In a Monday authorized submitting, 23XI Racing and Entrance Row Motorsports is asking the Western District of North Carolina court docket to pressure Rick Hendrick and Roger Penske to topic themselves to an intensive deposition upfront of NASCAR placing them on the witness stand in the course of the antitrust trial subsequent month.
The 2 tenured crew house owners have been positioned on a witness record final month by the Sanctioning Physique. In response, 23XI and FRM responded by accusing NASCAR of ‘sandbagging’ their late addition as they didn’t seem on any lists of people ‘prone to have discoverable data’ pertinent to the case.
23XI and Entrance Row says it requested thrice if Penske and Hendrick meant to testify and so they stated ‘no,’ resulting in the shock of their inclusion.
Thus, 23XI and FRM motioned to have Hendrick and Penske seem for deposition interviews, which the 2 males pushed again on, asking the court docket to restrict the scope of what may very well be mentioned whereas additionally wanting the dialog to happen over Zoom and never in individual.
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Within the Monday submitting, 23XI and Entrance Row are asking the court docket to order Penske and Hendrick to seem in individual and recommend that the push again is akin to asking for particular remedy.
From the submitting:
“Mr. Hendrick and Mr. Penske’s confidentiality issues about their crew monetary data can’t justify stopping Plaintiffs from cross-examining them in open court docket on a plainly related subject. If they’ve a correct foundation to maneuver to seal any of this data, they might achieve this topic to the strict necessities that the Courtroom applies in contemplating such a movement.”
The truth is, 23XI and Entrance Row may have motioned for the court docket to disclaim NASCAR’s movement to place them on the witness stand as a result of their late inclusion, nevertheless it’s additionally honest to see the 2 groups seizing a possibility maximize the chance to get discoverable data from them as effectively.
Data like the next:
“The matters coated by Mr. Hendrick and Mr. Penske’s declarations are broad, together with the constitution system, the 2025 constitution renewal negotiations and their acceptance of NASCAR’s last phrases, the economics of crew possession, NASCAR’s NextGen program, Mr. Penske’s possession of the IndyCar sequence, and extra. … Plaintiffs are entitled to probe the idea for his or her declaration statements and their private information on all these matters—not simply the ‘excessive stage contents of their respective Declarations’ —together with some other matters which might be related to the testimony they’ll current on NASCAR’s behalf.
‘As only one instance, Mr. Hendrick’s accomplice in Hendrick Motorsports, Jeff Gordon, was a member of the Crew Negotiating Committee, which, because the Courtroom is aware of, negotiated the 2025 Constitution Settlement on behalf of all of the Race Crew Alliance members with NASCAR. Mr. Gordon has acknowledged publicly that, regardless of being one of the crucial profitable and longest-running Cup Sequence groups, Hendrick Motorsports has not made a revenue in ten years.
Plaintiffs are entitled to query Mr. Hendrick about these statements and the details about Hendrick’s monetary situation and profitability below the constitution system that Mr. Hendrick discusses in his declaration, as they bear straight on whether or not NASCAR has exercised its monopoly energy to pay the racing groups, together with Mr. Hendrick’s crew, below-competitive-market compensation.”
In a footnote, 23XI and FRM’s submitting discover the ask to do it over Zoom preposterous since they have been prepared to journey to Charlotte to seem on the stand.
“Plaintiffs don’t perceive how conducting the depositions by Zoom will save time, as Plaintiffs are prepared to journey to Mr. Hendrick and Mr. Penske and presumably their counsel will likely be current in individual to defend their depositions regardless. Nonetheless, Plaintiffs are completely satisfied to fulfill and discuss with counsel for Mr. Hendrick and Mr. Penske about this problem, which they by no means raised previous to submitting their Movement.”
23XI and Entrance Row additionally wish to ask the 2 crew house owners about how their charters pay them greater than different groups as a result of their historic relevance within the sport and the way Hendrick is grandfathered into having 4 charters although new NASCAR guidelines restrict new groups to simply three.
“Hendrick Motorsports and Crew Penske are paid greater than different Cup Sequence groups primarily based on the mix of a historic income allocation system and the truth that Hendrick Motorsports is allowed to have 4 chartered vehicles—versus the everyday three—which supplies them a greater price construction than different groups. These details are extremely related to their testimony in regards to the constitution system and why they accepted the ultimate phrases provided by NASCAR for the 2025 Constitution Settlement.
“Additional, one of many causes there isn’t any price cap for Cup Sequence racing groups is as a result of Hendrick and Penske choose to not have one for their very own aggressive benefit, as NASCAR senior govt Scott Prime testified at his deposition. All these topics are extremely related to the substance of the testimony they are going to current on behalf of NASCAR in addition to their bias in favor of Mr. France and NASCAR for agreeing to offer them these particular preferences.”
The submitting says Penske and Hendrick ‘have little to complain about’ since they voluntarily agreed to testify after telling 23XI and Entrance Row they’d not.
And whereas a earlier court docket order earlier in the summertime ordered all of the non-party groups to file broad, non-identifying monetary information on a automotive common foundation, 23XI and Entrance Row says that now not applies to Hendrick and Penske since they agreed to testify on behalf of NASCAR and the France household.
“At the moment, Mr. Hendrick and Mr. Penske have been mere third-party bystanders who weren’t voluntarily agreeing to testify, at NASCAR’s behest, at trial. Having made that voluntary determination to assist Mr. France and NASCAR, they don’t have any foundation to withstand the scope of cross-examination and inquiry that every one trial witnesses should face.”
NASCAR’s stance
For his or her half, NASCAR in its personal submitting says 23XI and Entrance Row can’t declare that Penske and Hendrick have essential data to the case, in any other case the 2 groups would have motioned to have them function witnesses however didn’t.
“Plaintiffs didn’t embrace Mr. Hendrick or Mr. Penske on their potential witness lists, so they can not declare that any of their testimony is crucial to Plaintiffs’ case. Nor may Plaintiffs declare that they will need to have entry to further monetary data from Crew Penske or Hendrick Motorsports, as a result of Plaintiffs by no means sought that data throughout discovery. Plaintiffs strategically took ‘no place on the relevance of the precise monetary data’ of non-party groups throughout discovery. So, Plaintiffs can’t now declare that this data is related, not to mention important, to their case.”
NASCAR says its want for Penske and Hendrick is proscribed.
“NASCAR’s questioning won’t search data relating to the groups’ earnings, bills, profitability, worker salaries, or funds to drivers.”
NASCAR additionally takes exception to 23XI and Entrance Row suggesting that Penske and Hendrick’s inclusion have been sand bagged.
“Plaintiffs’ first disclosure on this case in January 2025 recognized the ‘Homeowners of NASCAR Cup Sequence race groups’ as prone to have related data. NASCAR then disclosed Hendrick Motorsports and Crew Penske as prone to have related supplies that NASCAR would depend on. Plaintiffs’ personal preliminary disclosures and NASCAR’s amended disclosures in March—months earlier than the shut of truth disclosure—have been greater than satisfactory discover and time for Plaintiffs to depose Movants.”
And likewise:
“NASCAR’s September 10, 2025 amended disclosures included each Mr. Hendrick and Mr. Penske, leaving almost three weeks for Plaintiffs to depose them below the Case Administration Plan. Doc. 84, Case Mgmt. Plan at 9 (‘The events could consent to extensions of the invention completion deadline as long as any such extension expires not later than thirty days previous to the scheduled trial setting.’); … Plaintiffs by no means requested for a deposition. Nor did they object to the timing of NASCAR’s amended disclosure. Nor did they transfer to strike.
As a substitute, they strategically selected to take a seat on their arms and wait till lower than 4 weeks earlier than trial. Had they moved or stated something on the time of the disclosure, there would have been ample time to take the depositions inside the discovery interval.”
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