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This column noted last October that new Federal Rule of Evidence 107 was coming into effect Dec. 1. It is an important new rule with new language of “illustrative aid” instead of “demonstrative evidence.”
Trial lawyers in particular need to learn this new rule and its language. It has already been cited across the nation several times since it came into effect.
Here’s what the rule says now:
Rule 107. Illustrative Aids
(a) Permitted Uses. The court may allow a party to present an illustrative aid to help the trier of fact understand the evidence or argument if the aid’s utility in assisting comprehension is not substantially outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or wasting time.
(b) Use in Jury Deliberations. An illustrative aid is not evidence and must not be provided to the jury during deliberations unless:
(1) all parties consent; or
(2) the court, for good cause, orders otherwise.
(c) Record. When practicable, an illustrative aid used at trial must be entered into the record.
(d) Summaries of Voluminous Materials Admitted as Evidence.
A summary, chart, or calculation admitted as evidence to prove the content of voluminous admissible evidence is governed by Rule 1006.
The Official Comments note: “An illustrative aid is any presentation offered not as evidence but rather to assist the trier of fact in understanding evidence or argument. ‘Demonstrative evidence’ is a term better applied to substantive evidence offered to prove, by demonstration, a disputed fact.”
Two examples of early citations to Rule 107 include:
Automated Mgmt. Sys., Inc. 2024 WL 4987018, at *7 (S.D. N.Y. Dec. 4, 2024) “Illustrative aids, which the courts have previously regulated pursuant to the broad standards of Rule 611(a), are now to be regulated by the more particularized requirements of Rule 107. In this motion practice, the Court applies the updated Rules and considers AMSI’s request as one for admission of the videos as substantive evidence under Rule 1006. To the extent that AMSI argues, in the alternative, for the videos to be “admissible” as so-called “demonstrative evidence,” the Court considers that to be a request for permission to use the videos as non-evidentiary illustrative aids under the new Rule 107.”
Johnson, 2024 WL 5047209, at *4 (E.D. Cal. Dec. 9, 2024): “Carleton’s motion to exclude the PowerPoint/Animation relied upon by Plaintiffs’ expert Brian Spencer and by Momentum’s expert Aaron Jones is granted, subject to the caveats discussed at the December 4, 2024 hearing. Notably, slides contained within the PowerPoint may be individually used if the parties lay proper foundation at trial for their admissibility and/or use during trial consistent with Rule 107 of the Federal Rules of Evidence.”
Fake Court Notices: The Northern District posted this warning recently: There has been nationwide reporting of fake Notices of Electronic Filing (NEFs) being sent to attorneys and law firms across the country. These fake NEFs are phishing attempts to convince recipients to respond back to the emails. Once a recipient replies to the email they are sent a follow-on email containing a link to access a document that leads the user to a malicious website. Attorneys and case participants should take caution if they receive these fake NEFs. Please validate cases and case documentation through CM/ECF only, and do not download any attachments or click any links from unofficial or questionable sources.
Scam Calls to Attorneys: The Southern District posted this last week: The U.S. District Court for the Southern District of Indiana continues to receive reports of scammers posing as local law enforcement officials and calling individuals – often professionals such as attorneys and health care providers – to accuse them of allegedly failing to appear as an expert witness at a court hearing or trial. Recipients of such calls are told they have been found in contempt of court and, if they fail to pay a fine, will be arrested. Using threats and scare tactics, the scammers then entice their victim to pay this “fine” with cash cards or other electronic payment. Making this scam even more nefarious, the scammers spoof government phone numbers and provide their victim with the names of real law enforcement officers, real court officials, and real judges. Even if the names are real, the “fine” is fake.
In Memoriam: The federal court family is blessed with dedicated and talented public servants. A notable example is Michael Frische, who passed away January 1st. Mike served the Southern District of Indiana for 37 years, and was the first attorney dedicated to assisting the Court manage and administer pro se cases. That segment of the docket has expanded through the decades, as has the staff now assisting the Court with that heavy caseload; all follow in Mike’s footsteps. Mike set the standard for dedication, reliability, and excellence, and he was always a joy to be with.
Third-Party Discovery Seminar, April 3: Join me and my colleague Amanda Gallagher for a one-hour ICLEF seminar (live and virtual) on April 3 from 12:15 to 1:15. Register at www.iclef.org.•
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John Maley – [email protected] – is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters, and appeals. He clerked for Judge Larry McKinney from 1988-90, serves as Chair of the Local Rules Advisory Committee, S.D. Indiana, and is a member of the Local Rules Advisory Committee, N.D. of Indiana.
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