In this sexual harassment in an employment case, the trial court erred in barring plaintiff from testifying about the specific contents of various sexually suggestive e-mails that the defendant co-worker had sent her.  Under Evid. Code 1523, the Best Evidence Rule did not preclude admission of oral testimony about the contents of those writings because they had been lost without any fraudulent intent on the plaintiff’s part and they were not reasonably obtainable through the court process or other available means.  The fact that plaintiff’s recollection of the emails’ contents might not be accurate is no different from the same risk about her testifying to the defendant’s oral statements to her.  The defendant can offer his own recollection of what he wrote in the emails.  The jury will decide who is telling the truth.  Plaintiff’s testimony about the emails’ contents is not hearsay since she is not trying to prove the truth of what the emails said. The trial court did not abuse its discretion in excluding under Evid. Code 352 “me too” evidence of a non-defendant co-worker’s having sexually harassed female employees other than the plaintiff.  Evidence regarding plaintiff’s knowledge of that female’s treatment, her complaint to the employer and how the employer handled the complaint were relevant to explaining why plaintiff did not complain to the employer earlier regarding the sexual harassment she suffered and the evidence would support plaintiff’s “climate of discrimination” argument.  But plaintiff did not have personal knowledge of the harassment of the other female employee, having learned about it from another co-worker.  Under these circumstances, the trial court did not abuse its discretion in deciding that the evidence would be too time-consuming and distracting.  However, the trial court did err in excluding “me-too” evidence of the defendant co-worker’s having sexually harassed other women outside plaintiff’s presence.  That me-too evidence was more directly relevant to show that the defendant co-worker’s actions with respect to plaintiff were the result of sexual discrimination, not merely innocent social interchange.

California Court of Appeal, Fourth District, Division 2 (Codrington, J.); June 21, 2018; 2018 Cal. App. LEXIS 570