Supreme Court of North Dakota Finds Designation of a Witness as a Party Representative Doesn’t Obviate the Need to Prove Personal Knowledge

December 21, 2020

Like its federal counterpart, North Dakota Rule of Evidence 615 states that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony, or the court may do so on its own. This rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(d) a person authorized by law to be present.

And, like its federal counterpart, North Dakota Evidence Rule 602 states that

A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.

So, does designating a witness as a party representative under Rule 615(b) obviate the need to establish their personal knowledge under Rule 602? This was the question of first impression addressed by the Supreme Court of North Dakota in its recent decision in Rentz v. BNSF Railway Company, 2020 WL 7395389 (N.D. 2020).

In Rentz,

In July 2012, a tractor-trailer driven by [David] Rentz was struck by a train operated by BNSF and train engineer, Reinaldo Guitian, Jr. The collision occurred at a public railroad grade crossing. In December 2015, Rentz sued BNSF and Guitian for personal injuries sustained during the vehicle/train collision. Guitian was subsequently dismissed as a named defendant in the action.

In January 2019, the district court held an eleven-day jury trial on Rentz’s negligence claim. Guitian was designated as BNSF’s party representative under N.D.R.Ev. 615 and was not sequestered from the courtroom.

At trial,

Central to Rentz’s claim was whether vegetation obstructed the view of the railroad crossing where the collision occurred and, if so, whether BNSF was negligent in failing to properly control the vegetation. Guitian was called as a witness by BNSF. During the cross examination of Guitian, Guitian was questioned about BNSF’s internal vegetation control policies and related corporate decision making regarding cutting the vegetation at the crossing where the accident occurred. Guitian testified he was not familiar with the policies or the decision regarding cutting the vegetation at the crossing where the accident occurred. Over BNSF’s objection, Guitian was allowed to be examined regarding the policies and the decision-making. The court determined the examination was proper because Guitian had been designated as BNSF’s N.D.R.Ev. 615(b) representative.

On appeal, however, BNSF claimed “the court erred when it determined the designation of Guitian as BNSF’s N.D.R.Ev. 615(b) representative eliminated the need for Guitian to have personal knowledge of the policies and decision-making regarding the cutting of vegetation at the crossing where the accident occurred.”

The Supreme Court of North Dakota agreed, concluding that

Guitian testified as a lay witness. The testimony of lay witnesses is governed by N.D.R.Ev. 602 which provides “[a] witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” This Court has not previously interpreted N.D.R.Ev. 615 as eliminating the need for a lay witness to have personal knowledge of the matter upon which the witness is testifying. Rentz has not directed us to any authority or decisions from other jurisdictions interpreting an equivalent to our rule which would support elimination of the need for a lay witness to have personal knowledge of the matter upon which the witness is testifying.

-CM