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
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“In addition, as I am sure you must realise” – Jeez I have too much time on my hands, but isnt it realize?
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!
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.
@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.
Gaby, will you marry me?
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.
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…
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.
48k+ views and climbing, #8 story on digg, farked…mission accomplished, Tracy.
“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.
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.
“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.
what cost accounting method does gawker use for their legal team? this is the only property i see legal step in so often.
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.
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.
@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.
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.
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.
We should try and hook up Richard Shapero (DS-MAX guy) and Tracy Holland, they’d make a great team!
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.
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….
Someone posted this to the Idea Storm site:
[www.ideastorm.com]
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.
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.
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!!
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.
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.
Gaby’s my legal hero.
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).
Gaby Strikes Back!!
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.
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…
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?
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.
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.”
Looks like Dell is fighting back:
[direct2dell.com]
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…
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.
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.
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)
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.
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?
New word of the day ” logarithmically”.
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.
So where is Dell admitting error in asking Consumerist to remove its post? I’m not seeing the update. Am I that blind?
So where is Dell admitting error in asking Consumerist to remove its post? I’m not seeing the update. Am I that blind?