Doty v. Elias

733 F.2d 720 (10th Cir. 1984)

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Nature of the Case

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Facts

Ps worked as waitresses or waiters at D's restaurant. None of the Ps received an hourly wage or salary while working. D permitted Ps to keep all of the tips they received. Ps alleged that this practice violated federal labor law. Several months after Ps stopped working at the restaurant, a representative of the United States Department of Labor asked them to compile a schedule of the times they had worked for D. Using a calendar and memory they did so. The schedules were never offered into evidence nor were they read into the record. But, the trial court permitted Ps to refer to the schedules during their testimony. D was found guilty and both parties appealed. D contends that Ps’ testimony from the schedules was inadmissible because it constituted hearsay under Fed. R. Evid. 801(c) and did not fall within the hearsay exception for past recollection recorded, Fed. R. Evid. 803(5). Ps contend that the trial court properly permitted Ps to refer to the schedules to refresh their memories as Fed. R. Evid. 612 permits.