Roger Penske and Rick Hendrick will potentially have to answer every question asked during pre-trial deposition and during cross examination after a new ruling from Judge Kenneth D. Bell.
The two championship-winning team owners had filed a motion for a protective order after the judge had granted 23XI Racing and Front Row Motorsports the right to depose them ahead of an antitrust lawsuit trial against NASCAR.
As their legal counsel stated in the motion, Penske and Hendrick “agreed to give limited testimony regarding non-confidential matters at the trial of this case” after being approached by NASCAR CEO Jim France. They added that 23XI and Front Row could potentially seek testimony regarding “highly confidential financial and other business information.”
Hendrick and Penske wanted to have some guardrails put in place, which would limit the topics addressed during deposition and at trial. Judge Bell denied this request.
“As the Court has repeatedly said, the trial of this matter will be publicly and fairly contested under the relevant rules and law, without regard to the notoriety of the companies and individuals involved. No company or individual will be accorded special treatment (which is effectively what movants request here),” Judge Bell wrote in his order.
“NASCAR has told Plaintiffs and now the Court, (Doc. No. 423), that Mr. Hendrick and Mr. Penske will be called as witnesses for NASCAR at trial. Therefore, unless NASCAR irrevocably commits not to call these individuals as trial witnesses, then Plaintiffs have the right to promptly depose them before trial and cross- examine them at trial within the governing Federal Rules, without limitation.”
Hendrick and Penske had stated in their motion that they did not want to take sides in this lawsuit “that should have been settled long before now.” They did not get their wish. NASCAR and CEO Jim France identified these two team owners on the witness list and then approached them after the season ended about being witnesses at trial.
This addition to the witness list took place after the close of discovery, so 23XI Racing and Front Row Motorsports sought the opportunity to depose the two team owners so they could “remedy the unfairness caused by NASCAR’s actions.”
Judge Bell granted the two teams the right to depose Hendrick and Penske. Now, he has given them the right to cover all of the topics they desire as this legal battle with NASCAR continues.