With less than a week to go until the 23XI Racing and Front Row Motorsports v NASCAR antitrust trial begins, the Sanctioning Body motioned the court to have 23XI exclude two if its three owners from the room while others are on the stand.
This is under the ‘Federal Rules of Evidence; 615,’ which states that ‘at a party’s request, the court must order witnesses excluded from the courtroom so that they cannot hear other witnesses’ testimony. Or the court may do so on its own’ but does not include the individual representing the party at trial, ‘any person … shown to be essential; to the claim or defense.’
This is for the purpose of ‘prohibit(ing) disclosure of trial testimony to witnesses who are excluded from the courtroom; and ‘prohibit(ing) excluded witnesses from accessing trial testimony.’
For the sake of this trial, NASCAR wanting two of Denny Hamlin, Michael Jordan and Curtis Polk not allowed in the court room unless they were taking the witness stand under this provision. In response, 23XI designated Jordan as the ‘individual representing the party’ but is also motioning the court to allow all three in.
For one, 23XI through a written motion penned by lead attorney Jeffrey Kessler said that Polk was a counter-defendant to NASCAR’s countersuit. That counterclaim has since been tossed out by Judge Kenneth D. Bell, but since the Sanctioning Body has indicated a likelihood of appeal, the team says Polk should also be permitted.
From the motion:
“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.”
23XI also makes the following case to have Hamlin and Polk sit in on the entire trial:
“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.”
They also state they have no objection to multiple members of the NASCAR-owning France family all sitting in on the trial for the same reasons.
Meanwhile, NASCAR through lead attorney Chris Yates used powerful language, in the form of a precedence, as for a reason to exclude Hamlin and Polk.
“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.’”’
That is from Opus 3 Ltd. v. Heritage Park, Inc., for those keeping score at home.
NASCAR reiterated that Rule 615 ‘is designed to preclude fact witnesses from shaping their testimony based on other witnesses’ testimony’ and that all three do not fall within the rule’s exceptions.
Also:
“NASCAR disputes the representation by Plaintiffs’ counsel that there is no ‘worr[y] about [the] influencing’ of testimony.
“Plaintiffs cannot justify the attendance of multiple key fact witnesses through Rule 615’s exceptions. Because of the ‘presumption favoring sequestration,’ the Fourth Circuit construes these exceptions ‘narrowly in favor of the party requesting sequestration,’ and the ‘party seeking to avoid sequestration of a witness bears the burden of proving” that an exception applies.’”
NASCAR again cites the Opus precedence but then the United States v Olofson precedence for anther reason:
“Stating that a party is a ‘critical witness’ is ‘insufficient.”
All told, the NASCAR position is that Jordan, Polk and Hamlin ‘are all key fact witnesses whose testimony is crucial to the disputed issues in this case,’ and ‘To remove the possibility that they tailor their testimony, this Court should issue an order under Rule 615(a) and (b).’
The judge will next rule on this matter, surely before the Thanksgiving holiday.
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