a. Davis’s and Somerville’s separate and district activities from TTV

The Court concludes that the TTV efforts and the Davis and Somerville efforts were separate, and that liability is not shared between these two sets of Defendants. This finding is largely based on the fact that the actual act of intimidation alleged against Davis and Somerville here—challenging Georgia voters—occurred independent of True the Vote and Engelbrecht, even though the public announcements of the two efforts occurred around the same time and the two groups communicated frequently before the Senate runoff election to draw greater attention to the Georgia voter rolls.

First, there is no dispute that the TTV list and the Davis and Somerville lists are different. In fact, Somerville and Davis completed their Section 230 challenge list before meeting TTV and Engelbrecht. Tr. 1124:6–24, 1637:8–11. Somerville and Davis thereafter did not make any changes to their list after this meeting. Tr. 1485:17–1486:3. Somerville did not “have a tremendous amount of insight into how [TTV’s list] was construed” (Tr. 1158:13–15) and until trial preparation, he had not seen the TTV list (Tr. 1486:4–10). Similarly, Davis does not know the details of how TTV’s list was crafted. Tr. 1657:25–1658:2.

Somerville and Davis discussed their opinions that the TTV list was too big, even “systemic” (Tr. 1157:5–9) and that they would not have used TTV’s methods themselves. Tr. 1157:21–23 (“There were conditions that True the Vote used per my understanding that we did not. And there were reasons why we excluded some of the individuals that they included.”); 1659:9–15 (“[TTV’s challenge list] was broader than I would have personally done myself.”); see also PX 58. The two most prevalent differences in the two lists involved inactive voters or voters who did not cast a ballot in the 2020 general election, both of which Davis and Somerville excluded from their list and TTV included.54 Tr. 1158:4–8, 1667:19–1668:6. Somerville indicated some concern over the Board of Elections being overwhelmed by the number of challenges TTV intended. Tr. 1162:8–16. Davis likewise thought the larger the challenge, the less likely the Boards of Elections would act on it. Tr. 1659:9–15. Nevertheless, Somerville does not take any issue with TTV’s use of the NCOA dataset, which he has “a tremendous amount of confidence in” (Tr. 1158:23–24) and Davis disclaimed that he had ever thought the TTV challenges were “illegitimate” (Tr. 1659:16–18).

Nor does the Court find that Somerville and Davis collaborated with TTV in recruiting volunteer challengers. Somerville relied on volunteers from his personal connections and posts made on his social media accounts (Tr. 1165:22–24), whereas TTV dispatched Defendants Ron Johnson and James Cooper to obtain volunteers. See, e.g., PX 42. The only part of TTV’s recruitment of volunteers that Somerville could testify to was the involvement of Johnson, who initially introduced TTV and Somerville. Tr. 1492:8–11. While there is some overlap in their volunteers (PX 92, 16; Tr. 1142:1–24), it was not “total” overlap. PX 92, 16. This overlap is unsurprising because many of TTV’s recruited challengers Somerville had known for a long time and it was “a pretty small pool of people” involved. Tr. 1142:21–22. Somerville disagreed that “many of [the Somerville and Davis] challenge volunteers were also True the Vote’s volunteer challengers.” Tr. 1142:6–12.

As far as personal interactions, Somerville attended the introduction dinner with Engelbrecht. Thereafter, on December 16, 2020, Davis and Somerville both participated in a call with Engelbrecht, Somerville, and non-Party Gregg Phillips titled “Elector Challenge Alignment.” Tr. 1124:3–24, 1674:12–1675:14; see also PX 6. Davis also attended a Zoom town hall meeting around December 20, 2020. Tr. 1675:15–21; PX 79. To the extent Davis maintained any connection to TTV, it was because of a mutual interest in election integrity. Tr. 1658:2–1659:8. Davis even declined to be part of a TTV team in Georgia. PX 97, 38:22–39:5. Somerville remained in contact with Engelbrecht regarding their independent Section 230 efforts. See PX 47, 8–10 (describing Somerville’s communications with TTV and Engelbrecht following their introduction); see also PX 92.

TTV published Somerville’s and Davis’s names in its announcement of the Section 230 challenges on December 18, 2020. PX 42. This announcement references both Defendants Davis and Somerville and their own effort to ensure the accuracy in voter rolls. PX 42. Somerville himself reviewed this announcement and encouraged Davis’s name be included. Tr. 1135:2–8, 1489:6–1490:15. The announcement indicates that all Defendants in this case “pitched in” for the voter challenges. PX 42. This announcement is really the only statement connecting the two group’s voter challenges in this case.

To be sure, there is temporal overlap between the Somerville’s and Davis’s efforts and those of TTV. There are even communications between the two efforts and evidence of corresponding actions. See, e.g., PX 92. Following the submissions of challenges, Somerville “provide[d] some updates” to TTV about counties’ acceptance or rejection of challenges. Tr. 1143:14–22. Somerville, however, disclaimed that they worked closely with TTV on the voter eligibility challenges. Tr. 1486:11–23 (denying that TTV and Somerville and Davis did “daily stand-up meetings,” compared their NCOA voter lists, coordinated volunteers, or had phone calls with OPSEC group).

Thus, other than a number of communications and meetings between the completion of their list and the Senate runoff election (and this lawsuit), little to no evidence connects Davis’s and Somerville’s challenges to TTV’s challenges. See, e.g., PX 104, 32:22–33:4 (“Mark [Davis] and I [Derek Somerville] were absolutely investigating the data at that time independent of True The Vote, independent of True The Vote's data, independent of their people, their resources—completely independent of them.”), PX 92 (recounting communications between Somerville and Engelbrecht during the period before the Senate runoff election). The Court finds the connection between Davis’s and Somerville’s efforts and TTV’s efforts to challenge Georgia voters under Section 230 too attenuated for any liability attributed to TTV to flow to Davis and Somerville. The Court specifically finds that these were two distinct efforts, aimed at the same purpose (i.e., reduce voter fraud and pursue election integrity) with the same general avenue of achieving that purpose (i.e., Section 230 challenges).