Fifty-seven years ago the Music Died. On Feb 3, 1959, a small aircraft carrying rock and roll legends Buddy Holly (“Everyday,” ”It’s So Easy,” “Peggy Sue,” and a whole lot of other, crucial early rock and roll tunes), Ritchie Valens (“La Bamba,” “Come On, Let’s Go”), and J.P. Richardson, aka the Big Bopper (“Chantilly Lace”) crashed in Clear Lake, Iowa. It is the precipitating event in Don McLean’s eight and a half minute 1971 pop hit “American Pie.” (Hence, “But February made me shiver/with every paper I’d deliver/bad news on the doorstep/I couldn’t take one more step.”) The plane was a four-seater, so only three passengers could join the pilot for the short flight to the next stop, which was Moorhead, Minnesota – through a blizzard. One of Holly’s backing musicians, Waylon Jennings, was also supposed to be on the plane, but he gave up his seat to the Big Bopper, who was suffering from the flu. In some versions of the story, Jennings lost a coin toss. But that is not the story on the official Waylon Jennings website. In any event, Jennings rode the bus. As a result, he lived another 43 years. Fate gave Jennings a second chance. He didn’t waste it. Jennings had a fine career as an outlaw C&W star. His catalogue is impressive: “Luckenbach, Texas,” “Are You Sure Hank Done it this Way, “ “Mamas, Don’t Let Your Babies Grow Up to be Cowboys,” and many more. Jennings was also the balladeer/narrator on the Dukes of Hazzard tv show.
Jennings was also for a while part of a supergroup called The Highwaymen, which included a few other fellas you might have heard of: Johnny Cash, Willie Nelson, and Kris Kristofferson. And now our little account must take a legal detour. There was an earlier musical group called The Highwaymen. Some Wesleyan students got together to perform folk music. Turns out they were pretty good. They had a hit record in 1961 with their version of “Michael, Row the Boat Ashore.” Those original Highwaymen were an impressive lot. Several went on to graduate school. Stephen Trott was one of the Highwaymen. He attended Harvard Law School, became a prosecutor, and later became a Ninth Circuit Judge. So maybe it’s not much of a surprise that these original, collegiate Highwaymen filed a lawsuit against Waylon, Willie, et al. for appropriating their group’s name. Like most cases, it settled. Unlike most cases, the settlement included a provision permitting the original Highwaymen to share the stage with the more famous folks during a 1990 concert in Hollywood.
Back to the main branch of our story. Maybe Jennings never quite entered the pantheon alongside Holly. Or maybe he did. Either way, he did okay. He used his second chance well.
Holly, of course, was a genuine musical genius and had attained stardom by 1959. Jennings back then was a sometime dj and sometime musician who had been given a big break when Holly invited him along on the Winter Dance Party tour. As the musicians gathered outside that little plane on that cold, blustery Iowa night, Holly jokingly told Jennings he hoped the bus would break down and that Jennings would freeze. Just as jokingly, Jennings said, “I hope your ol’ plane crashes.” Understandably, Waylon was always haunted by that near miss back in 1959. You can see a video of Jennings telling the story here.
Today’s case is about a second chance.
We are talking about the dismal topic of document confidentiality. Many — definitely too many — documents are produced in mass tort litigations. Almost all those documents are produced by the corporate defendants. Most end up having nothing to do with the case. If two million documents are produced in an MDL, fewer than 200 are likely ever to be marked as exhibits at trial. But producing all those documents is wickedly expensive for the company, a lot say things that no company would want to become public, so what the hey, why shouldn’t the plaintiff lawyers have a little fun? A lot of those documents involve proprietary information about marketing, pricing, new avenues of scientific research, etc. – all things that a competitor would enjoy reading. (We remember a professor in law school suggesting that companies wishing to engage in joint-pricing arrangements would be smart to file bogus law suits against each other occasionally and then use document discovery as a way of learning, and then coordinating, pricing strategies. Yes, our law school had as many cynics