By: Micaela L. Neal
Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 855.
As any employer who has had the “pleasure” of going through trial can attest, a fair amount of time is generally spent right before trial determining what evidence can come in, and what evidence must stay out. (I.e. what pictures, emails, etc. does the jury get to see?) Unfortunately for employers, it seems that the scope of admissible evidence just keeps getting wider.
In a recent case involving an employee’s claim of sexual harassment against a male supervisor, the plaintiff (a female employee) sought to introduce testimony at trial regarding text messages she claimed her supervisor had sent her, including sexually explicit writing, photos, videos and drawings. The employee no longer had copies of the text messages, so she wanted to testify regarding what the messages said, and what the pictures were of. (There was no evidence that she had purposefully deleted the messages.)
The trial court significantly limited the employee’s ability to testify regarding the text messages, restricting her testimony to her opinion that the text messages were sexual in nature, and to the emotional impact the messages had on her. She was prohibited from testifying regarding what the text messages specifically said or what the pictures depicted. Her attorney was likewise prohibited from asking the supervisor specific questions about the messages. The employer prevailed at trial.
On appeal, the Court of Appeal found that the trial court had abused its discretion by limiting the testimony regarding the text messages, and that the limitation had prejudiced the employee’s case. The Court found that because the messages themselves were unavailable, the employee should have been allowed to testify regarding what she remembered about their contents. In so deciding, the Court noted that sexual harassment trials often involve “he said/she said” contests, and that text messages should be no different – the supervisor could always dispute the employee’s recollection of the messages and testify that the messages said something else. Rather than constitute inadmissible hearsay, the Court also found that the text message content was an “operative fact” that could be admitted to prove that the supervisor sent a message that was both objectively and subjectively offensive, to establish one of the elements of the employee’s harassment claim.
The obvious concern for employers is that an employee will be able to testify dishonestly at trial regarding alleged text messages that were previously deleted. Although such a scenario is not completely preventable, employers can still take steps to shore up sexual harassment policies (so that they include text messaging), provide sexual harassment training, and ensure that copies of text messages are included in discovery requests at the outset of litigation.
Micaela L. Neal is an attorney with Wanger Jones Helsley PC and practices in Fresno and Sacramento. She regularly represents employers in wage and hour, discrimination and harassment actions. This article is intended to notify our clients and friends of changes and updates to the law and provide general information. It is not intended, nor should it be used, as legal advice, and it does not create an attorney-client relationship between the author and the reader.