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Michigan Supreme Court

Lansing, Michigan 48909 

Chief Justice Justices 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion 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
 

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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.” 

9
 
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
 

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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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