Courtroom Showdown Looms: NASCAR and 23XI Clash Over Key Witness Presence in Antitrust Trial

As the highly anticipated antitrust trial between 23XI Racing and Front Row Motorsports against NASCAR nears, a critical procedural dispute has emerged regarding the courtroom presence of key individuals. NASCAR has formally petitioned the court to exclude two of the three principal owners of 23XI Racing – Denny Hamlin and Curtis Polk – from the courtroom during testimony, citing Federal Rules of Evidence 615, which governs witness sequestration. This motion, filed just days before the trial’s commencement, aims to prevent potential influence on witness testimony by individuals who are not actively representing the party at trial or deemed essential to the immediate presentation of the case.

Federal Rule of Evidence 615, titled "Excluding Witnesses," mandates that at a party’s request, the court must order witnesses excluded from the courtroom to prevent them from hearing other witnesses’ testimony. This rule is designed to preserve the integrity of testimony by preventing witnesses from tailoring their accounts based on what others have said. While the rule includes an exception for individuals "essential to the claim or defense" and the "person representing the party at trial," NASCAR argues that Hamlin and Polk do not meet these criteria.

In response to NASCAR’s motion, 23XI Racing, represented by lead attorney Jeffrey Kessler, has countered by designating NBA legend Michael Jordan as the "individual representing the party" but is simultaneously seeking to have all three owners – Jordan, Hamlin, and Polk – permitted to attend the entire trial. 23XI’s legal team has presented several arguments to support this request, focusing on the roles and status of both Polk and Hamlin.

Regarding Curtis Polk, 23XI asserts that he was a counter-defendant in NASCAR’s own countersuit. Although this counterclaim has since been dismissed by Judge Kenneth D. Bell, 23XI points to NASCAR’s stated likelihood of appeal as a reason to maintain Polk’s status as a party to the action. This argument hinges on the principle that until a final judgment is rendered and all appeals are exhausted, Polk retains his standing as a party. In their written motion, 23XI stated, "The Court’s summary judgment ruling does not change his status as a party until there is a final judgment under Federal Rule of Civil Procedure 54. Moreover, NASCAR has already indicated that it is considering appealing this Court’s decision in an attempt to resurrect the counterclaim, which is based on many of the same facts as Plaintiffs’ claims. Mr. Polk therefore should be permitted to attend the trial in full as a party to the action."

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Furthermore, 23XI argues that both Polk and Hamlin are "essential to the presentation of Plaintiffs’ case against NASCAR," irrespective of whether they are classified as parties under Rule 615. The team emphasizes Polk’s significant involvement in the critical 2025 Charter Agreement negotiations, asserting that his knowledge of the factual circumstances surrounding these discussions is indispensable for counsel to effectively present 23XI’s case. Similarly, Denny Hamlin, a co-owner, driver, and integral figure in the team’s operations, is highlighted for his unique perspective and intimate understanding of the events leading up to the litigation. The team contends that these owners represent "distinct pieces to the puzzle, each of which is necessary for counsel to be able to provide a complete picture to the jury."

Notably, 23XI has also indicated they have no objection to members of NASCAR’s ownership – the France family – being present for the entirety of the trial, suggesting a reciprocal expectation of transparency.

NASCAR, however, has forcefully opposed this assertion, with lead attorney Chris Yates invoking established legal precedent to bolster their argument for sequestration. Citing Opus 3 Ltd. v. Heritage Park, Inc., NASCAR underscored the principle that witness sequestration is a vital tool for uncovering truth in legal proceedings. Yates quoted the precedent: "It is ‘well recognized that sequestering witnesses… is (next to cross-examination) one of the greatest engines that the skill of man has ever invented for the detection of liars in a court of justice.’"

NASCAR reiterated that Rule 615’s fundamental purpose is "to preclude fact witnesses from shaping their testimony based on other witnesses’ testimony" and maintained that neither Hamlin nor Polk fall under the rule’s exceptions. The sanctioning body disputes 23XI’s claim that there is no "worry about [the] influencing" of testimony. NASCAR’s legal team emphasized that the Fourth Circuit narrowly construes the exceptions to Rule 615 in favor of sequestration, placing the burden on the party seeking to avoid sequestration to prove an exception applies.

Further reinforcing their position, NASCAR referenced United States v. Olofson, which established that merely labeling a witness as "critical" is insufficient to exempt them from sequestration. NASCAR’s overall stance is that Jordan, Polk, and Hamlin are all "key fact witnesses whose testimony is crucial to the disputed issues in this case," and therefore, to "remove the possibility that they tailor their testimony, this Court should issue an order under Rule 615(a) and (b)."

The judge is expected to rule on this crucial motion imminently, likely before the Thanksgiving holiday, setting the stage for the unfolding legal battle. The outcome of this dispute will significantly impact the dynamics of the trial, influencing how 23XI Racing presents its case and how effectively NASCAR can challenge its arguments. The core of the antitrust litigation revolves around allegations of unfair practices and anti-competitive behavior by NASCAR concerning charter agreements and the overall business structure of the sport, issues that the testimony of these prominent figures is expected to illuminate.