NASCAR and 23XI Racing Clash Over Courtroom Presence of Key Figures as Antitrust Trial Looms

As the highly anticipated antitrust trial between 23XI Racing and Front Row Motorsports against NASCAR approaches its commencement, a significant procedural dispute has emerged regarding the courtroom presence of key individuals associated with 23XI Racing. NASCAR has formally petitioned the court to exclude two of the three principal owners of 23XI Racing – Denny Hamlin and Curtis Polk – from being present in the courtroom while other witnesses are delivering testimony. This motion is grounded in the Federal Rules of Evidence, specifically Rule 615, which governs the exclusion of witnesses.

Rule 615, often referred to as the "witness sequestration rule," mandates that a court, upon the request of a party, must order witnesses to be excluded from the courtroom to prevent them from hearing the testimony of other witnesses. The rule’s primary objective is to prevent witnesses from tailoring their statements based on prior testimony, thereby enhancing the reliability of their individual accounts and aiding in the detection of inconsistencies or fabricated evidence. While the rule generally applies to all witnesses, it includes an exception for "any person… shown to be essential to the claim or defense."

In this high-stakes legal battle, 23XI Racing has designated NBA legend Michael Jordan as the individual representing the party, thereby allowing him to remain in the courtroom regardless of witness testimony. However, the team is actively contesting NASCAR’s request to exclude both Hamlin and Polk, arguing for their continued presence throughout the proceedings.

The legal arguments presented by 23XI Racing, articulated in a written motion filed by lead attorney Jeffrey Kessler, hinge on several points. Firstly, Curtis Polk’s status as a party to the action is highlighted. Polk was initially named as a counter-defendant in NASCAR’s countersuit. Although this counterclaim was subsequently dismissed by Judge Kenneth D. Bell, 23XI Racing points to NASCAR’s indication of a potential appeal. This prospective appeal, they contend, means Polk’s status as a party remains relevant until a final judgment is rendered under Federal Rule of Civil Procedure 54. The motion states, "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 party status, 23XI Racing asserts that both Polk and Hamlin are indispensable to the effective presentation of their case. The team argues that Polk’s extensive involvement in the crucial 2025 Charter Agreement negotiations and his intimate knowledge of the attendant facts and circumstances are vital for counsel to construct a comprehensive narrative. Similarly, Denny Hamlin’s unique position as a driver competing in NASCAR, an owner of 23XI Racing, and his direct involvement in the events leading up to the litigation are deemed essential. 23XI Racing’s motion elaborates, "Second, Mr. Polk and Mr. Hamlin are essential to the presentation of Plaintiffs’ case against NASCAR. Even if Mr. Polk is not considered a party for purposes of Rule 615, he is essential given his extensive role in the 2025 Charter Agreement negotiations, and his knowledge of the facts and circumstances are necessary to aid counsel in presenting Plaintiffs’ case. 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." The team’s legal team has also indicated they have no objection to members of the NASCAR-owning France family attending the trial for similar strategic reasons.

NASCAR, represented by lead attorney Chris Yates, has presented a strong counterargument, emphasizing the fundamental purpose of witness sequestration. Citing the precedent set in Opus 3 Ltd. v. Heritage Park, Inc., NASCAR underscores the established principle 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." The sanctioning body reiterates that Rule 615 is specifically designed to "preclude fact witnesses from shaping their testimony based on other witnesses’ testimony" and contends that Hamlin and Polk do not qualify for any of the rule’s exceptions.

NASCAR disputes 23XI Racing’s assertion that there is no concern about the potential influencing of testimony. Their legal team argues that Plaintiffs’ counsel cannot justify the presence of multiple key fact witnesses under the exceptions to Rule 615. They further point out that the Fourth Circuit, adhering to a "presumption favoring sequestration," construes these exceptions narrowly in favor of the party requesting sequestration. Consequently, the burden rests on the party seeking to avoid sequestration to demonstrate that an exception applies.

Reinforcing their position, NASCAR draws upon another legal precedent, United States v. Olofson, to argue that simply labeling an individual as a "critical witness" is insufficient to warrant an exception to sequestration. NASCAR’s overarching stance is that Jordan, Polk, and Hamlin are all pivotal fact witnesses whose testimony is central to the disputed issues in this case. Therefore, to mitigate the risk of their testimony being influenced, the court should issue an order enforcing sequestration under Rule 615(a) and (b).

The judge is expected to render a decision on this matter imminently, likely before the upcoming Thanksgiving holiday. The outcome of this dispute over courtroom presence could have a subtle yet significant impact on the dynamics of the trial and the presentation of evidence by both parties.

This legal wrangling unfolds against the backdrop of a broader antitrust lawsuit filed by 23XI Racing and Front Row Motorsports, which alleges that NASCAR’s business practices, particularly concerning the charter system, are anticompetitive. The charter system, introduced in 2016, guarantees participating teams a share of NASCAR’s revenue and a place in the Daytona 500, among other benefits. However, the plaintiffs argue that the current structure stifles innovation and limits growth opportunities for teams outside the established elite. NASCAR, conversely, maintains that its practices are pro-competitive and essential for the sustainability of the sport. The upcoming trial will scrutinize these claims, with the court’s ruling on witness exclusion being an early procedural hurdle.

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