# Wahab v. Wahab

> District Court, D. Oregon · August 2, 2024

URL: https://www.frixlaw.com/law-library/cases/10666318

## Case

- **Court:** District Court, D. Oregon
- **Decided:** August 2, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10666318

## How later opinions describe it (automated extraction)

- noting that “the substantive law of the State of Oregon applie[d] to th[e] diversity claim” (citing Zamani v. Carnes, 491 F.3d 990, 995 (9th Cir. 2007))
- describing a defamatory statement in the same manner and stating that such a statement “can be the basis for a defamation claim”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

EBRAHIM WAHAB, Case No. 3:23-cv-00098-SB

Plaintiff, OPINION AND ORDER

v.

SAIMA WAHAB,

Defendant.

BECKERMAN, U.S. Magistrate Judge.
Pursuant to Federal Rule of Civil Procedure (“Rule”) 56(a), Defendant Saima Wahab
(“Defendant”) moves for summary judgment on Plaintiff Ebrahim Wahab’s (“Plaintiff”) sole
claim for defamation. The Court has jurisdiction over this matter pursuant to 28 U.S.C.
§ 1332(a), and the parties have consented to the jurisdiction of a magistrate judge pursuant to 28
U.S.C. § 636(c). For the reasons explained below, the Court grants Defendant’s motion for
summary judgment.
BACKGROUND
The following facts are undisputed. Defendant is Plaintiff’s niece and Plaintiff bases his
claim on allegedly defamatory statements that Defendant made about Plaintiff in a “Viber” group
“text message.”1 (Compl. at 5-6, ECF No. 2; see also Def.’s Answer, Affirmative Defs., &
Countercls. ¶ 4, ECF No. 33, admitting that Defendant is Plaintiff’s niece and sent the “text
message . . . at issue”). The recipients of Defendant’s message are all members of the parties’
family. (See Compl. at 4-7, 11, identifying the recipients as eight couples, including six people
with the surname “Wahab,” all of whom are Plaintiff’s “relatives”; Def.’s Answer, Affirmative

Defs., & Countercls. ¶ 6, admitting that Defendant sent the message to “several of her family
members”).
Defendant sent the message, which was titled “[W]ahab pedophile alert,” on May 8,
2022, after attending a family gathering at Plaintiff’s nephew’s house, at which Plaintiff, the
message recipients, and the message recipients’ children were present. (Compl. at 5-10; Def.’s
Answer, Affirmative Defs., & Countercls. ¶¶ 4, 6.) In the message, Defendant stated that
Plaintiff molested her as a child, she was concerned about the recipients’ children, and she
believed it was her obligation to warn the recipients that their children were not safe around
Plaintiff:

[Plaintiff] is a pedophile. He molested me when I was a child in [K]abul for
months. It started when my father was taken and it went on until the pedophile left
Afghanistan. Last night seeing him hug [a young family member] broke my heart.
I feel that I have to stop hiding this truth. It’s not my shame. It’s his. My fight and
fall out with [Plaintiff’s two brothers] were also a direct result of them choosing a
child molester over me. When the pedophile came to live with us in [Portland], I
told [Plaintiff’s brothers] what he had done to me as a child. I told them I couldn’t
live having him in my life, and they both picked their brother over me. It’s a
choice they made and their choice made me realize how weak [Plaintiff’s
brothers] are. I decided to go my separate ways, and I have not regretted my

1 Viber is an Internet-based application that allows users to send written messages. See
United States v. Cooper, 926 F.3d 718, 733 (11th Cir. 2019) (discussing the “cell-phone
application[] Viber”); United States v. Davitashvili, 602 F. Supp. 3d 704, 711 n.3 (E.D. Pa. 2022)
(“Viber is an Internet messaging application that allows the user to send and receive audio calls,
video calls, written messages, photos, and videos after downloading the software from the
Internet.”) (simplified). Plaintiff attaches screenshots of the Viber “phone app” message to his
complaint. (See Compl. at 6, 8-10.)
decision. I do know both [of Plaintiff’s brothers] are sorry now but I can’t forgive
them for threatening to get the pedophile a lawyer to sue me if I went public about
the abuse[,] [w]hich is what [Plaintiff’s eldest brother did] in my final argument
with him.
I am not rehashing the past to get your sympathy or ask for understanding. I am
only telling you all because now you have daughters and you have sons and I see
you are giving a pedophile access to your children, not knowing what he’s
capable of. It’s my obligation to warn you that your children are not safe around
him. If you still choose to socialize with him, it’s on you. I am telling you in clear
language he is a child molester, and once a child molester, always a child
molester. There is no need for any[] of you to message or respond to this message
because I know some of you would be forced to finally pick a side which makes
you uncomfortable but I am more concerned about your children. They need
protection from the evil around them. But if you need to talk about this, like I
said, it’s not my shame. I will talk. It’s the truth and if [Plaintiff’s brothers] were
half the men they think they are, they would’ve stood by me and right now
[Plaintiff] would not be having dinner with your children. Only in [an] Afghan
family, a child molester would be protected to protect the family name. In any
decent society, he would be forced to register as a pedophile, and would be jailed
if he was seen hugging a child.
(Compl. at 8; Def.’s Answer, Affirmative Defs., & Countercls. ¶¶ 4, 6.)
LEGAL STANDARDS
“A grant of summary judgment is appropriate when ‘there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.’” Albino v. Baca, 747
F.3d 1162, 1168 (9th Cir. 2014) (en banc) (quoting FED. R. CIV. P. 56(a)). “[T]he mere existence
of some alleged factual dispute . . . will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material fact.” Scott v.
Harris, 550 U.S. 372, 380 (2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-
48 (1986)).
“A material fact is one that is needed to prove (or defend against) a claim, as determined
by the applicable substantive law.” Simmons v. G. Arnett, 47 F.4th 927, 932 (9th Cir. 2022)
(citing Nat’l Am. Ins. Co. v. Certain Underwriters at Lloyd’s London, 93 F.3d 529, 533 (9th Cir.
1996)); see also Fresno Motors, LLC v. Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir.
2014) (“A fact is ‘material’ only if it might affect the outcome of the case[.]” (quoting Anderson,
477 U.S. at 248)). “An issue of material fact is genuine if there is sufficient evidence for a
reasonable jury to return a verdict for the non-moving party.” Brown v. Arizona, 82 F.4th 863,
874 (9th Cir. 2023) (en banc) (quoting Karasek v. Regents of Univ. of Cal., 956 F.3d 1093, 1104
(9th Cir. 2020)); see also Fresno, 771 F.3d at 1125 (“[A] dispute is ‘genuine’ only if a

reasonable trier of fact could resolve the issue in the non-movant’s favor.” (quoting Anderson,
477 U.S. at 248)).
In determining whether a genuine issue of material fact exists, a court must view the
evidence in the light most favorable to, and draw all justifiable inferences in favor of, the
nonmoving party. See McNeil v. Sherwood Sch. Dist. 88J, 918 F.3d 700, 706 (9th Cir. 2019) (per
curiam) (“The court views ‘evidence in the light most favorable to the nonmoving party,’ to
determine ‘whether genuine issues of material fact exist.’” (quoting George v. Edholm, 752 F.3d
1206, 1214 (9th Cir. 2014))); Brown, 82 F.4th at 874 (“When determining whether a genuine
issue of material fact exists, [a court] ‘must draw all justifiable inferences in favor of the

nonmoving party.’” (quoting Howard v. HMK Holdings, LLC, 988 F.3d 1185, 1189 (9th Cir.
2021))). In doing so, a “court . . . may not judge credibility, weigh the evidence, or resolve
factual disputes[.]” Clarkson v. Alaska Airlines, Inc., 59 F.4th 424, 437 (9th Cir. 2023) (citing
Anderson, 477 U.S. at 255).
DISCUSSION
Defendant moves for summary judgment on Plaintiff’s defamation claim. (Def.’s Mot.
Summ. J. (“Def.’s Mot.”) at 2, ECF No. 100.) The Court concludes that there are no genuine
issues of material fact precluding summary judgment in Defendant’s favor, and thus grants
Defendant’s motion.
///
I. APPLICABLE LAW2
The Oregon Supreme Court has “recognized a common-law action for defamation for
injury to reputation for over 150 years.” Neumann v. Liles, 369 P.3d 1117, 1121 (Or. 2016)
(citation omitted). Under Oregon law, defamation comprises both libel (injurious written or
printed words) and slander (injurious spoken words). See id. (discussing actionable forms of

defamation and explaining that “[l]ibel[] . . is[] defamation by written or printed words” and
“[s]lander . . . is defamation by spoken words” (citing Hinkle v. Alexander, 417 P.2d 586, 589
(Or. 1966))).
A. Elements of Defamation
1. Defamatory Statements and Publication
“To establish a claim for defamation, a plaintiff must show that a defendant made a
defamatory statement about the plaintiff and published the statement to a third party.” Neumann,
369 P.3d at 1121 (citing Wallulis v. Dymowski, 918 P.2d 755, 757-58 (Or. 1996)). The Oregon
Supreme Court has explained that “[a] defamatory statement is one that would subject the
plaintiff ‘to hatred, contempt or ridicule[,] tend to diminish the esteem, respect, goodwill or
confidence in which [the plaintiff] is held[,] or . . . excite adverse, derogatory or unpleasant

feelings or opinions against [the plaintiff].’” Id. (ellipses omitted) (quoting Farnsworth v. Hyde,

2 The Court has diversity jurisdiction over this defamation action. See Wahab v. Wahab,
No. 3:23-cv-00098-SB, 2023 WL 5035662, at *1 & n.2 (D. Or. Aug. 8, 2023) (recognizing that
the parties are diverse because Plaintiff and Defendant are citizens of Oregon and the District of
Columbia, respectively, and Plaintiff seeks damages satisfying the amount-in-controversy
requirement (citing 28 U.S.C. § 1332(a) and Strotek Corp. v. Air Transp. Ass’n of Am., 300 F.3d
1129, 1130-31 (9th Cir. 2002))). As a result, the Court must apply Oregon substantive law. See
Or. Clinic, PC v. Fireman’s Fund Ins. Co., 75 F.4th 1064, 1068 (9th Cir. 2023) (exercising
diversity jurisdiction and therefore applying Oregon law (citing Alexander Mfg., Inc. Emp. Stock
Ownership Plan & Tr. v. Ill. Union Ins. Co., 560 F.3d 984, 986 (9th Cir. 2009))); Baldin v. Wells
Fargo Bank, N.A., 704 F. App’x 715, 716 n.1 (9th Cir. 2017) (noting that “the substantive law of
the State of Oregon applie[d] to th[e] diversity claim” (citing Zamani v. Carnes, 491 F.3d 990,
995 (9th Cir. 2007))).
512 P.2d 1003, 1004 (Or. 1973)); Lowell v. Wright, 512 P.3d 403, 411 (Or. 2022) (describing a
defamatory statement in the same manner and stating that such a statement “can be the basis for
a defamation claim”).
“To be actionable, a [statement] must be both false and defamatory.” Reesman v. Highfill,
965 P.2d 1030, 1034-35 (Or. 1998) (citing Harley-Davidson v. Markley, 568 P.2d 1359, 1361-62

(Or. 1977)); see also Kolwitz v. Lincoln Cnty. ex. rel. Lincoln Cnty. Sheriff’s Off., 520 F. App’x
570, 570-71 (9th Cir. 2013) (holding that the self-represented plaintiffs “failed to raise a triable
dispute as to [the] required elements” of their defamation claim, and noting that “for a statement
to be actionable under Oregon law, the statement at issue must be both defamatory and false”
(citing Reesman, 965 P.2d at 1034)). “In general, a statement is published when it is
communicated to a third party.” Wallulis, 918 P.2d at 758 (citing State ex rel. Advanced
Dictating v. Dale, 524 P.2d 1404, 1406 (1974)). Thus, “if a person makes a defamatory
statement about another person, but that statement is not conveyed to a third party, no
publication has occurred.” Id.

2. Pecuniary Loss or Special Harm
“In defamation [cases], a plaintiff ordinarily must show that a defamatory publication
resulted in ‘special harm.’” NV Transp., Inc. v. V&Y Horizon, Inc., 462 P.3d 278, 283-84 (Or. Ct.
App. 2020); see also Herrera v. C & M Victor Co., 337 P.3d 154, 161-62 (Or. Ct. App. 2014)
(“Special harm is the loss of something having an economic or pecuniary value[.]” (quoting
Nat’l Union Fire Ins. Co. v. Starplex Corp., 188 P.3d 332, 348 (Or. Ct. App. 2008))). In some
cases, however, “defamatory statements are actionable per se,” Neumann, 369 P.3d at 1121, “on
the theory that their injurious character is admitted by all . . . ; and that on that account they are
conclusively presumed to result in damage.” NV Transp., 462 P.3d at 283 (quoting L & D of Or.,
Inc. v. Am. States Ins. Co., 14 P.3d 617, 621-22 (Or. Ct. App. 2000)). When that is the case, the
plaintiff need not present proof of pecuniary loss or special harm. See Lowell, 512 P.3d at 411
(“Because the claim is libel per se, plaintiff [was] not obliged to prove a third element: that the
defamatory statement caused pecuniary loss or special harm.” (citing Brown v. Gatti, 145 P.3d
130, 133 (Or. 2006))); NV Transp., 462 P.3d at 283-84 (“[T]he requirement for proof of special
harm is dispensed with if the defamatory statement is deemed to be defamatory per se.”) (citation

omitted).
B. Forms of Privilege
Oregon courts have recognized that “[a] statement that is otherwise defamatory is
privileged if it is uttered under such circumstances that the law grants immunity to the speaker.”
Mannex Corp. v. Bruns, 279 P.3d 278, 285 (Or. Ct. App. 2012) (citing Wattenburg v. United
Med. Laboratories, Inc., 525 P.2d 113, 114 (Or. 1974)). “There are two forms of privilege that
may apply in a defamation action; a defamatory statement may be either ‘absolutely privileged’
or ‘qualifiedly [or conditionally] privileged.’” Wallulis, 918 P.2d at 760; see also id. n.5 (“In
some cases, the term ‘conditional privilege’ is used, while in others the term ‘qualified privilege’
is used. In this context those terms have the same meaning. In this opinion, we use ‘qualified

privilege.’”).3
An “absolute privilege . . . bars [a] defamation claim altogether.” DeLong v. Yu Enters.,
Inc., 47 P.3d 8, 10 (Or. 2002) (citing Moore v. West Lawn Mem’l Park, 512 P.2d 1344, 1346 (Or.
1973)). “By contrast, a qualified privilege does not bar the action, but [it does] require[] the
plaintiff to prove that the defendant abused the privileged occasion, in order to recover from the
defendant.” Wallulis, 918 P.2d at 760-61 (simplified) (quoting Bank of Or. v. Indep. News, 693
P.2d 35 (1985)). “Generally, a qualified privilege exists to protect three kinds of statements:

3 In this opinion, the Court uses the term “conditional privilege,” unless quoting another
source.
(1) those made to protect the defendant’s interests; (2) those made to protect the plaintiff’s
employer’s interests; or (3) those made on a subject of mutual concern to the defendant and the
persons to whom the statement was made.” DeLong, 47 P.3d at 10 (citing Wallulis, 918 P.2d at
762).
II. ANALYSIS

Defendant argues that she is entitled to summary judgment on Plaintiff’s defamation
claim on multiple grounds. (Def.’s Mot. at 6; Def.’s Reply Pl.’s Resp. Def.’s Mot. Summ. J.
(“Def.’s Reply”) at 1-4, ECF No. 110.) First, Defendant argues that “Plaintiff cannot prove that
Defendant’s statements are false, which is an essential element of [Plaintiff’s] defamation claim
under Oregon law.” (Def.’s Mot. at 6.) Second, Defendant argues that her “statements were
conditionally privileged, and Plaintiff cannot prove that the privilege was abused.” (Id.) Third,
Defendant argues that her “statements [constituted] non-actionable, protected opinion speech.”
(Id.)
The Court agrees that Defendant’s statements were conditionally privileged, and that
Plaintiff fails to raise a genuine dispute of material fact as to whether Defendant abused her

privilege. As a result, the Court grants Defendant’s motion for summary judgment on Plaintiff’s
defamation claim.4
A. Plaintiff’s Prima Facie Claim
There is no dispute that Defendant sent the message at issue, which included Defendant’s
statements that “Plaintiff is a pedophile, and that Plaintiff molested Defendant when she was a

4 The Court overrules as moot Defendant’s evidentiary objections (see Def.’s Reply at 4-
6), because the inclusion or exclusion of the challenged evidence would not change the Court’s
opinion on Defendant’s motion. See Bibiyan v. Marjan Television Network, Ltd., No. 18-cv-
0877, 2019 WL 422664, at *1 (C.D. Cal. Feb. 4, 2019) (“Any evidentiary objection that is not
explicitly addressed herein is overruled as moot, given that the inclusion or exclusion of such
evidence would not change the Court’s ruling on Defendant’s motion.”) (simplified).
child.” (Def.’s Answer, Affirmative Defs., & Countercls. ¶ 4.) As the Court has previously
observed, Plaintiff’s defamation claim is appropriately characterized as a defamation per se
claim, see Wahab, 2023 WL 5035662, at *10, as Defendant’s statements imputed to Plaintiff the
commission of a crime involving moral turpitude. See Herrera, 337 P.3d at 163 (“[T]o prove a
claim for defamation per se, plaintiff had the burden of proving that defendant made a false

statement, published to a third party, that—as pertinent here—either (1) tended to injure plaintiff
in his profession or business; or (2) imputed to plaintiff the commission of a crime involving
moral turpitude.” (citing Marleau v. Truck Ins. Exch., 37 P.3d 148, 155 (Or. 2001)).
Given Plaintiff’s assertion of a defamation per se claim, Plaintiff can establish his prima
facie case by demonstrating that Defendant published to a third party a defamatory statement
about Plaintiff (i.e., Plaintiff does not need to present proof of pecuniary loss or special harm).
See Lowell, 512 P.3d at 411 (“[T]o establish a prima facie claim of libel per se, subject to
defenses, plaintiff must prove that defendants made a defamatory statement about him and
published the statement to a third party. . . . Because the claim is libel per se, plaintiff is not

obliged to prove a third element: that the defamatory statement caused pecuniary loss or special
harm.” (citing Neumann, 369 P.3d at 1121 and Brown, 145 P.3d at 133)). Even if Plaintiff has
established a prima face case, Plaintiff’s defamation per se claim remains “subject to defenses.”
See id.; see also Schafroth v. Baker, 553 P.2d 1046, 1046-48 (Or. 1976) (rejecting the plaintiff’s
argument in a slander case that the “doctrine of qualified privilege [was] not available as a
defense to an accusation of criminal conduct,” noting that the “authorities are to the contrary,”
and holding that “qualified privilege may be a defense to an accusation of criminal conduct”).
B. Defendant’s Conditional Privilege
The undisputed facts demonstrate that Defendant’s statements were conditionally
privileged. The record also demonstrates that Plaintiff fails to raise a genuine issue of material
fact as to whether Defendant abused the privilege. As a result, the Court concludes that
Defendant is entitled to summary judgment on Plaintiff’s defamation per se claim.
A conditional privilege generally protects “three kinds of statements,” including “those
made on a subject of mutual concern to the defendant and the persons to whom the statement
was made.” DeLong, 47 P.3d at 10 (citing Wallulis, 918 P.2d at 762). Consistent with this

understanding, Defendant argues that her statements about Plaintiff are conditionally privileged
because they “addressed a subject of mutual concern to the Defendant and the persons to whom
the [statements] were made,” namely, the mutual concern of “protecting children from sexual
abuse.” (Def.’s Mot. at 8-9; see also Def.’s Answer, Affirmative Defs., & Countercls. ¶ 12.)
In addressing conditional privilege, the Oregon Supreme Court has looked to and
expressly adopted portions of the Restatement of Torts and Restatement (Second) of Torts. See
Wallulis, 918 P.2d at 762 n.6 (“In Wattenburg, the [Oregon Supreme] [C]ourt adopted the
concept of ‘conditional privilege’ as embraced in the Restatement of Torts. After Wattenburg
was decided, the pertinent sections of the Restatement (Second) of Torts concerning defamation

were published. Except for a few changes in wording and grammar, Restatement (Second) of
Torts, §§ 594-96 (1977), are identical to Restatement of Torts, §§ 594-96 (1938).”) (simplified).
The Oregon Court of Appeals has also cited favorably to the Restatement (Second) of Torts,
including Section 597. See Worley v. Or. Physicians Serv., 686 P.2d 404, 407 (Or. Ct. App.
1984) (finding “as a matter of law” that statements were conditionally privileged (citing, inter
alia, RESTATEMENT (SECOND) TORTS §§ 593-598A (1977))); see also Wroten v. Lenske, 835
P.2d 931, 932-34 & n.1 (Or. Ct. App. 1992) (addressing a case for wrongful initiation of civil
proceedings for libel, noting that the plaintiff argued at trial that conditional “privilege[]”
protected her allegedly libelous letter to her brother, which concerned their family member, and
stating that the defendant “[did] not rely on that publication to support his assertion that he had
probable cause to continue the [libel] action after he was told [an identical] letter had not been
sent to either the Attorney General or the Oregon State Bar” (citing RESTATEMENT (SECOND)
TORTS § 597 (1977))).
Section 597 addresses the conditional privilege for “Family Relationships.” See

RESTATEMENT (SECOND) TORTS § 597 (June 2024 update) (discussing “Family Relationships”
under the topic of “Conditional Privileges” and subtitle on “Factors Determining the Existence of
a Conditional Privilege Arising from an Occasion”); see also O’Connor v. Burningham, 165 P.3d
1214, 1223-24 (Utah 2007) (addressing the “conditional privilege for family relationships,” the
“conditional protection for communications that contain information relating to intra-family
relationships,” and the “intra-family relationship privilege” under Section 597) (simplified); TMJ
Implants, Inc. v. Aetna, Inc., 498 F.3d 1175, 1199-1200 (10th Cir. 2007) (providing “[a] brief
discussion of qualified (or conditional) privilege in the defamation context,” and citing the
conditional privilege related to “family members” under Section 597). Section 597 provides, in

relevant part, that:
(1) An occasion makes a publication conditionally privileged if the circumstances
induce a correct or reasonable belief that
(a) there is information that affects the well-being of a member of
the immediate family of the publisher, and
(b) the recipient’s knowledge of the defamatory matter will be of
service in the lawful protection of the well-being of the member of
the family.
(2) An occasion makes a publication conditionally privileged when the
circumstances induce a correct or reasonable belief that
(a) there is information that affects the well-being of a member of
the immediate family of the recipient or of a third person, and
(b) the recipient’s knowledge of the defamatory matter will be of
service in the lawful protection of the well-being of the member of
the family, and
(c) the recipient has requested the publication of the defamatory
matter or is a person to whom its publication is otherwise within
generally accepted standards of decent conduct.
RESTATEMENT (SECOND) TORTS § 597 (June 2024 update).
In comments accompanying subsection (1), the Restatement states that “[e]veryone has a
sufficient interest in the physical, moral and social well-being of the members of his immediate
family to make it proper for him to . . . publi[sh] . . . defamatory matter concerning another
when, if the matter were true, the recipient’s knowledge would be of service in protecting their
well-being.” Id. § 597 cmt. c. The Restatement also explains that “[t]he statement in this
Subsection [(1)] gives a conditional privilege to communications between members of a
family, . . . and to communications between one member of a family and a third person.” Id.
§ 597 cmt. d. The Restatement adds that “[i]n either case, the person to whom the defamatory
publication is made must be one whose knowledge of it is reasonably believed to be of value for
the protection of the publisher’s interest in the well-being of other members of his immediate
family.” Id.
Further, the Restatement comments on subsection (2) acknowledge that depending on the
particular social relationship, the publisher may have a privilege voluntarily to communicate the
information:
The statement in this Subsection gives a conditional privilege to publish
defamatory matter concerning another for the purpose of protecting the well-being
of some member of the immediate family of the recipient or other third
person. . . . [T]he particular social relationship between the publisher and the
recipient may be such as to give him a privilege to communicate information even
without a request for it which otherwise he would not be privileged to volunteer.
Id. § 597 cmt. e.
Although the Oregon Supreme Court has “adopted the concept of ‘conditional privilege’
as embraced in the Restatement,” see Wallulis, 918 P.2d at 762 n.6 (stating as much and noting
that the more recent publication at issue was nearly “identical”) (simplified), it does not appear
that the Oregon Supreme Court has considered whether to adopt Section 597 or formally
recognize a conditional privilege for communications relating to family relationships. Other

courts have done so. See, e.g., O’Connor, 165 P.3d at 1224 (reflecting that the Utah Supreme
Court “f[ou]nd little justification to deny relationships in the familial setting the same legitimacy
[it had] granted in [a previous decision] to those in the business world, [and as a result,] t[ook]
th[e] occasion to incorporate Restatement (Second) of Torts, section 597 into Utah’s defamation
jurisprudence”).
In a diversity case like this one, the Oregon Supreme Court’s published decisions bind
the Court as to Oregon substantive law. See U.S. Bank, N.A. v. White Horse Ests. Homeowners
Ass’n, 987 F.3d 858, 863 (9th Cir. 2021) (“In a diversity case, the published decisions of the
Nevada Supreme Court bind federal courts as to the substance of Nevada law.” (citing Albano v.

Shea Homes Ltd. P’ship, 634 F.3d 524, 530 (9th Cir. 2011)). If the Oregon Supreme Court has
not squarely addressed an issue, the Court’s role is to predict how the Oregon Supreme Court
would decide the issue. See id. (“[T]he Nevada Supreme Court has not addressed squarely, in
any published decision, the [primary question in this case]. Our role is thus to ‘predict how the
state high court would resolve’ the question in a published decision.” (quoting Albano, 634 F.3d
at 530)).
Considering the Oregon Supreme Court’s adoption of the concept of “conditional
privilege” as embraced in the Restatement and Oregon courts’ favorable citation to the relevant
portions of the Restatement, the Court predicts that like the Utah Supreme Court, the Oregon
Supreme Court would incorporate Section 597 into Oregon’s defamation jurisprudence. Section
597’s conditional privilege for family relationships is compatible with the “three kinds of
statements” that a conditional privilege generally exists to protect. See DeLong, 47 P.3d at 10
(“Generally, a qualified privilege exists to protect three kinds of statements: (1) those made to
protect the defendant’s interests; (2) those made to protect the plaintiff’s employer’s interests; or

(3) those made on a subject of mutual concern to the defendant and the persons to whom the
statement was made.”) (citations omitted). It would make little sense to deny relationships in the
familial setting the same conditional protections that courts have granted to those in the
employment or business contexts. Cf. O’Connor, 165 P.3d at 1224 (finding “little justification”
to treat relationships in the familial setting different that those in a comparable “business
world”).
The Court turns to the issue of whether Defendant’s statements were, as a matter of law,
conditionally privileged. See Worley, 686 P.2d at 407 (“As a matter of law, [the employer’s vice
president’s] statements were conditionally privileged, because a reasonable person could only

find from the evidence that they were made to protect the interests of [the employer] in security
and employe morale and were on a subject of mutual concern to it and to the claims department
employes to whom it was made.”). The Court concludes that Defendant’s statements were
conditionally privileged under Section 597, or alternatively, because Defendant’s statements to
family members with young children were on a matter of mutual concern—namely, the well-
being of young family members. See Mannex, 279 P.3d at 285 (holding that the defendant’s
statements were “qualifiedly privileged” and providing “alternative[]” reasons as to why that was
the case).
///
Section 597’s “general rule accords to a family member-publisher a [conditional]
privilege to communicate defamatory matter to another family member as long as the publisher
has ‘a correct or reasonable belief’ that he or she has information concerning ‘the well being of a
member of the immediate family’ of the publisher.”5 David Elder, Defamation: A Lawyer’s
Guide § 2:27 (October 2023 update) (footnotes omitted) (citing RESTATEMENT (SECOND) TORTS

§ 597 (June 2024 update)). Cases have extended this conditional privilege to a variety of
communications, including ones based on unconfirmed allegations and imputations of criminal
conduct:
[T]he cases extended a conditional privilege to communications by a sister-in-law
to a married sister of plaintiff’s fiancee regarding plaintiff’s marital fitness, to
inform intimate friends and family of her status as a likely sexual assault victim,
to statements by a father to his daughter as to plaintiff-fiancee’s alleged infection
with a venereal disease, to comments by letter from a son to a mother in order to
protect her legal rights, to charges by a father to his son regarding vandalism to
the family home and threats to the father, to imputations of theft between brothers
as to a third brother, and to a communication by a son-in-law to a mother-in-law
portraying plaintiff-fiancee as an “unprincipled trickster.” The “near relationship”
involved in such cases “authorizes, if it did not require,” a good faith disclosure of
the information.
Id. (emphasis added) (footnotes omitted) (citing, inter alia, Doe v. Salisbury Univ., 123 F. Supp.
3d 748 (D. Md. 2015));6 see also Rossi v. Univ. of Utah, No. 2:15-cv-00767, 2020 WL 2134217,

5 Both the Oregon Supreme Court and Ninth Circuit have cited this author on defamation
law. See Wallulis, 918 P.2d at 760 (finding “persua[sive] . . . the cited criticisms of the
intracorporate nonpublication rule” (citing David A. Elder, Defamation: A Lawyer’s Guide § 1:6
(1993))); Neumann, 369 P.3d at 1123 (“The analytical response of both lower federal courts and
state courts to [a Supreme Court decision] has been varied.” (citing David A. Elder, Defamation:
A Lawyer’s Guide § 8:15 (2003))); see also Miller v. Sawant, 18 F.4th 328, 342 (9th Cir. 2021)
(describing the legal standard and citing David A. Elder, Defamation: A Lawyer’s Guide § 1:30
(2020)).
6 In Salisbury, the plaintiffs’ defamation claims were based on statements the defendant
made after attending a college house party. 123 F. Supp. 3d at 754-55. The defendant “alleg[ed]
that she had been the victim of sexual assault, and . . . that [the] [p]laintiffs committed the
assault.” Id. at 758. In addressing conditional privilege, the district court noted that the defendant
“allegedly told her close friends and family that she had been, or may have been, the victim of a
at *49 (D. Utah May 5, 2020) (discussing Section 597 and determining that the conditional
privilege for family relationships did not apply but noting that “[a]n example of [a conditionally
privileged statement] is when a family member sees a child with certain friends and
communicates defamatory statements about the friends to the child’s parent for purposes of
protecting the child”), rev’d on other grounds, No. 20-4062, 2022 WL 1421957, at *1 (10th Cir.

May 5, 2022).
Section 597’s “general rule applies likewise where the family member-publisher
communicates defamatory information to a non-family recipient whose ‘knowledge of the
defamatory matter will be of service in the lawful protection of the well-being of the member of
the family.’” David Elder, Defamation: A Lawyer’s Guide § 2:27 (October 2023 update)
(quoting RESTATEMENT (SECOND) TORTS § 597 (June 2024 update)). In a New York case, for
example, “a great aunt was held privileged to communicate to the probation officer (at the non-
custodial mother’s request) information pertinent to the best interest of the child in the father’s
temporary custody.” Id. (citing Garson v. Hendlin, 532 N.Y.S.2d 776, 780-81 (N.Y. App. Div.

1988)). One Oregon federal district court, however, has “held that no privilege existed as to
republication of allegations of rape by a co-employee made to family members and friends—a
questionable conclusion at least as to communications to family members.” Id. (citing Goodman-

sexual assault,” and the defendant’s “alleged statements were probably made in furtherance of
her legitimate interest in personal safety and the safety of those closest to her.” Id. The district
court added that the defendant had “not been accused of publishing these allegations to a broad
public forum”; rather, she was “accused [only] of confiding in those people who [were] rightly
understood to be part of [her] support system—close friends and family.” Id. at 759. The district
court explained that it was “mindful of the objectionable policy implications that could follow in
a world where such statements are unprivileged.” Id. at 759. Specifically, “[v]ictims would have
to weigh . . . the value of reaching out for help in the aftermath of a traumatic sexual assault,
and . . . the risk that they could be subject to civil liability for defamation if the occurrence of
sexual assault is contested by the alleged perpetrator.” Id. The district court concluded by stating
that “[f]ortunately, Maryland courts do recognize a conditional privilege for such statements.” Id.
Herron v. Advanced Navigation & Positioning Corp., 940 F. Supp. 281, 283-84, 286 (D. Or.
1996)).7
The Court concludes that as a matter of law, Defendant’s statements were conditionally
privileged. It is undisputed that Defendant published the allegedly defamatory statements to a
limited and specific group of family members who had recently attended a family gathering. (See

Pl.’s Resp. Def.’s Mot. Summ. J. (“Pl.’s Resp.”) Ex. 22 at 2, ECF No. 108-2, recounting that
Plaintiff, Plaintiff’s family, and Defendant attended the gathering at Plaintiff’s nephew’s house
and the attendees were “[m]ostly Wahab family members and their respective spouses” and “lots
of children of various ages [with their] parents”; Def.’s Answer, Affirmative Defs., &
Countercls. ¶ 6, admitting that Defendant sent the message to “several of her family members”;
Compl. at 7 and Pl.’s Resp. Ex. 22 at 1-2, describing various family members and their
relationship to one another and that Defendant sent the message to eight couples, including
Defendant’s brother and sister and their spouses and five other couples with the surname
“Wahab”; Compl at 11, reflecting that in his complaint, Plaintiff states that he is “no stranger to

the [message] recipients or the children of the recipients” because they are “all [Plaintiff’s]

7 Given the authorities discussed herein, the Court agrees that Goodman-Herron reached
a “questionable conclusion at least as to communications to family members,” and therefore does
not rely on or further address that decision here. See Goodman-Herron, 940 F. Supp. at 283-84,
286 (noting that the defendant asserted a defamation counterclaim against the plaintiff because
after they returned from a business trip, the plaintiff “told her family, friends[,] . . . colleagues[,
and others] that she had been raped by [the defendant],” the plaintiff asserted that “her statements
to [the employer] and her family and friends were conditionally privileged because they were
made to persons having a corresponding interest in the subject matter,” and the district court
denied summary judgment “on this basis” because “[t]he court [was] unaware of any Oregon
case which holds privileged statements made to family members and friends concerning personal
difficulties”).
relatives” and “know [Plaintiff] as an integral member of the extended family”; Pl.’s Resp. at 8,
referring to Defendant’s “text message to the family in 2022”).8
It is also undisputed that (1) in 1997, Defendant, Plaintiff, and Plaintiff’s brothers
participated in a family meeting, during which Defendant accused Plaintiff of sexually abusing
her as a child, (2) between 1997 and May 2022, Plaintiff “did not have any contact” with

Defendant, (3) Defendant’s May 2022 message began by repeating her accusation that Plaintiff
“molested [her] when [she] was a child” and noting that “seeing [Plaintiff] hug” a young family
member at the gathering the previous evening “broke [her] heart,” and (4) in her message,
Defendant maintained that she was not “rehashing the past to get [the recipients’] sympathy or
ask[ing] for [the recipients’] understanding”; rather, Defendant was “only telling [the recipients]
because now [they] ha[d] daughters and . . . sons,” the recipients were giving Plaintiff “access to
[their] children,” and Defendant believed that it was her “obligation to warn [the recipients] that
[their] children [were] not safe around [Plaintiff].” (Pl.’s Resp. Ex. 22 at 1-2; id. Ex. 19 at 2, ECF
No. 108-6.)

These facts provide necessary context for evaluating conditional privilege. Section 597’s
“general rule” grants Defendant a conditional “privilege to communicate defamatory matter to
another family member as long as the [she] ha[d] ‘a correct or reasonable belief’ that . . . she
ha[d] information concerning ‘the well being of a member of the immediate family’ of the
publisher.” David Elder, Defamation: A Lawyer’s Guide § 2:27 (October 2023 update)
(emphasis added) (footnotes omitted). Nothing in the record casts doubt on whether Defendant

8 The record evidence suggests that Defendant may not have sent the message to one
recipient’s spouse. (See Dep. Jamila Wahab 28:17-25, Apr. 16, 2024, ECF No. 108-10 at 5,
noting that the recipient testified that she did not believe that her husband had the phone
application at issue).
had a reasonable belief that she had information concerning the well-being of her young family
members.
Notably, the comments accompanying Section 597 provide that “[e]veryone has a
sufficient interest in the . . . well-being of the members of [their] immediate family to make it
proper for [them] to . . . publi[sh] . . . defamatory matter concerning another when, if the matter

were true, the recipient’s knowledge would be of service in protecting their well-being.”
RESTATEMENT (SECOND) TORTS § 597 cmt. c (June 2024 update). Furthermore, the comments
accompanying Section 597 provide that “the person to whom the defamatory publication is made
must be one whose knowledge of it is reasonably believed to be of value for the protection of the
publisher’s interest in the well-being of other members of his immediate family.” Id. § 597 cmt.
d.
Here, Defendant’s allegedly defamatory statements—on their face—concerned her
interest in the well-being of her young family members and the recipients’ interest in the well-
being of their children. If Defendant’s statements were true, the recipient parents would be of

service in protecting these young children.
In his response, Plaintiff emphasizes that “[n]o one asked for [Defendant’s] statement,”
Defendant’s message was “100% unsolicited,” and none of the recipients “asked [Defendant] for
the information she provided in [her] message[.]” (Pl.’s Resp. at 5, 10.) Unlike subsection (2),
subsection (1) of Section 597 does not ask whether “the recipient has requested the publication
of the defamatory matter or [was] a person to whom its publication [was] otherwise within
generally accepted standards of decent conduct.” See RESTATEMENT (SECOND) TORTS § 597
(June 2024 update). Even if subsection (2) applied, however, “the particular social relationship
between the publisher and the recipient may be such as to give [the publisher] a privilege to
communicate information even without a request for it which otherwise [s]he would not be
privileged to volunteer.” Id. § 597 cmt. e. Considering Defendant’s familial relationship,
allegations, and stated desire to protect young children, Defendant’s allegedly defamatory
statements were within “generally accepted standards of decent conduct,” and therefore were
conditionally privileged.9 See David Elder, Defamation: A Lawyer’s Guide § 2:27 (October 2023

update) (addressing the “generally accepted standards of decent conduct” criterion and stating
that cases have “require[d] something in the way of a request or a social or moral duty of
disclosure”).
For all of these reasons, the Court finds that Defendant’s statements were conditionally
privileged, as the record supports that “the allegedly defamatory statement[s] [were] made upon
an occasion furnishing a prima facie justification for [their] publication.” See Garson, 532
N.Y.S.2d at 780 (stating that “it has been observed that the individual asserting the defense of
qualified privilege must establish that the allegedly defamatory statement was made upon an
occasion furnishing a prima facie justification for its publication,” holding that “a qualified

privilege ar[ose] by virtue of the defendant’s significant familial interest in furthering the welfare
of [a family member’s] children,” and noting that “it has been generally agreed that a qualified
privilege attaches to communications relative to family matters, made in good faith to the proper
parties, by members of a family, intimate friends, and third persons under a duty to speak”)
(simplified).
///

9 During oral argument, Plaintiff speculated that Defendant’s message may have reached
others, but he presents no evidence that Defendant published the message to anyone other than
family members, as discussed herein. Plaintiff also argued that he only considers individuals
with the same surname to be family members, not spouses. Plaintiff’s opinion is not controlling
here, nor would it render inapplicable Defendant’s privilege, in part because the Wahab spouses
are parents of young children even if Plaintiff does not consider them to be “family.”
The remaining question, then, is whether Plaintiff has raised a genuine issue of material
fact as to whether Defendant abused her privilege. See Mannex, 279 P.3d at 285 (explaining that
because the defendant’s statements “were qualifiedly privileged,” the “question then bec[a]me[]
whether [the] plaintiff raised a fact question as to whether [the] defendant abused her privilege”);
see also Walsh v. Consol. Freightways, Inc., 563 P.2d 1205, 1211 (Or. 1977) (stating that “[t]he

burden of proving an abuse of the qualified privilege . . . rests upon the plaintiff”); Elizabeth
Retail Props., LLC v. KeyBank Nat’l Ass’n, No. 3:13-cv-02045-SB, 2017 WL 1407662, at *14
(D. Or. Mar. 10, 2017) (noting that the plaintiffs bore the “[t]he burden of proving [the
defendant] abused the qualified privilege”) (citation omitted). The Court concludes that Plaintiff
has failed to do so. See Redwind v. W. Union, LLC, 698 F. App’x 346, 347 (9th Cir. 2017)
(holding that “[t]he district court properly granted summary judgment on [the self-represented
plaintiff’s] defamation claim because [the plaintiff] failed to raise a genuine dispute of material
fact as to whether the statements in question were not qualifiedly privileged” (citing Mannex,
279 P.3d at 285)).

There are several “potential means to abuse the privilege cited in the Restatement, [and]
they all enjoy close ties to common sense[.]” O’Connor, 165 P.3d at 1224. Specifically, Section
597 provides that the family relationships privilege “can be lost by” (1) “the publisher’s
knowledge or reckless disregard as to the falsity of the defamatory matter,” (2) “the publication
of the defamatory matter for some improper purpose,” (3) “excessive publication,” or (4) “the
publication of defamatory matter not reasonably believed to be necessary to accomplish the
purpose for which the occasion is privilege.” RESTATEMENT (SECOND) TORTS § 597 cmt. a (June
2024 update).
///
Plaintiff fails to raise a genuine issue of material fact as to whether Defendant abused her
conditional privilege. Plaintiff responds to Defendant’s assertion of privilege by emphasizing
that Defendant’s statements were unsolicited, “out of context,” hurtful, “extremely damaging to
[Plaintiff’s] reputation,” incompatible with “the person [the Wahab family] know[s],” and not
based on Defendant “being hurt in her childhood but [instead] with what she has not had in her

adulthood: the trust of the people she chooses to be close to.” (Pl.’s Resp. at 5.) Plaintiff also
argues that Defendant’s accusations have differed in certain respects over the years and advances
theories as to why Defendant made the statements. (See id. at 6-9, recounting Defendant’s past
accusations, stating that “[m]uch like [Defendant’s] sexual misconduct allegations, the motive
behind [a matter discussed in Defendant’s book] is not presented,” suggesting that Defendant’s
motive “stem[s] from deep-rooted issues regarding her position in the family,” and arguing that
“the real motive behind [Defendant’s] text message was that she just lost it” and Defendant made
the statements because “they are impossible to prove or disprove”).
Plaintiff’s arguments are unpersuasive. In support of his argument that Defendant has

presented “[five] different versions of her allegations,” Plaintiff notes that Defendant’s message
alleged that “she had been molested in Kabul in 1979-80 while [Plaintiff] was babysitting her
and her siblings,” yet “[i]n another instance [i.e., the 1997 family meeting], [Defendant]
presented her maltreatment in a different way . . . [by] alleg[ing] that [Plaintiff] abused her by
touching her inappropriately while she was living in Kabul in 1979-80.” (Id. at 6.) Plaintiff
claims that Defendant presented additional versions by alleging in her counterclaims that
Plaintiff “sexually assaulted her habitually while [neither of her parents were home],” and
describing the abuse in greater detail during a conversation with Plaintiff’s daughter. (Id.) To
conclude, Plaintiff argues that “[p]erhaps the most conspicuous portion of [Defendant’s]
allegations is not what she alleges [Plaintiff has] done to her, where, and how,” but that
Defendant “only publicly made these allegations twice” and omitted them from “her published
book.” (Id. at 6-7.)
Contrary to Plaintiff’s arguments, Defendant’s “versions of her allegations” have been
consistent over twenty-five years, and any variations are easily reconciled on the record before

the Court. Defendant’s decision to limit her publication to two small family gatherings (decades
apart) and not include her allegations in a published book only bolsters her defense. That is so
because, as explained above, a defendant’s conditional “privilege may be abused and its
protection lost by . . . excessive publication[,] . . . the publication of defamatory matter for some
improper purpose[,] . . . [or] the publication of defamatory matter not reasonably believed to be
necessary to accomplish the purpose for which the occasion is privileged.” RESTATEMENT
(SECOND) TORTS § 597 cmt. a (June 2024 update). Plaintiff has failed to demonstrate that there
exists any evidence from which a reasonable jury could find that Defendant abused her
conditional privilege. See Lewis v. Carson Oil Co., 127 P.3d 1207, 1211 (Or. Ct. App. 2006)

(“Although plaintiff argues that there was evidence from which a jury could find that defendant
abused its qualified privilege, none of that evidence gives rise to a genuine issue of material fact
on that point.”).
The Court recognizes that Plaintiff disputes Defendant’s accusations, but there is no
evidence in the record before the Court from which a jury could find that Defendant had no
reasonable belief in the truth of her statements. See Mannex, 279 P.3d at 285 (affirming the grant
of summary judgment on a defamation claim and explaining that although the “plaintiff
vigorously dispute[d] the accuracy of [the] defendant’s . . . report, there was no evidence from
which it could be found that [the] defendant had no reasonable belief in the truth of her
statements”). Plaintiff relies on speculation and conjecture (not evidence) in suggesting that
Defendant may have been motivated by a potential grudge or vendetta against Plaintiff, as
opposed to her stated goal to protect young family members. Mere speculation and conjecture,
however, does not preclude the Court’s entry of summary judgment in Defendant’s favor. See id.
(stating that “there was no evidence on the summary judgment record of [an] alleged grudge and

vendetta other than . . . denied rumors . . . and ‘best guesses’”); see also Loomish v. Cornish, 836
F.3d 991, 997 (9th Cir. 2016) (stating that “[m]ere allegation and speculation do not create a
factual dispute for purposes of summary judgment”) (simplified).
For all of these reasons, the Court concludes that Defendant is entitled to summary
judgment on Plaintiff’s defamation claim because Defendant’s statements to her family members
were conditionally privileged, and Plaintiff fails to raise a genuine issue of material fact as to
whether Defendant abused her privilege.
CONCLUSION
For these reasons, the Court GRANTS Defendant’s motion for summary judgment (ECF
No. 100). The jury trial scheduled to begin on September 9, 2024, will proceed on Defendant’s

counterclaims only.
In light of these developments, the Court AMENDS the Civil Trial Management Order
(ECF No. 54) as follows: (1) Counter Claimant Saima Wahab’s and Counter Defendant Ebrahim
Wahab’s trial documents (exhibit lists, exhibits, witness lists and witness statements (lay and
expert), substantive deposition testimony designations, trial briefs, motions in limine, proposed
jury instructions, proposed voir dire, and proposed verdict forms) are due by August 12, 2024;
(2) any objections or responses to the opposing party’s trial documents are due by August 26,
2024; (3) the parties shall not file replies, a joint status report, a joint neutral statement of the
case, or stipulations (see Civil Trial Management Order § V); and (4) the pretrial conference will
proceed as scheduled on September 3, 2024, at 9 a.m.
IT IS SO ORDERED.
DATED this 2nd day of August, 2024.
STU arma
HON. STACIE F. BECKERMAN
United States Magistrate Judge

PAGE 25 — OPINION AND ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10666318. Public record. Not legal advice.