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, Hendricks 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 Groups 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. Hendricks counsel offered an opportunity for Plaintiffs to take Mr. Hendricks deposition during the first week of trial.
While Mr. Hendricks 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 placeincluding planned timing for witnessesand 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 Rows motion, saying that Hendrick can give him deposition during the first week of the trial.
Mr. Hendrick is scheduled to testify in NASCARs case, which likely will not begin until the week of December 8. And NASCAR can further accommodate Plaintiffs by calling him later in NASCARs case. Thus, even after trial begins on December 1, Plaintiffs will have numerous days to secure Mr. Hendricks 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. Hendricks 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. Hendricks 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. Hendricks 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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