Judge: Roger Penske, Rick Hendrick must give depositions in 23XI, Front Row case

Rick Hendrick and Roger Penske must sit for depositions in Michael Jordan's 23XI Racing and Front Row Motorsports' antitrust fight with NASCAR, U.S. District Judge Kenneth Bell ruled Tuesday.

Responding to a motion by both parties requesting depositions be limited and done via Zoom, Bell ruled that Hendrick and Penske must make themselves available for a full pre-trial deposition, in person, with no restrictions on the questions to be asked pertaining to the lawsuit.

"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," Bell wrote in his decision.

NASCAR CEO Jim France previously requested that Hendrick and Penske testify at the upcoming trial, but the two did not want to be forced to disclose financial information under questioning. NASCAR supported the motion by Hendrick and Penske to "put ‘guardrails on their testimony' at trial ‘limiting such testimony to the high-level subject matter of their Declarations.'"

However, 23XI and Front Row argued Hendrick and Penske should not be protected from deposition questions since they already agreed to testify in person at the trial scheduled to start Dec. 1 in Charlotte, N.C.

Bell sided with the teams, stating, "No company or individual will be accorded special treatment (which is effectively what movants request here). NASCAR has told Plaintiffs and now the Court, 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."

The flashpoint for the lawsuit is NASCAR's new charter agreement, which was handed to teams at the start of the 2024 playoffs with a firm signing deadline, following more than two years of fraught talks. Charters are the backbone of the Cup Series model as they guarantee entry and a predictable slice of revenue each week. 23XI and Front Row say the terms left them no viable choice. Both declined to sign, are competing unchartered this season with sharply reduced prize money and argue that without a fair deal their operations could be forced out of business.

The ruling by Bell is the third in as many weeks in the case.

Last week, Bell granted the teams partial summary judgment on a critical threshold issue: the relevant market. He ruled the case will proceed under the definition of "premier stock-car racing," rejecting NASCAR's argument that teams unhappy with its terms could simply pivot to IndyCar or Formula 1. In other words, those open-wheel series aren't substitutes for NASCAR's Cup Series in this dispute.

On Oct. 28, Bell also dismissed NASCAR's countersuit against the two teams and Curtis Polk, a 23XI co-owner and longtime adviser to Jordan.

--Field Level Media