Do backup tapes and system backups have to be preserved when records on them are under a litigation hold?

The short answer is: sometimes, and it depends on what those backups actually contain. A litigation hold suspends routine destruction of any information that is reasonably relevant to anticipated or pending litigation. Whether that obligation reaches your backup tapes turns on whether the tapes hold relevant information that exists nowhere else.

The General Rule

Most organizations treat backup tapes as a disaster-recovery tool, not a recordkeeping system. They are typically recycled on a short rotation, and that routine cycling is usually acceptable. When a litigation hold attaches, however, the duty to preserve potentially relevant evidence overrides routine recycling for the data covered by the hold.

The key question is whether the relevant information is available elsewhere:

• If the same records exist in accessible, live systems and are properly preserved there, you generally do not need to also freeze the backup tapes.
• If a backup is the only remaining copy of relevant information — for example, data that was deleted from live systems — then that backup likely must be preserved.

Practical Steps

When a hold is issued, organizations should move quickly to:

• Identify the custodians, systems, and date ranges in scope.
• Determine whether any backups contain unique relevant data not preserved elsewhere.
• Suspend the recycling of those specific tapes or images, while documenting the decision.
• Avoid over-preserving — blanket freezes on all backups are costly and rarely required.

Records vs. Backups

It is worth distinguishing a backup from a record. A backup is a point-in-time copy made for continuity, while a record is information kept because of its content and value. Sound records management — retaining records in managed systems under approved schedules — reduces reliance on backups as evidence and makes hold compliance far simpler. Backups should not become a de facto, unmanaged archive.

Bottom Line

Backup tapes do not automatically have to be kept forever once a hold is in place, but they cannot be recycled if they hold the only copy of relevant information. Decide deliberately, document the reasoning, and coordinate closely with legal counsel before resuming any destruction. For broader context on managing recorded information, see the federal records topic hub.