Rick Hendrick and Roger Penske have been ordered by the Western District of North Carolina to provide deposition interviews with lawyers representing 23XI Racing and Front Row Motorsports in advance of the antitrust lawsuit trial brought by the teams against NASCAR set to begin on December 1.
A deposition is a formal interview under oath that is typically done as part of the fact discovery phase where both sides get access to pertinent documents and conversations like these before trial.
The teams asked the judge overseeing this case for the chance to depose Hendrick and Penske, a pair of Cup Series team owners, after NASCAR indicated in a filing last week that it intended to put both prominent racing personalities on the stand next month.
As they pointed out, that was a bit of a surprise to 23XI and Front Row, and would need to interview both men in advance of the trial as detailed in its request to the court on Wednesday afternoon.
“The late disclosure certainly comes as a surprise to Plaintiffs, as NASCAR waited until well after the close of fact discovery to disclose these witnesses, even though NASCAR was well-aware of their existence and knowledge regarding the facts at issue in the case. Indeed, NASCAR subpoenaed the Penske and Hendrick Cup Series teams seeking extensive discovery about their financials and documents related to the 2025 Charter negotiations, among other things. Yet, it did not disclose these individuals as potential witnesses.
“Depositions are the only option to avoid unfair surprise at trial and trial disruptions requiring counsel to waste court and jury time on foundational issues that could have been explored during depositions.”
The two teams, through lead attorney Jeffrey Kessler in its motion, also accused NASCAR of sandbagging the participation of Hendrick and Penske and suggested they were well within their rights to ask that both not be allowed on the stand.
Instead, they are only asking the chance to interview both men.
“As detailed above, NASCAR amended its initial disclosures multiple times, but inexplicably waited until more than two months after the close of discovery to disclose Messrs. Hendrick and Penske. Exclusion of their testimony would be appropriate under these circumstances.
“Nonetheless, Plaintiffs do not seek the exclusion remedy at this juncture. Instead, they ask that the Court grant them leave to depose Messrs. Hendrick and Penske before trial.”
NASCAR has not objected to the motion to depose them.
Just hours later, Judge Kenneth D. Bell granted that motion, and both Hendrick and Penske will be deposed before the trial.
“THIS MATTER is before the Court on Plaintiffs’ Motion for Discovery which seeks leave to depose Rick Hendrick and Roger Penske prior to trial. Plaintiffs’ motion states that ‘NASCAR has indicated it takes no position on this motion.’ For good cause shown (NASCAR’s identification of Mr. Hendrick and Mr. Penske as persons with discoverable information and likely to be called as witnesses at trial well after the close of fact discovery), the Court will GRANT the motion and permit Plaintiffs to depose Mr. Hendrick and Mr. Penske prior to trial.”
Penske is also the owner of the Indianapolis Motor Speedway and IndyCar Series in addition to his NASCAR team.
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