Legal Showdown Looms: NASCAR and 23XI Racing Clash Over Witness Exclusion in Antitrust Trial

As the highly anticipated antitrust trial between 23XI Racing and Front Row Motorsports versus NASCAR approaches, a significant legal battle is brewing over who will be permitted to observe the proceedings. NASCAR has formally requested that the court exclude two of 23XI Racing’s three principal owners—Denny Hamlin and Curtis Polk—from the courtroom while other witnesses are providing testimony. This motion, filed under Federal Rule of Evidence 615, aims to prevent potential collusion or influence on witness accounts, a standard practice in legal proceedings designed to ensure the integrity of testimony.

Federal Rule of Evidence 615, titled "Excluding Witnesses," mandates that "at a party’s request, the court must order witnesses excluded from the courtroom so that they cannot hear other witnesses’ testimony." The rule, however, contains exceptions. Crucially, it does not extend to "any person… shown to be essential to the claim or defense" of a party. This specific carve-out allows for the presence of individuals deemed indispensable for the effective representation of a party’s case. The purpose of witness sequestration is to "prohibit disclosure of trial testimony to witnesses who are excluded from the courtroom" and to "prohibit excluded witnesses from accessing trial testimony," thereby preventing them from tailoring their statements to align with or contradict prior evidence.

In response to NASCAR’s motion, 23XI Racing has designated basketball legend and co-owner Michael Jordan as the "individual representing the party." However, the team is also actively petitioning the court to allow Hamlin and Polk to remain present throughout the entire trial, arguing they are essential to their case.

The legal team for 23XI Racing, led by attorney Jeffrey Kessler, has presented a multi-faceted argument for the inclusion of all three owners. One key point hinges on Curtis Polk’s prior status as a counter-defendant in a lawsuit filed by NASCAR. Although Judge Kenneth D. Bell has since dismissed this counterclaim, 23XI Racing asserts that due to NASCAR’s expressed intention to appeal this decision, Polk should retain his standing as a party to the action and thus be permitted to attend the trial. The team’s written motion elaborates on this, stating, "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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Beyond Polk’s status as a former counter-defendant, 23XI Racing contends that both Polk and Hamlin are indispensable to the presentation of their antitrust claims against NASCAR. The team argues that Polk’s extensive involvement in the negotiations surrounding the 2025 Charter Agreement, and his intimate knowledge of the surrounding facts and circumstances, are vital for counsel to effectively articulate the team’s position. Similarly, Hamlin’s unique dual role as a driver competing in NASCAR and a key figure in the team’s operational and strategic development provides a critical perspective. The motion emphasizes, "Mr. Polk and Mr. Hamlin are essential to the presentation of Plaintiffs’ case against NASCAR… Mr. Hamlin further presents a unique perspective and role in the operations of 23XI, competing in NASCAR as a driver, and the build-up to the facts that gave rise to this litigation. These two owners act as distinct pieces to the puzzle, each of which is necessary for counsel to be able to provide a complete picture to the jury."

Furthermore, 23XI Racing has indicated no objection to the presence of multiple members of NASCAR’s ownership, the France family, during the trial, suggesting a reciprocal understanding of the need for key individuals to observe proceedings.

NASCAR, represented by lead attorney Chris Yates, has countered with a robust legal argument, citing established case law to support its request for witness sequestration. NASCAR’s legal team invokes the fundamental principle of witness exclusion, quoting from Opus 3 Ltd. v. Heritage Park, Inc.: "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.’" This precedent underscores the importance of preventing witnesses from hearing each other’s testimony to safeguard against potential manipulation.

The sanctioning body reiterates that Rule 615’s core purpose is "to preclude fact witnesses from shaping their testimony based on other witnesses’ testimony," and argues that neither Hamlin nor Polk fall within the rule’s established exceptions. NASCAR explicitly disputes 23XI Racing’s assertion that there is no "worry about [the] influencing" of testimony. The organization’s filing emphasizes the "presumption favoring sequestration" and the Fourth Circuit’s consistent interpretation of exceptions to Rule 615 "narrowly in favor of the party requesting sequestration." NASCAR asserts that the "party seeking to avoid sequestration of a witness bears the burden of proving" that an exception applies.

Adding further weight to NASCAR’s argument, the filing references United States v. Olofson, a case that established that simply designating a party as a "critical witness" is "insufficient" grounds to avoid sequestration. NASCAR’s overarching position is that Jordan, Polk, and Hamlin "are all key fact witnesses whose testimony is crucial to the disputed issues in this case." Therefore, they argue, "To remove the possibility that they tailor their testimony, this Court should issue an order under Rule 615(a) and (b)."

The ultimate decision on whether Denny Hamlin and Curtis Polk will be allowed to remain in the courtroom throughout the entirety of the 23XI Racing antitrust trial rests with the presiding judge. A ruling on this contentious matter is expected imminently, likely before the upcoming Thanksgiving holiday. This legal dispute over witness presence highlights the strategic maneuvers at play as both sides prepare for what is anticipated to be a pivotal trial in the landscape of NASCAR’s governance and business practices.

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