, and if the violation is a
class listed in the strategy for priority case action in fiscal
year operating guidance.
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d. Program initiatives outside of stated strategy.
Indicate briefly the initiative such as (1) enforcing a new or
existing provision, regulation or statute for the first time, (2)
actions against municipalities for pretreatment violations, (3)
targeting a geographic area or industry, or (4) "batch or cluster"
cases against one type of industry or violator.
e. Relation of referral to previous or concurrent cases or actions.
Indicate briefly if this case relates to any concurrent or
previous case or action (administrative or judicial) brought by the
Agency or by a state.
If there is or has been a state or federal criminal proceeding
pending against the defendant involving the same or a related
matter, indicate the nature of the proceeding, its relationship to
this case, and state reasons for a parallel civil proceeding.
If this referral involves overfiling of a state enforcement
action, indicate this and state reasons for overfiling.
12. Litigation Strategy:
a. Settlement potential/plan for settlement.
1) Indicate if there is a realistic potential for settlement, and
if so, what that settlement plan is. Include present contacts
with defendant by EPA, DOJ or the U.S. Attorney's office.
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2) Present negotiating posture and comparison of this posture
with "bottom-line" settlement figure from section 9 a.
b. Need for interrogatories and requests for admissions.
Indicate need for interrogatories and/or requests for
admissions. Include potential names and addresses, if available.
c. Potential for summary judgment.
Indicate if case has potential for summary judgment, and if so,
briefly describe why, and how case can be prepared for filing.
Include draft motion with supporting memorandum and affidavits, if
possible. Attach under section 13 e.
d. Need for preliminary injunction.
Emphasize urgency and reasons for requesting preliminary
injunction and time frame, if applicable.
e. Identity of potential witnesses.
1) Government's case
Indicate witnesses and witness needs both as to liability
and remedy.
Identify all lay witnesses and any already known expert
witnesses by name, address, place of employment and business
phone. Include substance of anticipated/actual testimony and
if statements are attached or are on file. For expert
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witnesses include (1) field of expertise and qualifications,
(2) past cases where retained, (3) if under EPA contract, and
(4) if not under EPA contract, which office/contract will be
available to retain the expert.
Indicate whether any further investigation is necessary to
identify lay witnesses. Indicate any additional expert
witnesses needed beyond those already known by area of
expertise and testimony needed and state which office/contract
will be available to retain the experts. In particular,
indicate if expert witnesses will be necessary to analyze
and/or testify in regard to environmental consequences,
technological remedy development or financial capability.
2) Defendant's case.
Identify all lay or expert defense witnesses anticipated,
including their employment addresses, expertise and likely
content of testimony.
f. Elements of proof and evidence and need for additional evidentiary
support.
1. List the necessary elements of proof to establish the
violation under each statute/section involved.
2. Present a detailed, objective, factual analysis of the
strength or weakness of all available real, documentary and
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testimonial evidence corresponding to each necessary element
of proof set forth in the above list. New or stale evidence
is relevant, as is the dependability of testing techniques and
legal status of test methods. Therefore, spell out any
assumptions made as to the quality of this evidence. Identify
missing facts and holes in data.
3. Identify and indicate location of all real evidence. Identify
all documentary evidence, and if possible, attach (or state
location of) each item of documentary evidence under section
13 g. Include a list of all ongoing and planned evidence
gathering efforts, e.g., ongoing DMR analysis, new stack
tests, CEM data, or RCRA information request for further
inspection.
4. If evidence will be obtained at a later date, state how and
when.
5. If evidence is to be made available by discovery, suggest
discovery plan. Indicate (1) type of evidence to be
developed, (2) person or organization currently in possession
of evidence, and (3) draft of initial discovery to be used.
Identify areas where swift action on discovery is needed. To
preserve testimony or records attach initial draft discovery
documents under section 13 c.
g. Anticipated defenses (legal and equitable) and government
responses.
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1) Indicate all actual or anticipated legal and equitable
defenses favorable to the defendant, and briefly set forth
the government's response thereto. For defenses such as
governmental estoppel, laches or affirmative defenses based on
Rule 12 of the Federal Rules of Civil Procedure, EPA need only
identify the defense and the underlying facts and merits. The
DOJ attorneys will usually be familiar with the legal issues.
On the other hand, EPA attorneys are usually more familiar
with defenses based on Agency statutes, regulations and
policies, or Agency involvement in matters central to the
case. For these defenses the Region should not only identify
the defenses and underlying facts, but fully discuss their
legal bases and merits.
2) Include all technical data and test results favorable to the
violator both as to prima facie case and defenses. Indicate
any relevant or mitigating factors that may bear adversely on
the government's contentions. Reference defense witnesses
under section 12 e. 2.
h. Resource commitments.
Describe estimated case budget; indicate what resource
commitments both budgetary and personnel will be required and if
the Region is prepared to provide them. If not, state where they
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will be obtained. Include here costs for experts and additional
testing.
i. New evidence.
Update all new evidence and information and forward it to
Headquarters, DOJ and/or the U.S. Attorney, as it becomes
available.
13. Attachments, where applicable:
a. Index to attachments.
List attachments and use tabs if possible for ease of reference.
b. Draft complaint.
Include draft complaint. Headquarters and DOJ consider the
complaint a useful document, although at a later date the complaint
may change.
c. Draft discovery.
If discovery is needed, include initial interrogatories and
request for production, etc., as appropriate or known.
d. Draft consent decree.
Unless the case is straightforward, minor or negotiations have
reached a productive stage, inclusion of a draft consent decree at
this point in the case development would not be practical or
advisable. If attached, indicate the stipulated penalties.
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e. Draft motions
Inclusion of draft motions depends somewhat on the urgency,
complexity and litigation strategy of the case. Include when
necessary and appropriate.
f. Table of Violations.
The Table of Violations should specify dates for each alleged
violation, and for each, the statutory/regulatory provisions
involved.
g. Documentation of violations.
Include here documentation of violations and enforcement history
of defendant referenced in section 7. Include copies of inspection
reports. Also include here documentary evidence referenced under
section 12 f.3.
h. Permits and contracts.
Include copies of all applicable permits and contracts.
i. Significant correspondence between EPA, defendant and/or state.
Attach all correspondence relative to the violation/case.
j. Penalty analysis/calculation; BEN printout.
This attachment is a detailed analysis of the brief summary in 9
b. above. Indicate the proposed bottom line settlement figure
( based on the appropriate penalty policy ) and an opening
negotiation position.
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The settlement figure should briefly discuss how the bottom line
figure was determined, particularly in regard to any economic
benefit contained in this figure. The proposed opening negotiating
position should contain a brief statement why that particular
figure is appropriate. Attach BEN printout.
k. Diagram of facility.
Include any official or unofficial diagram of the facility, or
the actual workings (drawings) of the violation. Any diagram, if
not misleading or factually incorrect, will be useful. The diagram
need not be to scale or one made by a professional artist or
draftsman. State if video tapes were made and where located.
l. Case Plan.
Attach a case plan here if prepared by the Region.
m. Dun and Bradstreet report; SEC Form 10K; Annual Report; Papers
relating to corporate status from Secretary of State's office; ABEL
printouts and legal description of property, as necessary and if
obtainable.
n. Other relevant information.
This is a catch-all category and includes all other relevant
documents, technical data and information, etc., which may aid the
AECs, DOJ and the U.S. Attorney in preparation and prosecution of
the case. Please list in the Index to Attachments all such
documents included here.
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