Judge Kenneth D. Bell previously granted 23XI Racing and Front Row Motorsports the right to depose Rick Hendrick and Roger Penske without limitations ahead of the Dec. 1 trial against NASCAR. Now, a scheduling issue is creating a dispute between the two sides of this antitrust lawsuit.
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Update: Judge Bell has filed an order directing Hendrick to find time before trial for the 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."
23XI Racing and Front Row Motorsports — the Plaintiffs — filed a motion on Thursday seeking to exclude Hendrick's testimony at trial. The reason listed by the Plaintiffs is that the team owner is not available for deposition ahead of the trial start date.
As noted in a previous motion to depose the team owners, NASCAR added both Penske and Hendrick to the witness list after the close of the discovery period.
MORE: Plaintiffs' motion to exclude Hendrick's testimony
MORE: Defendants' response
The Plaintiffs say in their motion that Hendrick's legal team has offered deposition times during the first week of the trial but that this would take their counsel away from focusing on the trial. The Plaintiffs also say that this move would be "prejudicial" as they will have their trial strategy in place.
"After NASCAR 'sandbagging' Plaintiffs with two belatedly disclosed witnesses, one of those witnesses — Rick Hendrick — is unavailable for deposition in advance of the December 1, 2025, trial," the motion states. "As Plaintiffs have explained in both their Motion for Leave to Depose NASCAR's Late-Disclosed Trial Witnesses and their Response to the Joint Motion for a Protective Order, Plaintiffs should have the opportunity to depose NASCAR's third-party witnesses in order to avoid conducting a blind cross-examination at trial.
"Now, given NASCAR's untimely disclosure and the limited time ahead of trial, Plaintiffs are foreclosed from deposing Mr. Hendrick in advance of trial, and any trial testimony Mr. Hendrick would be permitted to provide on behalf of NASCAR would be prejudicial to Plaintiffs. Mr. Hendrick's testimony should therefore be excluded."
NASCAR — the Defendants — strongly disagreed with the Plaintiffs' motion with a response filed on Friday. In this motion, the Defendants said that the amended disclosure naming Hendrick as witness "were timely within the case schedule" while leaving roughly three weeks for a deposition.
The Defendants also said that Hendrick would testify during their portion of the trial, which would take place during the second week starting on Dec. 8.
The Defendants also said that a deposition during the trial may be unnecessary due to Hendrick's schedule being "in flux." The motion alleged that the Plaintiffs "refused" the timing options provided by Hendrick's counsel and that they insisted on a "take-it-or-leave-it" deposition on Nov. 18.
"Plaintiffs have argued that they are suing NASCAR for the benefit of other racing team owners who have not joined their lawsuit," NASCAR's filing stated. "But their Motion attempts to prevent one of the leading team owners—Rick Hendrick of Hendrick Motorsports—from presenting his voice at trial to explain the importance and value of the Charter system.
"Since Plaintiffs are supposedly advancing this lawsuit to trial for other teams, it is remarkable that 'Mr. Hendrick's testimony at trial would be prejudicial to Plaintiffs.' The fact that Mr. Hendrick's testimony undermines Plaintiffs' claims is no reason to exclude it."
Interestingly, "take-it-or-leave-it" has been a common term used throughout this legal battle lasting more than one year. Counsel representing both sides have uttered this phrase multiple times during pre-trial hearings.
This is the phrase that Plaintiffs used to describe NASCAR's final Charter Agreement offer in September 2024, which they declined to sign.
