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
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Comments:
owned...
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???
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.
lol. "Don't piss of the tubes; hell hath no fury like an intarweb scorned".
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."
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.
I have a feeling that Gaby's slowly but surely gaining Superstar status amongst the consumerist.com readers!
Sick Burn!
Wow... if Gaby is your lawyer, I want her (?) to be mine! Nice response letter!
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.
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!
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....
@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. ;)
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.
Gaby is awesome.
You couldn't have picked a better photo.
Oh, and Gaby: YOU ROCK.
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.
Okay, taking bets. Who wants to guess they continue requesting removal and who wants to bank on them agreeing and dropping the matter?
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?
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.
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.
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!
@Pope John Peeps II: Even the US government lets you talk about classified stuff after 75 years, assuming you're still alive.
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!
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.
The information from the 'Confessions' has been great to know. I'm glad that Consumerist isn't taking any crap from Dell.
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.
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."
I think Gaby should have her own blog. I love when she shows up on Consumerist and shoots down the corporate weasels.
I wasn't really interested in reading the Dell post before, now I am very curious.
poor tracy, such a corporate dork. i bet she owns a ficus tree from ikea too...
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.
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.
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 =)
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???
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...
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.
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.
Oh, and they don't have to reveal their sources (just like a journalist) Nyah Nyah!
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.
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.
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!
You would figure they would take this as a learning experience.
"
"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 :)
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.
DUDE, YOU'RE GETTING A COUNTER-SUIT, SWEEEET.
![[news.bbc.co.uk]](http://news.bbc.co.uk/nol/shared/spl/hi/pop_ups/07/middle_east_enl_1181901515/img/1.jpg){kind=link}
Tracy,
Did Dell send out the spooks when photos and news article hit the net of your laptops catching fire?