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
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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...)
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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.
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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
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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
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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
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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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