Dell Demands Takedown Of Our "22 Confessions Of A Former Dell Sales Manager"

UPDATE: Dell Admits Error In Asking Consumerist To Remove Post

from Tracy Holland
to ben@consumerist.com
date Jun 14, 2007 4:39 PM
subject Posting by former Dell employee

Dear Ben,

Please remove the posting located at the following link:

http://consumerist.com/consumer/insiders/22-confessions-of-a-former-dell-sales-manager-268831.php

It contains information that is confidential and proprietary to Dell.

While not all aspects of the entry are accurate, ostensibly an ex-employee posted Dell’s confidential information in violation of his or her employment agreement and confidentiality obligations (which prohibit the disclosure of such information both during and after the period of employment).

We would appreciate your prompt attention to this matter. Please confirm that the posting has been removed by the end of the day tomorrow.

Thank you, and please give me a call if you would like to discuss further.

Tracy Holland

Tracy J. Holland
Counsel
Dell Inc.


from Ben Popken
to Tracy Holland
cc Gaby
date Jun 15, 2007 12:58 AM
subject Re: Posting by former Dell employee

Tracy,

I am forwarding your request to our legal counsel, who will communicate with you from here on.

- Ben

from Tracy Holland
to ben@consumerist.com
cc Gaby
date Jun 15, 2007 1:50 AM
subject RE: Posting by former Dell employee

Thank you. Note, though, it has been almost nine hours since we made the request, yet the posting is still up, with the number of hits growing logarithmically.

Also note, we do not make these requests often (as I’m sure you know, there are thousands of blogs and other online postings that relate to Dell and its products), and we do not make them without good cause. Therefore, while we wait to discuss this request with counsel (despite the source and the clearly confidential and proprietary nature of the information), we ask that you act in good faith to minimize the potential damage caused by this disclosure, and take down the posting immediately. Dell will not regard any such immediate action as an agreement regarding the merits of the request, or as an admission of any liability on the part of consumerist.com or any related person or entity.

If after any necessary discussion between counsel we cannot agree that this was indeed the appropriate course of action, you can always re-post the item.

Thank you,

Tracy Holland

from Gaby
to Tracy Holland
cc Ben Popken
date Jun 15, 2007 7:33 AM
subject Re: Posting by former Dell employee

Dear Ms. Holland,

Despite some suggestions to the contrary among some of our fellow beings, most humans need to sleep. Some of us also receive hundreds of emails a day and have to deal with every one of them. I received this email at 12am last night. It is 7am now. That’s a pretty good turnaround.

Nonetheless, that’s immaterial to the matter in hand. I’ve reviewed the post, and it appears to me that it is valid, useful and apparently overwhelmingly accurate. It’s not bitter, angry or destructive. It is quite simply good and useful information for consumers. And it appears that a Dell rep has already provided updates to various sections, which we have published, which, since they have only corrected certain parts of this report, implies that the uncorrected parts must be true. If that’s not the case, please feel free to send us more clarifications and we will update the post further with your additional notes.

We came by this material entirely legally: we were provided it by a third party voluntarily, we did not use any improper means to solicit any Dell employee to breach any agreement he may have had with you. Therefore, we do not believe we are in breach of any law in reporting on this material and, as such, cannot comply with your demands.

In addition, as I am sure you must realise – and there is certainly a history of this with Dell already – consumers tend to react far better when a company responds collaboratively to criticism, than when they act heavy-handedly or dismissively. Removing this story would be far far more damaging to Dell, I assure you, than responding to it on the Dell blog or elsewhere, since in telling our readers that Dell shut down our reporting, we would unleash a chaos of fury and acres of criticism in the press. Forget any legal position you may want to take, meritorious or not, I am deadly serious when I say that I simply cannot recommend this as a course of action. I’ve seen it happen before and it is really not pretty and I have no doubt that you will regret it.

Of course, it is your decision whether you want to pursue this matter, but I advise you to talk to the team that had to deal with the falllout from the Jeff Jarvis affair before you decide to try and silence your critics. Work for the customer, not against them.

Best regards,

Gaby

PREVIOUSLY: 22 Confessions Of A Former Dell Sales Manager

Comments

Edit Your Comment

  1. Hawk07 says:

    Tracy,

    Did Dell send out the spooks when photos and news article hit the net of your laptops catching fire?

  2. brew400 says:

    owned…

  3. Slytherin says:

    Looks like Tracy is *trying* to do damage control to Dell’s reputation. (She’s WAY too late).

    Why should she care about a broken employment agreement if the guy is now an EX-employee???

  4. sleze69 says:

    Stick by your guns and copy the EFF on this. If you take it down, I know of at least one blog that will mirror the post.

  5. hubris says:

    lol. “Don’t piss of the tubes; hell hath no fury like an intarweb scorned”.

  6. MeOhMy says:

    Tracy’s such a nice lawyer.

    I find it amusing that even thought they claim the information is inaccurate, because it “ostensibly” breaches the employee’s contract, they want you take it down.

    So apparently making something “appear” to be a breach of contract warrants a chill letter even if it’s not accurate? Interesting…that’s some word, that “Ostensibly.”

  7. virgilstar says:

    Kudos to Ben & Consumerist for standing your ground, but when you give the article such a sleazy title, and use words like “confession”, you automatically create an air of suspicion and negative thoughts. You might want to consider just re-naming the article to something less sensational. The current title is very Digg friendly, but because of that it will attract the company’s eyes too. If you re-name it, your Digg hits might decrease but you’ll avoid corporate a**holes like this hounding you.

  8. wreckingcru says:

    I have a feeling that Gaby’s slowly but surely gaining Superstar status amongst the consumerist.com readers!

  9. cindel says:

    Sick Burn!

  10. webwbr says:

    Wow… if Gaby is your lawyer, I want her (?) to be mine! Nice response letter!

  11. Spooty says:

    @wreckingcru:

    Indeed. I’ve been noticing a few of her lawyer-letters in the last few weeks, and have liked them, but this one takes the cake. She sounds like a peach. I’d look up more info on her, but I think I’ll be content with my vision of her and Tracy settling this matter in a jello- or pudding-filled kiddie pool.

  12. Nicely handled, Consumerist folks. It was cute how they tried to get you to take the post down *before* your own attorneys had a chance to comment. That’s pretty telling in itself!

  13. dbeahn says:

    At the end of the day, Ben is correct. The Consumerist is under no legal obligation to Dell. If Dell would like to take legal action, they would have to go after the ex-employee on breach of contract. Of course, given that it’s an ex-employee, good luck with that.

    Of course, they COULD always give that employee a laptop, and hope he’s working on it when it does what Dell laptops do….

  14. @virgilstar: Something tells me that the Consumerist’s mission statement does not include anything about “keeping corporate assholes from hounding us”!

    Anyway, corporations and their lawyers like you to think that them being angry with you is the worst thing that could ever happen, but that’s just to cover up the fact that their anger is relatively harmless. If you tick off one single redneck on the streets, you’d have more trouble on your hands than if you ticked off Dell. ;)

  15. Major-General says:

    Something else: wouldn’t Dell have to prove that the information is completely confidential and that it is not available by other means, say someone spending too much time playing with the website. Moreover, isn’t a lot of the post technically heresay?

    I’m not a lawyer, but it seems to me that they would have to show that the information is not available through other means.

  16. acambras says:

    Gaby is awesome.

  17. scoobydoo says:

    You couldn’t have picked a better photo.

    Oh, and Gaby: YOU ROCK.

  18. quagmire0 says:

    Honestly, it’s a stupid move by Dell. I didn’t think the post was even THAT revealing. Ooooooh, now I know how to save a couple bucks buying a Dell. Wow. Actually, I’m not even sure that the post even gave me that. However, dear Dell reps, you have now blown the story out of proportion with your actions. Sometimes it’s better to just let the post fade into obscurity.

  19. eldergias says:

    Okay, taking bets. Who wants to guess they continue requesting removal and who wants to bank on them agreeing and dropping the matter?

  20. This of course begs the question, what exactly is in the fine print of those goddamn Dell employee contracts that no employee is ever, in perpetuity, for the rest of their lives, allowed to talk about anything to do with Dell?

    Can we get a scan of said document?

  21. ancientsociety says:

    Nice response Ben!

    Sounds like another corporate goon overstepping their bounds. Consumerist is under no legal obligation to comply with any NDA an employee signed. If Dell wants to go after someone, it could only legally be the employee who signed the NDA.

    @Pope John Peeps II: I agree. The only NDAs I’ve ever seen were only legally enforceable if you still worked at that company.

  22. acambras says:

    The funny thing is that when the original post went up yesterday, I skipped it (what can I say — I got caught up in the excitement of raspberry syrup and sippy cups). But after reading this post, I went back and read the original post.

    Again, when these corporate Goliaths “request,” “demand,” or otherwise stir up shit, it just calls more attention to the original post.

    • bravohotel01 says:

      Me too – I hadn’t seen the ‘Confessions’ post until I read this one and clicked on the link.

      Way to go, Dell! You Win the Internets!

  23. jodles says:

    and now tracy has gained more attention for dell, seeing as how this correspondence went up (along with the link, again), so everyone who didn’t read the post yesterday has a chance to read it today!

    and kudos to gaby, for being smug and succinct. she killed that email!

  24. Pelagius says:

    @Pope John Peeps II: Even the US government lets you talk about classified stuff after 75 years, assuming you’re still alive.

  25. Please confirm that the posting has been removed by the end of the day tomorrow.

    Note, though, it has been almost nine hours since we made the request, yet the posting is still up, with the number of hits growing logarithmically.

    Who the hell do they think they are?

    Do they think Ben works for Dell or do they think the people running Consumerist are all five years old? What makes them think they can just order them to do anything?

    Gaby’s response is made from awesomeness:
    Despite some suggestions to the contrary among some of our fellow beings, most humans need to sleep. Some of us also receive hundreds of emails a day and have to deal with every one of them. I received this email at 12am last night. It is 7am now. That’s a pretty good turnaround.

    Go Gaby Go!

  26. shoegazer says:

    Oh, when will they ever learn,
    Oh, when will they ever learn?

  27. Pi_Equals_3 says:

    Way to go Consumerist!

    Keep the article up and fight Dell!

    Seems like all the legal counsel does at Dell is surf the Internet for articles or posts they feel should be taken down.

  28. Rev3rb says:

    The information from the ‘Confessions’ has been great to know. I’m glad that Consumerist isn’t taking any crap from Dell.

  29. jeffj-nj says:

    Ya know, I gotta say, after reading Tracy’s email, I couldn’t help but to think how exceeedinly polite, well-worded and fair it sounded.

    Then, I read Gaby’s email and thought, heh, nevermind.

  30. mantari says:

    While not all aspects of the entry are accurate…

    In my book, that reads as, “Holy shit! This was so accurate, it is scary. The only missed on one or two small points, so at least we can question its accuracy question with a straight face.”

  31. I think Gaby should have her own blog. I love when she shows up on Consumerist and shoots down the corporate weasels.

  32. doodbugboodles says:

    I wasn’t really interested in reading the Dell post before, now I am very curious.

  33. bigvicproton says:

    poor tracy, such a corporate dork. i bet she owns a ficus tree from ikea too…

  34. Kos says:

    Mmmmm… Gaby drops the Streisand effect. Nice job.

    Logarithmically….doesn’t she mean exponentially? See [en.wikipedia.org] Logarithms have a positive slope, but they flatten out.

  35. Black Bellamy says:

    My anger at Dell’s goons is growing logarithmically. It’s been growing for over 9 hours and Tracy Holland has not come over to my house and gotten down on her knees. I find this unacceptable.

  36. vcr99 says:

    The Dell Rep doesn’t seem to have that many fire in her email request. I’m guessing she’s just doing her job, wich is defending any angle for Dell, even if it’s a sure loose.

    Maybe Gaby’s letter was overkill, then again that’s her job too =)

  37. tvh2k says:

    @Slytherin: I bet she could use the help of ReputationDefender.com!

  38. SexCpotatoes says:

    Lawyer, meet Internet. Internet, meet lawyer. Now you two play nice…

    Anywho, yes the “guy” signed a NDA, etc, allegedly. BUT the Consumerist is a blog and as such enjoys such protections as journalists would, so they can tell Dell to go screw. They are not required to take down posts at the “request/order” of Dell or any other company. If there are factual errors, they can and will be corrected, but there’s nothing expressly libelous about the post. Unless, *GASP*, did Dell PATENT their convoluted PRICING STRUCTURES???

  39. JohnMc says:

    eldergias says:

    “Okay, taking bets. Who wants to guess they continue requesting removal and who wants to bank on them agreeing and dropping the matter?”

    eldergias, why of course they are! Why? Because they are a Corp Attorney. Look, all legalese aside, this little tiff is on their Boss’s weekly tasks list as something that has to be ticked off and reported to upper management. So till there is ‘success’ this attorney’s boss will continually ask for a status.

    Irony? So long as Ben and Gaby do nothing, week to week the pleading attorney is on the radarscope. Boss: “So how is the Consumerist action going?”
    Tracy: “Well uh…..”

    The motivations sometimes lie in areas unrelated to the action at hand. And so it goes…

  40. bigvicproton says:

    nice one tracy! another reason not to buy dell. besides the fact that dell generally sucks and will spend more time and money trying to cover up problems them actually fixing them.

  41. niteflytes says:

    I’m one of those who skipped the original article yesterday but went back and read it after this post. I really don’t care about Dell computers because I use a Mac but suddenly, I wanted the forbidden fruit. Tracy – stop trying to play God.

  42. SexCpotatoes says:

    Oh, and they don’t have to reveal their sources (just like a journalist) Nyah Nyah!

  43. Brilluminati says:

    Expect a visit from Tony, Paulie and Syl (in a wheelchair of course) motivating you to take down the article…good luck.

    Way to stand your ground.

  44. OK, I just went and read the Confessions (I skipped it before) and I can’t figure out what they’re mad about.

    Other than saying people should drop their computers there isn’t much said that’s actually bad.

    The differing prices on the web site: Not the confessor’s fault and something anyone using Dell’s web site could have figured out.

    Cranky salespeople who think you’re a secret shopper: Cranky salespeople happen. It’s not good but it’s not terribly shocking either.

    Kiosk people not being able to field complaints: Not the confessor’s fault. Just improve the way people at kiosks communicate with Dell. Also something someone else could have figured out if they go to a kiosk often or if they know a couple of people who do so.

    Other than that I can’t see how any of the “secret” information even makes them look bad much less really hurting Dell somehow.

  45. nffcnnr says:

    Tracy Holland: “…we ask that you act in good faith to minimize the potential damage caused by this disclosure, and take down the posting immediately…”
    What “damage” is she talking about? The “damage” to Dell’s stellar reputation? The “damage” Dell legal will inflict upon Consumerist? The “damage” incurred to readers’ brains by the information disclosed by the post? i’m sure glad Ms. Holland is so concerned about us.
    Fight the power!

  46. jpleonard says:

    You would figure they would take this as a learning experience.

  47. jpleonard says:

    I think this pic sums up their office meetings.

    [news.bbc.co.uk]

  48. y2julio says:

    “Dear Ms. Holland,

    Despite some suggestions to the contrary among some of our fellow beings, most humans need to sleep.
    ” hahaha that was awesome. Go Gaby :)

  49. Echodork says:

    There wasn’t much in the Dell post that isn’t common sense anyway. Yes, of course there are ten different price points on all Dell products… I figured that was public knowledge. Last time I bought a Dell, I didn’t need to provide proof of enrollment with a college to get the “education discount” price.

    Buying a computer from Dell is like buying a used car… never pay sticker price.

  50. Wormfather says:

    DUDE, YOU’RE GETTING A COUNTER-SUIT, SWEEEET.

  51. segfault, registered cat offender says:

    Dear Tracy,

    Screw off.

    Love,

    Ben

  52. mathew says:

    @virgilstar: I think you’ll find that the “Confessions of …” titles are humor. They refer to a long-running series of popular sex farce movies which began with “Confessions of a Window Cleaner” (see also Wikipedia entry). The movies sold themselves on the idea that they would be full of raunchy content, but in reality they were always pretty tame because of censorship laws.

    Hence the pattern “Confessions of a …” is often used for a piece of mildly scandalous but mostly humorous writing by an industry insider.

    As to the request to take down the article, I don’t see that they have a legal leg to stand on. The Consumerist doesn’t have any agreement with Dell, so they can’t be in legal breach of it.

  53. vr4z06gt says:

    hey antagonize them more. I would like to read the response letters they ammuse me very much. How great is it when a company is so large that they have this notion stuck in their heads that they can behave as god. Do as I say or thou’ shall feel my wrath! Scary I know but highly entertaining!

  54. Dancing Milkcarton says:

    Thank you. Note, though, it has been almost nine hours since we made the request, yet the posting is still up, with the number of hits growing logarithmically.

    Logarithmically? Oh, Tracy – I can see the t-shirts now. ‘My hits grow logarithmically.’ ‘Ask me about my logarithmical hits.’ etc…

    Oh, and welcome to the Internets.

  55. Bye says:

    I’m typing this on a Dell right now – the same one that scares me so much that I remove the battery and place it outside whenever we go on vacation.

    I saw the previous post headline and decided to skip it, but after reading Dell’s takedown demands, I’m going to go back and print it out right now.

    I am happy to see at least their legal counsel isn’t outsourced to India.

  56. unchi says:

    @Kos: I was thinking the same thing. Logarithmically? maybe she was an engineer/mathematician/statistician before she became a lawyer. It could be a far more accurate description of the people who are accessing the file, but it should have changed now that this response is up.

    I’ll admit it; I did not read the “22 Confessions” till after i read Tracy’s email. Made me wonder what was confidential. Seems more like a standard response to protect their business model.

  57. quentin says:

    This is why I come and read this blog every day. They simply refuse to bow down to legal bullying. Companies these days can’t expect things to be buried down with legalese-threats. Going after criticism is only going to make matters worse.

  58. legalbeagle123 says:

    Hmmm …

    Not for nothing, but there’s no “demand” here. It was a request that you remove the post. Requests are different than demands, so you probably shouldn’t mischaracterize these communications.

    Having said that … it’s stupid to even make the request, as you have noted.

    There is a very good history of where these sorts of requests lead – and the available literature suggests that any attorney that makes such a request is probably guilty of malpractice.

    This lawyer knows, or should have known, that making the request would only bring MORE PEOPLE to the “negative” post, causing logarithmically more harm to their client.

  59. iMike says:

    Is Gaby single?

    And re: Dell: I burnt my leg on an Inspiron lappy last night. So fuck ‘em.

  60. Youthier says:

    Count another person who had no interest in reading the Dell post until I found out they didn’t want me too.

  61. CB-Photography says:

    While I think Consumerist (and Super Gaby) are on the right side of this issue, I think some of the comments are a little hard on the Dell lawyer. She politely asked for the post to come down, and followed up a little too quickly with a slightly pushy e-mail. She’s not being a “goon” as some have called her; she’s trying to do her job by having an unflattering post removed. I’m sure they know they don’t have a leg to stand on if this goes to court, but you can hardly fault her for asking the site to remove it voluntarily. I’m sure that’s worked in some cases. Lucky for us, Consumerist is smarter than most and knows to stick to its guns.

    I’d be surprised if Dell actually pursued this one further.

  62. AT203 says:

    Therefore, while we wait to discuss this request with counsel (despite the source and the clearly confidential and proprietary nature of the information), we ask that you act in good faith to minimize the potential damage caused by this disclosure, and take down the posting immediately.

    I believe it is inappropriate for opposing counsel to continue to contact you after you have notified them that 1) you have counsel, and 2) that you wish all communications to be directed through them.

  63. graphikartistry says:

    Gaby,

    You inspire me to be an attorney-or-council of some sort!

    It’s refreshing to see you using your superpowers for good instead of evil! Please keep up the good work and keep the Consumerist safe.

  64. The Reviewer says:

    Oh Gaby you make me want to have little lawyer babies with you, that the first words we teach them will be, “we would unleash a chaos of fury and acres of criticism in the press”

  65. 160medic says:

    log·a·rithm
    n. Mathematics
    The power to which a base, such as 10, must be raised to produce a given number. If nx = a, the logarithm of a, with n as the base, is x; symbolically, logn a = x. For example, 103 = 1,000; therefore, log10 1,000 = 3. The kinds most often used are the common logarithm (base 10), the natural logarithm (base e), and the binary logarithm (base 2).

    WTF why didn’t she just say exponentially ha ha

  66. ExecutorElassus says:

    @Danilo Campos: Gaby does have her own blog: http://www.gabyd.com. What she needs is a fanboy site.

  67. ExecutorElassus says:

    what the…? the href i put in that link pointed to http://www.gabyd.com. why’d the posting engine bork it?

  68. tort47 says:

    I’m going to go against the grain and say that although I completely agree with your position on this, Gaby’s threats in the last two paragraphs of her response were over the top, unnecessary, and left me with the impression that she must not actually be as confident about your legal position as she sounded in the rest of the letter. If you can’t stay on the high road, critical thinkers might suspect that there’s a reason you had to get off.

    I expect better from you.

  69. homerjay says:

    Okay, Since these types of corporate demands are becoming more commonplace, I recommend a very bold link at the top of the main page that explains to these adorable corporate lawyers just why you won’t be taking down any postings.

    Along with that you can link to all of the postings like these that have only made it worse for the company in question and how all requests have failed. While you’re at it, maybe add a nice picture of Gaby making a tiger face or something. :)

    Then again, if you did that, we may never get to see funny postings like these.

  70. jeffj-nj says:

    Uh-oh!

    [2mdn.aolcdn.com]

    Someone better alert Dell about that ad! It clearly states the offer is ending on a Wednesday!! Oh noes!!

  71. homerjay says:

    @tort47: That may be of concern if her threats were idle, but clearly Ben follows through with them.

  72. Trai_Dep says:

    Of course, it is your decision whether you want to pursue this matter, but I advise you to talk to the team that had to deal with the falllout from the Jeff Jarvis affair before you decide to try and silence your critics. Work for the customer, not against them.

    Masterfully constructed letter (LOVE the snark at the beginning), ending with helpful advice for the grouchy-pants that sent the complaint. Well done.

    PS: lawyers sleep?! Who knew?

  73. MeOhMy says:

    @tort47:

    Gaby’s threats in the last two paragraphs of her response were over the top, unnecessary, and left me with the impression that she must not actually be as confident about your legal position as she sounded in the rest of the letter.

    Perhaps “critical thinkers” might see it as backpedaling, but “internet-savvy critical thinkers” and especially thouse I-SCTs who are familiar with PR firestorms will see it as friendly advice. Your internet reputation is like a Chinese Finger Trap. Trying to yank your fingers out just makes the situation worse.

    Gaby wrote something similar to the guy from DS-MAX. “…news stories tend to become old pretty quickly if they are not given legs.”

    In reality it’s not backpedaling, it’s just a statement of fact – you aren’t the first lawyer to try to chill Consumerist and you won’t be the last. Past history has showed that even if you have a legitimate claim, the PR backlash from taking the heavy-handed lawyer approach will probably be more damaging than ignoring it or trying to get your rebuttal on the record.

  74. phypennwl says:

    I know I’m being devil’s advocate and an apologist, but one could consider the insider’s info as marketing strategy of some sort, and that could fall under the realm of confidential trade secrets. If that employee signed a confidentiality agreement, and he gave away info on how salespeople are supposed to close a deal, Dell has reason to be angry. There’s probably not much they can do to Consumerist, and sending a cease-and-desist probably hurts them in the short run, but they need to fire a public salvo to warn current employees not to do this in the future and protect itself for the long run.

  75. Wasabe says:

    This was just greenlighted on Fark. That’s a couple thousand views at least right there.

  76. consumerist11211 says:

    Wow, when will these big corporations ever learn?

    Hmmmmm, the information provided might have helped me avoid any pitfalls in making a high ticket purchase like a laptap. So instead of wanting their customer to be happy with their purchase. Dell wants to hide relevant information, under threat of law suit no less, to protect their image I suppose? HA, that’s a laugh…

    And Tort47, I feel Gabys actions were indeed appropriate. The Dell lawyers came out rattling sabers, Gaby just pointed out the obvious…

  77. exkon says:

    I have to agree with phyennwl.

    I’m just curious about company confidential secrets. No doubt when most of us sign those documents we really don’t read what we can and can’t talk about. I can see one or two of items maybe breaching that contract. But it will be interesting to see how this goes about.

    Kudos to both Dell and Consumerist, no major-lame ass threats, very respectable and well-written letters.

  78. BII says:

    Gaby is so awesome, i kinda just want to send her a fake C&D, just so she can write another brilliant letter.

  79. Christovir says:

    Yes, I also did not read the original 22 Confessions post until Dell sent the bully-ish letter. Now that Dell tried to pull a fast one, I think I might send the “confessions” to my friends. You don’t need to be a social psychologist (which I am) to figure out that trying to cover something up only draws more attention to it. Companies and governments seem really bad at realzing this, though nearly every ordinary person knows it.

    If I may provide some advice to Tracy, which I learned from Dell Technical support: any problem you experience with a computer – including websites like the mean ol’ Consumerist posting things you don’t like – can be solved by turning off the computer, removing the battery if it is a laptop, and then rebooting. This was the advice I received from Dell when my hard-drive failed, and even though I told them I had already rebooted several times – and that rebooting would not fix a dead hard drive -, they assured me the problem could be solved if I just rebooted a few more times. So, Tracy, I suggest you keep trying to reboot your computer until the mean ol’ Consumerist goes away. If it does not work at first, just keep trying! Dell tech support told me I may have to do it several times, so be sure to hang in there.

    And, yes, Gaby rocks.

  80. VA_White says:

    Go Gaby, Go! Speak it, sister.

    And Ben, you’d better start staying up later to comply with all these requests to shut your damn mouth about crappy business practices. One might actually think you were a consumer advocate or something.

  81. legalbeagle123 says:

    By the way … I wonder if any of the commenters cringed (when they read the original post) when the writer got to the part about “hey, at 2 years, um, drop your laptop and voila, new laptop.”

    That’s probably what got the lawyers involved. Insurance fraud is pretty serious, and I’m quite certain raises the costs of laptops for the rest of us.

    The Dell lawyers should focus on that part of the post … perhaps by pointing out that advising people how they can commit insurance fraud probably isn’t in the best interests of Consumerist.

    Consumerist is about keeping companies honest. And it does a good job at that. Consumerist tarnishes its own reputation when it devolves into suggesting ways people can steal from companies by committing insurance fraud.

  82. Yogurt Earl says:

    You can contact tracy at Tracy_Holland@dell.com, if you have any questions. :)

  83. luckybob343 says:

    When I bought my laptop (from a kiosk), the guy told me that I could spill a drink in it, crack the screen…even drop it down a flight of stairs, and that accidental would cover it. I passed on it, as I’m careful with my stuff, but tell me this:

    If a laptop falls from your hands while you’re running up the stairs to catch a class, who’s to say its intentional or accidental? At a physical level, a slip is a slip. Is Hajid Muhammed, or whomever answers the phone for Dell, going to question your intent?

  84. JohnOB1 says:

    I almost shed a tear.

    What a terrific response Gaby. “…telling our readers that Dell shut down our reporting,
    we would unleash a chaos of fury and acres of criticism in the press…”

    Wonderful.

  85. nidolke says:

    She had me at logarithmically.

  86. jeffj-nj says:

    @Christovir: Love your solution! Yes, Tracy should definitely try rebooting her computer a few times. I have also been told this will help solve problems.

  87. savvy9999 says:

    Everybody knows that Dell’s main ordering system (called DOMS)– the one that is the backbone of the configure-your-own-computer-on-the-website, and is what a phone rep attempts to type into when you call Dell– is a blocky, ugly, 8-color, 16-bit app that actually runs on ancient, big-iron, Hewlett-Packard servers.

    HP’s greatest commercial ever would be to show this dinosaur chuggin’ away in Dell’s datacenter hidden deep somewhere in Round Rock, but I think they have some sort of mutual agreement to not, um, let this wee bit of info out.

    Oops. crap. Here comes another C&D. Sorry Consumerist.

  88. tedyc03 says:

    I just wonder if the New

  89. tedyc03 says:

    Trying again….

    I just wonder if the New York Times gets shit like this…

    “We want you to go get all the newspapers you printed yesterday back…”

    Fuck you, Dell.

  90. hypnotik_jello says:

    @bitfactory: Logarithmic tits?

  91. QuirkyRachel says:

    Tell her Dell’s reputation precedes the article. I once chatted with a guy who worked at a Dell plant. He said friends don’t let friends buy Dells. Apparently they throw computer pieces around a lot…

  92. @legalbeagle123: Putting a time limit on it makes it a demand, not a request. They were not asking for it to be taken down, they were telling Consumerist to take it down.

  93. royal72 says:

    thank you dell for confirming that i will never, ever buy a single product you sell. have a nice day.

  94. phypennwl says:

    @Rectilinear Propagation: No, it exhibits a sense of urgency, and it asks why there has been no response in 9 hours. It more or less says, “We ask that you take it down while Gaby and I discuss the merits. If she agrees the post is inappropriate, no harm no foul. If we agree it’s appropriate, you can put it back up.” That’s a perfectly legitimate request.

    And I have to agree with some– Gaby’s response was mostly good, but the end of it was a little unprofessional. It could’ve been phrased more nicely.

  95. legalbeagle123 says:

    “Putting a time limit on it makes it a demand, not a request. They were not asking for it to be taken down, they were telling Consumerist to take it down.”

    Yea that would be true if it were true. Except that isn’t what happened. Unfortuantely, some people are so blinded by their hate for all corporations that they can’t read:

    “Note, though, it has been almost nine hours since we made the REQUEST, yet the posting is still up, with the number of hits growing logarithmically.

    Also note, we do not make these REQUESTS often (as I’m sure you know, there are thousands of blogs and other online postings that relate to Dell and its products), and we do not make them without good cause. Therefore, WHILE WE WAIT to discuss this request with counsel (despite the source and the clearly confidential and proprietary nature of the information), we ASK that you act in good faith to minimize the potential damage caused by this disclosure, and take down the posting immediately.”

    ASKing and REQUESTing is not “demanding,” even if I ask that you hurry up and do what I asked.

    Consumerist has been asked to do something. Nobody is demanding anything, and do state otherwise is to mislead … precisely the thing Consumerist would complain about if some other company did it.

  96. tort47 says:

    @legalbeagle123:

    But calling something a “request” doesn’t generate 15K+ page views and rile up your readers! I don’t think you understand what is trying to be accomplished here.

  97. luckybob343 says:

    legalbeagle

    A “request” delivered with an expectation of completion of the said action, it is a demand.

    Like when your mother “asks” you to clean your room. You know she is actually demanding you take action.

    The return statement of “I thought I told you to clean your room”, or in this case “we made a request, yet the post is still up”, only proves the intent of the original message: an implicit, or veiled, demand.

    For Dell to demand any action be taken over the disclosure of information that could be found through a visit to the kiosk coupled with a thorough searching of the website is completely overreaching, and typical of a large “bully” corporation.

  98. @legalbeagle123: I can read just fine, thank you very much. I just don’t happen to think that using the word request while making a demand stops it from being a demand.

  99. madktdisease says:

    is Gaby an actual lawyer or just someone in law school? the response is unprofessional and it sounded to me like she didn’t really know for sure if you had a legal right to the material. i’d be a bit worried if i were you… you’ve been crossing the line to libel/slander lately (for instance, in the “comcast rape” story, it was sexual assault, which is absolutely different and is absolutely slander/libel)…

  100. @AT203: Good point.

  101. quantumm says:

    “In addition, as I am sure you must realise” – Jeez I have too much time on my hands, but isnt it realize?

  102. Sudonum says:

    I’d just like to say that I too passed over the original post yesterday and only read it after seeing that Dell wanted it removed. That, and I wanted to be the 100th post too!

  103. Sockatume says:

    Suddenly I feel a whole lot better about going with an HP business laptop instead of that Dell I was eyeing up.

    Poor Dell, one employee makes an ill-advised request like this (“growing logarithmically” my arse, the story’s so old I’d be amazed if its hit rate was linear at this stage) and it’s a world of bad press.

  104. MeOhMy says:

    @legalbeagle123: Fortunately laypeople aren’t bound to the grammatical rigors and over-the-top literalism that legal professionals must obey.

    Outside of the courtroom, a friendly “request” from someone claiming to be acting as the legal “council” on behalf of a third party is anything but. It’s not just a demand, but a demand that carries the obvious threat of a potentially costly lawsuit that would likely be ruinous for Gawker regardless of merit. Sure, she said “request,” and if we were in court that might have a specific meaning.

    But we’re not and we all know what she really meant. If they were not trying scare consumerist into removing the content, they would have had a PR person contact them first.

  105. chworktap says:

    Gaby, will you marry me?

  106. masterdave says:

    an impressive response that tells things like it is.

    Someday, companies will hire people to do their PR that actually understand People and The Public and that threats and legal action and being “corporate” aren’t going to win anything.

    You’d think the PR flack would have been paying attention to the 09 F9 HD DVD fiasco and how by taking it down it made the entire situation (which before being blown up was essentially a non-story) un-manageable.

  107. consumerist11211 says:

    Ahhhhhh, perfect example of what Gaby was talking about. The original Dell story now has over 70,000 views and the bully lawyer update has over 40,000.

    Way to squash the story Dell…knuckleheads. The old days of doing business are over. The consumer finally has a voice thanks to the internet…

  108. Craysh says:

    If you stop and think about it for a second, this could be a brilliant advertising stunt.
    Think about it. All this traffic to a blog post that shows people how to “save” on Dells, only to be reinforced by a “request” to take it down.
    I was one of the people who skipped over the 22 confessions until I read the legal exchange of emails.
    After I read the 22 confessions I found myself thinking that I have the inside track when buying a Dell, which as the social psychologist here could probably tell you encourages that you buy from them.

  109. Wasabe says:

    48k+ views and climbing, #8 story on digg, farked…mission accomplished, Tracy.

  110. legalbeagle123 says:

    “A “request” delivered with an expectation of completion of the said action, it is a demand.”

    LuckyBob: No, it isn’t.

    A request delivered with the expectation of completion of the said action is a request.

    A request is not a demand, whether you want it to be or not.

    I’m requesting that you not redefine words in order to make your point. And I expect you to do that.

    I am not demanding that you do what I ask, but I expect you to. However, I don’t think you will.

  111. RandomHookup says:

    Yes, Gaby is a barrister, though she may not be licensed in the US to call herself an attorney.
    Here’s her bio:

    [www.cscout.com]

    Her awesomeness just keeps growing logarithmically.

  112. legalbeagle123 says:

    “Outside of the courtroom, a friendly “request” from someone claiming to be acting as the legal “council” on behalf of a third party is anything but.”

    Sorry … but no, it’s not.

    Lawyers … aka “counsel” … request things on behalf of their clients all the time.

    A demand is a demand. A request to please remove a post while the parties attorney’s discuss whether it is appropriate is not a demand.

    It’s a courtesy.

    A demand would sound like this:

    “We believe your post is defamatory and we demand that you take it down. If you do not, we will sue you for defamation.”

    That’s a demand with an implied threat.

    I’m sorry. I think the action Dell’s lawywer took were guaranteed to bring her client unwanted attention, but it wasn’t a demand to take down the post.

    It was a request.

    Headlining it as a demand reduces the credibility of the author, and the site.

  113. camas22 says:

    what cost accounting method does gawker use for their legal team? this is the only property i see legal step in so often.

  114. The sad thing is that I generally don’t read every little confession by former employees that are posted on Consumerist. I might refer to them later if necessary. This particular communication piqued my interest and now I know that the information contained therein is valuable, so I’ll be certain to actually check it out this time.

    As much as Tracy had an obligation to her company to send this correspondence, she just made that original post a lot more credible than it was beforehand and it’s probably going to get a LOT more pageviews.

    It’s just like @acambras said. It calls more attention to the original post.

    The best course of action would have been to ignore it. With time, people would forget what was said here. They might refer to it as would I, but perhaps they’d forget about it entirely.

    Not anymore.

  115. http://dictionary.reference.com/browse/request
    http://dictionary.reference.com/browse/demand

    I suppose the question is whether she was asking with “proper authority”. If it’s a request you can say no but if it’s a demand you can’t or at least you shouldn’t. To me it sounded as if she felt that Consumerist had no standing to not do as she asked.

    Obviously we’re going to have to agree to disagree.

  116. MeOhMy says:

    @legalbeagle123:
    You can try to split the semantic hairs of what was written all you want; there’s a huge difference between me nicely asking you to do something and having my lawyer nicely ask you to do something.

    I wouldn’t waste my money and my lawyer’s time unless I was trying to portray a very strong message.

  117. luckybob343 says:

    request: 1. Express the need or desire for; ask for. 2. ask (a person) to do something.

    demand: 1. request urgently and forcefully
    from Google -> define

    Request isn’t asking with an expectation of a result, it is merely asking. To ask expecting results is greater than the boundaries of “request”, it becomes a form of demand.

    Re-read counsel’s letters to Consumerist. They made a request, and then (arrogantly) were surprised when it wasn’t done. They expected their preferred action be completed because they asked for it.

    For example, I can request a co-worker to do something all day long, but I have no reason to expect it to be done. I can request/demand my assistant to do something with an expectation of completion, because I have authority over them.

    Dell is acting as if they have authority over this site, when they clearly do not. It is highly improbable that any of the 22 confessions violated any conditions of a legally-viable NDA, though do keep in mind many companies write illegal NDAs and non-competes knowing most of their employees don’t know they’re illegal. Remember, each of the 22 confessions could have been discovered by scouring Dell’s websites and visiting the kiosk.

  118. haplology says:

    I’m pretty sure Gaby is an attorney (associate?). I am not a lawyer, so I really don’t know the law. I do know that it’s probably not so clear cut, though (most legal things aren’t – see the case of the case of the $54 million pants).

    While the First Amendment and various laws protect journalists, things like the Trade Secrets Act protect proprietary information. What Gaby understands and a lot of attorneys don’t, is that public reaction can be just as important as the legal issues. Dell might win in court, but it would pro’ly be a hollow victory. I can’t imagine they’d get much in the way of damages, and the backlash would be ferocious (I would be tempted to avoid Apple products solely for their decision to sue ThinkSecret – way to come down on 19 year old fans).

    The other thing that is often not understood by older attorneys is that the series of tubes that makes up this world is a bit hard to control. You need a lot of dump trucks to manage that information. Now that it’s out and cached and mirrored and reposted – good frickin’ luck. Even if Consumerist took it down, then you’d just have a bunch of people talking about it more and copies of the article. Herding cats, anyone? Now you’ve got multiple Diggs and who knows what else.

    Anyways – I’m impressed mostly that Consumerist has a good attorney who responded within hours. That’s more impressive than running a worthwile site.

    I do like that a site like this exists. Whether you think it’s legally defensible that they published this information, there are so many things that Dell and other large companies do with no oversight, it’s nice to see someone exercising a little supervision.

  119. They Call Me Dan says:

    We should try and hook up Richard Shapero (DS-MAX guy) and Tracy Holland, they’d make a great team!

  120. TomK says:

    I suggest we all go to that dell 2.0 thing and suggest they leave the consumerist alone.

    Me, I use a mac, so I don’t have to deal with dell shenanigans. But I know some good people who have dells.

  121. shdwsclan says:

    Ha, dell, to actually get anything over the phone from dell, you have to find an indian in the us to make the phone call, so those two indians can speak indian and order you the proper computer…that is, if your unlucky enough to get stuck with dell…..

    Did i mention that nobody carries their print cartridges….though some old epsons did fit….

  122. Pasketti says:

    Someone posted this to the Idea Storm site:

    [www.ideastorm.com]

  123. CorporateCanuck says:

    I suggest that everyone link to this post in their blog using the keyword text “dell deals” so you can get this story to the top of search results.

  124. Bourque77 says:

    I do believe there is a time limit on the clause the ex employee is supposed to have signed. For a simple and abundant job as a sales rep I think its only a couple of years but I could be wrong.

  125. bnissan97 says:

    IT IS QUITE NERVY OF DELL TO DEMAND PROMPT RESOLVE WHEN THEY DO NOT WISH TO ASSIST THEIR CUSTOMERS AT ALL!!!

    1) I worked in Business-to-Business electronic payments. Dell was signed up to be paid by some of our clients but when we attempted to do the same for new clients Dell was horribly uncooperative. They WOULD NOT call back. THEY COULD NOT seem to find for us the proper person to speak to versus leave a voice mails that went unreturned. I contacted the person that was listed as the primary on one account that was set up and after may contacts she contacted us back and said I am not longer in this department anymore, kindly stop contacting me. Well bitch, heaven forbid you say, “I am not longer in this department anymore. Please contact so and so with an email address of and a phone number of etc.” No I had to email her back and try to get this information from her. When I left the company, we still had no headway with Dell regarding the new clients we acquired even though we were transferring monies to them for a few of their clients.

    2) My immediate supervisor had a computer he bought from them and it had a flaw. I overheard day after day his conversations with Dell on this matter. They WOULD NOT provide him a contact out of the call center who would assist him. They were horrible. If I reckon correctly, his logged phone hours on this were 60 to 80. Finally a long while the issue got rectified.

    DELL HOW DARE YOU DEMAND PROMPT RESOLVE WHEN YOU DO NOT FEEL NECESSARY TO RESOLVE YOUR CUSTOMERS CONCERNS WITHOUT HASSLE.

    Tracy Holland -shame shame everyone knows your name!!

  126. Crazytree says:

    my thoughts on this if my client received this letter:

    1. force Dell to describe WITH SPECIFICITY the portions of text to which Dell asserts the privilege of “trade secrets”.

    2. inform Dell that while you are taking their demand seriously, you need a “REASONABLE” amount of time to consult with your counsel to determine the applicability of the privilege asserted to the post.

    3. demand that Dell comply with #1 in writing, or else you will not entertain further communications, and that such a request for #1 is both reasonable, necessary and prudent

    4. sit back and see what portions they claim privilege on. Dell’s counsel is overreaching if they tell you to take the whole thing down, and such a request would likely be seen as overbroad and their failure to comply with #1 would be evidence of bad-faith and failure to mitigate.

  127. Uriel says:

    sounds demandish to me.

    “Please confirm that the posting has been removed by the end of the day tomorrow.”

    The pushiness of her overall tone, and repeated nagging culminates into her demand.

  128. MarkMadsen'sDanceInstructor says:

    Gaby’s my legal hero.

  129. Michael says:

    What an admirable, professional response. And I cannot help but love the irony of a company ruining its reputation by attempting to protect it (but that’s a bit cliche at this point).

  130. campero says:

    Gaby Strikes Back!!

  131. Trackback says:

    Yes, I just said that and with earnest sympathy: Poor Dell. They keep finding themselves taking point in big companies’ scouting missions into the guerrilla- customer-controlled Vietnamese internet jungle.

  132. synergy says:

    Did the lawyer just tell them to STFU and take it? Not to mention the bit about “meritorious or not” which sounds like blackmail to me…

  133. bosrican says:

    You know, this offers a great glimpse into the future of consumer relationships where corporations have to employ more transparency in their business practices as well as be willing to immediately cater to consumer demands as they arise. That proprietary knowledge bullshit is so 1990s. Suck it, Dell. Is it not enough that consumers have made you the #1 PC maker in the world?


  134. Phone call to EFF, 5-10 minutes.
    Time for page to appear on web.archive.org, 1 day.
    Time for page to be mirrored on thousands of blogs, 1 minute.
    Time for page to be linked to on millions of blogs, 30 seconds.
    Time needed to save the page, 1 second.


    They can order it to be removed all they want. What’s done is done.

  135. mbac32768 says:

    I believe you have an obligation, if you’re going to run Dell’s letter, to also mention they’ve since reversed their position.

    [direct2dell.com]

    “Dell’s 23 Confessions”

    “Now’s not the time to mince words, so let me just say it… we blew it.”

    “I’m referring to a recent blog post from an ex-Dell kiosk employee that received more attention after the Consumerist blogged about it, and even more still after we asked them to remove it.”

    “In this case, I agree with what Jeff Jarvis had to say: instead of trying to control information that was made public, we should have simply corrected anything that was inaccurate. We didn’t do that, and now we’re paying for it.”

  136. yg17 says:

    Looks like Dell is fighting back:

    [direct2dell.com]

  137. Trackback says:

    After the small kerfuffle about Dell trying to get Consumerist to take down a post with 22 tips on buying machines from a former Dell kiosk salesman (see my post below), Dell blogger Lionel Menchaca throws himself on his sword and says in front of blogs and everybody, the company made a…

  138. strike says:

    Well, I think we should all test out the accuracy of the original article’s comments. If they’re accurate, we should be able to send Tracy an E-mail at Tracy_Holland@dell.com. :D

  139. Trackback says:

    One of the common themes around here is that it’s bad when you let your lawyers make business decisions. Why? Because lawyers understand the law, and they understand how to use the law — but they don’t often think through the business consequences of using the law.

  140. evilbill-agqx says:

    Monkeys to Dell anyway.
    I bought an Optiplex GX200 back along and within two weeks the hard drive failed.
    I didn’t bother calling in the warranty, though, since it was a 10 gig drive and I had a 40 gig spare knocking around… just taught me not to buy from them again!
    (I have yet to see a Dell with a half-way decent graphics card in it anyway)

  141. SeriouslyInterested says:

    Madktdisease, I’d be interested in seeing your legal credentials, as well. Aside from the fact that Consumerist has not said anything that is “absolutely” defamatory to anyone, there is no such offense as “slander/libel.” It’s libel, or it’s slander, but it cannot be both. Even reasonably law-literate laymen know the difference, so I wonder where your criticism of Gaby’s legal credentials is coming from.

  142. SeriouslyInterested says:

    Madktdisease, I think I’ve figured out your problem. You’ve never read the definitions of slander or libel (which, I repeat, are two different terms). The primary requirement is that the statements be FALSE. Consumerist.com has made no false statements. Since you brought up the Comcast rape story, is your contention that the statement that he did not rape her was false?

    You seem be believe that something critical, if true, is defamatory. Who’s the one with no legal knowledge here?

  143. Invader Zim says:

    New word of the day ” logarithmically”.

  144. PLATTWORX says:

    I have to say I applaud the Consumerist’s response. Companies that think they can simply issue taken down orders to any site that says anything they don’t like is nuts. I look forward to updates on how turns out.

  145. HorseGulchBlogger says:

    So where is Dell admitting error in asking Consumerist to remove its post? I’m not seeing the update. Am I that blind?

  146. HorseGulchBlogger says:

    So where is Dell admitting error in asking Consumerist to remove its post? I’m not seeing the update. Am I that blind?