Rick Hendrick and Roger Penske, just two days after they were motioned for deposition over the 23XI Racing and Front Row Motorsports v NASCAR antitrust lawsuit have motioned back to limit the scope of such conversations.
“Movants find themselves, quickly and without much warning, in the unenviable position of being forced to give expansive and unnecessary deposition testimony as a result of wrangling between the parties to a lawsuit that should have settled long before now. As explained in greater detail below, Messrs. Hendrick and Penske, in view of their decades-long relationship with Jim France, agreed to give limited testimony regarding non-confidential matters at the trial of this case, but in a way that did not force them to ‘take sides’ in this lawsuit – something which both men have made clear that they cannot and will not do. That has now morphed into an effort by the Plaintiffs to seek testimony potentially regarding HMS’ and Penske’s highly confidential financial and other business information.”
Hendrick and Penske were deposed earlier in the week, but only after legal representatives for 23XI and Front Row claimed that NASCAR has ‘sandbagged’ naming them to a witness list without giving the two teams a chance to conduct due diligence and discovery on the two men.
Representing Hendrick and Penske, lawyer Adam Ross says NASCAR only recently approached the two men to witness only in relation to the statements they issued urging both parties to reach a settlement.
“In just the past few days (and in Mr. Hendrick’s case, at the NASCAR awards banquet following the championship win), Mr. France and his counsel approached Messrs. Hendrick and Penske (separately) and asked if they would be willing to give testimony at trial specifically limited to the high-level contents of the Declarations that both men submitted a number of weeks ago. Neither man wants to play any role in this lawsuit whatsoever and have made clear that they will not ‘take sides’ in this case. However, in view of their decades-long relationship with Mr. France, they agreed to provide the requested limited scope of testimony if required by a duly served subpoena.”
Simply stated, Hendrick and Penske do not want, nor do they feel talking about financial records or the build-up to the 2016 charter agreement is appropriate.
“Immediately after Plaintiffs filed their Motion for Leave on Wednesday, but before this Court granted the Motion, counsel for the Parties met and conferred with the undersigned counsel.
“The undersigned counsel explained that NASCAR had agreed to limit the scope of trial testimony to the Declarations, and so long as the Plaintiffs limited their questioning to that narrow lane of questioning, a compromise could be reached allowing for the depositions to occur without objection. Plaintiffs refused and made clear that they intended to ask numerous questions of both men regarding their respective race teams’ highly confidential business and financial records, private communications regarding the negotiations leading up to the initial 2016 Charter Agreement, and other highly confidential topics.”
Ross, through the motion, reminds the court that an order on June 25, 2025 ‘significantly limits’ the information that the non-party teams would be required to provide.
This was the agreement that led to teams, through a third-party, sending NASCAR broad records of average per car number financials but without attaching identifying information. This is what the non-party teams had suggested to the court.
“Recognizing the limited relevance of non-party teams’ financial information to the parties’ claims and defenses, as well as the risks and burden to the teams, the Court refused to require HMS, PRS, or any other non-party team to produce to NASCAR any financial information other than in an anonymous and untraceable format.
“The testimony that Plaintiffs now seek will undermine the entirety of the Court’s decision as related to HMS and PRS and potentially allow the Parties (or the media or general public) to ‘reverse engineer’ the anonymized team information to back out HMS and PRS in an effort to identify the sources of the other team information.”
Hendrick and Penske also feel like the timing of these depositions, approaching both Thanksgiving and the trial is something of a burden, with the motion requesting that they be allowed to do this over Zoom and only under the limited scope that protects the information protected by the June order.
“HMS and PRS compete directly with both NASCAR and Plaintiffs for sponsors and employees, as well as on the track. Disclosure of HMS’s and PRS’s financial and business information would thus be incredibly burdensome and harmful. Moreover, HMS or PRS have little confidence that a protective order would maintain the confidentiality of any such information – whether in a deposition or ultimately at trial – given the First Amendment and common law rights of access already recognized by this Court. …
“Consistent with the Court’s prior ruling, there remains no compelling need in this case for HMS’s and PRS’ confidential financial and business information. Moreover, any question from Plaintiffs (or any other party) to Mr. Hendrick or Mr. Penske about even the confidential, anonymized average per-car data would necessarily require them to disclose some additional information about the data that could permit the parties – and the media – to determine which figures are associated with which team. Such a result would be inconsistent with this Court’s prior Order determining that HMS’s, PRS’s, and the other non-party teams’ rights.”
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