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In a Monday authorized submitting, 23XI Racing and Entrance Row Motorsports is asking the Western District of North Carolina courtroom to drive Rick Hendrick and Roger Penske to topic themselves to an intensive deposition prematurely of NASCAR placing them on the witness stand throughout the antitrust trial subsequent month.
The 2 tenured workforce house owners had been positioned on a witness listing final month by the Sanctioning Physique. In response, 23XI and FRM responded by accusing NASCAR of ‘sandbagging’ their late addition as they didn’t seem on any lists of people ‘more likely to have discoverable data’ pertinent to the case.
23XI and Entrance Row says it requested 3 times if Penske and Hendrick supposed to testify and so they mentioned ‘no,’ resulting in the shock of their inclusion.
Thus, 23XI and FRM motioned to have Hendrick and Penske seem for deposition interviews, which the 2 males pushed again on, asking the courtroom to restrict the scope of what may very well be mentioned whereas additionally wanting the dialog to happen over Zoom and never in particular person.
Within the Monday submitting, 23XI and Entrance Row are asking the courtroom to order Penske and Hendrick to seem in particular person and counsel that the push again is akin to asking for particular therapy.
From the submitting:
“Mr. Hendrick and Mr. Penske’s confidentiality issues about their workforce monetary data can’t justify stopping Plaintiffs from cross-examining them in open courtroom on a plainly related subject. If they’ve a correct foundation to maneuver to seal any of this data, they might accomplish that topic to the strict necessities that the Court docket applies in contemplating such a movement.”
In actual fact, 23XI and Entrance Row may have motioned for the courtroom to disclaim NASCAR’s movement to place them on the witness stand as a result of their late inclusion, but it surely’s additionally honest to see the 2 groups seizing a chance maximize the chance to get discoverable data from them as effectively.
Data like the next:
“The subjects coated by Mr. Hendrick and Mr. Penske’s declarations are broad, together with the constitution system, the 2025 constitution renewal negotiations and their acceptance of NASCAR’s closing phrases, the economics of workforce possession, NASCAR’s NextGen program, Mr. Penske’s possession of the IndyCar sequence, and extra. … Plaintiffs are entitled to probe the idea for his or her declaration statements and their private information on all these subjects—not simply the ‘excessive stage contents of their respective Declarations’ —together with every other subjects which might be related to the testimony they will current on NASCAR’s behalf.
‘As only one instance, Mr. Hendrick’s companion in Hendrick Motorsports, Jeff Gordon, was a member of the Workforce Negotiating Committee, which, because the Court docket is aware of, negotiated the 2025 Constitution Settlement on behalf of all of the Race Workforce Alliance members with NASCAR. Mr. Gordon has said publicly that, regardless of being some of the profitable and longest-running Cup Sequence groups, Hendrick Motorsports has not made a revenue in ten years.
Plaintiffs are entitled to query Mr. Hendrick about these statements and the details about Hendrick’s monetary situation and profitability underneath the constitution system that Mr. Hendrick discusses in his declaration, as they bear straight on whether or not NASCAR has exercised its monopoly energy to pay the racing groups, together with Mr. Hendrick’s workforce, below-competitive-market compensation.”
In a footnote, 23XI and FRM’s submitting discover the ask to do it over Zoom preposterous since they had been keen to journey to Charlotte to seem on the stand.
“Plaintiffs don’t perceive how conducting the depositions by Zoom will save time, as Plaintiffs are keen to journey to Mr. Hendrick and Mr. Penske and presumably their counsel might be current in particular person to defend their depositions regardless. However, Plaintiffs are completely happy to fulfill and consult with counsel for Mr. Hendrick and Mr. Penske about this challenge, which they by no means raised previous to submitting their Movement.”
23XI and Entrance Row additionally need to ask the 2 workforce house owners about how their charters pay them greater than different groups as a result of their historic relevance within the sport and the way Hendrick is grandfathered into having 4 charters although new NASCAR guidelines restrict new groups to simply three.
“Hendrick Motorsports and Workforce Penske are paid greater than different Cup Sequence groups primarily based on the mix of a historic income allocation formulation and the truth that Hendrick Motorsports is allowed to have 4 chartered vehicles—versus the everyday three—which provides them a greater value construction than different groups. These details are extremely related to their testimony concerning the constitution system and why they accepted the ultimate phrases supplied by NASCAR for the 2025 Constitution Settlement.
“Additional, one of many causes there isn’t any value cap for Cup Sequence racing groups is as a result of Hendrick and Penske favor to not have one for their very own aggressive benefit, as NASCAR senior govt Scott Prime testified at his deposition. All these topics are extremely related to the substance of the testimony they’ll current on behalf of NASCAR in addition to their bias in favor of Mr. France and NASCAR for agreeing to present them these particular preferences.”
The submitting says Penske and Hendrick ‘have little to complain about’ since they voluntarily agreed to testify after telling 23XI and Entrance Row they’d not.
And whereas a earlier courtroom order earlier in the summertime ordered all of the non-party groups to file broad, non-identifying monetary data on a automotive common foundation, 23XI and Entrance Row says that now not applies to Hendrick and Penske since they agreed to testify on behalf of NASCAR and the France household.
“At the moment, Mr. Hendrick and Mr. Penske had been mere third-party bystanders who weren’t voluntarily agreeing to testify, at NASCAR’s behest, at trial. Having made that voluntary choice to help Mr. France and NASCAR, they haven’t any foundation to withstand the scope of cross-examination and inquiry that every one trial witnesses should face.”
NASCAR’s stance
For his or her half, NASCAR in its personal submitting says 23XI and Entrance Row can’t declare that Penske and Hendrick have vital data to the case, in any other case the 2 groups would have motioned to have them function witnesses however didn’t.
“Plaintiffs didn’t embrace Mr. Hendrick or Mr. Penske on their potential witness lists, so they can not declare that any of their testimony is crucial to Plaintiffs’ case. Nor may Plaintiffs declare that they will need to have entry to extra monetary data from Workforce Penske or Hendrick Motorsports, as a result of Plaintiffs by no means sought that data throughout discovery. Plaintiffs strategically took ‘no place on the relevance of the precise monetary data’ of non-party groups throughout discovery. So, Plaintiffs can’t now declare that this data is related, not to mention important, to their case.”
NASCAR says its want for Penske and Hendrick is restricted.
“NASCAR’s questioning is not going to search data relating to the groups’ earnings, bills, profitability, worker salaries, or funds to drivers.”
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