In a Monday legal filing, 23XI Racing and Front Row Motorsports is asking the Western District of North Carolina court to force Rick Hendrick and Roger Penske to subject themselves to a thorough deposition in advance of NASCAR putting them on the witness stand during the antitrust trial next month.
The two tenured team owners were placed on a witness list last month by the Sanctioning Body. In response, 23XI and FRM responded by accusing NASCAR of ‘sandbagging’ their late addition as they did not appear on any lists of individuals ‘likely to have discoverable information’ pertinent to the case.
23XI and Front Row says it asked three times if Penske and Hendrick intended to testify and they said ‘no,’ leading to the surprise of their inclusion.
Thus, 23XI and FRM motioned to have Hendrick and Penske appear for deposition interviews, which the two men pushed back on, asking the court to limit the scope of what could be discussed while also wanting the conversation to take place over Zoom and not in person.
In the Monday filing, 23XI and Front Row are asking the court to order Penske and Hendrick to appear in person and suggest that the push back is akin to asking for special treatment.
From the filing:
“Mr. Hendrick and Mr. Penske’s confidentiality concerns about their team financial information cannot justify preventing Plaintiffs from cross-examining them in open court on a plainly relevant topic. If they have a proper basis to move to seal any of this information, they may do so subject to the strict requirements that the Court applies in considering such a motion.”
In fact, 23XI and Front Row could have motioned for the court to deny NASCAR’s motion to put them on the witness stand due to their late inclusion, but it’s also fair to see the two teams seizing an opportunity maximize the opportunity to get discoverable information from them as well.
Information like the following:
“The topics covered by Mr. Hendrick and Mr. Penske’s declarations are broad, including the charter system, the 2025 charter renewal negotiations and their acceptance of NASCAR’s final terms, the economics of team ownership, NASCAR’s NextGen program, Mr. Penske’s ownership of the IndyCar series, and more. … Plaintiffs are entitled to probe the basis for their declaration statements and their personal knowledge on all those topics—not just the ‘high level contents of their respective Declarations’ —along with any other topics that are relevant to the testimony they are going to present on NASCAR’s behalf.
‘As just one example, Mr. Hendrick’s partner in Hendrick Motorsports, Jeff Gordon, was a member of the Team Negotiating Committee, which, as the Court knows, negotiated the 2025 Charter Agreement on behalf of all the Race Team Alliance members with NASCAR. Mr. Gordon has stated publicly that, despite being one of the most successful and longest-running Cup Series teams, Hendrick Motorsports has not made a profit in ten years.
Plaintiffs are entitled to question Mr. Hendrick about those statements and the facts about Hendrick’s financial condition and profitability under the charter system that Mr. Hendrick discusses in his declaration, as they bear directly on whether NASCAR has exercised its monopoly power to pay the racing teams, including Mr. Hendrick’s team, below-competitive-market compensation.”
In a footnote, 23XI and FRM’s filing find the ask to do it over Zoom preposterous since they were willing to travel to Charlotte to appear on the stand.
“Plaintiffs do not understand how conducting the depositions by Zoom will save time, as Plaintiffs are willing to travel to Mr. Hendrick and Mr. Penske and presumably their counsel will be present in person to defend their depositions regardless. Nevertheless, Plaintiffs are happy to meet and confer with counsel for Mr. Hendrick and Mr. Penske about this issue, which they never raised prior to filing their Motion.”
23XI and Front Row also want to ask the two team owners about how their charters pay them more than other teams due to their historical relevance in the sport and how Hendrick is grandfathered into having four charters even though new NASCAR rules limit new teams to just three.
“Hendrick Motorsports and Team Penske are paid more than other Cup Series teams based on the combination of a historical revenue allocation formula and the fact that Hendrick Motorsports is allowed to have four chartered cars—as opposed to the typical three—which gives them a better cost structure than other teams. These facts are highly relevant to their testimony about the charter system and why they accepted the final terms offered by NASCAR for the 2025 Charter Agreement.
“Further, one of the reasons there is no cost cap for Cup Series racing teams is because Hendrick and Penske prefer not to have one for their own competitive advantage, as NASCAR senior executive Scott Prime testified at his deposition. All these subjects are highly relevant to the substance of the testimony they will present on behalf of NASCAR as well as their bias in favor of Mr. France and NASCAR for agreeing to give them these special preferences.”
The filing says Penske and Hendrick ‘have little to complain about’ since they voluntarily agreed to testify after telling 23XI and Front Row they would not.
And while a previous court order earlier in the summer ordered all the non-party teams to file broad, non-identifying financial records on a car average basis, 23XI and Front Row says that no longer applies to Hendrick and Penske since they agreed to testify on behalf of NASCAR and the France family.
“At that time, Mr. Hendrick and Mr. Penske were mere third-party bystanders who were not voluntarily agreeing to testify, at NASCAR’s behest, at trial. Having made that voluntary decision to aid Mr. France and NASCAR, they have no basis to resist the scope of cross-examination and inquiry that all trial witnesses must face.”
NASCAR’s stance
For their part, NASCAR in its own filing says 23XI and Front Row can’t claim that Penske and Hendrick have important information to the case, otherwise the two teams would have motioned to have them serve as witnesses but didn’t.
“Plaintiffs did not include Mr. Hendrick or Mr. Penske on their potential witness lists, so they cannot claim that any of their testimony is essential to Plaintiffs’ case. Nor could Plaintiffs claim that they must have access to additional financial information from Team Penske or Hendrick Motorsports, because Plaintiffs never sought that information during discovery. Plaintiffs strategically took ‘no position on the relevance of the specific financial information’ of non-party teams during discovery. So, Plaintiffs cannot now claim that this information is relevant, let alone essential, to their case.”
NASCAR says its need for Penske and Hendrick is limited.
“NASCAR’s questioning will not seek information regarding the teams’ income, expenses, profitability, employee salaries, or payments to drivers.”
NASCAR also takes exception to 23XI and Front Row suggesting that Penske and Hendrick’s inclusion were sand bagged.
“Plaintiffs’ first disclosure in this case in January 2025 identified the ‘Owners of NASCAR Cup Series race teams’ as likely to have relevant information. NASCAR then disclosed Hendrick Motorsports and Team Penske as likely to have relevant materials that NASCAR would rely upon. Plaintiffs’ own initial disclosures and NASCAR’s amended disclosures in March—months before the close of fact disclosure—were more than adequate notice and time for Plaintiffs to depose Movants.”
And also:
“NASCAR’s September 10, 2025 amended disclosures included both Mr. Hendrick and Mr. Penske, leaving nearly three weeks for Plaintiffs to depose them under the Case Management Plan. Doc. 84, Case Mgmt. Plan at 9 (‘The parties may consent to extensions of the discovery completion deadline so long as any such extension expires not later than thirty days prior to the scheduled trial setting.’); … Plaintiffs never asked for a deposition. Nor did they object to the timing of NASCAR’s amended disclosure. Nor did they move to strike.
Instead, they strategically chose to sit on their hands and wait until less than four weeks before trial. Had they moved or said anything at the time of the disclosure, there would have been ample time to take the depositions within the discovery period.”
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