What should we do if our backup tapes still contain records under a legal hold even though our retention schedule already authorized destroying the live copies?

A legal hold overrides your retention schedule. Whenever records are subject to a hold, the duty to preserve those records takes priority over any disposition the schedule would otherwise authorize. That principle does not stop at your “live” or primary copies. It reaches every copy you control that is responsive to the matter, including copies that live on backup tapes.

The hold suppresses destruction wherever the records exist

The fact that your retention schedule authorized destroying the live copies is not the controlling fact here. The hold was placed because the records are potentially relevant to litigation, an investigation, an audit, or another preservation obligation. Until the hold is released, you should not destroy any responsive copy you can reasonably identify and control, regardless of the medium it sits on. Destroying backup tapes that you know contain held records can expose the organization to spoliation claims and sanctions, even if the live copies were already gone.

Practical steps

• Pause the affected tapes. Suspend any recycling, overwriting, or rotation that would erase the held content, and document the date you did so.
• Coordinate with counsel. Legal, not records staff alone, should define the scope of what must be preserved and when the hold can be lifted.
• Segregate rather than search-and-extract. If tapes are hard to index, it is often safer to set aside the whole tape than to risk partial or inaccurate extraction.
• Track the hold against the schedule. Note in your system that disposition is suspended for these records so no one later destroys them as “expired.”
• Resume disposition only after release. Once counsel formally releases the hold and no other hold applies, you may then dispose of the tapes under the schedule.

Why this is consistent with good recordkeeping

A defensible program treats the schedule as the default and the hold as the exception that suspends it. Reasonable, documented, good-faith preservation is what protects you, not the speed of destruction. The Sedona Conference offers widely cited guidance on the scope of the preservation duty and backup media, and sound retention and disposition policy should build in this hold-takes-precedence rule.

For more on aligning schedules with legal obligations, see the compliance and standards hub.