Becky Doty, Vicky Doty, David Price,
and Roy Price brought this action against Eddy Elias under the
Fair Labor Standards Act, 29 U.S.C. 201-19.
Alleging that Elias violated the
Act's minimum wage and overtime compensation provisions.
Plaintiffs formerly worked as
waitresses or waiters at Eddy's Steakhouse
None of the plaintiffs received an
hourly wage or salary while working at the restaurant.
Instead, Elias permitted plaintiffs
to keep all of the tips they received.
Bench Trial Found Violation
After a bench trial, the district
court found that plaintiffs were Elias' employees within the
meaning of the Act and that Elias had violated the Act's minimum
The court awarded plaintiffs unpaid
wages and prejudgment interest but refused to award liquidated
Both parties appealed.
(refer to notes during testimony)
Elias argues that the
trial court committed reversible error
by permitting Becky Doty and Vicky Doty to
refer to notes during their testimony.
Department of Labor Representative (Compile Schedule)
Several months after the Dotys
stopped working at the restaurant, a representative of the
United States Department of Labor asked the Dotys to compile a
schedule of the times they had worked for Elias.
Using a calendar and relying largely
upon memory, they did so. Plaintiffs did not offer the schedules
into evidence or read them into the record.
Trial Court (Permitted referral to schedules)
However, the trial court permitted
the Dotys to refer to the schedules occasionally during their
(Inadmissible, Constituted hearsay)
Elias argues that the Dotys'
testimony from the schedules was inadmissible because it
constituted hearsay under Fed. R. Evid. 801(c)
Does not fall within the hearsay
exception for past recollection recorded, Fed. R. Evid. 803(5).
(Properly Refreshed Memories, which 612 permits)
The trial court properly permitted
the Dotys to refer to the schedules to refresh their memories as
Fed. R. Evid. 612 permits.
Court Usage of Notes merely
to refresh memory
Refreshing During Testimony Rule
Where the trial court permits a
witness to use notes during his or her testimony to refresh
memory, the testimony is not hearsay, and its admission is not
Distinction Between Present Recollection Revived and Past
The primary difference between
present recollection revived and past recollection recorded
is the ability of the witness
to testify from present knowledge:
Present Recollection Revived
where the witness' memory is
revived, and he presently recollects the facts and swears to
Past Recollection Recorded
the witness who cannot directly state the facts from present
and who must ask the court
to accept a writing for the truth of its contents
because he is willing to swear, for one reason or another, that
its contents are true.
Testimony > Refreshing Recollection > Memory Aids > Writings
The trial judge enjoys broad
discretion in determining whether a witness is using a writing
to refresh memory or offering a writing for the truth of
something the witness can no longer recall.
Both at the time they compiled the
schedules and at the time of trial the Dotys apparently recalled
the number of weeks they worked for defendant and approximately
how many hours per week they worked.
Merely to help recall quickly
The schedules merely helped them
recall quickly, without repetition of the mental process of
organizing their memories, the approximate dates of specific
Approximations from Memory
The trial court understood that the
schedules were approximations from memory and it treated them as
Thus, we hold that the trial court
did not abuse its discretion in permitting the Dotys to refer to