Update: Judge Kenneth D. Bell is ordering Hendrick to find time for deposition.
“The Court will not require Plaintiffs to depose Mr. Hendrick after the trial begins but will not exclude his testimony at this time. The Parties and witness are directed to work cooperatively to find a time prior to trial for a 2.5-hour deposition of Mr. Hendrick. So Ordered.”
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After a court decision forced Rick Hendrick and Roger Penske to subject themselves to an oral deposition in advance of the 23XI Racing and Front Row Motorsports v NASCAR antitrust trial, Hendrick’s schedule is not agreeing to a date.
As a result, 23XI and Front Row are asking the court to not allow the Sanctioning Body to put him on the witness stand.
“For Mr. Hendrick, the deposition was initially scheduled for November 18, 2025, at Hendrick Automotive Group’s offices in Charlotte, for the convenience of the deponent. However, for reasons disclosed to the Court, Plaintiffs have been informed that Mr. Hendrick cannot be deposed on November 18, and the witness is otherwise not available on any other day before the December 1, 2025 trial. Instead, Mr. Hendrick’s counsel offered an opportunity for Plaintiffs to take Mr. Hendrick’s deposition during the first week of trial. …
“While Mr. Hendrick’s counsel has offered the possibility of scheduling a deposition for the first week of trial, such an option would prove prejudicial as Plaintiffs’ counsel will already have their trial strategy in place—including planned timing for witnesses—and otherwise be fully engaged with the trial itself. The prejudice that deposing Mr. Hendrick during trial, which would necessarily include taking counsel away from focusing on the trial itself, is not warranted.
“NASCAR has caused the tight scheduling constraints with its late disclosure of Mr. Hendrick as a trial witness so this prejudice to Plaintiffs is unjustified and unfair.”
NASCAR had asked Hendrick and Penske to serve as witnesses, specifically by chairman Jim France himself, who is also a defendant to the 23XI and Front Row suit. But the two teams accused NASCAR of ‘sandbagging’ their participation by doing so a month before the trial and after the close of fact discovery.
Judge Kenneth D. Bell ordered both to give interviews to 23XI and Front Row, without restrictions of what could be asked, calling it ‘absurd’ in court this week that Penske and Hendrick would even try to argue that the questions be limited in scope as to not address their race teams’ financials.
NASCAR filed a response to 23XI and Front Row’s motion, saying that Hendrick can give him deposition during the first week of the trial.
“Mr. Hendrick is scheduled to testify in NASCAR’s case, which likely will not begin until the week of December 8. And NASCAR can further accommodate Plaintiffs by calling him later in NASCAR’s case. Thus, even after trial begins on December 1, Plaintiffs will have numerous days to secure Mr. Hendrick’s deposition, including two non-trial days on December 6 and 7.
Plaintiffs also have plenty of attorneys who could take this short deposition, even during trial. Plaintiffs have affirmatively reassured Mr. Hendrick’s counsel and NASCAR that their deposition questioning will not last more than 2.5 hours. Plaintiffs have had at least 15 attorneys attend depositions in this case, with at least 7 Plaintiffs’ attorneys taking deposition testimony. At least five law firm partners have noticed appearances on behalf of Plaintiffs. It is not unusual for a court to order that a party make “witnesses available for deposition in advance of their testimony in court, even if such depositions must be taken during trial.” See Kunzman v. Enron Corp.”
NASCAR also quibbles with the assertion that Hendrick is being inflexible.
“Mr. Hendrick’s counsel diligently alerted the Court to the possibility of the deposition needing to occur on December 1 or later, but noted that the situation is in flux, and other members of the law firm representing Mr. Hendrick are available to assist. Additionally, Mr. Hendrick’s counsel has provided numerous options to accommodate the deposition, including the possibility of a virtual deposition. Plaintiffs, however, have refused such accommodation and insisted on the take-it-or-leave-it Tuesday, November 18 deposition.”
NASCAR also said 23XI and Front Row served a sandbagged’ subpoena of their own this week.
“Finally, Plaintiffs’ assertion that they have suffered from ‘prejudice’ and ‘surprise’ under Southern States is hypocritical given that they served a trial subpoena yesterday on an accountant from the firm GreerWalker LLP, who does not appear on any witness list or any of Plaintiffs’ initial disclosures.”
Ultimately, NASCAR wants Hendrick to testify on their behalf and are pushing back on the two teams’ ask to not allow it since they cannot seem to get a oral testimony in advance of the trial.
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