What happens when a backup tape still contains emails that are under a litigation hold but the schedule says to delete them?

When a retention schedule says to destroy emails but a litigation hold covers those same messages, the hold wins. A duty to preserve evidence overrides the routine schedule, and that duty reaches the emails wherever they live, including on backup tapes. Deleting them on schedule could expose the organization to spoliation claims and serious legal consequences.

The hold suspends the schedule

A litigation hold (also called a legal hold) is a directive to preserve information that may be relevant to anticipated or pending litigation, audit, or investigation. Once a duty to preserve attaches, normal disposition stops for the affected records, even if their retention period has expired. The schedule resumes only after the hold is formally released.

This is a core principle of defensible disposition: you may destroy records on schedule only when no hold, audit, or other preservation obligation applies. Routine, documented destruction is fine; destroying records you know (or should know) are subject to a hold is not.

Backup tapes are not exempt

A common mistake is treating backups as outside the retention program. If a backup tape is the only place a held email still exists, that tape contains evidence and must be preserved. In practice, organizations either:

• Pull and segregate the specific tapes from the rotation, or
• Suspend the recycle or overwrite cycle for media that may hold relevant data, or
• Restore and capture the relevant messages into a managed hold repository.

Whatever the method, document it. You want a clear record showing the held material was identified and protected.

Practical steps

• Map the scope of the hold to custodians, date ranges, and systems, including backup media.
• Suspend automated deletion and tape recycling for anything in scope before the next purge runs.
• Coordinate early among legal, records management, and IT so backup operations and disposition jobs do not erase held data.
• Track holds against the schedule so disposition can safely resume once a hold is lifted.

The goal is consistency: routine destruction continues for unaffected records, while everything under a hold stays put until counsel releases it. For more on managing email obligations, see the email and messaging topic hub.