With less than a week until the 23XI Racing and Front Row Motorsports v. NASCAR antitrust lawsuit begins, the sanctioning body has asked the court that 23XI bar two of its three owners from the venue while others take the stand.
This is governed by the “Federal Rules of Evidence; “615,” which states that “upon request of a party, the court shall order witnesses to be excluded from the courtroom so that they may not hear the testimony of other witnesses.” The court may also do so itself,” but does not include the person who represents the party at trial, “any person… who proves essential; to the claim or defense.
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This is to “prohibit the disclosure of trial testimony to witnesses who are excluded from the courtroom; and “prohibiting excluded witnesses from accessing trial testimony.”
For the sake of this trial, NASCAR wanted two of Denny Hamlin, Michael Jordan and Curtis Polk not to be allowed in the courtroom unless they were on the witness stand under this provision. In response, 23XI named Jordan as a “person representing the party,” but also asks the court to allow the three to enter.
On the one hand, 23XI, through a written motion authored by lead attorney Jeffrey Kessler, said Polk was a counter-defendant in the NASCAR countersuit. That counterclaim has since been dismissed by Judge Kenneth D. Bell, but since the sanctioning body has indicated a likelihood of appeal, the team says Polk should also be allowed.
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Michael Jordan, co-owner of 23XI Racing
Michael Jordan, co-owner of 23XI Racing
Excerpt from the motion:
“The Court’s summary judgment does not change its party status until there is a final judgment under Federal Rule of Civil Procedure 54. Additionally, NASCAR has already indicated that it plans to appeal this Court’s decision in an effort to resurrect the counterclaim, which is based on many of the same facts as the plaintiffs’ claims. Mr. Polk should therefore be allowed to attend the trial in its entirety as a party to the action. “
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23XI also makes the following arguments for Hamlin and Polk to participate in the entire trial:
“Second, Mr. Polk and Mr. Hamlin are essential to the presentation of Plaintiffs’ case against NASCAR. Although Mr. Polk is not considered a party for purposes of Rule 615, he is essential given his significant role in the negotiations of the 2025 charter agreement, and his knowledge of the facts and circumstances is necessary to assist counsel in presenting the Plaintiffs’ case. Mr. Hamlin further presents a unique perspective and role in the operations of 23XI, competing in NASCAR as a driver, and the preparation of the facts that gave rise to this litigation These two owners act as separate pieces of the puzzle, each of which is necessary for the attorney to be able to provide a complete picture to the jury.
They also say they have no objection to several members of the French family, which owns NASCAR, all participating in the lawsuit for the same reasons.
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Meanwhile, NASCAR, through lead counsel Chris Yates, used powerful language, in the form of precedence, as a reason to exclude Hamlin and Polk.
“It is “well recognized that the sequestration of witnesses” is (next to cross-examination) one of the greatest tools that the skill of man has ever invented for detecting liars in a court of law. » »
This is Opus 3 Ltd. v. Heritage Park, Inc., for those keeping score at home.
NASCAR reiterated that Rule 615 “is designed to prevent fact witnesses from shaping their testimony based on the testimony of other witnesses” and that all three are not exceptions to the rule.
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Also:
“NASCAR disputes plaintiffs’ counsel’s statement that there is no ‘concern about (the) influence’ of the testimony.
“Plaintiffs cannot justify the appearance of multiple key fact witnesses through the Rule 615 exceptions. Because of the “presumption favoring sequestration,” the Fourth Circuit interprets these exceptions “narrowly in favor of the party seeking sequestration,” and the “party seeking to avoid sequestration of a witness bears the burden of proving” that an exception applies.
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NASCAR again cites the precedence of the Opus but then the United States vs. Olofson priority for another reason:
“Declaring a party to be a “critical witness” is “insufficient.”
In total, NASCAR’s 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 eliminate the possibility that they will tailor their testimony, this Court should enter an order under Rules 615(a) and (b).’
The judge will rule on this issue soon, probably before the Thanksgiving holiday.
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Also read:
Richard Childress considers legal action against texts from NASCAR executives
How NASCAR’s Ownership Charter System Works
NASCAR wanted ‘knife’ put in SRX ‘trash’ amid charter negotiations
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