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While being interviewed for an oral history project for UC-Berkeley’s Bancroft Library in 1992, Bay Area philanthropist Richard Goldman made several derogatory remarks about Rabbi Pinchas Lipner. But Lipner, founder and dean of the Hebrew Academy of San Francisco, didn’t find out until nine years later, when a woman doing research for a book on him discovered the comments in a bound volume. An enraged Lipner sued for defamation. The two men’s dispute goes before the California Supreme Court today during oral arguments in Santa Rosa to determine whether too much time had passed for Lipner to sue. That decision will depend on whether the court finds that the oral history project’s limited distribution prevented Lipner from seeing the comments and, therefore, placed a one-year statute of limitations on hold until he knew, or should have known, about them. Dozens of research and publishing entities have signed on as amici curiae, arguing that a decision to let the lawsuit proceed could lead to similar suits that would have a chilling effect on their work. “Thousands of libraries and archives will be subject to grave uncertainty as to the millions of volumes in their special collections that will suddenly be open season for litigation,” Jeremy Rosen, an associate with Encino’s Horvitz & Levy, wrote for 15 research groups and associations in one amicus brief. “Smaller publishers and lesser-known authors will similarly be at risk.” Rosen has been given 10 minutes of defendant Goldman’s 30 minutes to argue the amici’s position. The saga began in 1990 when the Bancroft Library’s Regional Oral History Office began conducting interviews with 15 past presidents of the Jewish Community Federation of San Francisco, The Peninsula, Marin and Sonoma Counties, in order to document Jewish philanthropy in the Bay Area for the previous half century. As part of that project, one of those former presidents, Goldman, was interviewed four times in 1992. In the final copyrighted transcript, which was published and stored at the library a year later, Goldman made several unflattering remarks about Lipner. Among them, Goldman said Lipner wasn’t an honorable man, was “self-serving and an embarrassment,” had been run out of other communities and was so tyrannical that children at the academy “would stand at attention as if it were the Fuhrer walking in” when Lipner entered a classroom. Lipner filed suit against Goldman and the Jewish Federation in 2002. He was particularly offended by the reference to Hitler because he had lived under Nazi occupation in Romania and had lost many relatives in the Holocaust. San Francisco Superior Court Judge Ronald Quidachay granted the defendants summary judgment in 2004, holding that Lipner had missed the one-year statute of limitations for filing a libel suit. But in a 2-1 ruling in 2005, San Francisco’s First District Court of Appeal reversed, holding that the statute of limitations doesn’t apply to suits involving documents, such as the Bancroft Library’s oral histories, that have a limited distribution and are viewed mostly by historians. The statute of limitations, the court held, only applies to suits against the mass media � such as newspapers and magazines � that are protected by the state’s single publication rule. That rule limits plaintiffs to one tort claim no matter how many editions republish the allegedly defamatory comments, preventing publishers from being hit with a separate libel claim for each newspaper or magazine on the stands. The appeal court called Goldman’s oral history remarks about Lipner “inherently undiscoverable” because they were apparently only physically accessible at the Bancroft Library and UCLA’s Charles E. Young Research Library. Justice Paul Haerle dissented, though, contending that the oral history in question, printed at an institution such as the University of California and available to any member of the public who asks, should be considered to be more like any other book or magazine. In briefs filed with the Supreme Court, Goldman’s attorneys � Michael Cooper, a partner in San Francisco’s Carlson, Calladine & Peterson, and Barry Lee, a partner in Steefel, Levitt & Weiss’ San Francisco office � built on Haerle’s dissent. They insisted that rather than being limited, transcripts of the Bancroft Library’s oral histories can be found in more than 700 libraries worldwide and are catalogued on two nationally accessible Internet databases. “The concern of multiple lawsuits arising from a volume’s single publication is apparent,” Cooper and Lee wrote. “Without the protection of the single publication rule, each access by a member of the public to an [oral history] volume triggers another ‘publication’ and, thus, another potential cause of action for libel.” Berkeley solo practitioner Paul Kleven, who represents Lipner, disagreed, arguing in court papers that the Goldman interviews weren’t accessible to the public “in any normal sense of the word.” Only in Berkeley and at UCLA, he said, could anyone view the actual volumes in which they were contained. “While there are apparently references to the transcript in online catalogs and databases,” he argued, “the public could not use the entries to actually read any portion of the transcript. The entries make clear that the transcript ‘is made available for research purposes only,’ and that it is ‘non-circulating; may be used only in the Bancroft Library.’” When contacted recently, Kleven said Lipner only wants to salvage his besmirched reputation. “If you are defamed in a newspaper and a book and you don’t find out about it [soon enough], you’re out of luck,” Kleven said. “But in this case there was no constructive noise, no reason the rabbi would have known about it [earlier].” Cooper, who will argue Goldman’s case, refused to comment, and efforts last week to reach Lee, Goldman’s other lawyer, were unsuccessful. Chief Justice Ronald George and Justice Kathryn Mickle Werdegar won’t participate in the argument for unexplained reasons. Sitting in their stead will be Justices Robert Mallano and Nora Manella of Los Angeles’ Second District. The case is Hebrew Academy of San Francisco v. Goldman, S134873.

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