People v. Phillips

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C h i e f J u s ti c e J u s t ic e s
Maura D. Corrigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________

FILED JUNE 25, 2003

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 119429

PAUL LEWIS PHILLIPS, JR.,

Defendant-Appellee.

__________________________________

BEFORE THE ENTIRE COURT

CAVANAGH, J.

We granted leave to appeal in this case to determine

whether MCR 6.201 permits a trial judge to compel a party in

a criminal case to create reports from an expert witness when

no such report exists. The plain language of MCR 6.201(A)

applies only to providing reports that already exist.

Therefore, we conclude that a trial court may not compel a

party in a criminal case to create an expert witness report.

We also conclude that while MCR 6.201(I) permits modification

of the requirements or prohibitions of MCR 6.201 upon a

showing of “good cause,” such good cause was not demonstrated

in this case. The judgment of the Court of Appeals that the

trial court abused its discretion in compelling defendant to

create an expert report where none existed is affirmed.

I. Facts and Proceedings

Defendant was charged with second-degree murder, MCL

750.317, arising out of a single-vehicle accident that

resulted in the death of defendant’s passenger. A preliminary

examination was held in February 2000, and defendant was bound

over for trial. Defendant engaged three expert witnesses to

testify at trial. On February 28, 2000, the prosecutor filed

a request for discovery, asking for reports produced by or for

any expert witness defendant intended to call at trial. No

reports existed at that time. The prosecutor moved to strike

the defense expert witnesses on the basis that defendant had

not turned over all reports or curricula vitae of the experts.

On May 15, 2000, the trial judge ordered defendant to

comply with MCR 6.201 by providing to the prosecutor any

reports of defendant’s expert witnesses. In August 2000, the

prosecutor filed a second motion to strike and again alleged

that defendant had not complied with the discovery requests.

The prosecutor complained that there were no reports from any

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of defendant’s expert witnesses.

The trial judge signed an order on September 11, 2000,

which, in part, ordered defendant to “obtain reports from the

defense expert and provide them within thirty (30) days, to

the People.” Defendant’s motion for reconsideration was

denied on October 20, 2000. In its order, the trial court

stated that “the Court believes that [MCL 767.94a] and MCR

6.201 provide the Court with the discretion to order the

creation of such reports.”

Defendant filed an application for leave to appeal in the

Court of Appeals. The Court of Appeals granted leave and

reversed the order of the trial court. 246 Mich App 201; 632

MW2d 154 (2001). The Court concluded that there was no

requirement in MCR 6.201 that an expert actually create a

written report that could be produced. Further, because

nonwritten observations and conclusions are not discoverable,

the Court cited People v Elston, 462 Mich 751, 759, 762; 614

NW2d 595 (2000), for the proposition that the prosecutor was

not entitled to defendant’s expert witnesses’ unwritten

observations. The Court of Appeals also rejected the

prosecutor’s argument that the trial judge had the authority

to modify the rules. The Court noted that MCR 6.201(I)

states: “On good cause shown, the court may order a

modification of the requirements and prohibitions of this

3

rule.” Because the trial court did not find that good cause

existed and, instead, based its decision on its own

discretion, the Court of Appeals concluded that the trial

court abused its discretion in compelling defendant to create

expert reports where none existed.

The prosecutor applied for leave to appeal to this Court.

Instead of granting leave, this Court remanded the case to the

Saginaw Circuit Court for a “good cause” determination under

MCR 6.201(I). 636 NW2d 139 (2001).

On February 6, 2002, on remand, the trial court issued an

opinion and order outlining “good cause” for modifying the

discovery mandated by MCR 6.201(A). The trial court noted

that defendant did not comply with the trial court’s order for

discovery and defendant’s failure to comply provided a legally

sufficient reason for “good cause.” This Court granted leave

to appeal on July 10, 2002.1

1
The grant order directed the parties to brief among the
issues:

(1) [W]hether MCR 6.201 or MCL 767.94a allows

a trial court to compel creation of a report from a

proposed defense expert witness, (2) whether the

court rules authorize a trial court to compel

disclosure of a defense, (3) whether the court

rule, MCR 6.201, or the statute, MCL 767.94a,

controls discovery in a criminal case, and (4)

whether MRE 705 gives the trial court discretion to

order disclosure of a defense expert’s opinion.

[466 Mich 891 (2002).]

4

 II. Standard of Review

A trial court’s decision regarding discovery is reviewed

for abuse of discretion. People v Stanaway, 446 Mich 643,

680; 521 NW2d 557 (1994). Interpretation of a court rule is

treated like interpretation of a statute, it is a question of

law that is reviewed de novo. CAM Const v Lake Edgewood

Condominium Ass’n, 465 Mich 549, 553; 640 NW2d 256 (2002).

III. Analysis

A. The court rule, MCR 6.201, not the statute, MCL 767.94a,

controls discovery in a criminal case.

The question that logically must be answered first is

whether the court rule, MCR 6.201,2 or the statute, MCL

2
MCR 6.201 provides, in pertinent part:

(A) Mandatory Disclosure. In addition to

disclosures required by provisions of law other

than MCL 767.94a; MSA 28.1023(194a), a party upon

request must provide all other parties:

(1) the names and addresses of all lay and

expert witnesses whom the party intends to call at

trial;

(2) any written or recorded statement by a lay

witness whom the party intends to call at trial,

except that a defendant is not obliged to provide

the defendant’s own statement;

(3) any report of any kind produced by or for

an expert witness whom the party intends to call at

trial;

(4) any criminal record that the party intends

to use at trial to impeach a witness;

(continued...)

5

767.94a,3 controls discovery in a criminal case. Both the

2
(...continued)
(5) any document, photograph, or other paper

that the party intends to introduce at trial; and

(6) a description of and an opportunity to

inspect any tangible physical evidence that the

party intends to introduce at trial. On good cause

shown, the court may order that a party be given

the opportunity to test without destruction such

tangible physical evidence.

3
MCL 767.94a provides as follows:

(1) A defendant or his or her attorney shall

disclose to the prosecuting attorney upon request

the following material or information within the

possession or control of the defendant or his or

her attorney:

(a) The name and last known address of each

witness other than the defendant whom the defendant

intends to call at trial provided the witness is

not listed by the prosecuting attorney.

(b) The nature of any defense the defendant

intends to establish at trial by expert testimony.

(c) Any report or statement by an expert

concerning a mental or physical examination, or any

other test, experiment, or comparison that the

defendant intends to offer in evidence, or that was

prepared by a person, other than the defendant,

whom the defendant intends to call as a witness, if

the report or statement relates to the testimony to

be offered by the witness.

(d) Any book, paper, document, photograph, or

tangible object that the defendant intends to offer

in evidence or that relates to the testimony of a

witness, other than the defendant, whom the

defendant intends to call.

(2) The defendant or his or her attorney shall

comply with the disclosure provisions of subsection

(continued...)

6

prosecutor and defendant maintain that the court rule governs.

We agree that the court rule is currently the governing

provision. As both parties correctly point out, in

conjunction with issuing MCR 6.201, this Court issued

Administrative Order No. 1994-10. The administrative order

provided that “discovery in criminal cases heard in the courts

of this state is governed by MCR 6.201, and not by MCL

767.94a; MSA 28.1023 (194a).” AO 1994-10. Therefore, we do

not need to determine whether MCL 767.94a would permit a trial

court to compel creation of an expert report because MCR

6.201, not MCL 767.94a, governs discovery in criminal cases.4

B. MCR 6.201

Having determined that MCR 6.201 governs discovery in

criminal cases, we must now determine whether MCR 6.201(A)

3
(...continued)
(1) not later than 10 days before trial or at any

other time as the court directs.

(3) A defendant shall not offer at trial any

evidence required to be disclosed pursuant to

subsection (1) that was not disclosed unless

permitted by the court upon motion for good cause

shown. A motion under this subsection may be made

before or during trial.

4
We intend to study discovery in criminal cases in
connection with our review of the Rules of Criminal Procedure
in Administrative File 2003-04. We need not address the issue
in this opinion because we are not persuaded that the court
rule and statute conflict in relevant respects for the
purposes of this case.

7

allows a trial court to compel creation of a report from a

proposed expert witness. The prosecutor contends that the

trial court can compel creation of a report. We reject the

prosecutor’s contention because it is contrary to the plain

language of MCR 6.201(A). In CAM Const, supra at 554, we

reiterated the proper mode of interpreting a court rule, which

was articulated in Grievance Admin v Underwood, 462 Mich 188,

193-194; 612 NW2d 116 (2000):

When called on to construe a court rule, this

Court applies the legal principles that govern the

construction and application of statutes. McAuley

v General Motors Corp, 457 Mich 513, 518; 578 NW2d

282 (1998). Accordingly, we begin with the plain

language of the court rule. When that language is

unambiguous, we must enforce the meaning expressed,

without further judicial construction or

interpretation. See Tryc v Michigan Veterans’

Facility, 451 Mich 129, 135; 545 NW2d 642 (1996).

Similarly, common words must be understood to have

their everyday, plain meaning. See MCL 8.3a . . .;

see also Perez v Keeler Brass Co, 461 Mich 602,

609; 608 NW2d 45 (2000).

MCR 6.201(A)(3) provides that a party must provide “any

report of any kind produced by or for an expert witness whom

the party intends to call at trial.” The plain meaning of the

words at issue is as follows. A “report” is defined as: “1.

An account presented usually in detail. 2. A formal account

of the proceedings or transactions of a group. . . . The

American Heritage Dictionary (2d college ed). To “produce” is

defined as: “1. To bring forth; yield. 2. To create by

mental or physical effort. 3. To manufacture. 4. To cause

8

to occur or exist; give rise to. 5. To bring forward;

exhibit. 6. To sponsor and present to the public. . . .

Id.”5

According to the plain meaning of the words, a “report”

is an account of something. A report that has been “produced”

has already been brought forth or created. In other words,

the report must already exist. There is nothing in the plain

language of MCR 6.201(A) that permits a trial court to compel

such a report to be created when it does not exist.

Our holding in this regard is consistent with a recent

case from this Court, People v Elston, supra. In Elston, the

defendant was charged with first-degree criminal sexual

conduct. The trial court denied the defendant’s request to

suppress evidence of sperm fragments found in the victim

because neither party learned of their existence until the

first day of trial. The trial court denied the motion to

suppress. The Court of Appeals reversed. This Court

reinstated the trial court’s denial of the motion to suppress,

stating:

Apart from the wet swab sample and the wet

swab laboratory report, the only other “evidence of

5
This definition is consistent with the definition in
Black’s Law Dictionary (7th ed), which defines “produce” as:
“1. To bring into existence; to create. 2. To provide (a
document, witness, etc.) In response to subpoena or discovery
request. 3. To yield (as revenue). 4. To bring (oil, etc.)
To the surface of the earth.”

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 sperm” not disclosed to defendant before trial was

Dr. Randall’s own personal observations. Clearly,

this information was outside the scope of

discovery. Because Dr. Randall did not make notes

of his observations, they were not subject to

mandatory disclosure under MCR 6.201(A)(3).

[Elston at 762.]

The same is true in this case. Defendant has consulted

experts, but he maintains that the experts have not generated

any reports. Therefore, nothing exists that could be subject

to mandatory disclosure under MCR 6.201(A)(3).

The plain language of MCR 6.201(A) does not permit a

trial court to compel creation of a report from either party’s

expert witnesses where no report exists. We, therefore,

affirm the Court of Appeals holding that only existing reports

that have been “produced,” or created, by an expert witness

are required to be disclosed pursuant to MCR 6.201(A).

C. Good cause

MCR 6.201(I) provides: “On good cause shown, the court

may order a modification of the requirements and prohibitions

of this rule.”

Before granting the prosecutor’s application for leave to

appeal in this case, we remanded the case to the trial court

for a good-cause determination under MCR 6.201(I). On remand,

the trial court found that defendant “failed to fully comply

with the discovery requests and orders by failing to initially

disclose the addresses of experts and failure to provide

10

information from the experts.” The court stated:

[I]n attempting to fashion an appropriate

remedy for the discovery violation caused by the

Defendants(sic), [the court] took into account the

Defendant’s due process rights to a fair trial, the

Prosecutor’s interest in obtaining convictions on

relevant and admissible evidence and the Court’s

interest in expeditiously administering justice and

maintaining judicial integrity.

Therefore, the court ordered that defendant “shall provide a

Cirriculum Vitae of [each of] defendant’s experts and a basic

report on each of the experts’ findings and conclusions.”

We agree that a trial court may modify the requirements

or prohibitions of MCR 6.201 if good cause is shown. We do

not believe, however, that the trial court’s stated reason

constituted “good cause” under the court rule. Defendant may

not have adequately responded to the prosecutor’s discovery

requests pertaining to his expert witnesses’ curricula vitae.

However, as we indicated above, MCR 6.201(A)(3) only requires

provision to the opposing party reports “produced by or for an

expert witness.” Because a party is not obligated to disclose

reports that do not exist, the fact that defendant did not

disclose such reports does not constitute “good cause” to

modify the requirements of MCR 6.201(A). We recognize that

there may be circumstances where good cause does exist to

permit a trial court to compel a party to create expert

witness reports. For example, good cause may exist when a

trial court believes a party is intentionally suppressing

11

reports by an expert witness.6 However, such circumstances

are not present here. Therefore, we conclude that the trial

court abused its discretion in ordering defendant to create

expert reports with the experts’ findings and conclusions.

IV. Conclusion

For these reasons, we conclude that the plain language of

MCR 6.201(A) requires disclosing only reports that already

exist. A trial court may not compel a party in a criminal

case to create a report from an expert witness, absent the

good cause required in MCR 6.201(I). We also conclude that

the requisite “good cause” to modify the requirements in the

court rule was not demonstrated in this case. Therefore, we

affirm the judgment of the Court of Appeals.

Michael F. Cavanagh

Maura D. Corrigan

Elizabeth A. Weaver

Marilyn Kelly

Clifford W. Taylor

Robert P. Young, Jr.

Stephen J. Markman

6
There has been no such claim here and no such finding by
the trial court.

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