Do I have to preserve backup tapes once a litigation hold is in place, or are they 'not reasonably accessible'?

The short answer is: it depends, and “not reasonably accessible” is not an automatic exemption from preservation. The phrase describes a category of electronically stored information (ESI) that is costly or burdensome to retrieve — it does not, by itself, relieve you of the duty to preserve potentially relevant evidence once a litigation hold attaches.

Preservation vs. Production

These are two separate questions that are easy to conflate.

• Preservation is the duty to stop routine destruction (including recycling or overwriting of backup tapes) when litigation is reasonably anticipated.
• Production is whether, and at what cost, you must actually search and turn over that data.

Under the U.S. Federal Rules of Civil Procedure, a party may identify sources of ESI as “not reasonably accessible because of undue burden or cost” and decline to produce from them — but the requesting party can still move to compel, and a court can order production for good cause, often with cost-shifting. The accessibility label primarily governs the production stage, not whether the data must be kept.

When Backup Tapes May Be Defensibly Excluded

Disaster-recovery backup tapes are frequently cited as a classic example of inaccessible ESI. You may have a stronger position to continue normal rotation if:

• The same relevant information exists in a more accessible, complete source (often called duplicative or cumulative).
• No litigation hold reasonably reaches the tapes’ contents.
• Recycling follows a consistent, good-faith retention schedule applied before any duty to preserve arose.

If a backup tape holds the only copy of unique, relevant data, courts are far less sympathetic to letting it be overwritten.

Practical Guidance

• Issue the hold promptly and map which systems and tapes might contain relevant ESI.
• Suspend recycling for any tape reasonably likely to hold unique relevant data; document the decision.
• Preserve your reasoning. A defensible, well-documented process matters more than any single technical choice.
• Remember that rules and case law differ by jurisdiction — state courts, regulators, and non-U.S. regimes may impose different standards.

When in doubt, preserve first and litigate accessibility later; that sequence is almost always safer than reversing it. For related concepts, see e-discovery. Consult qualified counsel for any specific matter.