What should we do if records under a litigation hold still exist only on backup tapes when a FOIA request comes in?

When records subject to a litigation hold survive only on backup tapes, and a public-records request lands on top of that, two distinct legal duties collide. Handle them as separate obligations that must both be satisfied — neither one cancels the other.

Preservation comes first

A litigation hold suspends normal disposition. If the only surviving copy of responsive material lives on backup tapes, those tapes are now potential evidence and must be protected from overwriting, recycling, or routine rotation. Coordinate immediately with your legal or general counsel team to confirm the hold’s scope and document that the tapes have been pulled from the rotation cycle. Spoliation — the loss or destruction of evidence under a hold — can carry serious sanctions, so preservation cannot wait for the public-records process to resolve.

The FOIA duty to search

A public-records request generally obligates an agency to conduct a reasonable search of locations likely to contain responsive records. Backup systems are typically designed for disaster recovery, not retrieval, so courts and agencies often treat them as not “readily accessible.” That does not automatically excuse them from search — but it does shape what is reasonable, especially where the only copies exist there.

Practical steps:

• Confirm whether responsive records exist anywhere more accessible before turning to tape.
• Assess the burden and cost of restoring specific tapes, and document that analysis.
• Communicate transparently with the requester about format, timing, and any access limits.
• If material is withheld, cite the applicable exemption rather than relying on inaccessibility alone.

Reconcile the two tracks

The litigation hold determines what you must keep; the records request determines what you must search for and potentially produce. Restore and review the tapes for the hold regardless of the request’s outcome. Apply any required redactions or exemptions before release, and keep a clear record of decisions and the chain of custody.

This situation is also a signal: records that exist only on backup media indicate a gap in active recordkeeping. After the immediate matter closes, capture responsive records into a managed system so future holds and requests do not depend on disaster-recovery tape.

For related guidance, see the FOIA and public records hub.