Victoria FULLER, Plaintiff, v. INTERVIEW, INC.; Brant Publications, Inc., as the owner of Interview, Inc.; Peter Brant, individually and as the shareholder and owner of Brant Publications, Inc.; Sandra J. Brant, individually and as the shareholder and owner of Brant Publications, Inc.; and Deborah Blasucci, individually and as the Executive Vice President and Chief Financial Officer of Interview, Inc. and Brant Publications, Inc., Defendants No. 07 Civ. 5728(RJS)(DF) United States District Court, S.D. New York September 30, 2009 Freeman, Debra C., United States Magistrate Judge MEMORANDUM AND ORDER *1 In this action, in which plaintiff Victoria Fuller (“Plaintiff”) alleges that her former employer and certain of its principals terminated her employment in violation of her rights under the Family and Medical Leave Act of 1993 (the “FMLA”), 29 U.S.C. § 2601, et seq., and state and local law, the parties currently dispute whether Plaintiff may use certain documents claimed by defendants to be privileged and to have been produced inadvertently. Defendants Interview, Inc. (“Interview”), Brant Publications, Inc. (“Brant Publications”), Peter Brandt, Sandra J. Brant, and Deborah Blasucci (“Blasucci”) (collectively, “Defendants”) seek a protective order precluding Plaintiff from using the documents. Defendants also ask the Court to grant them the costs of this motion, including attorney's fees. For her part, Plaintiff seeks leave to amend her Complaint in a manner that would make explicit use of the documents. For the reasons set forth below, Defendants' motion for a protective order (Dkt.40) is granted, and Plaintiff's motion to amend her complaint (Dkt.28) is denied, to the extent the proposed amendment would either incorporate or utilize the information contained in the documents at issue. BACKGROUND The documents in question consist of certain e-mail communications between management-level employees of Interview and/or Brant Publications and their outside employment law counsel, Mark Brossman, Esq. (“Brossman”), a member of the firm of Schulte Roth & Zabel LLP (“SRZ”). The communications to Brossman all sought advice related, in some way, to Plaintiff's employment, and the return communications from Brossman all provided the advice sought. (Affidavit of Mark. E. Brossman, Esq., sworn to on Mar. 13, 2009 (“Brossman Aff.), at ¶ 20; see also Brossman Aff. Ex. C (emails inadvertently disclosed to Plaintiff).) The documents were produced by Defendants not in this litigation, but rather in a parallel arbitration proceeding. (Id. at ¶¶ 8–9; see also id. Ex. A (Letter to Daniel J. Kaiser, Esq. from Mark E. Brossman, Esq., dated Oct. 24, 2007).) In October, 2007, shortly after the documents had been produced, the parties agreed to attempt to settle both matters, and largely placed both proceedings on hold while they engaged in settlement negotiations. (Id. at ¶ ¶ 10, 12.) Then, in April of 2008, in an effort to advance ongoing settlement discussions, Defendants agreed to respond to a limited set of interrogatories from Plaintiff, and, in so doing, discovered the inadvertent production. (Id. at ¶ 16, 18.) On April 16, 2008, within three days of the date when they purportedly made this discovery, Defendants' counsel sent Plaintiff's counsel a letter, telling him of the discovery of the inadvertent production, requesting that the documents in question be destroyed, and providing a set of redacted documents to replace those that had been produced. (Id. at ¶ 18; see also id. Ex. B (Letter to Alan J. Rich, Esq., from Jill Goldberg Mintzer, Esq., dated Apr. 16, 2008).) *2 Despite Defendants' April 16th letter, Plaintiff's counsel apparently did not, upon request, destroy the documents claimed to be privileged. (See id. at ¶ 21.) Nor did counsel respond to Defendants' April 16, 2008, letter (id. at ¶ 22); nor did he move to place the documents before the Court for in camera review, to test the claim of privilege (see id.). Rather than take any of these steps, Plaintiff's counsel held onto the documents for 10 months and, in February, 2009, filed one of them in this Court with a motion to amend Plaintiff's pleading. (Id. at ¶ 22–23; see also Declaration of Alan J. Rich, dated Feb. 13, 2009 (“Rich Decl.”) Ex. H (E-mail to Deborah Blasucci, from Mark Brossman, dated Dec. 11, 2006).)[1] According to Plaintiff, the documents demonstrate that Defendants' counsel, Brossman, was a party to the unlawful conduct alleged in the Complaint, and provide a basis for adding him as a named defendant in this action.[2] (See Plaintiff's Memorandum in Opposition to Dependants' Motion for Protective Order and Other Relief, dated Apr. 20, 2009 (Dkt.42) (“Pl.Mem.”), at 61.) Defendants take the position that the documents in question are protected by the attorney-client privilege; that they were produced inadvertently in the course of a voluminous document production, despite diligent efforts to protect the privilege; that privilege has not been waived; that the Court should order Plaintiff and her counsel to destroy any copies in their possession or control; that the proposed amendment to the Complaint should not be permitted; and that Plaintiff's counsel should be sanctioned for its conduct in ignoring Defendants' letter and proceeding to use documents known to be subject to a claim of privilege. (Brossman Aff. at ¶¶ 6–7, 18, 20, 24–27; see also Reply Affidavit of Mark E. Brossman, Esq ., sworn to on Apr. 30, 2009 (“Brossman Reply Aff”), at ¶¶ 3, 5–6, 9, attached to Reply Declaration of Peter T. Shapiro, Esq., dated May 1, 2009 (Dkt.44)); Defendants' Memorandum of Law in Support of Their Motion For a Protective Order and Other Relief, dated Mar. 13, 2009 (Dkt.41) (“Def.Mem.”)); Defendants' Reply Memorandum of Law in Further Support of Their Motion For a Protective Order and Other Relief, dated May 1, 2009 (Dkt.43).) Plaintiff argues that the documents are not actually subject to attorney-client privilege; that any such privilege has been waived; that, even if not waived, the privilege has been vitiated under the “crime-fraud exception” to the privilege; and that, in any event, denying Plaintiff the use of the documents would be unduly prejudicial. (See generally Pl. Mem.) The parties recognize that Plaintiff's motion to amend the Complaint will turn on the Court's resolution of the privilege issue. Thus, the arguments of all parties focus on the question of whether Plaintiff should be able to use the documents in question. If the documents may not be used, then the proposed amendment may not be permitted, as it incorporates, quotes, and relies upon the purportedly privileged communications. See, e.g., Rich Decl. Ex. A (Proposed Amended Complaint), at ¶ 63; see also Pl. Mem. at 69.) DISCUSSION I. DEFENDANTS' MOTION FOR A PROTECTIVE ORDER *3 Under Rule 26(c) of the Federal Rules of Civil Procedure, the Court may, on motion and “for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Fed.R.Civ.P. 26(c)(1). Such an order may include a prohibition against the use of privileged information inadvertently produced in discovery. See HSH Nordbank AG New YorkBranch v. Swerdlow, No. 08 Civ. 6131(GEL), 2009 U.S. Dist. LEXIS 63711, at *5 n. 4 (S.D.N.Y. July 24, 2009). Here, the e-mails in question are privileged, and the issuance of a protective order would be appropriate. A. The Documents Are Privileged. The Court has reviewed the e-mails in question and concludes that they are privileged. The essential elements that must be shown by a party asserting the attorney-client privilege are: “(1) a communication between client and counsel, which (2) was intended to be and was in fact kept confidential, and (3)[was] made for the purpose of obtaining or providing legal advice.” United States v. Constr. Prods. Research, 73 F.3d 464, 473 (2d Cir.1996); see also United States v. Int'l Bhd. of Teamsters, 119 F.3d 210, 214 (2d Cir.1997) (noting that where “legal advice of any kind is sought ... from a professional legal advisor in his capacity as such, ... the communications relating to that purpose [that are] made in confidence ... by the client” are privileged).[3] The e-mail communications between Brossman and his client meet this test, and Plaintiff does not seriously dispute this. Although, at one point, Plaintiff suggests that certain of the communications were not intended to be kept confidential, or were, in fact, shared with others, Plaintiff points only to the sharing of counsel's advice among corporate managers, which does not negate the privilege. (See Pl. Mem. at 44–45; see also Baptiste v. Cushman & Wakefield, Inc., No. 03 Civ. 2102(RCC)(THK), 2004 U.S. Dist. LEXIS 2579, at *6 (S.D.N.Y. Feb. 20, 2004) (communication from counsel does “not lose [its] privileged status when shared among corporate employees who share responsibility for the subject matter of the communication”).) B. Privilege Has Not Been Waived. Plaintiff more vigorously argues that any privilege enjoyed by the e-mails at issue should be considered waived by Defendants' production of the documents in the course of the arbitration. The disclosure of privileged information to an adversary does not, however, necessarily result in a waiver of privilege. See In re Copper Market Antitrust Litigation, 200 F.R.D. 213, 221–22 (S.D.N.Y.2001) (“[I]nadvertent production will not waive the privilege unless the conduct of the producing party or its counsel evinced such extreme carelessness as to suggest that it was not concerned with the protection of the asserted privilege.”). Indeed, where (1) disclosure was inadvertent, (2) reasonable care had been taken to prevent disclosure, (3) the disclosure was not substantial when viewed in the context of the overall document production, and (4) the producing party acted promptly to rectify the error upon its discovery, waiver will not generally be found. See, e.g., Lois Sportswear, U.S.A., Inc. v. Levi Strauss & Co., 104 F.R.D. 103, 105 (S.D.N.Y.1985) (holding that the elements relevant to a determination of waiver include “the reasonableness of the precautions to prevent inadvertent disclosure, the time taken to rectify the error, the scope of the discovery and the extent of the disclosure”); Business Integration Services, Inc. v. AT & T Corp., 251 F.R.D. 121, 129 (S.D.N.Y.2008) (same); see also Fed.R.Evid. 502 (governing when inadvertent disclosure of privileged information in the course of a federal or state proceeding will operate as a privilege waiver).[4] Further, there is an “overreaching issue of fairness and the protection of an appropriate privilege which must be judged against the care or negligence with which the privilege [wa]s guarded.” Business Integration Services, Inc., 251 F.R.D. at 129 (citing Lois Sportswear, 104 F.R.D. at 105). *4 Here, Defendants have submitted a sworn affidavit from counsel, attesting to the nature of the precautions taken by Defendants in screening documents for privilege. Counsel attests that his firm staffed a team of approximately four associates (the “SRZ Document Review Team”) to review the tens of thousands of potentially responsive documents that Brant Publications and/or Interview provided to SRZ. Specifically, each associate was assigned a sub-set of documents to review both for relevance and potential privilege issues. All of the associates understood attorney-client privilege and were familiar with identifying privileged documents. During the review process, documents that were identified as privileged were tagged as such and separated out from those documents SRZ intended to produce. During the time period between early October 2007 and early December 2007, the SRZ Document Review Team spent approximately 250 hours reviewing an estimated 70,000 pages. (Brossman Aff., at ¶ 25.) This demonstrates that, as a general matter, Defendants took reasonable care to prevent the disclosure of privileged information. Further, Defendants' counsel has explained that the quantity of privileged material produced (portions of a few pages) was small, in the context of Defendants' overall document production. (See id. (stating that “[b]y early December 2007, SRZ had produced over 32,000 pages of electronic documents and over 2000 pages of hard-copy documents to Plaintiff's counsel”).) This also weighs against a finding of waiver. See Asian Vegetable Research and Dev. Ctr. v. Institute of Intern. Ed., No. 94 Civ. 6551(RWS), 1995 U.S. Dist. Lexis 11776, at *23 n. 6 (S.D.N.Y. Aug. 17, 1995) (no waiver found where “20 pages of privileged materials were produced among the more than 75,000 reviewed by [counsel]”); Bank Brussels Lambert v. Credit Lyonnais S.A., No. 93 Civ. 6876(KMW), No. 94 Civ. 1317(KMW),1995 U.S. Dist. Lexis 2275, at *23 (S.D.N.Y. Feb. 28, 1995) (4 documents disclosed out of 70,000 produced); Strategem Dev. Corp. v. Heron Intern. N.V., 153 F.R.D. 535, 544 (S.D.N.Y.1994) (6 documents disclosed out of 40,000 produced); Lois Sportswear, 104 F.R.D. at 105 (22 documents disclosed out of 16,000 pages reviewed). Defendants have also shown that they asserted the privilege quickly upon realizing that the inadvertent disclosure had been made. While Plaintiff contends that the delay between Defendants' initial disclosure of the documents and their effort to remedy the error was lengthy in this case, the relevant time frame runs not from the time the inadvertent disclosure is made, but rather from the time it is discovered. See, e.g., Stoner v. New York City Ballet Co., No. 99 Civ. 0196(BSJ)(MHD), 2002 U.S. Dist. Lexis 24644 (S.D.N.Y. Dec. 24, 2002) (“The time period between defendant's attorney first learning of the problem and acting to remedy it is consistent with the conclusion that the error was both inadvertent and not attributable to indifference or a lack of a serious intent to protect privileged materials.”). This, too, suggests that no waiver should be found. See, e.g., Liz Claiborne, Inc. v. Mademoiselle Knitwear, Inc., No. 96 Civ.2064(RWS), 1996 U.S. Dist. Lexis 17094, at *12 (S.D.N.Y. Nov. 19, 1996) (“Inadvertent disclosure has been held to be remedied when the privilege is asserted immediately upon discovery of the disclosure and a prompt request is made for the return of the privileged documents.”). *5 In this case, the Defendants produced the privileged documents to Plaintiff on October 24, 2007. (Brossman Aff. at ¶ 8; Brossman Aff. Ex. A.) In early December 2007, the parties agreed to suspend this litigation and the arbitration so as to attempt to settle the matters. (Brossman Aff. at ¶ 10.) On April 7, 2008, however, when the parties came before this Court for a status conference, Defendants agreed to answer limited interrogatories in order to facilitate settlement. (Id. at ¶ 15–17.) Defendants' counsel, not having worked on this matter for several months, in accordance with the parties' agreement, began reviewing previously produced documents on April 13, 2008, to prepare the answers to interrogatories, and, during the review, counsel discovered the inadvertent production. (Id. at ¶ 18.) Defendants' counsel notified Plaintiff on April 16, 2008, by both e-mail and overnight mail, that it had inadvertently produced privileged material, requested that Plaintiff destroy all copies of that material, and simultaneously provided redacted versions of the privileged documents. (Id. at ¶ 18, Ex. B.) This does not constitute unreasonable delay. In sum, there is no basis here for a finding that Defendants were unduly careless in producing the privileged documents, or that they delayed in taking reasonable steps to rectify their error.[5] C. The “Crime–Fraud” Exception To Privilege Does Not Apply . Plaintiff also argues, at great length, that any privilege covering the documents at issue should be held to be inapplicable under the so-called “crime-fraud” privilege exception. (Pl. Mem. at 61–68.) “It is well-established that communications that otherwise would be protected by the attorney-client privilege ... are not protected if they relate to client communications in furtherance of contemplated or ongoing criminal or fraudulent conduct.” In re Grand Jury Subpoena Duces Tecum Dated Sept. 15, 1983, 731 F.2d 1032, 1038 (2d Cir.1984) (citing Clark v. U.S., 289 U.S. 1, 15, 53 S.Ct. 465, 77 L.Ed. 993 (1933)). “It is the purpose of the crime-fraud exception to the attorney-client privilege to assure that the ‘seal of secrecy’ ... between lawyer and client does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime.” United States v. Zolin, 491 U.S. 554, 563, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989) (internal citations omitted). In determining whether to invade the privilege, the “controlling question is whether the communications at issue were undertaken to facilitate or conceal the commission of a crime or fraud.” In re Omnicom Group, Inc. Securities Litigation, 233 F.R.D. 400, 404 (S.D.N.Y.2006). This exception is aimed at “serious misconduct,” HSH Nordbank AG New York Branch, 2009 U.S. Dist. LEXIS 63711, at *21, and it is the client's intent, not that of the attorney, that is relevant to this inquiry, In re Omnicom Group, 233 F.R.D. at 404. To invoke the crime-fraud exception, the party seeking to overcome the privilege must demonstrate “a factual basis for a showing of probable cause to believe that a fraud or crime has been committed and that the communications in question were in furtherance of the fraud or crime.” United States v. Jacobs, 117 F.3d 82, 87 (2d Cir.1997) (citing In re Grand Jury Subpoena, 731 F.2d at 1039). It is not sufficient that the party challenging the assertion of privilege show that the communications “might provide evidence of a crime or fraud.” In re Richard Roe, Inc., 168 F.3d 69, 71 (2d Cir.1999). Instead, “the proposed factual basis must strike a prudent person as constituting a reasonable basis to suspect the perpetration or attempted perpetration of a crime or fraud, and that the communications were in furtherance thereof.” Jacobs, 117 F.3d at 87 (internal citations omitted). After conducting an in camera review of the evidence, the court may, in its discretion, “determine whether the facts are such that the [crime-fraud] exception applies.” Id. *6 In this case, Plaintiff has not established that the crime-fraud exception applies, as the e-mails at issue cannot be fairly read as communications in furtherance of a crime or fraud. Indeed, the communications from Defendants to counsel appear to reflect nothing more than requests for advice as to how to handle and resolve various personnel issues involving Plaintiff. Even generously construed, they do not evince an intent by the client to obtain assistance in facilitating or concealing criminal or fraudulent activity. Nor, on their face, do they suggest that Plaintiff's rights should be violated under the FMLA (as alleged in this case), or that she should be subjected to discrimination or retaliation. As Plaintiff has not demonstrated probable cause to believe that a crime or fraud has been committed, and that the otherwise privileged communications were made in furtherance thereof, the Court cannot conclude that the privilege should be held vitiated in this case. D. The Privilege Is Not Abrogated by “Prejudice” To Plaintiff. Finally, Plaintiff argues that, even if the e-mails at issue are privileged, and the privilege has neither been waived nor vitiated, Plaintiff should be entitled to use the documents in any event because, otherwise, she would suffer “enormous prejudice,” and she would be “irreparably harmed.” (Pl. Mem. at 69.) On this point, Plaintiff essentially argues that, without the communications in question, she would not be able to prove her claims against Brossman and SRZ, and that she should therefore be entitled to retain and use the documents. (See id.) This argument is unpersuasive. Even if Plaintiff could demonstrate that her proposed claims against counsel would necessarily fail unless supported by the privileged communications (a circumstance she has not shown), she has not pointed to any federal authority for the proposition that the prejudice suffered by a party in being precluded from using a privileged document can serve to negate the privilege.[6] On the contrary, where a document is privileged, and privilege has not been not waived, the document is simply not subject to discovery, see Fed.R.Civ.P. 26(b)(1), regardless of its perceived relevance or importance to a party's claim. In In Re Dow Corning Corp., 261 F.3d 280 (2d Cir.2001), for example, the Second Circuit expressly disapproved orders that would allow privileged information to be used against a party, even where the district court issued an order designed to protect that party's confidentiality interest. The plaintiffs in that case, shareholders of the defendant company, had alleged that the defendant's directors had violated federal securities laws by failing to disclose that the company was about to face a large number lawsuits. The plaintiff shareholders sought to compel production of, inter alia, certain meeting minutes reflecting the advice of the defendant's in-house counsel concerning the impending litigation. Id. at 282. The district court ordered the production of the documents under a protective order, which provided that the privileged information would only be shown to lead counsel and certain other authorized persons, that the information would only be used in connection with the litigation, and that disclosure of the privileged information would not constitute a waiver of the attorney-client privilege. Id. In reviewing the district court's decision, the Second Circuit stated: *7 In our view, the district court may well have erred in ordering the disclosure of the communications at issue. In particular, compelled disclosure of privileged attorney-client communications, absent waiver or an applicable exception, is contrary to well established precedent. Assuming—as the district court did—that the unredacted minutes and testimony about them are privileged, the sanctity of that privilege is established not only by this Court's jurisprudence, but by the Federal Rules of Civil Procedure .... [A] protective order is an inadequate surrogate for the privilege. If an adverse party is provided access to privileged material, then a pertinent aspect of confidentiality will be lost. Id. at 284 (internal quotations omitted). Based on Dow Corning, the prejudice that Plaintiff would purportedly suffer in being precluded from using the e-mails at issue cannot override Defendants' right to shield its privileged communications from disclosure. See id.; see also Eckhaus v. Alfa–Laval, Inc., 764 F.Supp. 34, 38 (S.D.N.Y.1991) (granting defendant's motion for summary judgment dismissing claims by its former in-house counsel where prosecution of those claims would necessarily involve the disclosure of client confidences and secrets); In re Copper Market, 200 F.R.D. at 223 (“Depriving a party of information in an otherwise privileged document is not prejudicial.”); Bank Brussels Lambert v. Credit Lyonnais (Suisse) S.A., 160 F.R.D. 437, 446 (S.D.N.Y.1995) ( “[R]elevance of a privileged document to the merits of the litigation does not make it unjust to withhold it from discovery.”). Overall, Plaintiff has not demonstrated that the e-mail messages that were inadvertently disclosed fell outside the attorney-client privilege; nor has she shown that, with respect to those e-mails, the applicable privilege had been waived or otherwise abrogated. The Court thus finds good cause to issue a protective order under Fed.R.Civ.P. 26(c)(1), precluding Plaintiff from using the privileged e-mails and directing Plaintiff's counsel to destroy all copies of them that are within his possession or control.[7] II. PLAINTIFF'S MOTION TO AMEND THE COMPLAINT Plaintiff's motion to amend her Complaint to assert a claim against Defendants' counsel is governed by Rule 15(a) of the Federal Rules of Civil Procedure, which provides that the Court “should freely give leave [to amend] when justice so requires.” A motion to amend a pleading under Rule 15(a) should be denied, however, “if there is an ‘apparent or declared reason-such as undue delay, bad faith or dilatory motive ... repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of an amendment, [or] futility of amendment.’ “ Dluhos v. Floating and Abandoned Vessel Known as “New York,” 162 F.3d 63, 69 (2d Cir.1998) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)); accord Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n. 6 (2d Cir.1987) (citation omitted). The decision whether to grant leave to amend is within the sound discretion of the Court. See Foman, 371 U.S. at 182. *8 In this case, Plaintiff bases the Proposed Amended Complaint on the very documents that the Court has precluded Plaintiffs from using. Indeed, portions of Plaintiff's proposed pleading directly quote the privileged communications between Defendants and their counsel. (See Rich Decl. Ex. A (Proposed Amended Complaint, dated Feb. 13, 2009), at ¶¶ 61, 63.) As the Court has determined that Plaintiff may not use or rely on these communications for any purpose in this litigation, Plaintiff's motion for leave to amend the Complaint is denied, without prejudice to Plaintiff's filing of a renewed motion to amend, provided the proposed amendment does not refer to or incorporate any privileged material. CONCLUSION For the foregoing reasons, Defendants' motion for a protective order (Dkt.40) is granted; Defendants' request for costs and fees is denied; and Plaintiff's motion for leave to amend the Complaint (Dkt .28) is denied, without prejudice. Plaintiff and her counsel are directed to destroy all copies of the privileged documents in their possession or control. Defendants, for their part, are directed to produce to Plaintiff, no later than one week from the date of this Order, a new set of these documents, redacting only the privileged communications between client and counsel, and leaving unredacted the e-mail headings, to the extent those headings identify the author, recipient, and copy recipients of the e-mails, the date and time that the e-mails were sent, and the general subject of the e-mails. SO ORDERED. Footnotes [1] This conduct by Plaintiff's counsel violated Fed.R.Civ.P. 26(b)(5)(B), which provides that, where a party inadvertently produces material and then asserts that the material is subject to a privilege, the party who received the material, after being notified of the claim of privilege, must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. Fed.R.Civ.P. 26(b)(5)(B). [2] In addition, in March, 2009, Plaintiff's counsel disclosed the documents to a New York State court, in connection with a motion to disqualify Defendants' counsel from continuing to represent Defendants in the pending arbitration. (See Pl. Mem. at 55, n. 10.) [3] Despite Plaintiff's assertion that state law governs the issue of privilege (Pl. Mem. at 39–40), this is a federal question case (see Plaintiff's Complaint, dated June 15, 2007 (Dkt.1) at ¶ 7), and the Court thus applies federal law, see Lego v. Stratos Lightwave, 224 F.R.D. 576, 578 (S.D.N.Y.2004) (“[W]hen federal jurisdiction is based on the existence of a federal question, but the case includes pendent state law claims arising out of the same events, federal law governs privileges.”) (citing von Bulow v. von Bulow, 811 F.2d 136, 141 (2d Cir.1987)). [4] Although Rule 502 of the Federal Rules of Evidence was enacted in September, 2008, after the commencement of this litigation, Congress stated that the Rule “shall apply ... insofar as is just and practicable, in all proceedings pending on [the] date of enactment.” Fed.R.Evid. 502, Historical Notes (Effective and Applicability Provisions), Pub.L. No. 110–322, § 1(c), 122 Stat. 3538. Nonetheless, it is difficult to conclude that the Rule applies to this case not because of its enactment date, but rather because the Rule, by its terms, relates to the disclosure of materials in federal and state proceedings, and not in private proceedings, like the party's arbitration. In any event, the test contained in Rule 502 for determining when a waiver of privilege has occurred is effectively the same as the test that this Court generally employed prior to the Rule's enactment. Compare Fed.R.Evid. 502(b) with, e.g., Lois Sportswear, 104 F.R.D. at 105. [5] Plaintiff also argues that Defendants should be found to have waived privilege because they did not timely produce a privilege log. The Court, however, declines to find that a waiver occurred. While failure to produce a log may indeed result in a privilege waiver, the documents relevant here were not produced in discovery in this action, pursuant to the rules that govern such discovery. Moreover, Plaintiff apparently never objected to Defendants' representation that a log would be forthcoming after full production had been made, and apparently agreed to this procedure, not producing a log itself. [6] Although Plaintiff cites In re Grand Jury Investigation of Ocean Transportation for this proposition, that case does not support her argument. 604 F.2d 672 (D.C.Cir.1979). There, counsel voluntarily turned over privileged documents to the Government for an antitrust investigation. When the government notified counsel of the seemingly privileged nature of the documents it had received, counsel explicitly responded that the materials in question were intentionally produced and not privileged. Id. at 674. Thereafter, the government analyzed the documents and used them in a grand jury investigation. Id. at 674–75. Two years later, counsel brought a motion asserting that the documents were privileged. Id. at 674. The court, however, held that the privilege had been permanently destroyed, as the information contained in the materials in question could not be “expunged” from the minds of the government attorneys, the grand jury, or the witnesses. Id. at 675. [7] As to Defendants' request for the costs and fees it incurred in bringing this motion, the Court declines to grant such an award, as Defendants have styled their motion as one seeking a protective order under Rule 26 of the Federal Rules of Civil Procedure, and not as a sanctions motion under Rule 37, and as the only authority Defendants cite in support of their request is Rule 37(a)(5), which relates to motions to compel discovery, and is thus inapplicable here.