Tomas Montoya’s Renewed Motion for Summary Judgment Based upon Qualified Immunity and Other Grounds, filed March 22, 2012 (Doc. 104)("Reply to Response to Jan. 30, 2012 MSJ”)("Therefore, this document remains unauthenticated and, as such, constitutes inadmissible hearsay.”). Rule 901 of the Federal Rules of Evidence requires the proponent of a piece of evidence to "produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Fed.R.Evid. 901. Because Wilks was available for a deposition, the statement does not qualify as a statement against interest under rule 804 of the Federal Rules of Evidence— which requires the declarant to be "unavailable as a witness.” Fed.R.Evid. 804(b). Accord Pfingston v. Ponan Eng'g Co., 284 F.3d 999, 1004 (9th Cir.2002) (<HOLDING>). The Court has already determined that the
recognizing exceptions to immunity holding that party may not rely on conclusory statements or an argument that the affidavits in support of the motion for summary judgment are not credible holding a trial judge may not rely only on counsels proffer regarding unavailability to admit hearsay under the residual exception recognizing that a party could not rely on the hearsay exceptions under rule 804 on summary judgment without showing unavailability of the witness holding that hearsay in affidavit which would be inadmissible in evidence at trial could not be considered on motion for summary judgment