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

[direct2dell.com]

[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."

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

"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.

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.

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!!

[www.ideastorm.com]

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

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

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.

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

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.

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.

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.

[www.cscout.com]

Her awesomeness just keeps growing logarithmically.

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.

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...

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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?

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.

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.

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.

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.

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...

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.

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?

[2mdn.aolcdn.com]

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

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.

I expect better from you.

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.

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.

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.

Screw off.

Love,

Ben

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

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

[news.bbc.co.uk]

"

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.

Way to stand your ground.

"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...

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???

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

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

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."

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

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.

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!

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

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

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.

Can we get a scan of said document?

Oh, and Gaby: YOU ROCK.

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.

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. ;)

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

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.

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."

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

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