In a legal dispute that could test First Amendment rights and the differences between blogging and journalism, a crusading reporter for a conservative Hawai'i Web site has been ordered to give a deposition in a lawsuit over the fatal Kaloko dam breach on Kaua'i last year.

Malia Zimmerman, an editor and reporter for Hawai'i Reporter, is expected to be asked questions under oath in June in a lawsuit by retired auto dealer Jimmy Pflueger against the state and private companies related to the oversight of Kaloko.

William McCorriston, Pflueger's attorney, wants to ask Zimmerman about information she gathered for several articles about the dam.

Zimmerman had fought a subpoena, citing a qualified reporters' privilege, but Circuit Court Judge Gary Chang decided in late April that Zimmerman should be deposed. The judge said Zimmerman could refuse to disclose confidential information or sources but had to appear for a deposition.

Chang said a judge would then have a more complete record to decide the larger legal question of whether Hawai'i journalists have a qualified privilege and can refuse to turn over confidential information in a civil case. McCorriston also has asked the court whether a "blogger" — someone who writes a Web log — or a consultant could claim a reporters' privilege.

Zimmerman, a former reporter for Pacific Business News and other publications, wrote several articles about Kaloko for Hawai'i Reporter, which included interviews with Pflueger and the families of several of the seven people who were killed when the dam was breached. She also served as a consultant to the ABC newsmagazine "20/20," which aired a report on Kaloko in March.

Zimmerman said she did not cite any confidential sources for her articles but did not want to turn over the names of people who informed her because she fears Pflueger might sue them.

Pflueger owns property around Kaloko and could face criminal and civil liability for the breach. He has been active in court, alleging that the state and private companies failed to inspect and maintain the dam. He also has sued a Kaua'i real-estate broker, alleging she defamed him before the Kaua'i County Council last year by saying he committed "the biggest mass murder in Hawaiian history."

"I believe this subpoena is an attempt to thwart any further investigation of this case by me or any other journalists in Hawai'i, and to silence any witnesses who are considering speaking to the press," Zimmerman said.

McCorriston could not be reached for comment.

In legal filings, however, Pflueger's attorneys have argued there is no reporter privilege in Hawai'i, and that even if there was, Zimmerman waived it when she turned over her work to ABC and appeared on "20/20." McCorriston also has described Zimmerman as a blogger unable to claim a reporters' privilege.

The Hawai'i Supreme Court ruled in 1961 that there was no First Amendment privilege for an Advertiser reporter who refused to disclose a source. But federal courts, including the 9th U.S. Circuit Court of Appeals, which has jurisdiction over Hawai'i, have since recognized a qualified reporters' privilege.

State Attorney General Mark Bennett signed a friend-of-the-court brief to the 9th Circuit in December from 24 states and Puerto Rico supporting a qualified reporters' privilege in a case involving two San Francisco Chronicle reporters. The two were facing jail for refusing to reveal a source in the BALCO sports steroids case, but a source came forward voluntarily.

The brief described Hawai'i as among the states that "require the private interests in disclosure to be so important that they outweigh the public interest in confidentiality."

Zimmerman, who does not consider herself a blogger, describes Hawai'i Reporter as an online journal. The Web site, founded in 2002, has investors and sells advertising. The site posts original reporting, along with guest commentary, news releases and letters.

Zimmerman's reporting, under headings such as "Blonde Uprising," is often more opinionated and combative than mainstream news media and usually has a conservative-to-libertarian perspective.

The differences between bloggers and journalists also have been blurred now that mainstream news media — including The Advertiser — feature blogging. (The Zimmerman-Pflueger legal fight has been documented in Capitol Notebook, a blog by the paper's Capitol Bureau.)

Jeff Portnoy, Zimmerman's attorney, said Hawai'i Reporter is, in effect, a daily newspaper and that Zimmerman should have the same protections available to more traditional reporters.

"I wouldn't argue that if I sat down tonight and sent out a blog, that that would be the same thing," said Portnoy, who also has represented The Advertiser in legal cases. "But I think if you look at her background and what she does, the blogging issue, to me, is a red herring."

Gerald Kato, chairman of the UH-Manoa School of Communications, said it is important to protect the First Amendment and the unfettered flow of information, not necessarily the people or the medium that provide it.

Reach Derrick DePledge at ddepledge@honoluluadvertiser.com.