Roger Penske and Rick Hendrick have pushed back against potential depositions ahead of an antitrust lawsuit trial between NASCAR and 23XI Racing/Front Row Motorsports.
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The two championship-winning team owners filed a motion for a protective order on Friday, one day after Judge Kenneth D. Bell granted a request from 23XI Racing and Front Row Motorsports to depose them. NASCAR had previously put the two team owners on their witness list for the trial, which begins on Dec. 1.
"In keeping with the adage that 'no good deed goes unpunished,' 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," the memorandum accompanying the motion for a protective order stated.
MORE: Full memorandum accompanying motion for protective order
"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. Movants bring this Motion because efforts to resolve this matter amicably proved fruitless."
The two team owners said in the memorandum that counsel for 23XI Racing and Front Row Motorsports had requested through their legal counsel to take depositions ahead of trial. Penske and Hendrick declined through their counsel. They had not received subpoenas or requests to give testimony during trial.
The situation changed, the memorandum indicated, when Mr. France and his counsel approached Penske and Hendrick about being witnesses at trial. They apparently approached Hendrick at the NASCAR Awards banquet as he celebrated Kyle Larson's second Cup Series championship.
The Memorandum stated that NASCAR's counsel limited the potential testimony to "the high-level contents of the Declaration" that both team owners had filed weeks prior. It added that counsel representing Penske and Hendrick a compromise could be reached regarding depositions if 23XI Racing and Front Row Motorsports limited their line of questioning to a narrow lane.
"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," the memorandum stated.
Judge Bell had previously entered an order limiting the amount of information that teams not involved in the lawsuit would have to provide to NASCAR leading up to the trial. NASCAR sought highly confidential financial information, but the Court said that each team only had to provide anonymized "per-car data" for each season dating back to 2014.
