What happens when records under a legal hold still exist in our backups after they were supposed to be deleted?

Two obligations are colliding

This situation reflects a tension between two legitimate rules. A legal hold (sometimes called a litigation hold or preservation hold) requires you to keep records that may be relevant to anticipated or active litigation, audit, investigation, or other legal matters. A retention schedule tells you when records may be destroyed once they are eligible for disposition.

When both apply to the same information, the hold wins. A legal hold suspends normal disposition. So if records are under hold, the fact that their scheduled deletion date has passed does not make their continued existence improper — disposition is paused until the hold is lifted.

Backups are usually a separate matter

The harder question is what to do about copies sitting in disaster-recovery backups. In most well-run programs, backups are treated as short-term continuity copies, not as the official recordkeeping system. The “record” copy lives in the records system and is what your schedule and hold formally govern.

Whether backup copies are themselves subject to preservation depends on the scope of the hold and the facts of the matter. Courts and practitioners generally weigh accessibility, cost, and proportionality when deciding whether disaster-recovery media must be preserved or searched.

What to do now

• Do not delete the held records. Confirm the hold is still active before taking any action.
• Document the situation. Note when the records became eligible for disposition, why they were not destroyed (the hold), and where copies exist.
• Loop in legal and IG. Counsel should confirm the hold’s scope, including whether it reaches backup media.
• Suspend, don’t override, the schedule. Flag the records as on-hold in your system so automated disposition skips them.
• Reconcile after release. When the hold is lifted, run normal disposition on both the official copy and any lingering backup copies, and record the destruction.

The key principle: legitimate over-retention under a hold is defensible; uncontrolled, undocumented retention is not. Treat the gap as a process signal — align your backup rotation and disposition workflows so holds and schedules stay coordinated.

For related fundamentals, see the retention and disposition topic hub.